Jackson and Ors v Blacktown City Council
[2007] NSWLEC 238
•16 April 2007
Land and Environment Court
of New South Wales
CITATION: Jackson and Ors v Blacktown City Council [2007] NSWLEC 238 PARTIES: APPLICANT
RESPONDENT
Tom James Jackson, Kenneth William Jackson and Ian Oliver
Blacktown City CouncilFILE NUMBER(S): 10961 of 2006 CORAM: Hoffman C KEY ISSUES: Section 121B Order :- existing use rights, Council policy in regard to Scheduled Lands at Riverstone. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy Sydney Regional Growth Centres 2006
Blacktown Local Environmental Plan 1988
Blacktown Development Control Plan 2006DATES OF HEARING: 16/04/2007 EX TEMPORE JUDGMENT DATE: 16 April 2007 LEGAL REPRESENTATIVES: APPLICANT
Mr G. Newport, barrister with
Mr M. Seymour, barrister
Instructed by Ms M. Peatman
of Hunt and HuntRESPONDENT
Mr P. Kelson, solicitor
of Norman Waterhouse
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHoffman C
16 April 2007
JUDGMENT10961 of 2006 Tom James Jackson, Kenneth William Jackson and Ian Oliver v Blacktown City Council
1 This is Appeal No. 10961/2006 between Tom James Jackson, Kenneth William Jackson and Ian Oliver against Blacktown City Council in regard to the issue of an order under s 121B of the Environmental Planning and Assessment Act in respect of lots 1-4 Section 11 DP1480 and lots 91-94 Section 11 DP1480 on the corner of Hamilton, Melbourne and Edward Streets, Riverstone.
2 The current use of the land is as a storage yard for vehicles, excavation and mining-associated equipment. The land is comprised of eight lots, each having a dimension of 9.145 m by 60.96 m giving a total dimension of 36.58 by 121.92 m. The area of the total is approximately 4450 sq m.
3 The site has a slight fall to the south. The site is currently vegetated with mature eucalypt trees and grasses. The equipment on the subject land is stored there and consists of the previously described land use. There are also some outbuildings and shipping containers. The surrounding area on the opposite side of Hamilton Street to the west is industrial development in an industrial zone. To the north, south and east the land is bushland with a number of residential and other land uses taking place.
4 The applicable statues are: the State Environmental Planning Policy Sydney Regional Growth Centres 2006, the Blacktown Local Environmental Plan 1988 for the zoning 1(a) General Rural and cl 12(3) of the statute also applies as to the land. The current uses are not permissible under the current statute. The applicable development control plan is Development Control Plan 2006 part A, Introduction to General Guidelines, and part B, Development in the Rural Zones.
5 The order under s 121B was issued on 14 September 2006 and the relevant orders are:
- “Cease using the land for the purpose of a storage yard and remove all machinery, containers, equipment and car bodies from the site within thirty days of the date hereon. The reasons the council issued this order are:
1. The land is zoned 1(a) General Rural and use of such land is prohibited by Blacktown Local Environmental Plan 1988.
3. Council has a duty of care to ensure that activities are undertaken in appropriately zoned areas”.2. The use of the site for this purpose is not in keeping with the objectives of the Blacktown Local Environmental Plan 1988 for the zone.
6 The applicant’s issues in response to the order are:
- “The applicant’s statement of issues in relation to the order received on 14 September 2006 issued under s 121B of the Environmental Planning and Assessment Act for use of the premises for purposes that are prohibited are:
2. Should the applicant have the benefit of the resolution passed by council on 7 September 1994 when council adopted a policy in respect of the area referred to in the Scheduled Lands as stated: a) council suspend any legal action in the Land and Environment Court in relation to all existing and authorised dwellings and unauthorised non-residential structures and uses in the Scheduled Lands that existed as of 10 April 1994, and have been confirmed by council’s land use survey of the Scheduled Lands and accompanying register of land uses and by subsequent final confirmation field surveys conducted on 26 August 1994, until the recommendations of the Scheduled Lands working party, regarding future urban development options, are known and reported to council”.1. Does the applicant have existing use rights for the storage of conveyers, associated items, timber and vehicles.
7 The evidence in the appeal came from Mr G Apps, senior statutory planner of Blacktown City Council and Mr G Rhodes, consultant town planner to the applicant. Also an affidavit in regard to the sequence of events arising from the use of the land was provided by Mr T J Jackson sworn on 20 February 2007. No witnesses were called for cross-examination.
8 A summary of Mr Apps’ evidence is:
“The subject land is located within an area known as the Scheduled Lands. The Scheduled Lands are comprised of small lots similar in size to the lots comprising the subject land. Historically these lots were intended for the development of terrace housing or workers’ cottages to serve the industrial area of Riverstone dating from about 1889 however industrial development never occurred to such a scale and the land remained undeveloped and un-serviced. These lands lack adequate infrastructure to enable these lands to be developed.
Whilst the state government has indicated that these lands would form part of a future release there is no imminent rezoning of the land and nor do I know when such a rezoning may be forthcoming. As a result of illegal development occurring in the Scheduled Lands, particularly illegal dwellings, council introduced an interim policy to be able to deal with unauthorised developments in the Scheduled Lands. That interim policy deals with a variety of land uses and not only dwellings.
