Christopher George Richards v Corporation of the City of Salisbury No. SCGRG 92/1660 Judgment No. 3944 Number of Pages 6 Building Control and Town Planning (1993) 80 Lgera 308

[1993] SASC 3944

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DEBELLE J

CWDS
Building control and town planning - Nature of land use - General Industry Zone - Land used as motor repair station and as motor wrecking yard - Both uses are permitted uses in the zone - Motor wrecking yard also falls within definition of "junk yard" - Junk yard not a permitted use - Whether planning consent required - Whether conditions imposed on consent are valid Development Plan for City of Salisbury and Development Control Regulations 1982, Reg. 4.

HRNG ADELAIDE, 27 January 1993 #DATE 7:5:1993
Appellant:                 In Person
Counsel for respondent:     Mr P Leadbeter
Solicitors for respondent: Norman Waterhouse

ORDER
Appeal allowed.

JUDGE1 DEBELLE J The appellant leases a parcel of land within the area of the Corporation of the City of Salisbury ("the Council"). The land is in a General Industry Zone pursuant to the provisions of the Development Plan prescribed for the Council area. 2. The appellant uses the land to carry on the business of a motor repair station and for other uses. He conducts his business on the land in the following way. He buys used motor vehicles and brings them to the land. He then dismantles the vehicles for the parts. He stores the parts on the land. He also stores the vehicles from which parts have been taken until he is ready to sell them as dismantled vehicles. Thus, at any one time, there may be a large number of vehicles stored on the land. The dismantled vehicles are usually sold en masse. After the sale, there will be considerably fewer vehicles on the site and the number will gradually increase again as the appellant repeats the process of buying vehicles and stripping parts from them. 3. The appellant repairs some 100 to 120 cars in each year. He buys about 300 cars in each year for their parts. In each year, he repairs and restores to an operative condition about five of the cars which he has bought. Parts taken from the vehicles are used by him in the repair of motor vehicles or are sold as spare parts. Approximately one-half of the parts taken from vehicles are used to repair other vehicles and one-half are sold. 4. On acquiring an interest in the land, the appellant applied to the Council for planning consent to use the land as a motor repair station. As the use of the land as a motor repair station is a permitted use in the General Industrial Zone it was unnecessary for the appellant to seek planning consent. The Council did not, therefore, issue any planning consent. Instead, in May 1989, it issued a certificate authorising the use of the land as a "motor repair shop (sic)" on condition that the use accorded with the plans, drawings and information approved by the Council. 5. From time to time officers employed by the Council inspected the subject land. On one of these periodic inspections, an officer of the Council informed the appellant that the use of the land went beyond that of a motor repair station and included an additional use of the land as a motor wrecking yard. The Council officer was referring to the storage of vehicles on part of the land and the dismantling of those vehicles for parts. He informed the appellant that, although the use of the land as a motor repair station was valid, the use of the land for a motor wrecking yard could not lawfully continue without the approval of the Council. 6. Under protest, the appellant lodged with the Council an application dated 9 October 1991 for planning consent. In the application, he described the existing use of the land as "a mechanical repair station" and the proposed use as "a wrecking yard". On 2 December 1991 the Council approved the application but subject to 22 conditions. Aggrieved by these conditions, the appellant appealed to the Planning Appeal Tribunal. When 3 the appeal came on for hearing, the appellant raised a preliminary point, namely, whether he was required to obtain planning consent. He submitted that, as he was still using the land for the purpose of a motor repair station and that the use of the land for wrecking vehicles was incidental to that use, he did not require any planning authorisation to use the land in that way. The preliminary point was determined by Judge Bowering who rejected the appellant's contention. The appeal against the conditions imposed by the Council was later heard by Commissioner Pitt on 4 and 5 June 1992. On 19 June, Commissioner Pitt allowed the appeal to the extent that he varied some of the conditions imposed by the Council and deleted others so that the planning consent is now subject to 11 conditions. 7. The appellant has appealed from the decisions of both Judge Bowering and Commissioner Pitt. 8. The first question is whether the appellant should be required to obtain planning authorisation for the use of the land for the storage and dismantling of vehicles in connection with the use of the land as a motor repair station. 9. Both the Objectives and the Principles of Development Control applying to the General Industrial Zone state the desired use of land in the zone. They are expressed in very similar terms. The Principles of Development Control state the intended use of land in these terms:- "Development undertaken in the General Industry Zone should be, primarily, industrial activities other than light, special or extractive industrial activities." 10. The Principles of Development Control also list the kinds of development permitted in the zone. They include general industry, light industry, a motor repair station, and service industry. Curiously enough, notwithstanding that both the Objectives and the Principles of Development Control state that industrial activity in the zone should not include light industry, the list of permitted uses expressly includes the use of land for light industry in the zone. 11. "General industry" and other expressions in the Development Plan are defined in Reg. 4 of the Development Control Regulations, 1982 ("the Regulations"). "General industry" is defined to mean "any industry other than a service industry, light industry, or special industry". "Industry" is defined to mean:
