La Rosa v City of Wanneroo

[2006] WASC 304

LA ROSA -v- CITY OF WANNEROO [2006] WASC 304

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 304
Case No:	SJA:1080/2005	Heard:	2 DECEMBER 2005
Coram:	JOHNSON J	Delivered:	20/12/06
No of pages:	35	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	GIUSEPPI LA ROSA CITY OF WANNEROO
Catchwords:	Town planning scheme Carrying out a development on land Using land to park commercial vehicles Nonconforming use
Legislation:	Criminal Procedure Act 2004 (WA), s 78, s 78(1), s 78(3) Local Government Act 1919 (NSW) Metropolitan Region Town Planning Scheme Act 1959 Town Planning and Development Act 1928 s 2, s 10AB, s 10AB(1)(a)
Case References:	Council of the City of Newcastle v Royal Newcastle Hospital (1959) 100 CLR 1 Eaton & Sons v Warringah Shire Council (1972) 129 CLR 270 Kismet Engineering Pty Ltd v Brisbane City Council (1959) 102 CLR 574 Morris v Woollahra Municipal Council (1966) 116 CLR 23 Nominal Defendant v Dunstan (1963) 109 CLR 143 Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1 Town of Claremont v Complete Furniture Restoration Pty Ltd [2005] WASC 113 Vines v Djordjevitch (1955) 91 CLR 512 Seribray Pty Ltd v Sutherland Shire Council [2000] NSWLEC 102 Shire of Perth v O'Keefe (1964) 110 CLR 529

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : LA ROSA -v- CITY OF WANNEROO [2006] WASC 304 CORAM : JOHNSON J HEARD : 2 DECEMBER 2005 DELIVERED : 21 DECEMBER 2006 FILE NO/S : SJA 1080 of 2005 BETWEEN : GIUSEPPI LA ROSA

Appellant

AND

CITY OF WANNEROO
Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES' COURT OF WESTERN AUSTRALIA

Coram : Magistrate M D Wheeler

File No : JO 9210 of 2004

Catchwords:

Town planning scheme - Carrying out a development on land - Using land to park commercial vehicles - Nonconforming use

Legislation:

Criminal Procedure Act 2004 (WA), s 78, s 78(1), s 78(3)

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Local Government Act 1919 (NSW)
Metropolitan Region Town Planning Scheme Act 1959
Town Planning and Development Act 1928 s 2, s 10AB, s 10AB(1)(a)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr P G McGowan
Respondent : Mr P L Wittkuhn

Solicitors:

Appellant : Friedman Lurie Singh & D'Angelo
Respondent : McLeods

Case(s) referred to in judgment(s):

Council of the City of Newcastle v Royal Newcastle Hospital (1959) 100 CLR 1
Eaton & Sons v Warringah Shire Council (1972) 129 CLR 270
Kismet Engineering Pty Ltd v Brisbane City Council (1959) 102 CLR 574
Morris v Woollahra Municipal Council (1966) 116 CLR 23
Nominal Defendant v Dunstan (1963) 109 CLR 143
Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1
Town of Claremont v Complete Furniture Restoration Pty Ltd [2005] WASC 113
Vines v Djordjevitch (1955) 91 CLR 512

Case(s) also cited:

Seribray Pty Ltd v Sutherland Shire Council [2000] NSWLEC 102
Shire of Perth v O'Keefe (1964) 110 CLR 529

(Page 3)

1 JOHNSON J: The appellant was convicted after trial in the Joondalup Magistrates Court on 20 July 2005 of an offence under s 10AB(1)(a) of the Town Planning and Development Act 1928 ("the TPAD Act") of carrying out a development on land, namely the use of the land for the parking of commercial vehicles, in contravention of s 4.23.2 of the City of Wanneroo District Planning Scheme No 2 ("DPS2"). The land in question is Lot 158 Bebich Drive, Wanneroo, ("Lot 158") which is owned by the appellant and his wife and is within the City of Wanneroo ("the City"). As the appellant's wife is not charged with any offence, and as a matter of convenience, any reference in these reasons to the ownership of Lot 158 will refer only to the appellant.

2 The sole ground of appeal is in the following terms:

"The learned magistrate was wrong in law in posing as the test for whether there was evidence of use to found the basis for non-conforming use rights, whether Lot 158 Bebich Drive (the subject property) was so used prior to 1972.

1. The proper approach was to determine that Swan Location 1688 was one planning unit and that part of that property had been used for uses now categorised as non-conforming uses (including transport depot) and that the subject property was part of that planning unit.

2. The learned magistrate should have then found that the existence of such non-conforming use rights was a defence that had been made out."

The Provisions of the Relevant Planning Scheme

3 Section 10AB(1)(a) of the TPAD Act provides that a person who contravenes a town planning scheme commits an offence. There is some inconsistency in the evidence and the submissions as to when the relevant scheme, DPS2, came into effect. Counsel for the appellant submitted that the date was in 1985. However, the copy of DPS2 provided to the Magistrate clearly indicates that it was first published in the Government Gazette on 6 July 2001. No issue arises from any discrepancy because it was accepted that there was no period during which one scheme or another did not apply.

4 Lot 158 is contained in Certificate of Title Volume 787 Folio 414 which describes Lot 158 on Plan 16085 as being part of Swan Location 1688. Schedule 13 of DPS2 sets out the various planning zones

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created under the scheme and the land within those zones. Swan Location 1688 falls within Special Rural Zone 7 ("Zone 7"). Schedule 13 provides, inter alia, that the land the subject of Zone 7 may be used for residential and equestrian purposes only. Under Zone 7 even the keeping of livestock and poultry for commercial purposes is prohibited.

5 Clause 3.18.1 of DPS2 outlines the purpose of the Special Rural Zone. It is intended to accommodate rural-residential retreats on lots generally ranging between one and four hectares in size. In some cases, agricultural uses are also intended to be accommodated. Significantly, all development in the Special Rural Zone is required to be conducted in a manner that preserves local amenity and the natural landscape or rural character.

6 Clause 3.18.2 states that the objectives of the Special Rural Zone are to:

"(a) designate areas where rural-residential retreats can be accommodated without detriment to the environment or the rural character;

(b) meet the demand for a rural life-style on small rural lots generally ranging from one to four hectares in size;

(c) maintain and enhance the rural character and amenity of the locality."

7 Clause 3.2 of DPS2 creates a Zoning Table, called Table 1, which identifies the use classes permissible under various zonings. The only use classes which are permitted are home businesses (Categories 1 and 2). All use classes which might involve the parking of commercial vehicles, such as motor vehicle repairs, various industries, smash repairs, storage yard or transport depot, are prohibited in a Special Rural Zone.

8 The Senior Development Officer of the City, Richard Derek John Bairstow, said in his evidence that, under a Special Rural Zone, any type of development requires approval from the City. When the purpose outlined in cl 3.18.1 and the objectives in cl 3.18.2 of the Special Rural Zone are considered, the need for development approval and constraints on commercial vehicle parking is readily understandable. Mr Bairstow also gave evidence, based on the City's records, that the only planning approvals in place in relation to Lot 158 were for a single house and associated facilities.

(Page 5)

9 The clause which the appellant is alleged to have contravened is found in Pt 4 of DPS2 which sets out general development requirements and the relevant portion of the clause is as follows:

"Cl 4.23.2 A person shall not park, or permit to be parked, more than one commercial vehicle on any lot in the zones referred to in this clause except in the Special Rural, Rural Community, General Rural and Rural Resource Zones, where the following provisions shall apply in respect of the parking of more than one commercial vehicle on any lot in those zones:

(a) Upon application for planning approval Council may permit up to two commercial vehicles to be parked on a lot in the Special Rural and Rural Community zones … "

10 Under cl 1.9 of DPS2, words and expressions used in DPS2 have the meanings given to them in Sch 1. The definition of commercial vehicle appears in the general definitions in Sch 1 and is as follows:

"Commercial vehicle means a vehicle whether licensed or not which is used or designed for use for business, trade or commercial purposes or in conjunction with a business, trade or profession and without limiting the generality of the foregoing includes any utility, van, truck, trailer, tractor and any wheeled attachment to any of them or any wheeled article designed to be an attachment to any of them and any bus or omnibus, or any earthmoving machine whether self-propelled or not. If a truck, prime mover or other vehicle is attached to a trailer, semi-trailer or any other attachment, each trailer, semi-trailer or other attachment is to be regarded as a separate commercial vehicle. A loaded combination such as a bobcat, forklift or other vehicle or attachment loaded on a truck, trailer or other attachment is to be regarded as one commercial vehicle. The term shall not include a vehicle designed for use as a passenger car or any trailer or other thing most commonly used as an attachment to a passenger car, or a van, utility or light truck which is rated by the manufacturer as being suitable to carry loads of not more than 1.5 tonnes."

