Hawkesbury City Council v Agostino
[2009] NSWLEC 176
•19 October 2009
Land and Environment Court
of New South Wales
CITATION: Hawkesbury City Council v Agostino [2009] NSWLEC 176 PARTIES: Hawkesbury City Council (Applicant)
Francesco Agostino (First Respondent)
Caterina Agostino (Second Respondent)FILE NUMBER(S): 40172 of 2009 CORAM: Lloyd J KEY ISSUES: EXISTING USE :- fruit and vegetable shop - non-conforming use - commencement - evidence of historical and continuing use - cessation in the use - relevant intention - abandonment - onus of proving on the balance of probabilities that there was a continuance of use or no abandonment of use falls on the land user - discretion in respect of granting or refusing relief by way of injunction LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 106 and s 107 CASES CITED: Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404
Daniel v Manly Municipal Council (1975) 34 LGRA 14
Hudak v Waverley Municipal Council (1989) 18 NSWLR 709
Kogarah Municipal Council v Johnstone (1979) 41 LGRA 366
Vines v Djordjevitch (1955) 91 CLR 512
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138DATES OF HEARING: 12 August 2009 & 13 August 2009
DATE OF JUDGMENT:
19 October 2009LEGAL REPRESENTATIVES: APPLICANT:
S N Griffiths (solicitor)
SOLICITORS:
Pikes LawyersRESPONDENTS:
D P Wilson (barrister)
SOLICITORS:
A R Walmsley & Co
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Lloyd J
Monday, 19 October 2009
LEC No.40172 of 2009
JUDGMENTHAWKESBURY CITY COUNCIL v AGOSTINO & ANOR [2009] NSWLEC 176
1 HIS HONOUR: Francesco and Caterina Agostino are using a property at No. 570 Bells Line of Road, Kurmond, as a fruit and vegetable shop, including the sale of a range of other items as well. There is no development consent for such use. Moreover, the use of the premises as a shop is prohibited under the relevant zoning in the Hawkesbury Local Environmental Plan 1989.
2 Hawkesbury City Council seeks a declaration that the Agostinos are using the property as a shop, that such use is a prohibited use, and an injunction restraining them from using the property. The Agostinos admit that they are using the property for the purpose of a shop, but say that the use as a shop is an existing use, which may be continued without consent.
3 The case turns, therefore, on the detailed evidence of the historical and continuing use of the property and the conclusions to be drawn therefrom.
4 Section 106(a) of the Environmental Planning and Assessment Act 1979 relevantly defines “existing use” to mean:
- “(a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4A of Part 3 or Division 4 of this Part, have the effect of prohibiting that use, ... ”
5 Section 107(1) states that, except where expressly provided in the Act, nothing in the Act or in an environmental planning instrument prevents the continuance of an existing use. However, sub-s (2)(e) states that nothing in sub-s (1) authorises the continuance of an existing use where that use is abandoned. This was also the common law position prior to the commencement of the Act. Subsection (3) states that a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of twelve months. This was a new provision upon the commencement of the Act, so that the presumption may not apply where there has been a cessation of use before that commencement.
6 The planning instruments that applied to No. 570 Bells Line of Road from time to time, the dates upon which they commenced and the relevant zoning applying to the land are as follows.
| 13 March 1964 |
1(b) - Non Urban B Shops prohibited |
| 10 December 1971 |
1(b) - Non Urban B Shops prohibited |
| 2 May 1975 | Interim Development Order No. 3 - Shire of Colo 1(b2) - Non Urban B2 Shops prohibited |
| 31 January 1984 | Hawkesbury Local Environmental Plan 1984 1(b2) - Rural B2 Shops prohibited |
| 22 December 1989 | Hawkesbury Local Environmental Plan 1989 1(c1) – Rural C1 Shops prohibited |
| 18 August 2006 |
Rural C1 - “Rural Living” Shops prohibited |
7 The relevant date for the commencement of an existing use is, therefore, immediately before 13 March 1964.
8 Although the Council brings these proceedings, it only has to establish the existence of a planning instrument and the “non-conforming” use. Once that has been done, the onus of establishing the defence of an existing use lies on the land user: Vines v Djordjevitch (1955) 91 CLR 512 at 519, Kogarah Municipal Council v Johnstone (1979) 41 LGRA 366 at 371. That is, the Agostinos bear the onus of establishing that the property was being used for the purpose of a shop immediately before 13 March 1964 and that such use had not been abandoned since that date.
Evidence of ownership
9 In 1927, the property in question was granted to Mr Alexander Mackenzie. On 7 December 1970, Mr Alexander Mackenzie transferred the property to Mr Maxwell Land. Mr Cyril Wells and Mrs Dorothy Wells became the registered proprietors of the property on 14 August 1981. The Agostinos became the registered proprietors of the property in about June 2003.
