Holyroyd Municipal Council v Pace

[1988] NSWLEC 143

Land and Environment Court

of New South Wales

CITATION:	Holyroyd Municipal Council v Pace & Ors [1988] NSWLEC 143
PARTIES:	APPLICANT Holyroyd Municipal Council RESPONDENT Mr and Mrs Pace, Silsop Pty. Ltd
FILE NUMBER(S):	40224 of 1987
CORAM:	Holland J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning And Assessment Act 1979 Holyroyd Local Environmental Plan 1985
CASES CITED:	Warringah Shire Council v. Sedevcic (1987) ; Trading Pty. Limited v. Fat-Sel Pty. Limited (1987) ; Municipality of Holroyd v. Mennon (1981); North Sydney Municipal Council v. Ekstein (1985) ; North Sydney Municipal Council v. Clarke & Walker (1986); Holroyd Municipal Council v. Attard (1988); North Sydney Municipal Council v. J.F. McLean Investments Pty. Limited (1987)
DATES OF HEARING:
DATE OF JUDGMENT:	10/31/1988
LEGAL REPRESENTATIVES:	APPLICANT Mr Myer RESPONDENT Mr Lothian

JUDGMENT:

HIS HONOUR: The Council of the Municipality of Holyroyd seeks injunctions to restrain the respondents, Mr. & Mrs. Pace and their family company, Silsop Pty. Limited, from using for purposes not permitted by the Holyroyd Planning Scheme Ordinance (P.S.O.) two pieces of land in the Municipality.

The first is an allotment at 34-36 Paton Street, Merrylands, on which stands a residence in which Mr. & Mrs. Pace and their three sons live. Mr. & Mrs. Pace are the shareholders and directors of Silsop Pty. Limited through which company they conduct a heavy haulage contracting business under the name "V. and K. Pace Haulage Contractors". Part of the residence is used as an office for the business and the business is conducted by Mr. & Mrs. Pace on and from the premises.

The land is zoned Residential "A" (i.e. "2(a)") under the P.S.O. Within that zoning only dwelling houses and home occupations are permissible without the consent of the Council. Use of land for other purposes, except those prohibited, are permissible with the consent of the Council. Those prohibited include car repair stations, commercial premises , industries other than home industries and transport terminals.

The relief sought by the Council in respect of the respondents' use of the above land is as follows:-

"1.____An order that the respondents and each of them by themselves their servants and agents be restrained from using or causing, permitting or suffering to be used the land specified in the First Schedule hereto (hereinafter referred to as "the land"):

(a) For the purpose of storing or parking motor trucks, prime movers and/or trailers, and/or

(b) For the purpose of a truck depot, and/or

(c) For the purpose of storing motor vehicle parts including any disused motor lorry cabin, wheel rims and tyres and/or machinery used in the repair, maintenance and cleaning of motor trucks, prime movers and/or trailers, and/or

(d) For the purpose of maintaining, repairing or cleaning motor trucks and/or prime movers and/or trailers.

The second piece of land is the vacant rear section of a property at the corner of Sherwood Road and Paton Street, Merrylands. It is behind a Shell service station built on the property fronting Sherwood Road. The vacant section has access from Paton Street and is almost opposite the respondents' own land. They lease and use it for the parking of trailers awaiting repairs to their prime movers.

The land lastmentioned is zoned General Business under which, so far as material, car repair stations and transport terminals are prohibited purposes but use of the land for other purposes may be permitted with the consent of the Council.

The relief sought as to this second piece of land is:-

"2.____An order that the respondents and each of them by themselves, their servants or agents be restrained from using or causing, permitting or suffering to be used the land specified in the Second Schedule for the purpose of storing and/or parking motor trucks and/or prime movers and/or trailers."

At the hearing, the respondents did not dispute that their use of both pieces of land infringed the zoning restrictions, was without the consent of the Council and was unlawful. The case they endeavoured to make was designed to call for an exercise in their favour of the discretion of the Court to decline to give the relief sought by the Council.