11 When enacted, the provisions of DPS2 dealing with commercial vehicle parking were not in the same form as they were when the appellant was charged with the offence described above. Amendment No 213 to DPS2, which came into effect on publication in the
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Government Gazette on 31 October 2003, amended Pt 4 by modifying cl 4.23.1 to cl 4.23.3 and cl 4.23.6.

12 Prior to the amendment the issue of commercial vehicle parking was dealt with by the City on the basis that to use land to park commercial vehicles was to use the land as a transport depot. Clause 3.2 of DPS2 creates a Zoning Table which indicates the permissibility of use classes within the various zones. Zoning Table 1 indicates that a Transport Depot is a prohibited use in Special Rural areas "except where provision is made specifically for Council to approve an otherwise prohibited use": see cl 3.2.2. Under Sch 1 sub-set 2, which deals with land use definitions, relevantly the term "transport depot" has the following meaning:

" … any land or building designed and used, or which is adapted for use for one or more of the following purposes:

(a) for the parking or garaging of more than one commercial vehicle;

…

and may include the maintenance, mechanical repair or refuelling of the vehicles referred to in (a) … above … "

13 In my view, the parking of more than one commercial vehicle on land meets the definition of a transport depot, a prohibited use in Special Rural Zones. Hence the use to which the appellant put Lot 158 was prohibited by DPS2 at every stage; that is, both before and after the amendments on 1 October 2003.

14 The charge against the appellant alleges that he carried out a development on land, namely the use of the land for the parking of commercial vehicles. At trial, there was some dispute as to whether the parking of vehicles was a "development" or merely a use of the land. The Magistrate rejected the proposition that there is a distinction between use and development for the purposes of DPS2. That conclusion is supported, in my opinion, by the definition of development in the general definitions part of Sch 1 of DPS2 which confers on the term the same meaning given to it in and for the purposes of the TPAD Act where, in s 2, the definition of "development" includes the term "use".

15 The preservation of existing nonconforming uses of land is provided for under DPS2 in cl 7 which states:

(Page 7)

"Except as otherwise provided in this scheme, no provision of the scheme shall be deemed to prevent the continued use of any land or building for the purpose for which it was being lawfully used at the gazettal date of the scheme."

16 It is immediately apparent, based simply on the terms of the provision, that, in order to rely on the protection of cl 7, the nonconforming use must be both continuing and lawful. Mr Bairstow gave evidence that no nonconforming use right application had ever been made in relation to Lot 158. However, cl 7 preserves the use irrespective of whether an application to continue a nonconforming use has been made, approved or rejected.

17 The effect then of DPS2 cl 7.1 is to exclude nonconforming uses from the prohibitions contained in the scheme, provided that the use in question was continuing on the date on which DPS2 came into effect and was in all respects lawful. The requirement to establish the position prior to the date on which DPS2 came into effect arises as a result of the conclusion that parking more than one commercial vehicle on land which is zoned Special Rural has always been prohibited by DPS2.

18 Prior to DPS2 the operative planning scheme was City of Wanneroo Town Planning Scheme 1 ("TPS1") which commenced operation on 13 September 1972. Clause 3.2 identifies the various zones into which land may be classified under TPS1. At the time TPS1 was gazetted, cl 3.2(10) created a Rural Zone but did not include a Special Rural Zone. Under cl 3.2 of TPS 1, the zoning of specific areas is delineated on the Scheme Map which identifies the zoning of Swan Location 1688 as rural.

19 Clause 3.4 of TPS1 creates a Zoning Table which indicates, subject to the provisions of TPS1, the uses permitted in the various zones. Under Zoning Table 1, the only permitted use in a rural zone is rural use, rural industry and playing fields. The Table identifies a large number of uses, including the use class "transport depot", each of which is an "AA use" in a rural zone. An "AA" use is one which is not permitted unless approval is granted by council. No other uses in a rural area for which approval may be obtained relate to the parking of commercial vehicles. The use class "transport depot" is defined in cl 1.8 as land used for the garaging of road motor vehicles used or intended to be used for carrying goods for hire or reward or for any consideration or for the transfer of goods from one such motor vehicle to another of such motor vehicles and includes maintenance and repair of vehicles. I consider that the types of commercial vehicles the subject of the charge would fall within this

(Page 8)

definition. When TPS1 was first enacted, commercial vehicles were not defined in cl 1.8 nor were there provisions dealing expressly with vehicles of that type.

20 An amendment to TPS1 to include Special Rural Zoning was made on 6 December 1985. Swan Location 1688 was placed within Special Rural Zone 13. The Special Rural Zoning in TPS1 provided that the land the subject of the zone may be used for residential and equestrian purposes only. Therefore, following the amendment, approval was still required to operate a transport depot on Special Rural land.

21 A definition of commercial vehicle was inserted into TPS1 by amendment number A761 on 29 June 1999. The differences between the definition of "commercial vehicle" in TPS1 and the definition in DPS2 are these:

(1) DPS2 includes in the meaning of commercial vehicle "a vehicle used or designed for use for commercial purposes or for use in conjunction with a business";

(2) DPS2 adds to the description of a loaded combination "other vehicles and attachments loaded on a truck, trailer or other attachment".

Arguably, each of these items would fall within the definition in TPS1 in any event. However, the amendment to the meaning of the term in DPS2 certainly clarified the position.

22 Part 7 of TPS1 deals with development and development approvals. Clause 1.6 of TPS1 defines the term "development" as "the use or development of any land and includes the erection, construction, alteration, or carrying out as the case may be, of any building, excavation, fill or other works on any land". On that basis, the use of land for parking or storing commercial vehicles would constitute a development for the purposes of TPS1. Clause 7.1 deals with development approvals and is in the following terms:

"Council's Approval Necessary: In addition to a Building Licence, (where applicable), Council's prior approval to commence development is required for all development except in the case of zoned land a private dwelling house … "

According to the evidence from the City's officers, the City has no record of any application under TPS1 being made for approval to park commercial vehicles on Lot 158.

(Page 9)

23 It was suggested to the City's compliance officer, John Charles Halliday, that it was only the introduction into TPS1 of a definition of commercial vehicle that restricted the number of commercial vehicles which could be stored on property in a Special Rural Zone. Mr Halliday rejected the proposition and expressed the view that approval had always been required under TPS1. In light of the foregoing provisions, in particular the definition of "transport depot" and the prohibition on using land in a Special Rural Zone for that purpose without approval, I share the view that approval would have been required.

24 As with DPS2, TPS1 preserved nonconforming uses of land. Part 4 of TPS1 is headed "Non-conforming Use" and cl 4.1 provides as follows:

"Existing Use Rights: No provision of the Scheme shall prevent -

(a) the continued use of any land or building for the purpose for which it was being lawfully used at the time of the coming into force of the Scheme; or

(b) the carrying out of any development thereon for which, immediately prior to that time, a permit or permits required under the Town Planning and Development Act, 1928 (as amended) or any other law authorising the development to be carried out had been duly obtained and was current."

25 As stated in the heading of cl 4.6, under TPS1 a Register of Non-Conforming Uses is to be kept. However, the wording of cl 4.6 is not entirely consistent with the heading as the following shows:

"Any person carrying on a non-conforming use, shall within two calendar months of the receipt of a written request from Council, give to the Council in writing full information of the nature and extent of the non-conforming use."

Presumably the information provided is to be retained and compiled into a Register. According to the evidence of Mr Bairstow, if the City had been provided with information of the nature and extent of a nonconforming use, there should be a Register produced as a Schedule to TPS1 which includes that information. The copy of TPS1 provided to the Court does not contain a schedule in the form of a Register of Non-conforming Uses.