The Council’s evidence
10 The evidence of Mrs Ruth Kidd, who has had a long association with the area surrounding the premises, is as follows. In 1926, Mrs Kidd was born at the house two doors away to the west of the subject premises. She grew up in this house and attended school in the area. In 1947, when she was approximately 21, she moved with her husband to Seven Hills. Mrs Kidd regularly returned to her parental home on weekends to visit her parents. From about 1960, Mrs Kidd’s mother ran a tea room at her house and Mrs Kidd worked at the tea room every weekend whilst it was in operation. Mrs Kidd said that it closed as a consequence of her mother’s death, and was uncertain about the precise date of its closure. She did, however, provide a number of estimates for this date. The first estimate provided was “about 1977”. The second estimate provided was “after my mother died about 36 years ago [in 1973]”. The third estimate, agreed as an approximate date in cross-examination, was 1974. After the closure of the tea room, Mrs Kidd’s son moved into her former parental home and Mrs Kidd continued to visit the house regularly, though not as frequently as she had done when the tea room was in operation. In about 1989, Mrs Kidd’s son vacated the house and she returned to live there. She has continued to reside there since 1989.
11 Mrs Kidd said that the subject premises were built by Mr Roger Mackenzie in the early 1950s and originally contained a fruit grader. Roger packed and graded apples that were taken from his orchard at Bilpin. Roger sold fruit that was not suitable for market from the premises but did not openly sell the fruit and had no signs advertising the sale. Mrs Kidd said the following during cross-examination:
“Q: And in fact do you recall the Mackenzies?
A: Yes.
Q: And in 1974 were the Mackenzie[s] running a vegetable or fruit sales place?Q: Were they there in 1974?
A: Yes.
A: No, no. It was only a packing shed and we could go down and we could buy – we called them specks because my mother was a cook. We could buy them buy the apples as specks and just buy you know a bag of specks, take around a little bag and buy our specks.”
12 Mrs Kidd said that the “specks” were in buckets or boxes or trays and you would purchase them at that premises. Mrs Kidd also said that “anybody” could go and choose them.
13 Mrs Kidd said that the Mackenzies sold the premises to Mr Max Land, who did not use the shed for the packing of fruit and she was “quite certain” that there was no fruit and vegetable shop or stall in operation at the premises when it was owned by Mr Land. She says that she visited the area every weekend during this time and that the owner, Mr Land, “used the shed to store a tractor and things such as bales of hay”.
14 Mrs Kidd also commented on Mr Gartrell’s evidence, which is described at par [25] to par [31] below. Mrs Kidd believed that the fruit and vegetable shop described by Mr Gartrell was not the subject premises and that Mr Gartrell was describing a fruit and vegetable shop that was operated by the McMahon family and located about four miles further to the west towards Kurrajong on the Bells Line of Road. Mrs Kidd said that it had since closed and the premises was now being used as a café. Mrs Kidd said that, to her knowledge, the McMahon’s store sold only fruit and vegetables and that it was conducted on the roadside rather than in a shed. Mrs Kidd described the store as follows:
- “[It] had a homestead just behind it, a little old home and they had like boxes and all their fruit out the front. You sort of drived in – you drove in the driveway and that’s what it was. They’d been there for years. They were one of the original people that got a grant. ”
15 Mrs Kidd said that Mr Land later leased the packing shed to Mr Cyril Wells who commenced the business of manufacturing rocking horses within the shed and later conducted sales. After agreeing that Mr Land leased the premises to Mr Wells in about 1978, Mrs Kidd said the following:
- “ Q. That is to say Mr Wells moved in, he started up his business at the Rocking Horse Stud and commenced to sell the rocking horses and the other wooden toys?
A. Only in half the shed at that – when they first started off. They started in half the shed and there was a tractor in the other half and hay, lucerne hay and they only had half the shed.”
16 Mrs Kidd said that some time later, Mr Land sold the land to Mr Wells, who held it for a considerable time before selling it to the Agostinos.
17 According to the affidavit evidence of Mr Cyril Wells, he saw the shed in 1978 and, at that stage, the shed was not operating as a roadside stall or anything else. He said that at that time, the shed was being used by Mr Land for general storage purposes. Mr Wells says that he moved into the premises in 1978 and leased it from Mr Land until he purchased it in 1981. Initially, he used the fruit packing shed only for the manufacture of rocking horses, but following a suggestion from Mr Land, he displayed a horse in the yard out the front and people began to stop to buy the rocking horses. He then began purchasing toys from other sources and sold them from the shed. Mr Wells relied on word of mouth and would also open the door of the shed to allow rocking horses to be seen from the road.
18 Mr Frank Swavely’s affidavit evidence is that he has resided next door to the subject premises since 1982. Mr Swavely deposes that from 1982 until 2003, Mr Wells and his family sold rocking horses and other toys from the premises in question.
19 In 2003, Mr Wells sold the land to the Agostinos, who initially used the shed to sell toys and gifts, but, in November 2008 the sales from the premises were expanded to include fruit, vegetables, eggs, bread and drinks.
20 Ms Heather Mackenzie, who has sworn an affidavit in these proceedings, married Mr Warwick Mackenzie in 1946. Warwick was the brother of Roger and Alexander Mackenzie. She lived in a cottage at 570 Bells Line of Road from about 1950 to 1952 before moving to Wagga Wagga. Between 1960 and 1968, she lived at Mt Druitt and would return to the area surrounding the premises occasionally to visit Warwick’s family. She deposes that between 1950 and 1952, Roger Mackenzie built the subject premises. Once it was built, he used the building for the grading and packing of apples grown at his orchard in Bilpin. She deposes that Roger did not use the packing shed as a fruit shop in that he did not openly sell packed fruit from the premises and he did not have signs to attract customers. He did, however, sell fruit that was not suitable for market by the case to people looking to buy it cheaply.