They were frank and open about their intentions in acquiring 34-36 Paton Street and the purposes for which they used the land. The account that follows is primarily based upon their own evidence.

They purchased the property in late 1984 from a Mr. & Mrs. Walker and began to use it for their business in 1985. They were told by Mr. Walker, after telling him that they wished to use it for repairing and maintaining vehicles used in their haulage business, that he had been using the property in conjunction with his own haulage business for the past 14 years and had received no complaints from the Council or anyone else. In response to a specific question by Mr. Pace, Mr. Walker told him that he would not have any problems with the Council. They say that, in reliance on Mr. Walker's statements, they agreed to purchase the property unaware that there were any restrictions upon its use for the purposes of their business.

Their intention from the outset was to live there and use the property in conjunction with their haulage business. The property was suitable because it was a double block (100' x 275') with a large shed/workshop in the backyard and a driveway consisting partly of concrete and partly of road base material suitable for bearing the weight of heavy vehicles. It had a large yard to provide a storage and work area for the parking, repair and maintenance of large motor vehicles.

According to a depreciation schedule annexed to the business' tax return for 30 June 1987 the business owned by that date 5 trucks, 7 trailers, 2 other motor vehicles, a forklift, pressure cleaner and impact wrench. The 5 trucks were 4 prime movers and one table top truck. The trailers were 40 feet or more long.

Four drivers are employed who usually take the vehicles and trailers they are driving home overnight and park them away from the premises; but those vehicles which are under or awaiting repair or are held for spares are kept upon the premises. The Paces employ their son Robert, training as a motor mechanic, to undertake most of the repair and maintenance work.

The respondents claim that this work is conducted usually on Saturdays only between 9.00 a.m. and 5.00 p.m. and occasionally on Sundays and involves very little noise. The work mainly consists of changing tyres, washing vehicles, changing oil, greasing and mechanical work on motors, gearboxes and differentials. If required, such work is also carried out during week days.

For changing tyres and shifting heavy nuts and bolts an impact wrench which makes a rapid sharp noise "like a machine gun" is employed. Other particular noise producing activities include panel beating, grinding and welding; also use of a compressor and petrol motor in steam cleaning, spray painting and providing compressed air for the vehicles. To these may be added the noise naturally occasioned by the carrying out of mechanical repairs and maintenance of heavy vehicles and the movement of truck parts, gearboxes and axle assemblies by forklift.

Council officers made observations and inspections of the property on some ten occasions over the period of twelve months from September 1986 to September 1987. On every occasion there were large vehicles parked in the grounds and on the driveway. At times some were not being used, one was being re-built, another was being kept for spare parts. On one occasion there were four prime movers and a large trailer on the premises. There was every time a quantity of motor vehicle parts, wheels, rims and tyres lying about. Disused prime mover cabins without wheels attached were seen stored on the land and mechanical repairs to motor vehicles and grinding work were seen to be in progress.

The evidence of these observations by Council officers was not disputed by the respondents. One observation not yet mentioned was, however, explained by the respondents and should be noted. On 15 and 16 September 1987 a prime mover and trailer was seen parked in the roadway outside the premises and the first respondent and another were seen on the second day to be loading boxes on to the trailer. The first respondent's evidence was that this was a rare event which had happened only twice in four years, each time because a trailer had been wrongly overloaded by others, had to be partly unloaded at the premises and reloaded to comply with legal load restrictions. Apart from this, no loading or unloading was carried out at the premises. There is no reason not to accept this explanation; but it suggests that what happened was a hazard of the business which may occur again and lead occasionally to a repetition of such activities.