Notwithstanding the contents of the register the question remains as to whether the activity was in operation in 1994 and council’s aerial photographs provide some assistance in this regard”.It was resolved by council on 7 September 1994 to suspend any action on some activities that had commenced prior to 26 August 1994. A copy of that resolution is incorporated in Mr Rhodes’ report at page 9. In order for the subject development to benefit from the amnesty provided by the resolution the activity would need to have been identified in council’s register of land uses. I have searched the relevant register and I confirm that the subject development was not identified within that register.
9 The photographs in Mr Apps’ report reveal that on 10 April 1994 there was a fence erected around the site however the aerial photograph has a number of trees on it and the shadows of those trees does not entirely enable the observer to understand whether or not equipment was actually stored there at that time. A later aerial photo in April and May of 1995 definitely shows equipment on the site, as does subsequent photographs.
10 In Mr Rhodes’ evidence he says in summary:
“The relevant date is 10 April 1994 and 26 August 1994 whereas the use of the subject land commenced in 1992 with work carried out on the land, namely the erection of fencing in late 1993 to accommodate the use in terms of required site security, it is noted that council’s field surveys occurred after the erection of the fencing which in turn may have made identification of the use of land difficult.
It is clear from the 1992 and 1993 aerial photos that the land was being put to some form of storage use and this is enforced by the 1995 aerial photo. The use apparently operates without complaint and is not visually intrusive. This situation will remain until urbanisation of the area. To my mind the situation falls within the ambit of council’s Scheduled Lands policy and should benefit from that policy.
Should the land be zoned for some public purpose then it would be appropriate that the uses continue up until acquisition of the land by the relevant public authority.”Given the development history of the area since 1889 the extent of use is throughout the area and the pending rezoning to permit urban development it is our view that council’s current policy has merit and represents a practical interim solution provided that there is a clear understanding and undertaking on behalf of the landowners that the current use will cease on the rezoning of the land for urban purposes then we see no reason why the current use should not continue until that time.
11 Attached to Mr Rhodes’ report is a letter dated 17 November 2006 from Mr Leo Kelly of 217 Commercial Road, Vineyard, New South Wales 2767. He was the foreman at the time of the erection of the fence and he commenced work in December 1993 and completed the fence in January 1994 and he observed at that time on site there was a mixture of conveyor equipment that he understood had been used in the mining industry. There was also timber framing and rolled steel joists and various other materials stored in various parts of the land with an old pantechnicon truck parked near the Melbourne Road end of the allotments.
12 Most of the equipment was stored on the land under the canopies of the trees. Mr Jackson had told Mr Kelly that he needed the fence erected to provide security to the land as materials stored on the land were being stolen, particularly parts of the conveyors such as the hydraulic motors and rollers.
13 Prior to the hearing today the parties had conferred and produced an agreed statement of facts in Exhibit 4. These were:
“1. The land the subject of these proceedings was acquired by the applicants in February 1991 and has been continuously owned by them since then.
2. The land was then zoned 1(a), General Rural under the Blacktown Environmental Plan 1998 and remains so zoned.
4. No consent for the use of the land as a storage yard was granted by the respondent after the date of acquisition of the land by the applicants.3. The use of the land as a storage yard was permitted with consent under that statute until 2 April 1997.
4(a) On or about February 1994 the applicants constructed a Colorbond fence with Colorbond gates around the boundary of the subject land.
6. The land has at all times been within the area of the Scheduled Lands as referred to in the respondent’s resolution of 7 September 1994 set out on page 9 of the report by Gary Rhodes dated 29 November 2006 and filed in these proceedings.5. After 2 April 1997 the use of the land as a storage yard became and remains prohibited under the statute.
7. That resolution remains in force”.
14 As a result of the above the parties have agreed to consent orders which provide for the short term removal of the wrecked car bodies in 2007; and the removal of other material by a date in 2008; and the removal of the earthmoving equipment, spare parts, site sheds and containers within three years of the date of these orders, or earlier upon rezoning of the land. Also that council would review the situation in two-and-a-half years.
15 I can see no reason to refuse the consent orders sought by the parties. Therefore the orders of the Court are:
A The order under s 121B of the Environmental Planning and Assessment Act 1979 issued on 14 September 2006 by Blacktown City Council in regard to Lots 91-94 and Lots 1-4, Sect 11 DP 1480 Cnr Melbourne Road, Hamilton and Edward Streets, Riverstone is hereby modified by deleting the words from “cease” up to and including the word “hereon” and inserting the following:
“1. Remove all wrecked car bodies at South Eastern end of the site within six (6) months from 16 April 2007. This section of the site not to be used for further storage.
2. Remove other material except for earthmoving equipment, spare parts for that equipment, two site sheds and two containers by 16 April 2008.
4. Council to review in 2.5 years from 16 April 2007.”3. Earthmoving equipment, spare parts, two site sheds and two containers to be removed within three (3) years from 16 April 2007 or earlier on rezoning.
B The exhibits are returned to the parties except Exhibits 3, 4, A and C.
___________________
- K G Hoffman
Commissioner of the Court
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