21 Ms Vera Bentvelzen has lived in the Hawkesbury area since about 1980. She moved to a property about 80 metres away from the premises in February 2002. She recalls the rocking horse stud operating out of the premises. The shop would sell rocking horses, dolls, bears, tea sets, doll houses and local and imported wooden toys. She also saw Mr Wells manufacture and restore rocking horses. She deposes that Mr Wells sold the shop in 2003, and the premises was used as a gift shop until 2008, when the shop began selling milk, gourmet food, pasta, potted plants, ice-cream, cold drinks, bread, juice and nuts.
22 Mr Greg Hall, who has sworn an affidavit in these proceedings, was employed by the Council as its town planning co-ordinator. Mr Hall deposes that there is no record of the Council granting development consent for the use of the premises as a shop. Attached to Mr Greg Hall’s affidavit is a memorandum dated 9 March 1981 and written by Garry McCully, Corporate Planner. The memorandum describes the use of the land, but does not add anything to the other evidence now before the Court.
23 During cross-examination, Mr Hall identified a bundle of documents belonging to the Council that was tendered into evidence. One of the documents was a volume titled “Existing Use Register”. The register contains two pages relating to the subject premises. It contains a photograph of the premises taken on 26 March 1992. Underneath the photograph it stated “’The Rocking Horse Stud’ shop and sale of toys” under the heading “EXISTING USE”. Mr Hall described that volume as a “register or an audit” which was compiled in the early 1980s. Mr Hall said that the bundle was a “history of various commercial style of activities along the Bells Line of Road” and “it was only used as a reference tool to assist applicants if they wished to establish an existing use right”.
Mr and Mrs Agostino’s evidence
24 Mr Alexander Mackenzie, the owner of the premises from the date of its construction until December 1970, has sworn an affidavit in these proceedings. His evidence is as follows. The shed in question was built in about 1950. From about 1950, it was used by his brother Roger to package fruit that was picked at Roger’s orchard. People would often come to buy apples from Roger, but mainly on Sundays. This occurred on a weekly basis. Occasionally people would come in on other days to buy fruit from the shed and if Roger happened to be there he would sell it to them. Alexander sold the premises in 1970 and leased it back from the new owner, Mr Land. The premises continued to be used by Roger to package and sell the fruit until 1971, when Alexander moved to another property in Kurrajong North and Roger moved to his own property at Kurmond where he continued to sell his fruit.
25 The strongest evidence of the continuance of the use is that of Mr Andrew Gartrell. During the 1970s, Mr Gartrell and his father, who was an orchadist growing fruit near Orange, delivered fruit to the premises in question. Mr Gartrell’s father would travel to Sydney for the purposes of delivering his fruit to local fruit barns and shops. Mr Gartrell’s father would take these trips all year long but only on Saturdays. The trip was not taken every Saturday due to seasonal factors, and was taken, at most, 50 times per year. Mr Gartrell would accompany his father on these round trips approximately six times a year, and especially during school holidays. The Gartrells would leave when it was dark and return when it was dark. Mr Gartrell would sleep on the journey from time to time. The trip was a round trip so that when they got to Lithgow they either travelled on the Bells Line of Road or on the Great Western Highway through to Katoomba. The return journey was always on the opposite road, so that the trip was a loop which essentially started at Lithgow. Although Mr Gartrell’s father had delivery arrangements with approximately eight to ten shops, he only delivered produce to approximately six shops on each trip. That is, not all of the shops requested the delivery of fruit on each trip.
26 Mr Gartrell was born in 1963 and said that he delivered and unloaded fruit to the premises with his father from 1973 until at least 1979 and perhaps 1980. Mr Gartrell said that there was no continuation of the deliveries after January 1980, when his father broke his back. Mr Gartrell recalled delivering small wooden banana boxes of fruit to the premises, and does not recall delivering large amounts of fruit in bulk bins, as he had done for several of the other shops. Mr Gartrell recalled that the fruit delivered in the banana boxes was “mediocre fruit”.
27 Mr Gartrell recalled the following details about the shop:
(a) There was “ nothing remarkable ” about the building. It was a “ fibro-type building ” with an iron roof and a timber floor which was possibly originally a packing shed. The shop appeared to be an “ adjunct to an orchard ”. There were fruit trees growing behind the building at the time and a lot of shady trees near the building. There was a short slab of concrete in front of the building. The front of the building was less than 30 metres from the road. There was no formal car park in front of the building but there was an unsealed gravel area between the road and the building where his father stopped to unload the truck and where he saw customers parking their vehicles. There was a weatherboard residence to the east of the building.
(b) There was a fruit grader on the eastern side of the building. Mr Gartrell could not recall anything else on the eastern side of the building. On the western side of the building, fruit and vegetables were on display and the display of these fruit and vegetables was spilling out onto the area in front of the shed. Mr Gartrell described the shop as a “ road side stall type of activity ” and a “ fruit stall ”.