Mr. Pace explained the use of the section of land behind the Shell service station. He said that in order to store trailers being repaired and maintained at their property at 34-36 Paton Street, it was necessary to find somewhere to leave trailers belonging to prime movers being maintained or repaired. In early 1987 he negotiated a lease of the section of land in question for a rental of $280 per month for the purpose of parking such trailers. He said that a Volvo prime mover and two spare trailers used in their business are regularly parked overnight on this property.

Finally it has to be mentioned that the respondents keep on the premises two Alsation dogs to guard the premises and its contents from thieves and intruders.

The Council's case

The Council's case for restraining orders may be placed under the following headings:-

l. Unlawful use.

2. Environmental harm.

3. Objections and complaints by neighbours.

As to 1, the Council points out that the use being and proposed for the future to be made of both pieces of land is admittedly and blatantly unlawful, completely contrary to zoning restrictions in the Municipality and, if unrestrained, an encouragement to others to break the laws which it is the Council's duty to maintain in the public interest.

As to 2, the Council submits that the use is totally incompatible with a residential zoning and adversely affects the amenity of the surrounding area. In this regard, the view of Stephen Pratt, a Town Planner employed by the Council, is put forward:-

"The amenity of the area in the vicinity of the land referred to in the First Schedule and the Second Schedule of the Application filed herein is adversely affected by the respondents usage of those lands for the purpose of storage and parking motor trucks and/or prime movers and/or trailers and the carrying out of maintenance, repairs and cleaning of those vehicles. In particular the amenity of the area is adversely affected by;

(a) The starting up of engines of trucks and/or prime movers and/or

(b) The maintenance, repair and cleaning of motor trucks and/or prime movers and/or trailers, and/or

(c) The arrival and departure of trucks and/or prime movers to and from the lands referred to in the First and Second Schedule of the Application filed herein

(d) The level of fumes emanating from the land such as diesel fumes associated with the respondents use of the land and the noise generated by work relating to the repair, maintenance and cleaning of motor trucks and/or prime movers and/or trailers

(e) Increased level of vehicular traffic particularly large articulated prime movers and/or trucks in a residential area

(f) The storage on the land in a disorderly fashion of a disused prime mover cabin, and/or motor vehicle parts and/or motor vehicle tyres and rims and/or machinery used in the repair, maintenance and cleaning of motor trucks and/or prime movers."

Another Town Planner employed by the Council, Colin Myers, gave evidence that, although there were some commercial activities in the neighbourhood such as the Shell service station and others in its block on Sherwood Road, the kind of activities carried on by the respondents, be it called the operation of a road transport terminal or otherwise, was not compatible with the surrounding development.

Looking to the future under this heading, the Council drew attention to the Holroyd Local Environmental Plan No. 25, gazetted 26 April 1985, one aim of which was to permit and encourage the erection on land zoned Residential 2(a) in the Municipality of multi-residential buildings such as group houses, villa homes, town houses, terrace buildings and the like. Pursuant to this aim, development consents and building approvals have been given to the Department of Housing and King Property Corporation Pty. Limited to erect on a very large parcel of land extending from Sherwood Road and passing behind and adjacent to the rear boundary of the respondents' premises in Paton Street, 20 aged persons units and 34 villa homes. The consents and approvals were given in June 1987. The works of construction have been partly completed and are currently proceeding.

In relation to noise, witnesses referred to the nearby Sherwood Road and the noise of the heavy traffic using it. Mr. Myer's evidence for the Council was that, due to the recent opening 800 metres west of the subject land of an arterial road linking the industrial areas of Smithfield and Guildford with the Great Western Highway and forming part of an arterial road network linking Liverpool with Hornsby, it is anticipated that the volume of traffic, particularly of heavy vehicles, along Sherwood Road at Merrylands will decline substantially.

It was submitted that the aims of L.E.P. No. 25, the current construction of aged persons' units and villa homes on the land adjoining the subject land and the anticipated reduction of traffic volumes in Sherwood Road were pointers to intensification of residential use and improvement of residential amenity of land in the immediate vicinity of the subject land.

