Hornsby Shire Council v Footwear Trading Company Pty Limited and Peter Loccisano and Footwear Trading Group Pty Ltd

[2008] NSWLEC 286

Land and Environment Court

of New South Wales

CITATION:

Hornsby Shire Council v Footwear Trading Company Pty Limited and Peter Loccisano and Footwear Trading Group Pty Ltd [2008] NSWLEC 286

PARTIES:

APPLICANT
Hornsby Shire Council

FIRST RESPONDENT
Footwear Trading Company Pty Limited

SECOND RESPONDENT
Peter Loccisano

THIRD RESPONDENT
Footwear Trading Group Pty Ltd

FILE NUMBER(S):

40047 of 2008

CORAM:

Preston CJ

KEY ISSUES:

Civil Enforcement :- carrying out development without consent - advertisements on public roads - advertising banners attached to trucks parked on road verge and electronic advertising sign placed on road nature strip - declaration and injunction issued

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 76A

DATES OF HEARING:

30 September 2008

EX TEMPORE JUDGMENT DATE:

30 September 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Staunton (barrister)
SOLICITORS
Pike Pike & Fenwick

FIRST, SECOND, and THIRD RESPONDENTS
No appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

30 SEPTEMBER 2008

40047 OF 2008

HORNSBY SHIRE COUNCIL V FOOTWEAR TRADING COMPANY PTY LIMITED and PETER LOCCISANO and FOOTWEAR TRADING GROUP PTY LTD

JUDGMENT

1 HIS HONOUR: Hornsby Shire Council brings proceedings to remedy and restrain breaches of the Environmental Planning and Assessment Act 1979 involving the carrying out of development for the purpose of advertisements on two roads, New Line Road and Old Northern Road, in Hornsby local government area. The advertisements consist of banners attached to trucks parked on the verge of the roads advertising shoes and clothing for sale at nearby premises, being Unit 11/12, 286-288 New Line Road, Dural, as well as an electronic advertising sign placed on the nature strip of New Line Road outside the premises. The advertisements have been displayed from at least 8 March 2007 to date.

2 The Council brings the proceedings against three respondents, each of whom, it appeared to the Council, might have been involved in some way with the carrying out of the development for the purpose of advertisements.

3 The proceedings came on for hearing before me on 14 July 2008. There was no appearance for any of the respondents. The Council proved service on each of the respondents of the originating process, the evidence filed in the proceedings and the notification of listing of the proceedings for hearing. The proceedings were nevertheless adjourned part heard to a date to be fixed for the resumption of the hearing. The date fixed for the resumption of the hearing was today, 30 September 2008. The Council has again proved service on each of the respondents of further evidence filed in the proceedings as well as the notification of listing of the resumption of the hearing.

4 This morning when the matter came on for the resumption of the hearing, again none of the respondents appeared. I stood the matter down and inquiries were made of the respondents by the officers of the Council. In particular, an officer of the Council telephoned the second respondent, Mr Peter Loccisano, who is also the sole director and secretary of the first respondent, Footwear Trading Company Pty Limited, and advised Mr Loccisano, yet again, of the hearing today. Mr Loccisano advised that he would not be attending the hearing and did not wish for the Council to contact his solicitors.

5 In the circumstances, each of the respondents have been given repeated notice of the hearings of these proceedings and the evidence to be adduced but have elected not to appear. The Court should proceed ex parte to hear and determine the proceedings against each of the respondents.

6 The Council’s case is that the three respondents, or any of them, are in breach of s 76A(1) of the Environmental Planning and Assessment Act1979 in carrying out development without consent. Section 76A(1) provides that:

“If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:

(a) such a consent has been obtained and is in force, and

(b) the development is carried out in accordance with the consent and the instrument.”