(d) There did not appear to be any change in ownership over the time that he delivered fruit there. He did not recall the name of the shop or the name of the proprietor. The proprietor did not appear to be of Italian descent which was uncommon at the time because there were many Italians involved in the retail end of fruit. The proprietor was a thick set balding man with untidy hair and walked with “ a little bit of a hunch ”.(c) The shop sold fruit and vegetables in cartons and on shelves with the prices marked over the top of the produce. Locally produced fruit was sold as well as fruit grown elsewhere, including mangos. Drinks were also sold from the shop.
28 Mr Gartrell also recalls other shops where his father had delivered fruit. One of these shops was in Berambing, and was located on a property with fruit trees. He recalled delivering a large amount of fruit to a busy fruit shop in Penrith. He also recalls a shop in Blackheath and a couple of shops and barns along the Windsor Road.
29 In cross-examination, Mr Gartrell stated that he did not know whether there were other informal shops, stalls or fruit packing sheds conducting sales at the time between Bilpin and Windsor on the Bells Line of Road (the shop described by Mrs Kidd at par [14] above was on this stretch of road). Mr Gartrell agreed that it was possible. Mr Gartrell was “certain” that the building in which they delivered fruit was the same as the premises in question. Mr Gartrell did not accept the prospect that he might be wrong in his belief. He came to this conclusion by reference to a number of features of the premises, including the small concrete slab at the front of the building and the nature of the nearby “fern like” trees. Mr Gartrell also came to this conclusion by reference to a nearby service station, stating:
- “ I do recall the service station on the other side of the road and I do recall walking across the highway to the service station so there were certainly – I would use the service station as a benchmark I guess .”
30 Mr Gartrell’s account of the service station is consistent with other evidence, noted below at par [36]. Mr Gartrell said that the service station was:
- “ Slightly diagonally opposite. A little bit … further up in a westerly direction perhaps 30 or 40 metres offset heading up the highway in the direction of Bilpin .”
31 Mr Gartrell said that in the time that he delivered to the premises, from 1973 to 1979 or 1980, it was not used for the manufacture of rocking horses and it was not used for general farm storage purposes, to store bales of hay, or to house a tractor. Mr Gartrell said the following in cross examination:
- “Q: … you were there, delivering to it until 1979?
A: That’s correct.
- ...
- Q. I put it to you that in 1979 this shed, the shed that is the subject of these proceedings at 570 was being occupied and used by a gentleman for the purpose of manufacturing rocking horses, what do you say to that?
A: I believe that we delivered fruit through there until 1979.
- Q: So are we to infer from that that you’re saying that it was not used, occupied and used for the manufacture of rocking horses?
A: In the period of time that we delivered fruit there was a, as I have described it.
- …
- Q. …. And if I was to suggest to you that in 1978 one half of the shed was given over to storage purposes and had a tractor in it and bales of hay and the other the manufacture of timber rocking horses you would categorically deny that?
32 Mr Graham Ferguson is Roger Mackenzie’s nephew. He was born in 1948 and has had a long association with the area in question. His evidence is as follows. Mr Ferguson deposes that he remembers the shed in question being built in or around 1959 or 1960 by Roger. However, in cross-examination Mr Ferguson deferred to Alexander Mackenzie’s recollection on this point, that is, that the premises was built in about 1950. He also recalled that Roger Mackenzie built a fruit grader at the premises. Mr Ferguson deposes that he “worked at the property from the time that the shed was built” until he finished high school in 1965 and that until about 1975, he maintained regular contact with the property and went there on most weekends and packed fruit. Mr Ferguson deposed that Roger constantly sold fruit between the years 1959 and 1975. In cross-examination, however, Mr Ferguson agreed that the Mackenzie family ceased their activities in the shed in 1971, within 12 months of its sale to Mr Land. Mr Ferguson said that fruit was sold on all days of the week and in later years the sales of fruit from the property itself became the major part of the business. Mr Ferguson also said that in 1973 and 1974, a period when he was living nearby the premises, the shed was being used as a rocking horse manufacturing operation. Mr Ferguson also stated that there was no intervening operation between Roger ceasing to use the packing shed as a packing shed and the rocking horse stud opening. Mr Ferguson did not remember the premises trading as a fruit shop or fruit kiosk between 1973 and 1979 and agreed that, if it was trading as a fruit shop or fruit kiosk, it was “quite likely” that he would have noticed.
33 I consider Mr Ferguson to be an unreliable witness. The following demonstrates that Mr Ferguson’s recollection of dates was vague and generally inconsistent with the other evidence given in the proceedings:
(a) In his affidavit, Mr Ferguson deposed that he remembered Roger McKenzie building a packing shed on the subject property in or around 1959 or 1960. This differs from the other evidence, including the evidence of Alexander Mackenzie, who stated that the packing shed was built in 1950. In cross-examination, Mr Ferguson deferred to Mr Mackenzie’s recollection.
(b) Mr Ferguson stated that he recalled Mr Frank Swavely and Mrs Diane Swavely moving into a nearby property in or about 1972 to 1975. This differs from the evidence of Mr Swavely himself, who deposed that they moved into their property in 1982. Mr Ferguson deferred to Mr Swavely’s recollection in cross-examination.