As to 3, complaints were made to the Council by occupiers of three properties in Sherwood Road the rear boundaries of which joined or were close to the side or rear of the respondents' property.

Mr. & Mrs. Eden of 49 Sherwood Road complained in writing to the Council in August 1986. They complained of works done on the respondents' land interfering with the natural water flow from the Edens' property causing it to bank up on their land damaging their property. They also complained of noise, smells and unsightliness caused by the respondents' trucking business activities. They displayed animosity towards the respondents describing them as unco-operative and irresponsible. The Edens gave evidence for the Council in support of their complaints.

Mr. & Mrs. Libreri of 51 Sherwood Road provided an affidavit and Mr. Libreri gave evidence for the Council of their observations of and objections to the activities being carried out on the subject land, the noise, smells of diesel oil and exhaust fumes, unattractive sights and frequent barking of dogs that emanated from the land.

Letters were written to the Council in March and September 1987 by Colin Berry of 45 Sherwood Road complaining bitterly of sleep disturbance by barking dogs but also of breach of zoning laws, smell of diesel fumes and noise of arrival and departure of heavy vehicles and of truck maintenance works. The Council was unable to obtain an affidavit from or call Mr. Berry and the solicitor, Mr. Lothian, who appeared for the respondents objected to his letters being admitted as evidence of the truth of his complaints but not as evidence that the Council had received the letters and the nature of the complaints made in them. These letters were admitted on that basis. As the respondents admit the activities in question and there is independent evidence of them, the inference may be drawn that Mr. Berry's complaints, in their general nature, had some foundation in fact although the specific claims made and their alleged effect upon him and his family remain unproved. However, I propose to take Mr. Berry's letters into a

ccount only upon the basis as to which the respondents' solicitor made no objection, namely, that he made a complaint, when he made it and the general nature of it.

The respondents' case

The respondents' case rests in law entirely upon the Court's discretion to refuse injunctive relief against unlawful or unauthorised use of land that has been recognised to exist in s.124 of the Environmental Planning and Assessment Act, 1979. The ambit of the discretion is described in Warringah Shire Council v. Sedevcic (1987) 10 N.S.W.L.R. 335 and A.C.R. Trading Pty. Limited v. Fat-Sel Pty. Limited (1987) 11 N.S.W.L.R. 67; (1987) 54 L.G.R.A.177. Relevant examples of its exercise, referred to by Mr. Lothian for the respondents and Mr. Maston of counsel for the applicant, are to be found in The Council of the Municipality of Holroyd v. Mennon No. 40122 of 1981, Cripps J, 25 March 1982, unreported; North Sydney Municipal Council v. Ekstein (1985) 54 L.G.R.A.440; North Sydney Municipal Council v. Clarke & Walker No. 40217 of 1986, Bignold J, 8 January 1988, unreported; Holroyd Municipal Council v. Attard No. 40142, Bignold J, 8 January 1988; North Sydney Municipal Council v. J.F. McLean Investments Pty. Limite

d, No. 40205 of 1987, Bignold J, 14 October 1988, unreported.

Mr. Lothian relied particularly upon a statement by Kirby P. in the Fat-Sel case (supra) at p.82:-

"That discretion (s.124(l)) is a mollifying one. It permits, in appropriate cases, the refusal of injunctive relief where to grant such relief would work such an injustice as to be disproportionate to the ends secured by enforcement of the legislation including by injunction."

To support the application of this principle here the respondents endeavoured to make out the following grounds:-

1. The respondents' activities are a continuation of comparable activities that have been conducted on the same pieces of land without restraining action by the Council for many years prior to the respondents' acquisition of No. 34-36 Paton Street and their lease of the land at the rear of the service station.

2. The Council's case of injury to the amenity of the neighbourhood is theoretical, not real, because the neighbours most liable to be detrimentally affected by the respondents' activities deny that they are and support the respondents in their desire to continue the activities.