26 Irrespective of whether a Register of Non-conforming Uses was kept and or created as a Schedule to the planning scheme in effect at the time,
(Page 10)

the evidence of Mr Bairstow was that searches of the City's records did not uncover any application for, or record of, any nonconforming use rights. Neither did the records reveal any permits under cl 4.1(b) which were current at the time TPS1 came into operation.

27 The uncontroverted evidence of the City's officers was of a complete absence of any permits, approvals or authorisations for the parking of commercial vehicles in greater numbers, or at all, on Lot 158 or any larger area of land incorporating Lot 158. That factor, together with a consideration of the provisions of TPS1, suggest that, if at the time TPS1 was in effect a nonconforming use was being made of Lot 158, it was not a lawful one. On that basis it would be necessary to look at the position prior to TPS1 at which time the relevant scheme was the Metropolitan Region Scheme ("the MRS") which came into effect in 1963. The MRS covered the whole of the municipal district of Wanneroo: see Metropolitan Region Town Planning Scheme Act 1959, Sch 3, MRS cl 6. With certain exceptions which are not relevant to the circumstances of this case, all development within the metropolitan region required written approval of the responsible authority: MRS cl 10. No evidence was adduced of any approval for the alleged use of the land by the Bebich family.

28 Unfortunately, the MRS and its provisions was not addressed or even identified as having any relevance to the charge or the claim of a continuing, lawful nonconforming use right. The material to which I have referred concerning the legal effect of the relevant provisions of the MRS simply were not put before the Magistrate.

The Burden of Proof

29 On behalf of the respondent it was submitted that the burden of establishing a continuing, pre-existing, lawful but nonconforming use lies on the party that asserts the right to continue the use of the land. That proposition is said to have statutory support as well as support at common law. Section 78 of the Criminal Procedure Act 2004 (WA) relevantly provides that if a written law creates a simple offence and provides an exception in respect of the offence, the exception is to be taken not to apply unless the accused proves, on the balance of probabilities, that it does: s 78(3). The term "exception" is defined in s 78(1) to include a condition, excuse, exemption, proviso and qualification. Of course, the offence with which the appellant was charged is not in precisely the form described in s 78(1) of the Criminal Procedure Act. The offence is created by a general provision, s 10AB(1)(a) of the TPAD Act, which

(Page 11)

makes it an offence to contravene another enactment, in this case cl 4.23.2 of DPS2.

30 Counsel for the appellant submitted that the concept of an exception, be it a condition, excuse, exemption, proviso or qualification, does not emerge from a reading of s 10AB of the TPAD Act. The basis of the submission is that conduct either is or is not in contravention of the section, depending on whether there is or is not a breach of the scheme. It is said that a nonconforming use right involves a recognition that there is not a breach of the scheme and hence no concept of a proviso arises. I am not persuaded that this is an accurate description of the effect of cl 7.1 of DPS2. In fact, the terms of the clause are that "no provision of the Scheme shall be deemed to prevent the continued use of any land … or the carrying on of any development … ". In my view, cl 7.1 identifies circumstances in which a person may be excused or exempt from the operation of any provision of the scheme, and hence the operation of s 10AB of the TPAD Act; that is, where it is established that the land is being used for a nonconforming use. I do not consider the terms of the section involve an acceptance or recognition that there is no breach of the scheme, merely that no consequences flow to the person carrying on a nonconforming use, provided the relevant criteria are met.

31 In my opinion, the character and effect of the combination of s 10AB(1)(a) of the TPAD Act, cl 4.23.2 and cl 7.1of DPS2 is the same as a provision referred to in s 78 of the Criminal Procedure Act which is one which creates a simple offence and then provides an exception in respect of the offence. The TPAD Act creates the simple offence of breaching the requirement of DPS2 set out in cl 4.23.2 not to park more than one commercial vehicle on land zoned Special Rural and cl 7 creates an excuse or an exemption from compliance with cl 4.23.2 where an existing, lawful nonconforming use is established. In my view, cl 7 can also be said to operate as a proviso to cl 4.23.2. Irrespective of the more precise description, I consider cl 7 constitutes an exception which shifts the burden of proof to, in this case, the appellant.

32 The proposition contained in s 78(1) reflects the position at common law as stated by the High Court in Vines v Djordjevitch (1955) 91 CLR 512 and applied in Nominal Defendant v Dunstan (1963) 109 CLR 143 (at 150 - 151). In Vines v Djordjevitch the High Court dealt with a provision creating a cause of action against a nominal defendant which contained a proviso requiring notice to be given of the intention to make the claim "as soon possible after he knew that the identity of the motor car could not be established". The Court held that the proviso imposed a

(Page 12)

condition precedent to the cause of action, the burden of proving compliance with which lies on the plaintiff. In response to the proposition that there is a technical distinction between a proviso and an exception such that an exception must be negatived but a proviso need not, the High Court stated (at 519 - 520):

"But whether the form is that of a proviso or of an exception, the intrinsic character of the provision that the proviso makes and its real effect cannot be put out of consideration in determining where the burden of proof lies. When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right. For such a purpose the use of a proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter."

33 The court held (at 521) that the substance of the proviso and its general tenor showed that it meant to impose a condition precedent to the cause of action. Accordingly the burden of proof was found to lie on the plaintiff.

(Page 13)

34 The relevance of the decision in Vines v Djordjevitch to reliance on a prior nonconforming use right was addressed by the High Court in Morris v Woollahra Municipal Council (1966) 116 CLR 23 (at 33 - 34) in which the principle in Vines v Djordjevitch was reiterated and the Court determined that proof of continuance of an existing use right lies on the person asserting the right.

35 The submission was made on behalf of the appellant that the decision in Morris v Woollahra Municipal Council can be distinguished because the matter involved an application for an injunction brought by the party asserting the nonconforming use right and, being the person seeking the relief, bore the burden of establishing the circumstances which would justify granting the relief. However, a reading of the judgment indicates that this submission is without substance. The decision appealed from in Morris v Woollahra Municipal Council was an order sought by the respondent, the plaintiff in the action, restraining the unlicensed use of certain premises for a nonconforming purpose. The submission made at trial by the defendant, the appellant on appeal, was that the plaintiff had the burden of negativing the defendant's allegation of a nonconforming use right. That proposition was rejected at trial and on appeal: (at 34). Therefore, it was not, as this appellant alleges, the plaintiff seeking the relief who was held to bear the burden of proving the nonconforming use, it was the defendant who was opposing the relief sought. Further, in reaching the decision that the burden of establishing a nonconforming use lies on the person asserting the use, the High Court made it completely clear that the decision "proceeded upon the principles reiterated in Vines v Djordjevitch and Nominal Defendant v Dunstan".

36 Counsel for the appellant submitted that, as Vines v Djordjevitch and Nominal Defendant v Dunstan were also civil actions, those cases dealt only with the issue of whether a plaintiff should bear the burden of establishing a necessary aspect of the claim. Again, I do not believe that this proposition bears scrutiny. The High Court in Vines v Djordjevitch identified in the following terms the question is was called upon to answer (at 518):

"The first question which arises in considering the correctness of this conclusion is whether the burden of proving facts amounting to a compliance with the proviso rests upon a plaintiff in an action brought under s 47(1) against a nominal defendant."

(Page 14)

The ensuing analysis deals specifically with the issue of exceptions and provisos and makes no reference to the burden of proof generally in civil cases or in any other proceedings. In my view, it is apparent that the court was dealing with the specific issue of the burden of proving compliance with a proviso or exception and not the general issue of whether the plaintiff should bear the burden of proving all matters essential to his or her claim.

37 These propositions apply equally to the decision in Nominal Defendant v Dunstan. Further, in Nominal Defendant v Dunstan, the burden of establishing the exemption was found to lie on the defendant and not on the plaintiff in the action. Not only did the Court refer to and apply the decision in Vines v Djordjevitch, the rationale behind the decision to dismiss the appeal was expressed in this way (at 151):

"Consideration of the Act leaves us with the clear view that s 30 of the Act, with the aid of the definition of 'uninsured motor vehicle', lays down 'a principle of liability which it means to apply generally' but, nevertheless, the Act provides for some 'special grounds of exculpation' which are capable of being established only by proof of 'additional facts of a special nature'. Particularly does this appear when it is seen that any exempting regulation may be of a 'general or specially limited application' or may apply 'to any specified classes of cases or to any particular case'. Accordingly on principle we think that the onus of establishing these matters lay upon the nominal defendant."