7 The relevant environmental planning instrument in this case is Hornsby Shire Local Environmental Plan 1994. The roads on which the trucks bearing the advertisements were parked and on which the electronic advertising sign was placed, namely New Line Road and Old Northern Road, are each zoned Special Uses B (Transport Corridor). In that zone, development for the purpose of advertisements is permissible but only with development consent. “Advertisement” is defined in the dictionary in cl 23 of the Hornsby Shire Local Environmental Plan to mean “the display of symbols, messages or other devices for promotional purposes or for conveying information, instructions, directions or the like, whether or not the display includes the erection of a structure or the carrying out of a work”.

8 Mr Ben Walter, traffic ranger coordinator with the Council, deposed to having conducted searches of Council’s records and says that there is no record of the Council ever granting development consent for advertisements or advertising pertaining to the sale of goods and services at premises at Unit 11/12, 286-288 New Line Road, Dural, to either Footwear Trading Company Pty Limited, Mr Peter Loccisano or to any other person or any entity, whereby such advertisements or advertising is to take place on New Line Road, Old Northern Road, or elsewhere within the Hornsby local government area.

9 The development in question involves the parking of two trucks with advertising banners attached to them.

10 The first truck is a white Isuzu pantechnicon with registration AZC 04Q. The RTA records show that the vehicle is currently registered to a company by the name of “Filefast Pty Limited”. Filefast Pty Limited is the former company name of Footwear Trading Company Pty Limited. The ASIC company extract shows that Filefast Pty Limited changed its name to Footwear Trading Company Pty Limited on 23 August 2002. Accordingly, the vehicle with registration AZC 04Q is registered to Footwear Trading Company Pty Limited.

11 That vehicle has been repeatedly parked along both New Line Road and Old Northern Road from at least 8 March 2007 through to 13 September 2008. The vehicle displays banners attached to it. The message on the banners varies from time to time, however there are common features in the advertisements.

12 One advertisement, displayed through March 2007, was “King Gee work shorts from $29.95 Footwear Trading Company Unit 11/12, 286 New Line Rd (behind McDonalds) Ph: 9651 4354 conditions apply”. Another advertisement substituted for the goods advertised “Work boots from $49.99” but retains the reference to Footwear Trading Company, the address of the premises at which the goods are for sale as Unit 11/12, 286 New Line Road, Dural, and the directions to reach the premises as being behind McDonalds.

13 In September 2007, the advertisement was changed to take advantage of the spring season. The message was “New spring arrivals new season colours & styles in store now Footwear Trading Company, Unit 11/12, 286 New Line Rd (behind McDonalds) Ph: 9651 4354”. In February 2008, to take advantage of the start of the school year, the advertisement was changed to read “Massive School shoe sale buy 1 pair and receive 50% off second pair Footwear Trading Company Unit 11/12, 286 New Line Road, behind McDonalds”. In March 2008, in anticipation of the coming winter season the display changed to read “Sale now on 25% off ladies winter footwear Footwear Trading Company Unit 11/12, 286 New Line Road, Dural, behind McDonalds”. And finally to take the most recent advertisement on 13 September 2008, the display read “Over stocked shoe clearance 4 days only, up to 90% off, Footwear Trading Company, Unit 11/12, 286 New Line Road, Dural (behind McDonalds)”.

14 There are other variations that I have not summarised above. In each case the manner of display is the same, namely words are on a banner attached to the truck. The message identifies the goods for sale, the company selling the goods as being Footwear Trading Company, the location of the premises at which the goods are for sale as being Unit 11/12, 286 New Line Road, directions to reaching the premises, namely behind McDonalds, and sometimes the telephone number.

15 The second truck is a Toyota 200 pantechnicon truck which has had two different registration numbers, the first in time being TAV 690 and the second in time being AU 83 RS. The RTA documents show that the registration of the vehicle changed on 22 February 2008 from TAV 690 to AU 83 RS. The owner of the vehicle was recorded by the RTA as also having changed from Craig Neil Jensen to Footwear Trading Company Pty Limited on 22 February 2008. Nevertheless, there is some evidence that that vehicle was owned by Footwear Trading Company Pty Limited prior to the date of 22 February 2008 when the change in registered owner was recorded by the RTA.