3. Leaving aside Mr. Berry's complaints as unproved, the evidence of the other complainants is to be discarded or heavily discounted on the ground of bias and is outweighed by the evidence of the neighbours who support the respondents.

4. The respondents would suffer great personal and economic hardship if forced to close down their business at 34-36 Paton Street, which is what they would have to do if the relief claimed by the Council was granted.

5. The respondents acquired the property in good faith and in ignorance of any restrictions against its use for the purposes of their business.

The witnesses whose evidence was tendered by the respondents were as follows:-

Mr. Horrie Walker, who sold 34-36 Paton Street to the respondents in 1984, had occupied the property for 16 years before that and used it in conjunction with a transport business employing 14 trucks which he operated from a Smithfield warehouse where they were normally parked overnight; but vehicles requiring maintenance and repairs were often parked at the property overnight and work done on them the following day, usually during normal business hours Mondays to Saturdays inclusive. There were often several vehicles there on one day. Clerical work by his wife and daughter was done in an office on the ground floor of the house. No complaints were ever received from neighbours or the Council. Once a Council officer inspected the property because of a complaint of smell which turned out to be a broken sewer pipe next door. Mr. Walker had trotting horses and kept vehicles to transport them. A stable on the land was suspected wrongly as the source of the smell. Nothing further was heard from the Council. The Libr

eris and Edens were in a position to see his activities but never complained. Mr. Libreri for some years had heavy transport vehicles regularly parked on his own land and Mr. Walker saw maintenance and repairs being done on them similar to those now the subject of complaint by the Libreris and the Edens who live alongside each other. Mr. Walker sold his business in 1982 but then allowed a friend to park and do repairs on his vehicle on the property. Mr. Walker continued to keep his horse floats there. No complaints were made to him by anyone.

Mr. Herbert Smith, a carpenter of 39 Sherwood Road which backs on to the respondents' property, has lived there for 30 years. He has not discerned any significant levels of noise or offensive smells and has found no cause to complain of the use of the land by Mr. Walker or the respondents, nor has he found any cause to complain of the respondents' use of the property behind the service station. He has no objection to a continuation of the respondents' activities.

Mr. Ludwig Tremmel, a plumber of 41 Sherwood Road, next to Mr. Smith and overlooking from the rear of his land the rear of the respondents' property, has been there 16 years, knows the activities of both Mr. Walker and the respondents, finds no cause for complaint and has no objection to the respondents carrying on and using their property in conjunction with their business. He can hear noises but hears similar noises from his other neighbours, nothing unusual or offensive, and is not bothered. He finds the noise of traffic using Sherwood Road at peak hour interferes at times with the enjoyment of his land but not neighbours' noises. He has no cause for complaint about the use of the service station land.

Mr. & Mrs. Russo live right alongside the respondents at 40 Paton Street and have been there since 1965. At that date the predecessor of Mr. Walker owned the land No. 34 Paton Street and it was used for parking a large tip truck which was cleaned and maintained on the property until Mr. Walker bought it in 1968. They knew he used the land in conjunction with his business using 13 or so trucks of which up to two or three would be parked on the property for repairs, maintenance and cleaning at weekends and also on week days fairly regularly. A Council officer called some 15 years ago in that period about an unauthorised shed but Mr. Russo could not say if any of Mr. Walker's vehicles were visible at the time. Their enjoyment of their property has not been impaired by any of the activities on 34-36 Paton Street by any of the successive occupants, not by noise, smell or otherwise. They have no objection to the respondents continuing to use their property at present.

Mr. Russo is in a very good position to observe the land at the rear of the service station land which is across the road from the front of his property. He has seen large trucks and trailers parked on that land since the early to mid 1970's. H knew a Mr. Cassar who ran a trucking business and regularly used the land for parking his trucks and trailers. After he ceased in the early 1980's another person did the same, then the respondents took over and have continued up to the present. This use of the property has not adversely affected and is not objected to by Mr. & Mrs. Russo.