(d) In cross-examination, Mr Ferguson said that in 1973 and 1974, the premises was being used as a place to manufacture rocking horses. This was inconsistent with his affidavit evidence that Roger Mackenzie had continued to sell fruit at the premises until 1975. It is also inconsistent with the unchallenged evidence of Mr Wells, who ran the rocking horse operation from the premises.(c) In his affidavit, Mr Ferguson stated that Roger Mackenzie constantly sold fruit at the premises from 1959 to 1975. He also stated that Roger sold fruit on all days of the week. This differs from the evidence of Alexander Mackenzie, who deposed that Roger stopped using the premises in 1971 and sold his apples from his own property at Kurmond. In cross-examination, Mr Ferguson agreed that the Mackenzie family ceased their activities in the premises by 1971, that is, within 12 months of its sale.
34 Ms Susan Pickervance, whose uncle and aunt lived in a house on the property at 570 Bells Line of Road, has sworn an affidavit in these proceedings. She deposes that when visiting her uncle and aunt, she observed a shop that sold fruit on the property from 1961 until her uncle and aunt moved away from the property in 1970. She deposes that the shop was converted to the “rocking horse stud” in later years.
35 Ms Kathleen Smith lived in a house on the property at 570 Bells Line of Road as a tenant of the Mackenzie family between 1951 and 1959. Ms Smith has sworn an affidavit in these proceedings. In Ms Smith’s recollection, a packing shed was built on the property in 1953 or 1954, which was used to pack fruit grown on other nearby properties, but particularly apples which came from Bilpin. She recalls people regularly driving to the property in their cars and leaving with buckets or boxes full of apples. She recalls that the apples were usually less than perfect.
36 Ms Caterina Agostino deposes that she and her husband purchased the property in 2003 and that at the time, it was being operated by Mr Cyril Wells who sold toys and rocking horses. Ms Agostino says that she continued to sell toys after purchasing the premises. She says that in 2008 she observed that the toys were not selling and decided to start selling fruit and plants from the shop in about November 2008. Ms Agostino also gave evidence in relation to the service station identified by Mr Gartrell at par [29] and par [30] above. Ms Agostino identified a 1992 photograph of the service station nearby the premises at 583 Bells Line of Road. The photograph appeared in records of the Council, described at par [22] and [23] above, which indicated that the service station had been operating in 1964. Ms Agostino said that the service station was across the road from the premises and “towards the right, further up”. She said that if you stood out the front of the premises you could see it clearly, and that it was two blocks away. Ms Agostino’s statement with respect to the service station is confirmed by Annexure B to the affidavit of Mr Charles Fontaine, which is a photograph showing a service station in the position described.
Conclusions to be drawn from the evidence
37 It is clear on the evidence that the use by Mr Roger Mackenzie, although primarily for fruit packing, also included sales to the public. Notwithstanding that the sales component was ancillary to the fruit packing, it seems to have been sufficient to amount to a separate use: see Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404 at 404, 409-410, per Meagher JA. It follows that the use could be properly described as including, as well as fruit packing, a shop.
38 Therefore, since the shop use existed immediately before 13 March 1964, it was and remained an existing use unless it was abandoned at some later time.
39 I am satisfied from the evidence that the premises was used by the Mackenzie family for fruit packing and a shop from the date of its construction in the early 1950s until 1971. The unchallenged evidence of Mr Alexander Mackenzie indicates that Roger stopped using the premises in 1971. I note there is conflicting evidence before the Court, as Mrs Kidd stated at par [11] above that the Mackenzies were using the premises in 1974. However, I favour Mr Mackenzie’s evidence over Mrs Kidd’s evidence to the extent of this inconsistency. In my view, Mr Mackenzie was in a better position to recall the date in which he and his brother ceased to use the premises. This view is confirmed for me by the lack of particularity in which Mrs Kidd recalled the date that her mother’s tea room closed in par [10] above. For reasons explained above, I also favour the evidence of Mr Mackenzie over the evidence of Mr Ferguson.
1971 – 1978: Was there a cessation in the use as a shop?
40 Mr and Mrs Agostino bear the onus of establishing that there was no abandonment of use on the balance of probabilities. Mr D P Wilson, appearing for the Agostinos, submits that the premises was used from time to time between 1971 and 1978 for the sale of fruit, sufficient for there to be a continuation of the existing use as a shop. Mr Wilson agreed that there is no indication on the evidence as to who was conducting the selling between 1971 and 1978. Mr Wilson submits, however, that this should not prevent the Court from finding that there was a continuing use as this would be confusing the question of identification of the user with the question of the actual use of the premises.
41 Mr Wilson further submits the following:
(a) Mrs Kidd was vague about the period between the departure of Roger Mackenzie and the arrival of Mr Wells. There was no positive statement from Mrs Kidd to indicate that there was no selling of fruit between 1971 and 1978. The only positive statement provided by Mrs Kidd was that “ Max Land did not use the shed for the packing of fruit ”. This is in contrast to clear statements from Mr Gartrell that the premises was used for the sale of fruit. These clear statements of Mr Gartrell should be favoured. A finding that the physical use as a shop continued as described by Mr Gartrell would not be inconsistent with the evidence of Mrs Kidd as it is not inconceivable that there was continuation of sales of fruit from the premises on the one hand but a discontinuance of packing on the other.