16 The manner of display of the advertisements for the Toyota truck was the same as for the Isuzu truck. A banner bearing the advertisements was attached to the vehicle which was parked at various locations on both New Line Road and Old Northern Road. The message on the banner attached to the truck bore similarity to the banners that were displayed on the Isuzu truck. So, for example in March 2007, the Toyota truck, then bearing the registration TAV 690, displayed an advertisement stating “Soccer boots from $19.95 Footwear Trading Company Unit 11/12, 286 New Line Road, Dural (behind McDonalds)”. In May 2007, the advertisement stated “Ugg boot sale on now Footwear Trading Company Unit 11/12, 286 New Line Road, behind McDonalds”.

17 On 25 February 2008, three days after the vehicle was registered as having its owner and number plate changed, and the vehicle bore the new number plate of AU 83 RS, the message displayed in the banner was “Football boot sale Adidas kids boots from $29.99 Adidas adult boots from $39.99 Footwear Trading Company Unit 11/12, 286 New Line Road, Dural, behind McDonalds”.

18 The next day, 26 February 2008 and on subsequent days, the message was changed to read “Sydney’s lowest price on Redback work boots from $69.00 Footwear Trading Company Unit 11/12, 286 New Line Road, Dural, behind McDonalds”. In March 2008, the vehicle AU 83 RS also bore the same banner as had the other vehicle AZC 04Q advertising “Sale on now 25% off all ladies winter footwear Footwear Trading Company unit 11/12, 286 New Line Road, Dural, behind McDonalds”.

19 Again, the advertisements that I have documented are some of the advertisements in the banners that the Toyota vehicle displayed. They bear a similar pattern identifying the goods for sale, the company selling the goods as the Footwear Trading Company, the premises at which the goods are for sale as being Unit 11/12, 286 New Line Road, and giving directions to reach those premises as being behind McDonalds.

20 The electronic advertising sign was displayed only on one occasion on 29 January 2008. The advertising sign bore the message “Back to school shoe sale”. It was placed on the nature strip outside the Footwear Trading Company’s premises at 286-288 New Line Road.

21 I am satisfied that each of the banners attached to the two trucks on each occasion and the electronic advertising sign constitute advertisements within the meaning of that development in the Hornsby Shire Local Environmental Plan. Furthermore, the parking of the two trucks on repeated occasions over an extended period of time involves the carrying out of development for the purpose of advertisements. The display of the electronic advertising sign, although on only one occasion, also involved the carrying out of development for the purpose of advertisements.

22 I now come to the person who has carried out this development for the purpose of advertisements in breach of the Hornsby Shire Local Environmental Plan and the Environmental Planning and Assessment Act1979. As I have noted, the truck AZC 04Q is registered to the company that is now known as Footwear Trading Company Pty Limited. The truck which now bears the registration AU 83 RS is also registered as being owned by Footwear Trading Company Pty Limited. The registration number plate and the vehicle are both recorded as having been transferred to Footwear Trading Company Pty Limited on 22 February 2008.

23 The name of the company selling the goods advertised on the banners attached to the trucks is Footwear Trading Company Pty Limited. The ASIC company extracts for Footwear Trading Company Pty Limited reveal that the registered office of Footwear Trading Company Pty Limited is Unit 11-12, 286-288 New Line Road, Dural, and that the principal place of business is the same address. This address is the address that has been repeatedly stated in the banners attached to each of the two trucks. The sole director and secretary of Footwear Trading Company Pty Limited is Peter Loccisano, the second respondent to these proceedings.

24 On 25 August 2008, Mr Loccisano had a meeting with Mr Ben Walter and Mr Zoris Fam, from the Council. At that meeting Mr Walter asked Mr Loccisano about the trucks parking on the road in Dural and displaying advertising banners. In the course of the conversation Mr Loccisano said “I am willing to undertake not to park these trucks with advertising on them on any of Council roads”. Mr Loccisano said he would come to a verbal agreement but would not sign any written document agreeing not to park the trucks with advertising banners. Mr Loccisano said “I promise that I will undertake not to park my trucks with advertising on any of Council’s roads”. Mr Loccisano further said, in relation to the trucks, “I might even just spend $5,000 and re-spray the trucks. Business is bad at the moment. Footwear Trading services the community and other business in the area, even Hornsby Council”.

