Campbelltown City Council v Devlin

[1999] NSWLEC 252

Land and Environment Court

of New South Wales

CITATION:	Campbelltown City Council v Devlin [1999] NSWLEC 252
PARTIES	APPLICANT Campbelltown City Council
RESPONDENT Scott Anthony Devlin and Simone Therese Devlin
NUMBER:	40111 of 1999
CORAM:	Sheahan J
KEY ISSUES:	Development Consent :- Prohibited use as a commercial premises - parking of commercial vehicles on respondent's residential property
LEGISLATION CITED:	Environmental Planning & Assessment Act 1979
DATES OF HEARING:	10/12/1999
EX TEMPORE JUDGMENT DATE:	10/12/1999
LEGAL REPRESENTATIVES:	APPLICANT Taylor Kelso (Solicitors) RESPONDENT Mark Campbell (Barrister)

JUDGMENT:

IN THE LAND AND Matter No: 40111 of 1999

ENVIRONMENT COURT Coram: Sheahan J

OF NEW SOUTH WALES 12 October 1999

CAMPBELLTOWN CITY COUNCIL

Applicant

v

SCOTT ANTHONY DEVLIN and SIMONE THERESE DEVLIN

Respondents

JUDGMENT

1. These Class 4 proceedings have been brought by the Council, quite clearly and admittedly in response to consistent complaints made to it by a concerned resident, Sharlene Russo, whose property (which I will call “ No.225 ”) adjoins that of the two named respondents at 229 Eagleview Road Minto Heights (to which I shall refer as “ No. 229 ”).

2. The respondents, Mr & Mrs Devlin, conduct a taxi truck business, and are now the only shareholders and directors of a company known as Devlin Specialised Transport Pty Ltd, ACN 059 197 769, its area of “ specialty ” being that the approximately nine vehicles used in the business are all equipped to self-load.

3. Mr Kelso for the Council sought leave to join that company as a respondent to these proceedings. Counsel for the Devlins opposed that application, but I am satisfied from Mr Devlin’s own oral evidence that he and his wife are in no way prejudiced by the joinder or its lateness, and I grant the application. I formally dispense with the usual requirements as to service.

4. The Council in its Class 4 application, as filed on 8 June 1999, sought from the Court orders, in the alternative, restraining the respondents from using or allowing the use of No.229 for the purpose of either a “ transport terminal ” or “ commercial premises (other than art galleries or refreshment rooms)” , and an order restraining them from parking, or allowing the parking on No.229, of any truck of gross vehicle mass greater than 3 tonnes.

5. Mr Kelso has today formulated, in draft, and seeks the making, instead, of an order in these terms:

That respondents Scott Anthony Devlin, Simone Therese Devlin and Devlin Specialised Transport Pty Ltd, by themselves their servants and agents, be restrained from using the premises 229 Eagleview Road, Minto otherwise than for purposes of a dwelling house without the consent of the applicant and be restrained in particular from using, without the consent of the applicant, the said premises and the vicinity thereof for or in connection with the business of a trucking operator or any activities of such business, including the parking servicing or repair of trucks or the loading or unloading of goods; provided that the respondents are not restrained from parking or allowing to be parked on the premises one truck (as defined by the draft DCP 120 being annexure “A” to the affidavit of Stephen Lindsay Pratt sworn 7 September 1999) and owned by any one or more of the respondents.

6. At the conclusion of the evidence Mr Kelso conceded that the court would not be satisfied that No.229 was being used as a “ road transport terminal ”, as defined in the model provisions, but would be satisfied that it was indeed being used not only as a residential dwelling house but as “ commercial premises ”. Such premises are defined in the model provisions as follows.

7. Commercial premises means “ a building or place used as an office or for other business or commercial purposes, but does not include a building or place elsewhere specifically defined in this clause or a building or place used for a purpose elsewhere specifically defined in this clause”.

8. No.229 is within the area of coverage of IDO 24, as amended, and zoned 7(f) Scenic Protection Area . In such a zone the uses permitted only with consent of the Council are “ Drainage; dwelling-houses; open space; retail plant propagation nurseries; roads; subdivision; utility installations (other than gas holders or generating works) ”.

9. Uses which are prohibited in zone 7(f) include relevantly “ commercial premises (other than art galleries or refreshment rooms) ”.

10. It is common ground that the respondents do not hold or enjoy a consent for the use of No.229 as commercial premises, but I am completely satisfied, from the evidence, that the 3 respondents base, and conduct all the administration of, their taxi truck business, entirely from within the property at No.229, aided by modern communication facilities.

