Hastings Municipal Council v Hastings Sand & Gravel Supplies Pty Limited - [1989] NSWLEC 215

Land and Environment Court

of New South Wales

CITATION: Hastings Municipal Council v Hastings Sand & Gravel Supplies Pty Limited & Anor [1989] NSWLEC 215

PARTIES:
APPLICANT
Hastings Municipal Council
FIRST RESPONDENT
Hastings Sand & Gravel Supplies Pty Limited
SECOND RESPONDENT
Tefif Pty Ltd

FILE NUMBER(S): 40281 of 1988

CORAM: Cripps J

KEY ISSUES: :-

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED: The Council of the City of Parramatta v Brickworks Limited 128 CLR 1;
Norman v The Council of the Shire of Gosford & Anor 132 CLR 83;
Eaton & Sons Pty Limited v The Council of the Shire of Warringah 129 CLR 270;
Baulkham Hills Shire Council v O'Donnell 62 LGRA p 7 ;
Lane Cove Municipal Council v Lujeta Pty Limited 58 LGRA 157);
Pioneer Aggregates (UK) Limited v Secretary of State for the Environment & Ors 1985 AC 132

DATES OF HEARING:

DATE OF JUDGMENT:
07/01/1989

LEGAL REPRESENTATIVES:

JUDGMENT:

His Honour: Hastings Sand and Gravel Supplies Pty Limited and Tefif Pty Limited are the owners of Lots 34 and 35 DP227884 and Lot 38 DP236901 respectively. The three lots are on the southern side of Princess Avenue, Wauchope. Gravel and aggregate is stockpiled on the three lots and also on Lot 33, an area immediately to the east. The issue before the Court is whether Lots 34, 35 and 38 have existing use rights.

The subject land (and including Lot 33) is zoned 2(b) (Residential "V" ((Village and Township Zone)) pursuant to Hastings Local Environmental Plan made on 2 October 1987. The use of the subject land for the stockpiling of gravel and aggregate is permissible with Council's consent. Prior to 2 October 1987 the land use was controlled by IDO 1 Shire of Hastings gazetted on 26 May 1967. Under IDO 1 the land was zoned 2 Village or Township. The zoning also permitted stockpiling with consent.

It is common ground that the Council has not consented to the use of the subject land for the purpose of stockpiling gravel, sand and aggregate. The Council asserts that the use is unlawful and asks that the respondents be restrained from continuing to use the land for that purpose without first obtaining the necessary consent. Although the respondents originally claimed an "existing use" right under s 107 of the Environmental Planning and Assessment Act, it is clear that because there is an entitlement under the relevant planning scheme to use the land for stockpiling with Council's consent, the entitlement of the respondents must be found in s 109 of the Act. At the time of coming into force of IDO 1 and Hastings LEP stockpiling was a permissible, and not prohibited, use. Accordingly, the entitlement of the respondents derives, if it derives at all, from the fact that on 26 May 1967 the stockpiling was not unlawful and that it has continued since that time.

The Council concedes that if stockpiling of gravel, sand and aggregate was relevantly a use in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Hastings Municipal Council v Hastings Sand and Gravel Supplies Pty Limited [1989] NSWLEC 215
Case: [1989] NSWLEC 215
Decision Date: 07/01/1989

CaseChat Overview and Summary

Hastings Municipal Council sought an order against Hastings Sand & Gravel Supplies Pty Limited and Tefif Pty Ltd, prohibiting them from using Lots 34, 35, and 38 for the stockpiling of gravel and aggregate, as these lots were zoned for residential purposes. The respondents claimed that they had existing use rights to stockpile materials on the lots. The Land and Environment Court was tasked with determining whether the respondents had established existing use rights and whether their current use of the land was lawful.

The Court examined the historical use of the lots and whether they had been used for stockpiling before the relevant zoning changes. The Council argued that the stockpiling was not occurring in May 1967, the date of the relevant planning instrument. The respondents, on the other hand, claimed that the stockpiling had been ongoing since 1961. The Court found that the evidence provided by the respondents was vague and conflicting, while the evidence from the neighbours suggested that the stockpiling did not begin until after the construction of Princess Avenue, which likely occurred around 1966. The Court also considered additional evidence from the Council's files that supported the neighbours' timeline.

The Court concluded that the respondents had not discharged the onus of proving that the lots were used for stockpiling in May 1967. It found that the stockpiling likely began around 1970, after the relevant planning instrument came into effect. Therefore, the Court determined that the respondents did not have existing use rights, and their current use of the land for stockpiling was unlawful.

The Court granted the Council's request for an order prohibiting the respondents from using the lots for stockpiling without Council consent. However, to allow the respondents time to relocate their stockpiles or apply for consent, the Court suspended the operation of the order for twelve months from the date of the judgment. The respondents were also ordered to pay the Council's costs of the proceedings.

Orders