38 It can be seen that, in Nominal Defendant v Dunstan, the High Court dealt specifically with the burden of proof in cases involving special grounds of exculpation and the suggestion that the matter was decided on any other basis is without substance.

The Evidence at Trial

39 On appeal, it was not in dispute that, subject to resolution of the nonconforming use issue, the prosecution had established beyond a reasonable doubt that the appellant used Lot 158, which was zoned Special Rural, to park more than one commercial vehicle (in this case seven vehicles) and that, as no planning approval had been granted, such conduct was contrary to cl 4.23.2 of DPS2 and in breach of s 10AB of the TPAD Act. It was also conceded that the only basis to resist the charge was cl 7.1 which, as counsel described it, "effectively put the appellant outside the reach of cl 4.23 of the scheme". That approach is consistent

(Page 15)

with the Magistrate's conclusion that the evidence was such that the accused was guilty beyond a reasonable doubt unless there was a pre-existing nonconforming use. On that basis I do not propose to restate any of the evidence directed at each of the elements of the offence other than insofar as it relates to reliance on a nonconforming use right.

40 The Certificate of Title tendered into evidence shows that the appellant has been the registered proprietor of Lot 158 since 27 February 1995. The previous owners, Charles and Emily Coppini, purchased Lot 158 on 23 February 1988 from Yoze Bebich. The Certificate of Title shows only that a mortgage was registered over Lot 158 on 27 March 1986. It does not otherwise show when Lot 158 was actually acquired by Mr Bebich. The Certificate of Title is dated 8 January 1988. As the mortgage was registered before that date, it would appear that a new title has issued which is consistent with the evidence that there was a subdivision of the land. Further, because of the possibility that the land was purchased outright and later mortgaged, it is not open to assume that the date of registration of the mortgage indicates the date on which the property was acquired by Mr Bebich. For those reasons, the evidence to be gleaned from the Certificate of Title is that Mr Bebich owned Lot 158 from at least 27 March 1986.

41 The evidence of Mr Halliday, the compliance officer, dealt with the keeping of commercial vehicles on Lot 158 and the action taken by the City in that regard. It is therefore not necessary to refer to it. However, Mr Halliday was also able to give evidence about whether, at any stage, the appellant raised the issue of a nonconforming use right.

42 On 27 July 2004 Mr Halliday wrote to the appellant about the unauthorised commercial vehicle parking on Lot 158. The letter arose out of a visit made by Mr Halliday to Lot 158. In the letter he advised the appellant that he had the right to park one commercial vehicle only on Lot 158 and gave him seven days to remove the other commercial vehicles. The appellant visited the City's offices and indicated that he was going to make an application to have a second commercial vehicle parked on the property. He submitted a half filled in form. The appellant was advised that he needed to put in a plan of the lot showing where he intended to keep the vehicle and also to pay money for the application. According to Mr Halliday, the appellant said he was not going to be bound by that and refused to say which vehicles he was going to keep on Lot 158. During the conversation with the appellant no mention was made by him of any nonconforming use right. The appellant did say that

(Page 16)

the City had no right to tell him what he could do with his property. The appellant then left and no application was lodged.

43 The appellant gave evidence of his ownership of two commercial vehicles used for transporting earthmoving equipment and other specific transport services. The two vehicles consisted of two Mack prime movers and four trailers and three dollies which are used in the course of his occupation in different combinations depending on need. Because of the definition of "commercial vehicle" in DPS2, each piece or component is treated as a separate commercial vehicle.

44 The appellant explained how he came to purchase Lot 158. He stated that he lives at an address in Marangaroo. Having attracted the attention of the local Council arising from a complaint about the parking of commercial vehicles on the Marangaroo property, arrangements were made to park his vehicles in the carpark of the golf course across the road. However, the appellant was aware that this parking arrangement could not continue indefinitely and looked around for an alternative. The appellant had grown up in Wanneroo and liked the northern suburbs. He had friends and family there. He alleged in his evidence that he knew a number of the people in the area who were involved with trucks and who were in a similar situation to him with respect to parking the vehicles. It was for these reasons that the appellant purchased Lot 158 in Wanneroo on 27 February 1995.

45 The appellant maintained that, prior to purchasing Lot 158, he attended the respondent's offices, spoke to the woman at the counter and asked if he could keep trucks on a property in that area. He was told that the area was Special Rural, that there were no regulations dealing with the particular issue and, while she could not tell him that he could keep trucks in that area, she could not tell him that he could not either.

46 The appellant said the information did not cause him any concerns, even though the area was zoned Special Rural, because six of his immediate acquaintances and friends parked commercial vehicles on their properties and so he assumed he would not have any problems.

47 As to the use of Lot 158 prior to its purchase by the appellant, on the appellant's evidence, the person he purchased the property from, Mr Coppini, had established a residence and a shed which was being used for storage and for doing castings or mouldings of various things. That understanding is based on what the appellant saw when he inspected the property prior to purchase. There were also some vehicles on the property

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including a utility. In addition, there was a cement mixer and a couple of piles of sand and metal apparently for use in the casting activities carried out in the shed.

48 One of the conditions of sale was that the previous owner rent the property back for a period of approximately three to four months while his new house was being completed. It was not until June or July of 1995 that the appellant took possession of the rear part of the property so that he could park his trucks there. The previous owner was asked to vacate the shed and the appellant moved certain items such as tyres, oils and other work related items into the shed. A driveway was cleared and an area at the rear of the property was cleared for parking the trucks and trailers. The appellant would park the vehicles on Lot 158 and commute to the Marangaroo property where he lived. According to the appellant, he did not obtain approval for any development and disputed that he was carrying out any development which would require approval.

49 The appellant was asked about the history of his property. He stated that he knew that in the late 1960s, early 1970s, it was owned by Mr Bebich who, according to the appellant, is still the current owner of land in that area. Part of the land was used for market gardening and a commercial vehicle operation and the rest of the land was uncleared bushland. The commercial vehicle operation was conducted by Mr Bebich's sons as part of a sand mining operation at Gnangara. They would keep the vehicles used for sand mining at home. On the appellant's evidence the sand mining operation commenced in the early 1970s and continued through to when the land, presumably a much larger area than Lot 158, was subdivided in the mid-1980s. However, in cross-examination the appellant said that in the mid-1970s the Bebich family took on different activities. Apparently, one member of the family became an owner of plant such as trucks and loaders but no evidence was given as to where they were kept.

50 At the time he gave evidence in 2005, the appellant was 50 years old. Therefore at the time when the MRS came into effect in 1963 the appellant was 7 or 8 years old. The appellant said in his evidence that he was aware of the use made of the Bebich land because he went there several times. He said he was taken there by his parents in the early 1960s. The appellant said that his personal experience with owning land in Wanneroo began in the early 1970s, before Lot 158 existed.

51 According to the appellant, ever since he can remember the area was all bushland. The appellant was shown a photo taken in 1985 which

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shows Lot 158 to be covered by native vegetation. There was clearly no plant stored on Lot 158 in the photograph. The appellant indicated on the photograph an area of approximately 300 acres which represented the Bebich's property. He stated that, in the initial stages, the family carried on market gardening along the portion of land immediately alongside Lenore Road. The rest of the land was all natural bushland that was later subdivided. The exact area of land along Lenore Road which was in use as a market garden was not identified by the appellant. It is important to note that Lot 158 does not abut Lenore Road. Bebich Drive runs perpendicular to Lenore Road and Lot 158 is the middle block of three blocks bounded by Bebich Drive, Shillington Way and Moran Court. There is a large area of land, now subdivided into 12 lots, which lies between Shillington Way and Lenore Road. There was nothing in the evidence of the appellant which would indicate that the land required for the businesses run by the Bebich family extended beyond the area now bounded by Lenore Road and Shillington Way, or indeed as far as Shillington Way.

52 On the appellant's evidence, Lot 158 did not come into existence until the subdivision occurred and no one resided there until the first dwelling was built on Lot 158 in 1988.