11. Mr Kelso says that Council may well grant conditional consent for a Home Occupation in and from the premises, but its major concern in bringing the proceedings is to regulate the parking of “ heavy ” vehicles thereon. Council appears to have had and applied a policy whereby it accepts regular “ standing ” of heavy vehicles for deliveries and the like, but “ parking ” of only, for example, one truck and one backhoe, owned and operated by a resident, on his or her own property overnight. Advice to that effect was apparently given to Mr & Mrs Russo when they purchased No.225 some 11 years ago, and to Mr Devlin when he purchased No.229 4 years ago, and Council now proposes (see Exhibit R3 ) to adopt a Development Control Plan, which will become known as DCP No.120, entitled: “ Parking of commercial vehicles and trucks within residential, scenic protection, and rural areas ”, the current draft of which include the following relevant provisions.

12. In cl 3(b), the draft DCP says this plan aims to:

ensure that the parking of commercial vehicles and trucks within the residential, scenic protection and rural areas of the Campbelltown Local Government Area has minimal impact on the amenity of the neighbouring properties .

13 In cl 6 a “ commercial vehicle ” is defined as: “a vehicle up to an unladen weight of 3 tonnes and may include a plumbers van, an electricians van, taxi, courier van, builder’s utility and the like”.

14 Under cl 6(2) a “ truck ” would be defined as: “a heavy vehicle with an unladen weight exceeding 3 tonnes, including tow trucks, semi-trailers, prime movers, earthmoving machinery, large rigid trucks, large table top trucks and associated trailers and the like but does not include emergency vehicles such as fire engines and ambulances and the like”.

15 Clause 7(3) would provide that: “Within scenic protection and rural areas, the parking of one heavy vehicle, such as a tow truck, semi-trailer, prime mover, earthmoving machinery, a large rigid truck, a large table top truck and the like will be regarded as an ancillary use to residential occupation given the size of scenic protection and rural lands and the usual separation between occupancies within these areas”.

16 Clause 8(1) as currently drafted provides that: “One commercial vehicle or one truck, owned by the permanent resident of the dwelling, including a tow truck, semi-trailer, prime mover, earthmoving machinery, large rigid truck, large table top truck or similar vehicle will be permitted to park in a property zoned scenic protection or rural area”.

17 The respondents’ case is that the truck parking complained of by Mrs Russo and the Council is not commercial in character in any way, and is generated by Mr Devlin’s social nature and social interests. He is in the trucking industry, as has his father been before him, he has rural type family interests he can pursue on his large block of land, and, inter alia, he collects, gets restored, and exhibits, historic vehicles, including at least one substantial truck.

18 He asks the court to accept that, as one may expect, his close friends have like interests, and that some of them have only large vehicles for private as well as business transport, and some indeed are also “ on call ” and must keep their vehicles with them. He enjoys mixing with them, and he likes them to visit his home. Parking is dangerous, and some of it, at least, is illegal on the public street close to his house (see Exhibits R1 and R2 ), and vehicles, therefore, park in his spacious grounds. All alternative parking is a considerable distance away from No.229.

19 I accept that Mr Devlin has arranged his business operations in such a way that most , if not practically all , of its trucks are based away from No.229, most or all of the time.

20 I also accept his concerns that most if not all the complaints about his use of No.229 emanate from Mr & Mrs Russo, and not from many, if any, of approximately 20 other near neighbours, and I note his complaint about the Russos’ use of No.225 for purposes associated with their excavation business. I observe in this context, that, if it is made, all such operators will be equally affected by the proposed development control plan.

21 While the court has no reason to disbelieve Mr Devlin, it, likewise, has no reason to disbelieve Mrs Russo. She made many complaints and representations and sought the assistance of two law firms regarding her concerns, however individual they may be.

22 While a serious attempt was made to attack her credit on various matters, and while I discount some elements of her evidence, she was not cross-examined on the series of eyewitness observations at the root of her complaint, and at the root of her affidavit of 30 May 1999, which is supported by photographs of what she could see over the fence.

23 Mr Devlin attempted to respond to many of her assertions in his own affidavit of 26 July 1999, but the court is nonetheless left with quite an amount of unanswered, and indeed unchallenged, evidence of extensive parking of more trucks than the development control plan would, if made, render acceptable, and for periods of time which have strong potential to detract from the residential amenity of the area.

24 Mr Pratt from the Council has also visited the property and observed up to 6 trucks parked on the grounds. Drivers were observed standing and chatting, outside the house.

25 Mr Campbell asked me to accept that all this is social parking ancillary to the residential use of No.229, and that none is ancillary to the commercial use of No.229. Mr Kelso urges the court to hold that such a general conclusion is not a reasonable one to reach as a tribunal of fact.