(b) Mr Gartrell’s evidence that the premises he visited in the 1970s was the subject premises was confirmed by his reference to the nearby service station, which, on the evidence, was operating during the relevant period. Mr Gartrell was definite about crossing the road to that service station at the relevant time.
(c) Mr Gartrell and Mrs Kidd were consistent in saying that it was only part of the shed being used in the 1970s. The question of whether the other half of the shed was used for a fruit grader or to store bales of hay and a tractor is besides the point.
(e) The Council has treated the matter in a leisurely way and, until recently, there was no objection from the Council about the premises being used as a shop. As a consequence, the Court should be more inclined to resolve any conflict in the evidence in favour of finding that there has been no abandonment.(d) Mrs Kidd did not live in the area between about 1974 and 1989 and the reliability of her evidence about the use in the relevant years should be treated accordingly.
42 Mr S N Griffiths, appearing for the Council, submits that Mr Gartrell is mistaken as to the location of the building he visited with his father in the 1970s. In support, Mr Griffiths makes the following submissions:
(a) Although Mr Gartrell was clear that the building he visited was the premises in question, this is only one part of the test as to whether the witness is to be taken as being accurate. Witnesses may be clear about things and still be incorrect.
(b) The service station issue is “ not particularly helpful” because there is no evidence in relation to whether there were other service stations along the Bells Line of Road at that time.
(c) Mrs Kidd made positive statements that: “ Mr Land did not use the shed on 570 Bells Line of Road as a fruit and vegetable shop as described by Mr Gartrell. I visited the area every weekend during this time and I am quite certain that there was no fruit and vegetable shop or stall in operation at No 570 Bells Line of Road ”. Mrs Kidd also stated that “ Max Land used the shed to store a tractor and things such as bales of hay ”. Mrs Kidd’s evidence should be favoured over Mr Gartrell’s evidence because Mrs Kidd has had a lifetime involvement with the area, knew the people who owned and occupied the premises and knew the history of the use of the premises. Mr Gartrell, on the other hand, was aged between 10 and 16 years during the relevant period, was involved in the journey with his father about six times a year and didn’t necessarily stop at the building he describes on each journey.
(f) As noted in par [32] above, Mr Ferguson, who had close contact with the area and visited it frequently, states that there was no intervening operation between Roger Mackenzie ceasing to use the packing shed as a packing shed and the rocking horse stud opening. Mr Ferguson did not remember the premises trading as a fruit shop between Roger Mackenzie’s period of occupation and Mr Wells’, and agreed that, if it was, he would be likely to have noticed.(d) Mr Wells has deposed in an unchallenged affidavit that he moved into the shed in 1978 and that when he first saw the premises in 1978 it was being used for general storage purposes and that it “ was not at that stage being used by Max Land as a roadside stall or anything else ”. Mr Gartrell, on the other hand, was adamant that the use described by him was continuing until 1979. Mr Well’s evidence should be favoured over Mr Gartrell’s, because his evidence is unchallenged and it is not suggested that his evidence is incorrect.
43 I reject Mr Wilson’s submission in par [41](a) above. There is a clear conflict between Mr Gartrell’s evidence and Mrs Kidd’s evidence. Mrs Kidd made a positive statement that there was “no fruit and vegetable shop or stall in operation” as described by Mr Gartrell. In my view, given Mrs Kidd’s regular exposure to the premises and knowledge of the occupants, Mrs Kidd would have noticed if such a shop had been operating.
44 Both Mr Gartrell and Mrs Kidd were certain that their accounts were accurate and I have no reason to believe that either witness was dishonest. In these circumstances, the relative reliability of these witnesses needs to be taken into account, and I accept the submission of Mr Griffiths that Mrs Kidd is the more reliable witness. Mrs Kidd has been exposed to the area for her entire life. During the relevant period, she was aged between 45 and 53. She knew the owners of the property and the history of its use. She visited the area every weekend until her mother’s tea room closed, and regularly visited her son following the closure of the tea room. Mr Gartrell, on the other hand, was aged between 10 and 16 years of age during the relevant period, resided at Orange, and only visited the shop he describes at most six times per year.
45 I also note that Mrs Kidd’s evidence was consistent with the unchallenged evidence of Mr Wells. Mr Wells gave evidence that in 1978, the premises was “not operating as a roadside stall or anything else” and that it was being used for “general storage purposes”. Mr Gartrell’s evidence, on the other hand, was inconsistent with the unchallenged evidence of Mr Wells. Mr Gartrell says that one half of the premises was being conducted as a fruit stall up until 1979. For the purposes of resolving this inconsistency, in my view, Mr Wells is a more reliable witness than Mr Gartrell, due to his ownership and occupation of the premises after 1978.
46 As to Mr Wilson’s other submissions in par [41] above, in my view, they do not discharge the onus on the balance of probabilities, nor do they influence my conclusion that the evidence of Mrs Kidd and Mr Wells should be favoured to the evidence of Mr Gartrell.
Was there a continuance of the use as a shop notwithstanding the gap in physical use?
47 Mr Wilson further submits that the evidence indicates an intention on the part of Mr Land to lease the premises as a shop, or alternatively, not to abandon the use as a shop. If the Court so finds, Mr Wilson submits that this intention is sufficient for there to be a continuance of use, notwithstanding a finding that there was a cessation in the physical use of the premises. This submission requires an examination of the relevant authorities.