    "the carrying on, in the course of a trader or business, of any
    process (other than a process in the course of farming or
    mining) for, or incidental to -
    (a) the making of any article, ship or vessel, or of part of any
    article, ship or vessel;
    (b) the altering, repairing, ornamenting, finishing, assembling,
    cleaning, washing, packing, bottling, canning or adapting for
    sale, or the breaking up or demolition, of any article, ship or
    vessel; or
    (c) the getting, dressing or treatment of materials, and
'industrial' shall be construed accordingly." 12. The definition is very wide and includes any process for or incidental to the manufacture of articles or the alteration, repair, breaking up and demolition of any article. It is possible even to bring a ship or vessel on to the land to break it up. I mention this because the conditions imposed by the Council seem to be concerned to conceal from view the activities conducted by the appellant on the subject land. I refer in particular to the condition which requires the erection of Colorbond fencing in addition to the existing chain-wire fencing. The anomalies in the Council's position are noted by Commissioner Pitt in his reasons. 13. The use of the land as a motor repair station is expressly permitted in the zone. The other activities in which the appellant engages are all included in paragraph (b) of the definition. The appellant's business involves bringing motor vehicles on to the land, breaking them up or demolishing them or at least altering them, and in that way adapting them for further sale as stripped vehicles. As those activities fall within the definition of "industry", they are a permitted use of land in the General Industry Zone. 14. Mr Leadbeter, who appeared for the Council, submitted that the appellant's activities in dismantling vehicles and stripping them for their parts did not constitute a process as required by the definition with the result that those activities were not an industry as defined. The word "process", he submitted, implies a pattern or a methodical course of dealing. The appellant's activities were not conducted in any methodical way, he said, as parts were taken from stripped vehicles only as and when required. Some vehicles will be stored for a long time before parts are taken from them. I think that Mr Leadbeter reads too much in to the word "process" in this definition. A process will often involve a systematic series of actions or events or a method of operation: see the definitions of "process" in the Macquarie Dictionary and in the Oxford English Dictionary. But I do not think that the use of the word in this definition necessarily requires a methodical course of dealing or some systematic course of action in order that activities referred to in the definition should be an industry. 15. The expression used in the definition is "any process ... for, or incidental to" the activities listed in paras (a), (b) and (c). In this definition, the expression "any process" 16. refers to the nature of an activity not to the manner in which that activity is conducted. Since it includes any process incidental to any of the activities, the expression "any process" can refer to any one step in an overall activity. It does not necessarily require that the whole activity should be ordered and methodical. The fact that paragraphs (a), (b) and (c) in the definition list different kinds of activities which all qualify as industrial activities reinforces that conclusion. Some of those activities will no doubt require a systematic course of conduct or a methodical series of events if the industrial activity is to be successfully realised. For example, most kinds of manufacturing or bottling or canning would not be effective unless a proper system or method was employed. But other activities such as the alteration, repair or demolition of articles may be quite effectively and appropriately conducted without any system or method. 17. Mr Leadbeter then submitted that that portion of the appellant's activities which constituted a motor wrecking yard fell within the definition of a "junk yard" in Reg. 4 and, since a junk yard was not a permitted use in the General Industry Zone, the appellant required planning consent to carry on that activity. Reg. 4 defines "junk yard" to mean: "land used for the collection, storage, abandonment or sale of scrap metals, wastepaper, bottles or other scrap materials or goods, or for the collecting, dismantling, storage, salvaging or abandonment of automobiles or other vehicles or machinery or the sale or other disposal of their parts." 