26 Mr Devlin asserts some sort of vendetta, or neighbourhood campaign, or at least “ sour grapes ”, on Mrs Russo’s part, and says that for the court to interfere with social visitation of his home by his fellow truck operators is discriminatory. Mr Campbell submits on his behalf that the court should exercise its discretion to decline relief, because of the hardship it would cause him, and because of evidence that he has acted to reduce the problem (see Exhibits R3, R4 and R5 ), and improve the screening of his property through tree planting.

27 What has troubled me about this case is two-fold.

28 Although the Council is the applicant in a Class 4 civil enforcement proceeding under the planning law, the case arises from ill feeling between two families who seek only to protect their own privacy, and run their own businesses, from adjacent properties in an area of obvious environmental attraction to both of them.

29 Secondly, in order to decide the issues between them, and between them and their local Council, the court must reach conclusions which will have emotional and perhaps economic impacts on whichever side is affected by each such conclusion, whether it be on the facts, on the correct exercise of the court’s discretion, or on the issue of “ proportionality ” as one consideration in the exercise of discretion.

30 Having said that, the court must break its functions down into relevant elements.

31 I am satisfied that the respondents are carrying out a commercial activity from their property at No.229, and that they are doing so without consent.

32 The Council would, therefore, be prima facie entitled to a declaration to that effect and appropriate relief. No such declaration is sought, but the relief sought requires such a finding of fact, in this regard. See Foodbarn Pty Ltd v The Solicitor General (1975) 32 LGRA 157 and North Sydney Municipal Council v Hall & Ors (1987) 62 LGRA 1.

33 Next, although the question is not free of doubt or difficulty, I am satisfied, on the balance of probabilities, that at least some of the vehicular traffic and parking complained of in this case, is directly associated with and ancillary to the commercial activity.

34 I am also satisfied that the restraint sought in the form of order put before the court today (see par 5 above) is appropriate if the court determines that relief should be granted.

35 I am mindful of the principles espoused by the NSW Court of Appeal in regard to the exercise by this court of its discretion. See Warringah Shire Council v Sedevcic (1987) 10 NSWLR 333 and Fatsel Pty Ltd v ACR Trading Pty Ltd (No.3) (1987) 64 LGRA 177.

36 I am also mindful of the later judicial comments to which Mr Campbell drew attention, such as those of Hemmings J, as he then was, in refusing relief in Strathfield Municipal Council v Alpha Plastics Pty Ltd (1988) 66 LGRA 124, at 129-130, and in Fairfield City Council v Djurdjevic & Anor (1990) 72 LGRA 140, at 142-143, and also the comments of Mahoney JA in holding that this court’s exercise of discretion in granting an injunction had miscarried in Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302, at 310.

37 I agree with all that was said by those judges in respect of the matters then before them, but the key principle to guide me in this case is that articulated by Kirby P in Sedevcic as principle No.6. The Council’s interest here is, and I quote Kirby P, “ deemed to be protective and beneficial, not private or pecuniary ” (see Kirby P in Sedevcic at 340).

38 The subject land is within a sensitive area. Its use for traffic and industry has long been closely regulated. The public interest would seem to me to dictate that the court should step in as requested by the Council. The orders suggested by Mr Kelso seem to me to be quite appropriate in all the circumstances, even though some inconvenience will be caused, and perhaps some neighbourhood ill feeling exacerbated, as a result.

39 In the cold light of tomorrow, the suggested liberty to apply will assist in resolving any further difficulties.

40 As this conclusion imports the result that the Council has been entirely successful in the case, it should also have its costs, in the form of the costs order it has sought.

41 I, therefore, pronounce the following formal orders:

1. I order that Devlin Specialised Transport Pty Ltd ACN 059 197 769 be joined as a respondent to these proceedings, and I formally dispense with the need for the usual service of documents.
2. I make order No.2 as drafted by Mr Kelso, namely that the respondents Scott Anthony Devlin, Simone Therese Devlin and Devlin Specialised Transport Pty Ltd, by themselves their servants and agents, be restrained from using the premises at 229 Eagleview Road, Minto, otherwise than for purposes of a dwelling house without the consent of the applicant, and be restrained in particular from using, without the consent of the applicant, the said premises and the vicinity thereof for or in connection with the business of a trucking operator, or any activities of such business, including the parking, servicing or repair of trucks or the loading or unloading of goods; provided that the respondents are not restrained from parking or allowing to be parked on the premises one truck (as defined by the draft DCP 120, being annexure “A” to the affidavit of Stephen Lindsay Pratt sworn 7 September 1999), and owned by any one or more of the respondents.
3. I grant liberty to any party to apply for a variation of these orders on 7 days notice.
4. I order the respondents jointly and severally to pay the Council’s costs.

5. All exhibits (including those not numbered which were those to the affidavits filed in the proceedings) may be returned.