25 Collectively, this evidence establishes that Footwear Trading Company Pty Limited is the person who has carried out the development of parking the trucks on the roads with the advertising banners for the purpose of advertisements. The evidence in relation to the electronic advertising sign is, however, sparse. There is no evidence as to who owns the sign. However, its location immediately outside the premises of Footwear Trading Company Pty Limited and the message displayed would support an inference that the electronic advertising sign was placed there by Footwear Trading Company Pty Limited.

26 The evidence does not establish that the third respondent, Footwear Trading Group Pty Ltd, is a person that carried out development for the purpose of advertisements. In a letter dated 19 February 2008, Mr Peter Loccisano suggested that the vehicles that displayed the advertising banners would have their registered owner changed to Footwear Trading Group Pty Ltd. However, as I have noted, only three days after this, on 22 February 2008, one of the vehicles, being the Toyota truck, had its registered owner and number plate transferred to Footwear Trading Company Pty Limited, not Footwear Trading Group Pty Ltd. The other vehicle, the Isuzu truck, has been registered with the company that is now Footwear Trading Company Pty Limited throughout the whole of the relevant period. There is no other evidence to suggest that the Footwear Trading Group Pty Ltd is conducting the business that is advertised as Footwear Trading Company in the advertising banners attached to the trucks.

27 Although Mr Peter Loccisano, in the meeting with Council officers on 25 August 2008, expressed himself in the first person, having regard to the fact that Mr Loccisano is the sole director and secretary of Footwear Trading Company Pty Limited, he should be understood as speaking for and on behalf of Footwear Trading Company Pty Limited. He is, to all intents and purposes, the directing mind and will of that corporation. There is no evidence that the business of Footwear Trading Company Pty Limited or the advertising in the form of the banners attached to the trucks or the electronic advertising sign were for or on behalf of Mr Peter Loccisano in his personal capacity.

28 Accordingly, I do not find that either the second respondent or the third respondent are persons who have carried out development for the purpose of advertisements in breach of the Local Environmental Plan and the Environmental Planning and Assessment Act1979.

29 The attitude of the first respondent in continuing to display the advertisements, in the form of banners on the trucks, in the face of persistent objection by the Council, and throughout these proceedings, including in the period between the commencement of the hearing of these proceedings on 14 July 2008 to date, and in not appearing at either of the hearings, despite notification and requests to do so, is evidence that the first respondent is likely to continue to carry out development for the purpose of advertisements in breach of the Hornsby Shire Local Environmental Plan and the Environmental Planning and Assessment Act 1979 unless restrained by order of this Court. Accordingly, it is appropriate to issue an injunction against the first respondent restraining the future carrying out of development for the purpose of advertisements on Old Northern Road and New Line Road within the Hornsby local government area without the prior consent of the Council.

Orders

30 For these reasons the Court makes the following orders:

(1) Declares that Footwear Trading Company Pty Limited has carried out development on land comprising Old Northern Road and New Line Road within the Hornsby local government area for the purpose of advertisements in breach of the Environmental Planning and Assessment Act 1979 ;

(2) Orders that Footwear Trading Company Pty Limited, its servants and agents, be restrained from carrying out development, unless development consent has first been obtained and is in force, within the road reserves of New Line Road and Old Northern Road within Hornsby local government area for the purpose of advertisements, being the display of symbols, messages or other devices for promotional purposes or for conveying information, instructions, directions or the like, whether or not the display includes the erection of a structure for the carrying out of a work including but not limited to:

(a) the display of banners on parked vehicles; or

(b) the use of stationary electronic signs;

(3) Orders that Footwear Trading Company Pty Limited pay Hornsby Shire Council’s costs of the proceedings as agreed or as assessed.

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