53 It can be seen that the appellant's evidence did not include any allegation that Lot 158 was used for the purposes of market gardening or the storage of vehicles pursuant to that activity or to the sand mining operation. Neither did the appellant give evidence about the proportion of the entire area of Mr Bebich's land ownership that was devoted to the market gardening or sand mining activities. The appellant gave no evidence of Mr Bebich's intentions at any stage, other than at the point of subdivision, with respect to the area of land which later became Lot 158, nor could he.

54 Evidence was given at trial by Antonio Frisina who owns the property at the corner of Moran Court and Bebich Drive, next door to Lot 158. He bought the property in mid-1988 from the Bebich family. He stated that the Bebich's had three separate prime movers for carting sand and that they still live on Lenore Road but are out of the transport business.

55 Judith Anne Stampalia was called to give evidence on behalf of the appellant. She resides at 143 Elliott Road, Wanneroo, and has lived there since 1972. Ms Stampalia said in her evidence that her property is now zoned residential but originally it was rural. She and her husband ran

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their own trucking business there for several years and kept all their trucks on the premises. However, after an initial period of noncompliance with the relevant planning scheme, they applied for and received permission to run a workshop for trucks.

56 Ms Stampalia gave evidence about the commercial activities of the Bebich family. She said that they ran a trucking business from the corner of Bebich Drive and Lenore Road. Although the exact area was not the subject of evidence, it is the case that, following subdivision, four lots of land and a road lie between that corner and Lot 158. Ms Stampalia was not aware of the date when the Bebich family ceased running the business but she did say the trucks were parked there for many years. She said that the land was then subdivided and became the Bebich estate in around 1974. That evidence would appear to be inconsistent with the other evidence of the timing of the subdivision of Lot 158. In cross-examination Ms Stampalia was shown the sketch on the Certificate of title indicating that Lot 158 is the middle of three lots bounded on the north by Bebich Drive, on the west by Shillington Way and to the east, Moran Court. Ms Stampalia agreed that the Bebich's business was on the corner of Lenore Road and Bebich Drive and was at least 800 metres west of the corner of Lot 157 which is to the west of Lot 158.

57 The appellant's wife, Rosina La Rosa, also gave evidence. She confirmed her husband's account of the circumstances by which they came to purchase Lot 158 and also expressed the view that her husband was not the only person in the area who parked more than one commercial vehicle on his property. She gave no evidence of the history of the use of Lot 158.

The Magistrate's Reasons for Decision

58 The Magistrate correctly noted that he was required to consider whether the nonconforming use was lawful and, as he found the relevant use was prohibited by DPS2, this necessarily involved considering the position prior to the commencement of DPS2 and therefore considering TPS1. Having considered the relevant provisions of TPS1, the Magistrate concluded, rightly in my view, that TPS1 also prohibited the parking of more than one commercial vehicle on Special Rural land. On that basis the Magistrate considered the evidence in relation to the position prior to the commencement of TPS1 on 13 September 1972 in order to determine whether the use of the land for the purpose of parking more than one commercial vehicle pre-existed 1972 and was lawful.

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59 The Magistrate noted that there was no evidence at all from the previous owner or from the Department of Land Information. He described the history of land use as hearsay which, in his view, had to be given little or virtually no weight. The Magistrate expressed concern about the absence of any evidence of actual ownership rather than occupation of the land, although it was the case that Ms Stampalia said that she bought her land from Mr Bebich which is certainly evidence of ownership of her land which was in Elliott Road, Wanneroo. Unfortunately, there was no evidence of the location of Elliott Road in relation to Bebich Drive. There was also evidence from the appellant and from the Certificate of Title that Lot 158 had previously been owned by Mr Bebich. However, it is fair to say that the evidence of the actual area of land owned by Mr Bebich was sparse and there was little direct evidence of ownership.

60 In my view, the Magistrate's emphasis on ownership was misplaced. It is the continuing lawful use of the land by any person which provides the excuse for noncompliance with the provisions of the planning scheme, not simply the use to which the land is put by the owner. Indeed, in Town of Claremont v Complete Furniture Restoration Pty Ltd [2005] WASC 113 the nonconforming use relied upon was the use of the premises by tenants. However, as I understand the Magistrate's reasons, one aspect of the emphasis on ownership was whether there was evidence that the area of land which became Lot 158 was in fact owned by Mr Bebich and hence part of the land on which he is said to have operated his business and parked the commercial vehicles. In my view, the Certificate of Title which was tendered into evidence establishes that Lot 158 was indeed owned by Mr Bebich before the sale to the Coppinis and after 1987. However, it does not automatically follow that he owned that land in the 1970s when he was said to be using an area of land in the vicinity for commercial purposes. The Magistrate referred to the possibility that the land may have been held under a Crown Lease. He did so in the context of emphasising that it was not for him to speculate but for the appellant to adduce direct evidence of such matters. I should add that it does not follow from the evidence of the Certificate of Title that Mr Bebich owned Lot 158 prior to 1987, or that Lot 158 was used as, or considered to be part of, the land on which the commercial activities were carried out. In my view, there is considerable substance to the Magistrate's comments about the quality of the evidence adduced with respect to the extent of Mr Bebich's ownership of land in the Wanneroo area.

61 The criticisms levelled by the Magistrate at the quality of the evidence of ownership apply equally to the evidence of the use to which

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the land was put. The Magistrate referred to the evidence of Ms Stampalia and the appellant that Mr Bebich's family operated plant such as trucks and tractors on the land back in the 1970s. The Magistrate considered the reliability of memories over time as well as the adverse impact on memory of the changing landscape and the different roads created by subdivision. He remarked that he would give little or no weight with respect to things that occurred up to 30 years ago.

62 In particular, the Magistrate noted the evidence of Ms Stampalia that the business activities allegedly being carried out by Mr Bebich and his family involving the storage of commercial vehicles were being carried out on Lenore Road and not on Lot 158. The Magistrate observed that there was no evidence to suggest that the land was all one parcel of land in one block. The Magistrate also noted that the only evidence he had, and the only reasonable inference he could draw, was the evidence of Ms Stampalia and the aerial photo which established that there was no plant being operated on Lot 158.

63 Further, the Magistrate concluded that he simply did not know if the case of Town of Claremont v Complete Furniture Restoration Pty Ltd had any application to the case before him because of the lack of evidence that the land was all part and parcel of the same certificate of title in any event. He commented that the Court had just been told what happened without any of the legality or formality of proof to support it. Again, the Magistrate's emphasis was on the paucity of the evidence of ownership. However, the more relevant concern is the complete absence of evidence of Mr Bebich's intentions with respect to the land which later became Lot 158, including when it was acquired and for what purpose, and the absence of evidence about the commencement and cessation of the businesses conducted on the land adjoining Lenore Street.

64 Most importantly, the Magistrate noted that there was no evidence as to the legality of the commercial activities which it is said the Bebich family was conducting on its property. The Magistrate was unable to determine whether the relevant activity was lawful because of the absence of any evidence on that issue. He correctly noted that the only evidence before him was that the activity was unlawful under TPS1 and DPS2 and that no approval was granted or applied for by anyone to use that area of land as a transport depot. As I have noted above, no evidence was presented of the position under the MRS and it was not for the Magistrate to conduct his own investigation of such matters.

65 The Magistrate expressed his final conclusion in these terms:

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"Ergo, it follows that far from being satisfied the - - they're existing lawful rights, it seems to be to the contrary, on the evidence."

On the basis that the appellant can only continue a lawful use and not an unlawful one, the Magistrate was not satisfied that there was a pre-existing lawful nonconforming use right with respect to Lot 158. Indeed, he took the issue one step further and found that, if he had to go that far, he was satisfied that there was no lawful pre-existing right to use the land as the appellant had.