Mr. Joseph Cassar of Cassar Transport Pty. Limited runs a road transport business utilising large transport vehicles. From 1976 to 1982 he used the land behind the service station to park heavy vehicles overnight. In about 1979 an officer of the Council saw him about a complaint that Mr. Cassar was making an illegal use of the property and asked him to cease. Mr. Cassar explained that if his drivers could not park their vehicles on this vacant land off the street they would park them at their homes all around the municipality. Mr. Cassar then made representations to his local alderman after which a Council officer called to tell him he could continue provided he thickened and reinforced the concrete driveway. This he did at his own expense, after which he received no complaints from the Council or neighbours. Mr. Cassar corroborated from his own observations the evidence of Mr. Walker and others as to the activities of Mr. Walker on No. 34-36 Paton Street.

On the question of bias, reliance was placed on evidence from which an inference might be drawn that Mr. Libreri bore a grudge against Mr. Pace and there was personal animosity on his part towards Mr. Pace. Mr. Pace claimed that, prior to the first time a Council officer saw him to complain of the activities on their land, Mr. Libreri approached him in connection with a proposed development by Mr. Libreri of his property located behind the respondents' property and the following conversation took place:-

"He said:

'I want you to talk to the developer about obtaining an easement through your property. I know that you are running a business from your property. That's unlawful, but if you co-operate with me I won't say anything to the Council.'

I said:

'What do you mean unlawful? We are doing exactly the same as the previous owner. You tell your developer to come and see me and we'll talk about it.'"

Mr. Pace claims that the developer contacted him but they could not agree on a purchase price for the easement and immediately afterwards he received his first complaint from the Council.

Mr. Libreri admitted the request for an easement but denied making the alleged threat. He also admitted that in consequence of Mr. Pace's refusal he had to negotiate and take a drainage easement through the rear of five Sherwood Road properties the rear boundaries of which adjoined the side boundary of the respondents' property instead of having one easement on the other side of that boundary through the respondents' property. He did not admit having personal animosity and denied that he complained to the Council because Mr. Pace refused the easement.

As to Mr. & Mrs. Eden, who live next door to Mr. & Mrs. Libreri, it emerged that Mrs. Eden was the daughter of Mr. & Mrs. Libreri but Mr. Eden made it clear in giving evidence that he was independent of and uninfluenced by the Libreris and both Mr. & Mrs. Eden maintained their complaints against the respondents' activities, Mrs. Eden asserting that noise, not interference with water flow was the principal cause of concern.

On the claim of hardship, the respondents' income tax returns 30 June 1985 to 1987 were put forward to show that the business provided only a modest income to Mr. & Mrs. Pace, Silsop Pty. Limited had accumulated losses and was only marginally solvent and that, if required to acquire or lease alternative premises to use in conjunction with their business, they would have to close the business down.

The Council tendered evidence of suitably zoned land and factory premises available for sale or lease in the district on which the business could be conducted but the respondents claimed that they were all beyond the reach of their purse.

As to Mr. Pace personally, there was evidence that he was illiterate, dependant on his wife to manage office affairs, unskilled except for managing haulage operations and was severely restricted by a back condition from undertaking heavy work. If the business had to close he, as well as his son Robert and four drivers, faced unemployment.

In respect of the respondents' land, it was suggested that inaction by the Council to stop the parking and repairing of vehicles used in a business conducted by the residents over the years amounted to condonation of the unlawful use and was a factor against the grant of an injunction. However, in my opinion, it was not established that the Council was aware of the activities of the respondents before the Edens complained in August 1986 and then the Council acted promptly with an inspection soon after and a Notice to Cease on 18 September 1986. This was followed by other inspections mentioned and further notices to cease on 12 November 1986, 8 January 1987, 7 April 1987 and 10 June 1987. All were ignored.