48 In Daniel v Manly Municipal Council (1975) 34 LGRA 14, the use of a building for silk-screen printing ceased in December 1974. On 16 April 1976, the Council refused a development application dated 11 February 1975. The applicants were the new tenants. It was submitted by the Council that, upon the departure of the previous tenant, the existing use (which included silk-screen painting) was abandoned because the only intention of the owner was to have a tenant. Rath J considered that there was no evidence of an intention to abandon existing use rights, and noted that the plaintiffs, with the consent of the owner, had made an application on the assumption that the existing use rights continued. Rath J said that an existing use right does not necessarily come to an end because a tenant vacates a premises. Rath J rejected the argument of the Council, and held that the existing use right had not been abandoned.
49 Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138 involved a property which had been used as a motor garage and for related purposes from 1943 to March 1969. Banool Developments, who had purchased the land in 1968, submitted a development application in April 1969 for replacement of the building on the premises. The proposed use of the new building was different to the existing use, being for a service station and for parking. The development application was refused, and litigation ensued for a number of years. The issue before the Court was whether the existing use had been abandoned. Mason J (the other members of the High Court concurring) held that the making of the development application and associated litigation did not in those circumstances indicate an intention to abandon the existing use. His Honour said that the development application merely indicated the use which Banool Developments proposed to put the land if the application was approved. His Honour held that the existing use had not been abandoned, noting that the primary judge, Hope J, had found that the subjective intention of Banool Developments was to continue the existing use should the development application be refused.
50 Hudak v Waverley Municipal Council (1989) 18 NSWLR 709 involved a two-storey building which was lawfully occupied by tenants in separate flats between 1976 and 1980. After 1980, the building continued to exist but deteriorated to the extent that it was incapable of being used for any purpose. In 1985, a series of litigation in relation to the building commenced between Waverley Council and Mr Hudak. The issue before the Court of Appeal was whether Mr Hudak had abandoned the existing use as a multi-occupancy building. It was accepted that Mr Hudak had always intended to put the building into a habitable condition and to have it occupied by tenants after matrimonial problems with his wife had been resolved and after litigation with Waverley Council had ended. It was also accepted that Mr Hudak had deliberately allowed the building to become derelict, with the objective of making the land less attractive to his wife prior to a property settlement. Hope AJA considered whether a subjective intention on its own was enough to continue an existing use and said (at 716):
- “ As it seems to me, it is necessary to have regard to the whole of the circumstances, including the subjective intention of the relevant person, and to determine whether in light of all those matters the cessation of actual use proved by the facts is outweighed by an asserted subjective intention to continue the use .”
51 Hope AJA held that the cessation of actual use was not outweighed by Mr Hudak’s subjective intention to continue the use. That is, the intention not to use the premises as a residential flat building during an indefinite period, allowing the building so to deteriorate in condition so as to become dangerous and uninhabitable, meant that there was an intention to abandon.
52 In Kogarah Municipal Council v Johnstone (1979) 41 LGRA 366, the defendants owned two parcels of land, and at the rear of one of the properties lay two tennis courts which, up until some time before May 1973, had been used commercially for day and night tennis. In May 1973, the then owners of the subject premises granted options to purchase the properties to a company, which was interested in redevelopment and had no interest in using either of the properties for the commercial hire of tennis courts. The options were exercised in November 1973. Between late 1973 and June 1975 procedures were in train to alter the proposed zoning of the land. In June 1975 the land was advertised for sale and the defendants entered a contract to purchase the land on 1 June 1976. The contract was completed on 1 October 1976. The defendants had purchased the land with the intention of letting the tennis courts for hire and setting up a tennis coaching school. The tennis courts had become substantially neglected. However, from time to time the defendants would use one of the courts for social tennis. The issue was whether there was a continuation of the existing use of the commercial hire of tennis courts. Powell J held that the existing use had been abandoned, taking into account the failure to use the tennis courts for some three and a half years, the original owners having no further interest in their use after granting the option, and the developers having no interest in using the tennis courts after exercising the option.
53 In the present case, in the absence of evidence from Mr Land himself, Mr Wilson submits that the Court should infer the asserted intention from the physical uses established by the facts. That is, the lease to Roger Mackenzie for approximately 12 months until 1971, and the later lease to Mr Wells, who initially used the land for the manufacture of rocking horses and later, upon Mr Land’s suggestion, used the land for the sale of rocking horses and toys. From these facts, Mr Wilson submits that Mr Land’s intention when he leased the premises from 1978 to Mr Wells was not to break the law, and to lease it for the lawful purpose of manufacturing and selling goods by retail. As noted in par [6] above, subject to the existing use exception, a “shop” was prohibited at all relevant times.
54 Mr Wilson further submits that the relevant intention in question is one of abandonment rather than continuance; a concept that requires an overt thought process rather than a lackadaisical approach, and that no such intention could be inferred from Mr Land’s actions. Mr Wilson relies on the judgment in Woollahra Municipal Council vBanool Developments Pty Ltd, and the way in which s 107(3) of the Act was framed:
- “ Without limiting the generality of subsection 2(e), a use is to be presumed, unless the contrary is established, if it ceases to be so used for a continuous period of 12 months .”