The Application of the Principle in Parramatta City Council v Brickworks Ltd

66 On behalf of the appellant it was submitted that the evidence at trial established that Lot 158 had previously been part of the land on which the Bebich family had conducted their market garden operation with the associated use of various vehicles and that operation had been in existence prior to 13 September 1972 when TPS1 came into effect. It was further submitted that, in the circumstances, the test that should have been used by the Magistrate was the test recognised and recently endorsed by this Court in Town of Claremont v Complete Furniture Restorations Pty Ltd, adopting and applying Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1 and Eaton & Sons v Warringah Shire Council (1972) 129 CLR 270. The test there enunciated involved determining whether the larger area of land on which the nonconforming use was carried out and the land in question (in this case Lot 158) was part of the one planning unit. It was further submitted that the learned Magistrate fell into error by considering only the position of Lot 158 from the date of its subdivision in 1988 and to then address DPS2 which was by then applicable.

67 Counsel for the appellant maintained that, as Lot 158 was part of the one planning unit ("the Bebich landholding") on which the lawful nonconforming use was conducted, the Magistrate should have determined that the defence had been made out. Two issues, arise from this proposition: the first is whether indeed Lot 158 was part of the one planning unit and secondly whether the use was not only nonconforming but lawful.

68 I do not accept that the Magistrate considered only the position of Lot 158 from the date of its subdivision in 1988 and then only with respect to DPS2. It is apparent from the above summary of the Magistrate's reasons that he considered the position under DPS2, under TPS1 and prior to TPS1 coming into operation. Neither do I accept the

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proposition that the Magistrate failed to consider the principles enunciated in Parramatta City Council v Brickworks Ltd and followed in this Court by Heenan J in Town of Claremont v Complete Furniture Pty Ltd. It is apparent to me that the Magistrate did indeed consider the decision in Town of Claremontv Complete Furniture Pty Ltd but formed the view that there was insufficient and inadequate evidence before him to conclude that Lot 158 was part of that area of land used by the Bebich family for commercial purposes; that is, that Lot 158 formed part of a single planning unit. The onus of establishing that Lot 158 was part of a single planning unit was on the appellant and the Magistrate found as a matter of fact that the onus had not been discharged.

69 Nevertheless, as the Magistrate did not identify in any detail the principle applied by him in reaching the conclusion that there was insufficient evidence to establish that Lot 158 was part of a single planning unit, it is necessary to consider the line of authority referred to above to determine whether the correct principle was indeed applied.

70 In Parramatta City Council v Brickworks Ltd a certain area of land was used as the site of a brickworks and a quarry for clay for the brickworks. At a later time a proclamation was made under the Local Government Act 1919 (NSW) which, but for the terms of a provision of the Act preserving pre-existing uses, would have prevented the continued use of the land for the brickworks. After the proclamation the land was sold but continued to be used as a brickworks. The new owner acquired further land adjoining the existing land but it was not put to use until more than 20 years later and then used for access and storage and even later, by means of an extension to the quarry. After the acquisition of the adjoining land but before it was put to use, the provisions of a Planning Scheme Ordinance came into effect which, following an amendment which also occurred before the adjoining land was put to use, provided that existing uses of the land may be continued and existing buildings or works may be altered, enlarged, rebuilt, extended or added to by new building or works.

71 The majority of the High Court held (at 21) that, in order to bring a provision preserving a nonconforming use into operation it is not enough to find that the relevant area of land was acquired with the intention of using it for a particular purpose in the future. However, the Court also considered that it was not necessary, in order to constitute a present use of land, that there should be a physical use of all of it, or indeed any of it. Reference was made (at 21 - 22) to the decision in Council of the City of Newcastle v Royal Newcastle Hospital (1959) 100 CLR 1 where it was held that land which was acquired by a hospital to keep the atmosphere

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clear and unpolluted, to bar the approach of factories and houses, to provide quiet and serene surroundings for patients and to give room for expansion of the activities of the hospital, was used for the purposes of the hospital although no physical use was made of it. Gibbs CJ also referred (at 22) to the view expressed by their Lordships in that case (at 4) that "an owner can use land by keeping it in its virgin state for his own special purposes".

72 The majority also concluded that the mere fact that an area of land comprises a number of different parcels with separate titles and different histories does not mean that each parcel should be regarded separately for the purposes of determining whether the land is part of a larger area of land put to a pre-existing nonconforming use. Further, it was held that, when provisions refer to "an existing use of land", the reference is being made to land which, from a practical point of view, should be regarded as one piece of land, and not to land contained within the boundaries of one subdivision, or described in one certificate of title: (at 23).

73 Walsh J, who decided the case on a different ground, concluded that the new land had become part of an entire area which was wholly devoted to the purpose of quarrying and brick-making and it had been used for that purpose immediately before the relevant date. The respondent was entitled, therefore, to continue to use the whole of the land for those purposes. It was further held that the terms of the relevant provision did not require the continuing use to have been a lawful one under any prior controls. That aspect of the provision can be distinguished from the requirements of cl 7 of DPS2 and cl 4 of TPS1.

74 It is apparent from a consideration of the decision in Parramatta City Council v Brickworks Ltd that, for the purpose of establishing a nonconforming use right, an area of unused land may be considered part of a larger parcel of land used for a particular purpose provided that the land was acquired and kept for the purpose of using it in conjunction with the other land: (per Gibbs J at 23). However, it is apparent that the outcome of the case was the result of applying to the facts of the case certain factors which are the indicia of an integrated landholding used for a specific purpose, but do not inevitably lead to that conclusion. For example, the fact that the land is contained within the boundaries of one subdivision or one certificate of title is indicative of the existence of a single planning unit but it does not automatically follow that it should be regarded as such. Other evidence such as the intention of the land owner or occupier and the use to which the land has been put may lead to a contrary conclusion: (at 23 per Gibbs J). In fact, to a significant extent,

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the approach taken in Parramatta City Council v Brickworks Ltd was to identify factors said to preclude a conclusion that a single planning unit exists and explain why, in the particular circumstances of that case, those factors do not preclude that conclusion. The description of the land in the certificate of title is an example of this approach. In Parramatta City Council v Brickworks Ltd the Court held that the fact that land was comprised of various lots held under separate certificates of title did not preclude the whole from being regarded as one piece of land: (at 23) per Gibbs J.

75 In Council of the City of Newcastle v Royal Newcastle Hospital Taylor J considered whether a certain area of land was part of a larger area where the land was not at that time in use. He said (at 3):

"The word 'used' is, of course, a word of wide import and its meaning in any particular case will depend to a great extent upon the context in which it is employed. The uses to which property of any description may be put are manifold and what will constitute 'use' will depend to a great extent upon the purpose for which it has been acquired or created. Land, it may be said, is no exception and s 132 itself shows plainly enough that the 'use' of land will vary with the purpose for which it has been acquired and to which it has been devoted … But where an exemption is prescribed by reference to use for a purpose or purposes it is sufficient, in my opinion, if it be shown that the land in question has been wholly devoted to that purpose even though, the fulfilment of the purpose does not require the immediate physical use of every part of the land."

76 These words of Taylor J were cited with approval by Gibbs J in Parramatta City Council v Brickworks Ltd (at 22) and were considered to support the conclusion drawn by him which he set out in the following terms (at 22):

" … if the whole of the land in question was acquired for and devoted to the purpose of quarrying and brick-making, the whole may be held to have been used for that purpose although only part of it was physically used."

77 In relation to additional land, Gibbs J concluded that, where the evidence makes it clear that the new land was acquired and kept for the purposes of using it in conjunction with the existing land it becomes part
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of an entire area which is wholly devoted to the purpose to which the existing land was used: (at 23)

78 The decision in Parramatta City Council v Brickworks Ltd was applied by the High Court in Eaton & Sons v Warringah Shire Council. In that case the appellant had carried on business as a timber and hardware selling merchant for nearly 20 years at a location comprising three lots of land known as Lots 5, 8 and C1. Prior to purchasing the lots the appellant sought and obtained from the respondent Council its approval of the establishment on that land of a timber and hardware reselling business, involving, amongst other activities, the storage of building timber. Part of Lot C1 was used for the storage of timber. The balance of the lot was not in use. At a later point Lot C1 was subdivided into two lots known as Lots 1 and 2, however nothing turns on this fact. This was the position when a new planning scheme came into effect under which part only of Lot C1 could be used for industrial purposes, the balance being zoned for residential purposes. The area zoned residential included part of the area of Lot C1 which was used for the storage of timber. A fence divided Lot C1 but the stacking of timber was not confined within the fence. The balance of the portion of C1 included in the residential zoning, the part on which timber had not so far been stacked, was to a large extent uncleared land and constituted a substantial part of the total area of Lot C1. After the new scheme came into effect, and in the course of its business, the appellant placed timber on parts of the land within the residential zone beyond that part on which it had placed timber before the scheme. The appellant argued that it was relevantly using the whole of Lot C1 for the purpose of its business and thus, by virtue of a clause of the scheme preserving existing nonconforming uses of land, was entitled to continue the use.