Conclusions

In my opinion, the balance of considerations before the Court in the present case do not justify a refusal of injunctive relief.

As pointed out in the cases, it is proper to treat the Council as representing the public interest in its municipality charged with the duty of maintaining the planning and environmental protection laws it has to administer. Here the purposes for which the lands in question are being used is admittedly unlawful, unauthorised and, as to the respondents' own property, completely inconsistent in character with a residential area.

It is relevant to consider whether in the course of time the legal zoning has become or is tending to become obsolete and might for practical purposes be disregarded, but the evidence here is that, notwithstanding the evidence of non-conforming use of the subject land in the past, the use of land in the immediate vicinity for residential purposes is becoming intensified, not diminished.

I do not think much weight can be given to the fact that predecessors in occupation of the land used it for similar unlawful purposes. To begin with, repeated breaches of the law do not change it. Nor does condonation by the Council although that could, in appropriate circumstances, be a reason for refusing relief; but the evidence does not satisfy me that the Council was either aware of or condoned prior illegal uses of the respondents' land. Moreover, I am not satisfied that the previous user was comparable in extent with the respondents' activities. In so far as it may have been similar, the absence of complaints suggests a somewhat tolerant set of neighbours rather than that there would have been no cause for complaint.

The respondents' case is aided by the support of the neighbours who gave evidence in their favour. It enables them to contend that the breach is technical as it causes no environmental harm in fact. Against that I have to consider the complaints of the other neighbours. To Mr. Berry's complaints I can give no weight greater than that he made complaints that he did not substantiate by giving evidence. It is best that I disregard them. The Libreris' complaints are made suspect, firstly, because Mr. Libreri had grounds for ill will against the respondents, secondly, because the complaints are somewhat two faced when he himself had carried out similar activities on his own land and, thirdly, they are inconsistent with the fact that he never complained about Mr. Walker's activities on the same land. I am not prepared to find that there was a connection between Mr. Pace's refusal of an easement and the first visit of the Council to the respondents' property. That visit was a consequence of the complaint made by Mr.

& Mrs. Eden and, although they are related to the Libreris, I am satisfied that the Edens' complaints were genuine, independent and uninfluenced by the Libreris or the easement episode. However, I discount the complaints of the Libreris because they are suspect for the reasons given and I treat the strength of the Edens' complaints as somewhat diminished by the fact that they were also upset by the extraneous matter of interference with the water flow and their complaints were made for the first time 18 months or so after the respondents commenced their activities.

Individuals vary a great deal in their tolerance of noise and smells and neighbours' activities. The impression I got from the evidence of the neighbours overall was not that there was no noise or smells or unsightliness attached to the respondents' activities, but that there was none that they were not willing to tolerate. The Edens are an exception. They were not prepared to put up with non-residential activities in their residential area, were affected detrimentally by them and had valid grounds for their complaints in fact and law.

If the Council's case rested solely on complaints by neighbours it would finish up very weak by having to rest virtually on those of the Edens measured against the approval and support given to the respondents by the other neighbours who gave evidence; but it does not rest there. The respondents' activities of their very nature are not compatible with maintaining a residential environment. From such activities there is inevitably actual and potential injury to the amenity of such an environment, injury of the kind described by the Town Planner, Mr. Pratt, whose views I quoted. The residential zoning is likely to persist indefinitely into the future as the new forms of residential development earlier described becomes established. It is relevant that such forms of development are encouraged by L.E.P. No. 25 and are liable to increase the density of the residential population in the area. The interests of future as well as present residents in the amenity of the neighbourhood is affected and ought to be taken i

nto account. Failure now to curb unlawful land use of the present kind in this area would make it more difficult to do so later and tend to encourage others to break the law in like manner in the hope of similar treatment from the Court.