18. The definition is plainly wide enough to include that part of the appellant's use of the subject land which he calls a "wrecking yard". As already mentioned, the wrecking yard activities also fall within the uses described in paragraph (b) of the definition of "industry" and are a permitted use in the General Industry Zone. Is the appellant to be required to obtain planning consent because the part of the activities he conducts on the land fall within the definition of junk yard despite the fact that they are a permitted use? 19. Where a person conducts two uses on a parcel of land one of which is permitted and the other is prohibited, the question whether that person can lawfully conduct both is sometimes resolved by an inquiry whether one use is incidental to another. Uses of land which are incidental to the uses listed in paragraphs (a), (b) and (c) are expressly recognised in the definition of "industry" and also in Reg. 10. In other cases, the issue might be resolved by an inquiry as to whether one use is the dominant use of the land and the other is subservient to it: see Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157; Ku-ring-gai MC v Geoffrey Twibill and Associates (1979) 39 LGRA 154 and Lizzio v Ryde MC (1984) 155 CLR 211 and Minister of Environment and Planning v Stirling DC (1990) 53 SASR 505. 20. However, in this matter, there is no evidence which enables the Court to determine whether one activity is incidental to the other or whether one is predominant and the other subservient to it. True it is that some of the parts from stripped vehicles are used by the appellant in the repair of motor vehicles by him. But about one-half of the parts from stripped vehicles are also sold direct to purchasers who will use them as they see fit. The two uses of land are related and might be interdependent but it is not possible to say that one is incidental to or subservient to the other. Where premises or land are used for two or more purposes none of which is subservient to the other, it is irrelevant to inquire which of the purposes is dominant: Foodbarn Pty Ltd v Solicitor-General (supra) at 161. I shall, therefore, deal with this question on the footing that each use is independent of the other. 21. This is not a case where one use of the land is permitted and the other is prohibited by the Development Plan. It is a case where both of the uses of the land fall within the definition of a permitted use but one of those uses also falls within the definition of another land use, a use which is not permitted in the zone and, therefore, requires the consent of the Council. Nor do I think that this is a case for the application of the maxim that special provisions will override general provisions since it is not possible to determine which of two definitions, "industry" and "junk yard", is intended to be the provision with special application. 22. Where each of the uses of land or buildings satisfies the definition of a permitted use, each use will continue to be permitted use notwithstanding that one use might also satisfy the definition of a use of land which is not expressly permitted. If that were not so, it would be possible for a planning authority to refuse consent for the very kind of activity which is authorised by the combined operation of the Development Plan and the Regulations. That would have a potential for absurdity or unfairness. 23. If Mr Leadbeter's submission that the appellant requires planning consent from the Council to conduct that aspect of his business which is a motor wrecking yard is correct, it is capable of producing anomalies. For example, the appellant could conduct his motor repair station and also engage in the business of demolishing ships, both of which are uses permitted in the General Industry Zone. But he could not conduct his motor repair business and also engage in the business of demolishing motor vehicles unless he obtained the Council's permission for the latter activity. That is not, I think, the intention of the Regulations or of the Development Plan. 24. For these reasons, all of the activities carried out by the appellant on the land occupied by him are a permitted use within this General Industry Zone and it is not necessary for him to make an application to the Council for permission to use part of the land as a wrecking yard. 25. I turn to the conditions imposed upon the grant of planning consent. The appellant appeals against the reduced number of conditions ordered by Commissioner Pitt. Given the conclusion that the appellant's motor wrecking yard is a permitted use in this General Industry Zone, the Council had no power to impose any of the conditions. It follows that they are all invalid and must be quashed. 26. Even if the motor wrecking yard was not a permitted use and the Council did have power to impose conditions, any conditions imposed must fairly and reasonably relate to the proposed development: Twenty-Seven Properties Pty Ltd v Corporation of Noarlunga (1975) 11 SASR 188; Parramatta City Council v Peterson (1987) 61 LGRA 286. It follows that the power to impose conditions must not be used to impose conditions in relation to the use of the land as a motor repair station, a use permitted in the zone. Commissioner Pitt applied the principles in the authorities I have mentioned and disallowed a number of the conditions imposed by the Council. However, I do not think that he gave sufficient weight to the fact that the Council should not have imposed conditions in relation to the use of the land as a motor repair station. Conditions 1, 2 and 3 which relate to screening and the provision of carparking are not fairly related to the use of the land as a motor wrecking yard. In my view, they are an attempt to improve the appearance of the existing motor repair station and to require the appellant to do what the Council could not have required him to do if the only use of the land was as a motor repair station. These conditions are therefore invalid. Condition 11 must fall within conditions 1, 2 and 3. The remaining conditions fairly relate to the use of the land as a motor wrecking yard and would have been valid but for the fact that the appellant's motor wrecking yard is a permitted use in the zone. 27. For all of these reasons, the appeal is allowed and the conditions imposed by the Council are quashed.