79 In adopting the principle in Parramatta City Council v Brickworks Pty Ltd, Barwick CJ noted (at 273) the factors which were considered by the High Court in that case to be significant when determining whether a physical use of part of an area of land constituted an actual use of the whole of the land. He also noted (at 273) that, in the case before him, there was no evidence that the total area acquired was disproportionate to the nature of the business intended to be conducted, even though the demands of the business had not so far required that the appellant physically use the whole of the land. Barwick J further observed that, even though part of the area had been fenced, this was for the purposes of security and not in order to segregate the balance from the business and its purposes. Nor was it the case that the fencing was indicative of a conclusion by the appellant to place in reserve for future use the portion

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not then physically in use, its introduction into current use to be the subject of a further decision. In fact, by the relevant date, the fence no longer set the limit of the physical use of the lot.

80 Barwick J expressed his conclusion in the following terms (at 273 - 274):

"It is clear, in my opinion, from this Court's decision in the case to which I have referred, that physical use is not an indispensable element of an existing use of land for the purposes of such a provision as cl 30 of the Warringah Scheme. Land which is kept vacant for use as the needs of a business demand is not of necessity properly designated, in my opinion, as land not in existing use, but merely intended for future use. Much will depend on the extent of its integration with land in actual physical use and the nature of the business being conducted. The title boundaries of parcels will not be, of themselves, definitive. But, particularly in the case of suburban allotments, it will be a rare case, in my opinion, in which that part of an allotment not in actual physical use will not have the same existing use as the other part of the allotment used for the purposes of the business. But, of course, all the relevant factors need to be known and interrelated before a conclusion as to existing use in the relevant sense can be drawn … But it seems to me that the relevant use of land in the situation of lot C1 will not vary from time to time as its physical use varies according to the exigencies of the business to whose purposes the land as a whole has been devoted."

81 Barwick J also considered the significance of the purpose for which the land was purchased and concluded that, whilst the purpose would not determine the existing use at any subsequent time, that purpose, coupled with the integration of the land with land in undoubted business use, would be an important factor tending towards the conclusion that the land was currently being used for the purposes of the business carried out on the land with which it was integrated: (at 273). In addition, consideration was given to the fencing off of part of Lot C1, leaving the part not physically used uncleared and therefore not usable for the purpose of business. His Honour identified this factor as being of undoubted importance in considering whether the physically unused part of the lot had an existing use. However, he considered there were factors which were counteracting and cogent. Those factors were that Lot C1 was a suburban allotment having boundaries marked out by subdivision and
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title; a substantial part of it was in physical use for the purposes of the business; it was integrated with the other two lots which were undoubtedly used for the purposes of the business; all the lots were purchased at the one time to form the site of those business operations; the fence was evidently only a security measure; and in any case, at the relevant date, physical operations were carried on beyond it. Finally, his Honour noted that, from the description of the scrub growing on the physically unused part of the lot, its clearance was not a matter of difficulty or likely to occupy much time and it would be reasonable to wait until actual physical use was imminent: (at 74 - 75).

82 The approach of identifying factors relevant to, but not determinative of, the existence of a single planning unit was acknowledged and explained by Walsh J in the same case in these terms (at 278):

"It would not be right to lay down rigid rules as to how the problem of identification is to be solved. There may be circumstances in a particular case which would warrant a finding that a part only of a holding, even when it is a relatively small block of land, had been used for a particular purpose".

Walsh J observed (at 278) that in some cases the physical use for a particular purpose of a small portion of a large holding would not warrant a finding that the whole area was used for that purpose. However, he concluded that, where a relatively small area is held by one owner and none of it has been used for any different purpose, it should generally be regarded as being all one parcel for the purposes of determining the area of land which has been put to a particular use.

83 Walsh J also addressed the fact that a portion of the whole area of land had been fenced (at 278 - 279). That factor was discounted on the basis that the fence did not enclose completely that portion of the appellant's land which lay to the west of the fence and the actual physical use of the land for business purposes extended beyond the fence and was not confined to the area upon which the activities were mainly conducted. The clearing of vegetation was another factor which was considered by Walsh J as follows (at 279):

"The fact that a substantial portion of the allotment was not cleared and was not actually used for the storage of timber is, in my opinion, a fact properly to be taken into account in determining whether the whole allotment should be treated as one parcel of land for the purpose of applying cl 30. But I am of the opinion that it is not a fact which, when weighed against

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the other circumstances of the case, warrants a conclusion that the allotment should not be regarded as one parcel."

84 Gibbs J was also a member of the Court in Eaton & Sons v Warringah Shire Council and concluded (at 282) that, in the circumstances, it was not right to treat the relevant land as comprising two different areas of land even though the use did not physically extend to the whole of the land. In reaching that conclusion Gibbs J identified the factors he considered relevant to a resolution of the issue. The first was that the land was entirely within the boundaries of one subdivision. The other factor was that the part of the land which was not physically used was not used for any other purpose. Gibbs J also considered whether the nature of the use involved a progressive use of the site and identified this as a point of distinction between the Eaton & Sons v Warringah Shire Council and Parramatta City Council v Brickworks Ltd cases, noting that a quarry may be distinguished from a timber yard on the ground that the former use does, and the latter does not, necessarily involve a progressive use of the site: (at 281).

85 Gibbs J also took the opportunity to explain the significance of the comment made by him in Parramatta City Council v Brickworks Ltd (at 23) in relation to land held under different titles. He said in that case: "There is however nothing in the provisions … that suggest a concern with conveyancing details rather than with actual use.". He noted (at 282) that this comment was made in the context of land comprised of different parcels acquired at different times. He conceded the fact that where land forms one parcel or is entirely within the boundaries of one subdivision that does tend to support the view that all the land should be regarded as one piece, at least if the area in question is not very large. This is an example of the point made by Walsh J (at 278) that laying down rigid rules can cause inappropriate outcomes in particular cases.

86 In Eaton & Sons v Warringah Shire Council Stephen J identified the approach to be taken in determining cases of this type (at 291):

"Where a claimed existing use is of a kind which involves active physical use nice questions of fact and degree may arise when the claimant's land contains some areas of apparently unused land … Only by first ascertaining the characteristics of the particular purpose of use claimed and comparing that with the evidence concerning the relevant land, regard being had to the absolute and relative sizes, locations and, perhaps, pattern of distribution of unused land, will it be possible to conclude

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whether all the land should be viewed as one whole, used for the claimed use or, on the contrary, as distinct portions, some of which have not shared in the claimed use."

87 The decision of the Court was that Lot C1 should be regarded as integrated into the whole of the land occupied by the appellant and acquired by him for the purpose of establishing the business and regarded as being in use for the purposes of the timber reselling business as a timber stacking area.

88 In Kismet Engineering Pty Ltd v Brisbane City Council (1959) 102 CLR 574 Dixon CJ referred to one of the difficulties arising from the view held by some members of the Court, as expressed by Walsh J in Eaton & Sons v Warringah Shire Council (at 278), that it would not to be right to lay down rigid formula. Dixon CJ observed that (at 580):

" … it presents the kind of problem as to the application of a general verbal formula to unexpected facts which admits of no very certain answer."

89 In Town of Claremont v Complete Furniture Restoration Pty Ltd Heenan J considered and applied the decisions in Parramatta City Council v Brickworks Ltd and Eaton & Sons v Warringah Shire Council. In particular, Heenan J addressed (at 15) that portion of the latter case where Barwick CJ dealt with the potential significance of areas which are fenced off or divided from other parts of the subject land. He also noted the need to make determinations of fact and degree as described by Stephen J in Eaton & Sons v Warringah Shire Council (at 291).