In so far as the respondents sought to rely upon unrestrained instances of past unlawful user of the land by others over a long period, it was submitted for the Council that, as the respondents are seeking the withholding of an injunction as regards their own unlawful activities, it is not open to them to rely upon the unlawful acts of predecessors or the length of time over which they occurred as there are no transmissible rights to unlawful activities on land. In my opinion, this submission is correct. It focuses attention on the fact that if the discretion is exercised in favour of a respondent by refusing injunctive relief, the benefits thereof are personal to that respondent and not transmissible to a successor. Therefore, that respondent gains no inherited advantage from a long period of unlawful user by others before his own commenced.

Coming to the personal position of the respondents, they must be regarded as largely the authors of their own misfortune. Far from being ignorant of the possibility that the authority of the Council might be required for their proposed activities on the land, Mr. Pace directed his mind to that very question when he asked Mr. Walker whether he could expect to have any problems with the Council. Then he was content to rely on a favourable answer from an obviously interested party when he could easily have satisfied himself by a visit with his wife to the Council before purchasing the property. He must be regarded as having elected to take a risk and the submission that the respondents acquired the property in good faith in ignorance of restrictions upon its use is entitled to small weight on the question of discretion.

Little is to be gained by comparing the facts of other cases in considering the exercise of a discretion such as the present but it is of some relevance to note that in the decided cases cited here long user of land in the one ownership has been a prominent matter for consideration in favour of a party asking for relief to be refused. In the present case the illegal use by the respondents began only at the end of 1984 or early 1985 and went for less than two years before the respondents were put on notice that it was in breach of the law, should cease and, if not ceased, would be the subject of Court action to restrain it.

This leaves the matter of personal and financial hardship, always a troublesome question for a Court with discretionary powers to avoid causing it to a party.

On the evidence I am not satisfied that the respondents' financial position is as precarious as they presented it to be. No proper valuation of the assets was offered, merely the written down values after arbitrary depreciation allowances claimed for tax purposes. However, I am prepared to accept that the net returns from the business after tax are modest and that it would place a substantial burden on its resources to buy or lease industrial or commercial property of the kind available in the listings tendered by the Council. Nevertheless, it was the respondents' responsibility to demonstrate to the Court all matters of hardship relied on and no evidence was offered of any searches for or attempts to find alternative facilities for carrying out the activities that are illegal if done at their residence. They were content to assert that if required to cease using that property for their business they would have to close down unless their company's financial position dramatically improved.

In my opinion, zoning laws would soon and too easily be negated if injunctive relief were to be refused merely because a business commenced on land in an area where it was unlawful could or might not survive if forced to relocate in an area where it was lawful. As I have said, the respondents have to be regarded as having taken a risk and may reasonably be required to bear the consequences.

An attempt was made to distinguish the land behind the service station on the ground that its use by Mr. Cassar for parking heavy vehicles was condoned by a Council officer. The Council could find no record to support Mr. Cassar's story or of any authority for such use. However, for the reasons I have given in relation to the use of their residential property, the respondents may look only to their own use of the service station land and may gain no advantage from prior illegal user by others. If Mr. Cassar or any other prior user earned or acquired some equity against the Council, it was personal to him or them and does not pass to the respondents. The respondents use began as recently as early 1987 and was incidental to the use being made of their residential property. The Council did not give them a specific notice to cease using that piece of land before commencing these proceedings, but that does not preclude an application for relief in respect of it.

For the above reasons I do not think that the Court's discretion to refuse injunctive relief should be exercised in the respondents' favour in this case.

The injunctions sought will be granted. The Council is entitled to its costs of the proceedings.

To give the respondents time to get their house in order for a relocation of their business activities I will suspend the operation of the injunctions to 28 February 1989.

Orders in accordance with paras. 1 and 2 of the Application filed herein on 23 October 1987 against the respondents therein named and Silsop Pty. Limited, added as third respondent by leave granted at the hearing.

Order that the operation of the injunctions thereby granted be suspended to 28 February 1989.

Order that the respondents pay the applicant's costs of the proceedings.