55 I note also on this point the comments of Mahoney JA in Hudak v Waverley Municipal Council (at 713):
- “ The proof, at a later date, of what was the intention of the owner when, in fact, the use for that purpose ceased is, as experience has shown, often difficult. It is, I think, to the solution of difficulties of this kind that s 107(3) is primarily directed .”
56 In my view, the distinction between an intention to “continue a use” and an intention “not to abandon a use”, if any, is a fine one. The same applies to the corollary, the distinction between an intention to “abandon a use” and an intention “not to continue a use”. Whichever approach is adopted, the onus does not fall on the Council to establish that there was abandonment by way of an overt thought process. The onus remains on the Agostinos to establish that there was a continuance of use, or alternatively, that there was no abandonment of use.
57 In my view, the Agostinos have not discharged the onus of proving on the balance of probabilities that Mr Land’s subjective intention was to continue the use of the premises as a shop. I am also of the view the Agostinos have not discharged the onus of proving that on the balance of probabilities, Mr Land’s subjective intention was not to abandon the use as a shop.
58 I accept that it was Mr Land who suggested to Mr Wells that he should display a rocking horse out the front of the premises. I also accept that Mr Wells eventually used the premises as a shop, and that this was likely to have occurred whilst he was Mr Land’s tenant. However, in my view, these facts are insufficient to discharge the onus, especially when it is considered that (i) Mr Land used the premises between 1971 and 1978 for farm storage purposes only; (ii) there is no evidence to suggest that Mr Land was actively seeking tenants or wanted to use the premises as a shop between 1971 and 1978; (iii) when Mr Wells occupied the premises in 1978, it was used only for the manufacture of rocking horses and it is not clear when he began selling; and (iv) the intention of Mr Wells when he occupied the premises in 1978 was to use the shed only for the manufacture of rocking horses.
59 The sum of these factors indicates to me that the contrary was the case. That is, Mr Land did not intend to use the premises as a shop and abandoned that use. The fact that Mr Land adopted a lackadaisical approach, and that some time later, Mr Wells decided to sell goods by retail is not sufficient on its own to establish on the balance of probabilities that Mr Land had intended for the premises to operate as a shop after 1971. I note Mr Wilson’s submission that the Court should infer that the use was not abandoned because Mr Wells and Mr Land would have wanted to use the land for a lawful purpose when Mr Wells began selling, but, again, I do not think that this is sufficient to discharge the onus.
60 I make this finding notwithstanding that s 107(3) of the Act, which establishes the presumption of abandonment, did not apply prior to 1980. I note that in each of the abovementioned authorities where a continuing use was established, being Woollahra Municipal Council v Banool Developments Pty Ltd and Daniel v Manly Municipal Council, the subjective intention of the owners to continue the use was established. Those cases are, therefore, distinguishable.
Discretion
61 In Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, Kirby P conveniently set out guidelines for the exercise of the Court’s discretion. Importantly, Kirby P states, at 339, that the restraint sought by the Council is not, in its nature the enforcement of a private right, but the enforcement of a public duty imposed by or under an Act of Parliament for the orderly development and use of the environment. Kirby P also states, at 340, that the obvious intention of the legislation is that its terms should be complied with and that there is indicated a legislative purpose in upholding, in the normal case, the integrated and co-ordinated nature of planning law.
62 In the same case, Mahoney JA stated, at 346, that the courts have, under the various planning regimes, emphasised the significance of compliance with planning requirements and the danger of allowing individual hardship in particular cases to erode the general operation of planning schemes.
63 The considerations identified in Sedevcic by Kirby P and by Mahoney JA persuade me that an injunction should be granted. In particular, the prominent position of the premises on a main road has given rise to traffic safety issues, identified by the Council’s traffic and transport planner, Mr Thompson. Those issues are the limited sight distances and insufficient pavement width to allow through traffic to pass vehicles waiting to turn into the subject site from the westbound lane of the road.
64 It is self-evident that the Agostinos will suffer hardship if they are now required to close their business. In my view, there are special circumstances in the present case which justify a softening of the approach by postponing injunctive relief, as noted by Kirby P in Sedevcic at 341. The Council has proceeded at a leisurely pace, allowing the Agostinos to trade at a prominent location for some time. It is, as I now said, their livelihood. They should, therefore, be permitted a reasonable time within which to relocate their business in an orderly way.
Declarations and orders
65 The Court makes the following declarations and orders:
(1) A declaration that the respondents, Francesco Agostino and Caterina Agostino, are using the land known as No. 570 Bells Line of Road, Kurmond, as a shop.
(2) A declaration that the use of the land known as No. 570 Bells Line of Road, Kurmond as a shop is prohibited development under the Hawkesbury Local Environmental Plan 1989.
(3) Order that the respondents, Francesco Agostino and Caterina Agostino by themselves their servants and agents abstain from using, permitting or suffering to be used the premises known as No. 570 Bells Line of Road, Kurmond as a shop.
(4) Order (3) above is postponed to 31 December 2009.
(5) Order that the respondents, Francesco Agostino and Caterina Agostino pay the applicant Council’s costs.
(6) The exhibits may be returned.
I hereby certify that the preceding 65 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.
Dated: 19 October 2009Associate
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