90 In the Town of Claremont v Complete Furniture Restoration Pty Ltd case, the land comprised a single lot on which was constructed a building comprising two small warehouse or storage type buildings both within the limits of the lot and each abutting the other with a common wall. There were separate entrances and separate tenancies of the two building units. Having regard to the division by the brick wall and the single ownership of a relatively small piece of land, Heenan J concluded that the correct conclusion was to treat the whole of the lot as a single planning unit. In reaching that conclusion Heenan J relied on the observations of Barwick CJ in Eaton & Sons v Warringah Shire Council (at 270) dealing with fenced areas. Heenan J noted (at 16):

"What emerges from the passage cited is that the division, whether it be a fence, a wall, or some other barrier, must be

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examined having regard to the use of the overall area. A fence or a division which is installed for the purpose of differentiating the use between premises will obviously be significant but it is any differentiation with regard to the nature of the use, not the identity of the occupant which is crucial."

91 The following is a list of the factors identified in the foregoing cases as being relevant to, but not determinative of, the existence of a single planning unit. The list is not intended to be exhaustive of the factors relevant to a consideration of whether an area of land is part of a single planning unit. No doubt other factors will become apparent when considering the circumstances of particular cases. For convenience I have referred to the unused area of land as "the relevant area of land". I have referred to the land on which the nonconforming use has actually been conducted as "the larger area of land", although there is no requirement for there to be an imbalance in the size of these areas of land, or for the relevant area of land to be smaller, although that is commonly the case. The combination of the two areas of land are referred to as "the total landholding". The factors for consideration are these:

• The nature of the nonconforming use of the larger area of land; including whether the physical use of the relevant land may reasonably take place over a long period of time as in the case of quarrying or mining which often involve a progressive use of land.

• The use of the relevant area of land or any part of that land, including the absence of any use.

• The purpose for which the relevant area of land was acquired; in particular whether it was acquired with the intention of using it for the nonconforming purpose and, if so, when it was to be used for that purpose.

• The title boundaries. For example, whether the total landholding is the subject of a single title or whether the relevant portion of land is under a separate title.

• The size of the total landholding. For example, a small landholding with one owner of which no part is used for any other purpose is consistent with the landholding being a single planning unit.

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• Whether the size of the total landholding is disproportionate to the nature of the business conducted. For example, the fact that the area of land is disproportionate to the needs of the business being carried out is consistent with the relevant land being held for another purpose.

• The proportion of the total landholding represented by the relevant area of land.

• Whether there is any form of integration of the relevant area of land with the larger area of land.

• Whether the relevant area of land is capable of immediate use or capable of use without substantial effort or expense. For example, whether the land has been cleared or left in its natural state is a relevant consideration.

• Whether there is any barrier between the relevant area of land and the larger area of land and the purpose of any such barrier. For example, land may be fenced for security purposes or to segregate it from adjoining land.

92 In considering the various factors identified in the authorities and the approach taken in those authorities, it becomes apparent that the evidence before the Magistrate in this case was minimal and little of it was direct evidence. There was no evidence of the purpose for which the total Bebich landholding was acquired or of the intended purpose of that part of the landholding which became Lot 158. As is apparent from the authorities, the fact that an unused portion of land is part of a large landholding is not determinative of whether the unused portion is part of a single planning unit. It is equally possible that the Bebich family used only that portion of the landholding necessary to carry out the businesses and held the balance of the land in the hope of future subdivision. In those circumstances, it is not possible to infer from the fact that the relevant land was in single ownership and was part of a single large landholding that it constituted a single planning unit. The only other evidence relating to any of the factors identified above was that Lot 158 had not been cleared, was covered by bushland and not physically being used to carry out the businesses of the Bebich family.

93 As I have noted above, in my opinion it is incorrect to say that the Magistrate failed to apply the decision in Town of Claremont v Complete Furniture Restoration Pty Ltd and considered only whether Lot 158 itself

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was used for the nonconforming purpose prior to the commencement of the relevant planning schemes. The Magistrate determined that there was insufficient evidence to conclude that Lot 158 was part of a single planning unit or, in other words, part of a larger area of land used by the Bebich family in the 1970s for, inter alia, storing commercial vehicles. Having considered the evidence outlined above, I am unpersuaded that the Magistrate was in error in reaching that conclusion.

94 Most significantly, there was, as the Magistrate noted, absolutely no evidence that any use of the land by the Bebich family for purposes involving the parking of commercial vehicles was lawful. As the lawfulness of the nonconforming use is a requirement of the relevant clauses excluding such uses from the requirements of the planning schemes, the failure to adduce any evidence of that requirement precludes any reliance on a nonconforming use right as a defence to the charge.

Other Issues

95 Even if it were possible to conclude that Lot 158 was part of the Bebich land and had been used for commercial purposes involving the parking of large commercial vehicles, there are other issues which prevent the appellant from relying on a pre-existing lawful nonconforming use as a defence to the charge.

96 The only evidence of the use by the Bebich family of the land for that purpose was that this occurred "from the early 70s". As I have indicated above, TPS1 was gazetted on 13 September 1972 and prohibited the unauthorised parking of commercial vehicles on Special Rural land. Therefore, in order to rely on a pre-existing use which is lawful, the appellant must establish that this use predated 13 September 1972. I accept the submission of counsel for the City that the evidence on this issue is too vague and ambiguous to support an affirmative finding that the use was commenced prior to the relevant date. Indeed, the Magistrate identified a number of reasons for the unreliability of recollections to that point in time. The evidence given at trial concerning the Bebich land was not only sparse, it lacked detail. There was, therefore, little to overcome the concerns expressed by the Magistrate about the reliability of the evidence. In my view, the reasons expressed by the Magistrate were valid ones and I am not persuaded that the Magistrate was in error in declining to rely on evidence of that quality.

97 In any event, even if it were established that the use of the land by the Bebich family predated TPS1, as I have noted above, there was no evidence put before the court to determine the lawfulness of the use at that

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time. In those circumstances it was not open to the Magistrate to conclude that the use was lawful. Further, even if it were appropriate for the Magistrate to determine the position under the applicable planning scheme before TPS1, any perusal of the MRS would reveal that the use, if unauthorised, was prohibited by that scheme also and hence was unlawful.

98 There is a final factor which I consider to be a complete answer to the appellant's reliance on a pre-existing lawful nonconforming use right. For a use of land to fall within the provisions excusing a nonconforming use, that use must not only be lawful, it must also be a continuing use. Practically speaking, there will inevitably be periods of discontinuance in the use of any land; for example, when premises close for holiday periods, stocktakes or other purposes consistent with the continuing use of the land to conduct a business. However, any complete cessation of the use, such as the closing down of a business, or the commencement of another use, constitutes a break in the continuity of the use which, in my view, takes the use of the land outside the protections of the nonconforming use provisions.

99 Under cl 7.3 of DPS2, land cannot be used other than in conformity with the provisions of DPS2 if the nonconforming use has been discontinued for a period of six consecutive months. A provision in relevantly the same terms can be found in cl 4.5 of TPS1. The position with respect to the MRS is that there is only a provision permitting a continued use of land for the purpose it was being lawfully used immediately before the scheme had the force of law: cl 14. There being no statement widening the meaning of continued use, the term in that context should be given its usual meaning. However, as I have already determined, the failure to put before the Court any evidence of the position prior to TPS1 coming into effect, precludes the appellant from relying on the position which prevailed prior to 13 September 1972. The burden of establishing the existence of a nonconforming use lies on the appellant. It follows that the appellant also has the burden of establishing that the nonconforming use of the land has continued and did not cease for a period of six consecutive months.

100 It is not enough to establish that, historically, the land was used for the relevant purpose. The evidence before the Magistrate was that the land was purchased from Mr Bebich by Mr and Mrs Coppini who lived there from 1988 to 1995. The only evidence of the use of that land during that period was that it was used for "doing castings or mouldings". A utility was given as an example of the vehicles on the site. The only other apparatus of any type was a cement mixer. Significantly, there was no

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evidence that there was any use of the land between 1988 and 1995 which involved the parking of commercial vehicles such as those the subject of the charge against the appellant. In my opinion, on that basis alone, this appeal ought to be dismissed.

Conclusion

101 For the reasons to which I have referred, I am not persuaded that the Magistrate fell into error in the way alleged or in any way affecting the outcome of the charge. I would therefore dismiss the appeal.