Liverpool City Council v Galluzzo

[1989] NSWLEC 172

Land and Environment Court

of New South Wales

CITATION:	Liverpool City Council v Galluzzo & Ors [1989] NSWLEC 172
PARTIES:	APPLICANT Liverpool City Council RESPONDENT Galluzzo and Ors
FILE NUMBER(S):	40091 of 1988
CORAM:	Bignold J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act
CASES CITED:	Trimboli v. Penrith City Council (1981) 48 LGRA 323 ; Drummoyne Municipal Council v. Cavallabro (1982) 46 LGRA 416 ; Pollifrone and Cenatiempo v. Cumberland County Council (1961) 8 LGRA 81; Warringah Shire Council v. Pollifrone (1976) 32 LGRA 361 ; Sutherland Shire Council v. Loney (1986) 59 LGRA 376 S; Trimboli and Cumberland Councty Council v. Corben (1960); Warringah Shire Council v. Sedevcic (1987) 10 NSWLR 335; 63 LGRA 360,
DATES OF HEARING:
DATE OF JUDGMENT:	03/23/1989
LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: On 19th May, 1988 the Applicant commenced class 4 proceedings seeking prohibitory and mandatory injunctions against the Respondents in respect of their use, as the business of conducting a roadside stall, of property being lots 29-31 Section B, Deposited Plan 1443 situate at Campbelltown Road, Ingleburn.

The mandatory order claimed seeks the demolition of two separate structures situate on the said land, namely an external wall and two roller shutter doors enclosing the loading-bay located at the rear of the roadside stall building and a free-standing building housing coolrooms located a short distance from the rear of the roadside stall building. The roadside stall building was erected in 1978/79 in pursuance of the grant by the Applicant in 1978 of development consent and building approval. According to the approved plans the aforesaid loading-bay was to comprise a reinforced concrete floor slab sheltered by the roof structure but lacking side or rear walls. The free-standing building housing the coolrooms was not shown on the approved plans and although its coming into existence was not precisely pinpointed by the evidence, it appears to have been in existence earlier than when the roadside stall building was erected in 1978/79 and appears to be a residue of the former roadside stall building that existed

on the subject property in the 1960s and 1970s. The prohibitory injunctions claimed by the Applicant seek to enforce the conditions of the development consent granted by the Applicant in 1978 and to restrain the Respondents from offering for sale and selling a wide range of specified goods (not being fruit and vegetables) eg groceries, bread, household goods, potted plants etc.

When the proceedings came on for hearing on 9th March, 1989 the Applicant obtained leave (without opposition from the Respondents) to amend its class 4 application.

The amendment involved a significant change in that the principal relief by way of prohibitory injunction now claimed by the Applicant was to restrain the Respondents from using the subject land "for the purpose of a shop or roadside stall". Whereas the original relief claimed recognised the entitlement of the Respondents to conduct the roadside stall in accordance with the 1978 development consent the amended relief claimed denied such entitlement. It appears that the basis for the amended relief was the coming into force on 1st May, 1987 of Liverpool Local Environmental Plan No. 149. The Applicant contends that the Respondents cannot assert any 'existing-use' entitlement based upon the 1978 development consent to overcome the absolute prohibitions on retail activities operating under the Local Environmental Plan because that approved use had subsequently unlawfully been converted into a shop use.

Affidavit evidence was given by the Applicant's Chief Town Planner, Mr. Crawford and by the Applicant's Town Planning Assistant, Mr. Montgomery the latter having carried out inspections of the subject property between 1983 and 1989. Mr. John Galluzzo, one of the Respondents, and the son of the proprietors of the subject property (also Respondents) gave affidavit evidence. Mr. Crawford and Mr. Galluzzo were cross-examined. This evidence generally is relevant to the question of the exercise of the Court's discretion, since there appears to be no dispute between the parties on the primary facts.

In addition to the aforesaid evidence the parties at the hearing submitted a Statement of agreed facts and issues (a copy of which is annexed hereto).

In respect of paragraph 11 of the Statement of agreed facts I should note that the hearing was conducted on the basis that there is a real and serious issue as to whether the offer and sale of goods other than "fruit and vegetables" was sanctioned by the 1978 development consent. Accordingly paragraph 11 is to be understood as if the words "contrary to the conditions of consent" were omitted.

That the precise scope of the 1978 development consent is in issue is borne out by the paragraphs 1, 3 and 4 of the Statement of agreed issues.

The following summary of my relevant factual findings is based upon the agreed statement of facts as supplemented by the evidence adduced. In respect of the latter I accept Mr. Galluzzo's evidence contained in his affidavit, which was not challenged except in relation to the enclosing of the loading-bay, to which matter I shall later return.

The subject property comprises 3 adjoining lots (29, 30 and 31) and has a combined area of some 6 acres. The property was acquired by Mr. & Mrs. G. Galluzzo in 1961. Mr. John Galluzzo commenced working on the property in 1964. At that time his father was selling fruit and vegetables from the property which were not grown thereon. Additionally he was selling cigarettes and soft drinks. In 1970 further types of goods began to be sold from the property eg bread, milk, ice creams, frozen foods and chickens.

In 1971 other grocery items began to be sold from the property.

A coolroom used for the purpose of the retail activities conducted on the subject property has been in existence on the property since 1970.

Some unspecified form of roadside stall building from which the retailing activities were undertaken existed on the subject property prior to the grant of the 1978 development consent.

The 1978 development consent was preceded by a special enabling provision made by the Minister to the then applicable planning instrument (Interim Development Order No. 42 - City of Liverpool) on 20th January, 1978. That special provision took the form of the introduction into the IDO of a new cl. 13 as follows:-

"13. (1) This clause applies --

(a) to lots 29, 30 and 31, Deposited Plan 1443, section B, Campbelltown Road, Ingleburn; and

(b) notwithstanding any other provision of this Order.

(2) Subject to this clause interim development may be carried out only with the consent of the Council for the purposes of a roadside stall.

(3) Subject to this clause, interim development permitted under this clause shall be generally in accordance with the provisions of the plan comprising 2 sheets prepared by Stephen Taylor and Associates, marked "Proposed Fruit and Vegetable Market for Mr. J. Galluxo, Job No. 77/126", submitted to the Council and the Commission.

(4) The dimensions of any awnings to the east and west sides of the stall shall not exceed 11.6 metres by 3 metres.

(5) There shall be no awnings, verandahs or roof extensions on the north and south walls of the stall.

(6) Merchandise shall not be stored or displayed outside the walls of the building."

The plan referred to in cl. 13(3) was introduced into evidence (Exhibit 2). It comprises a site plan showing the location of the proposed building on lot 29 set back some 40m from Campbelltown Road. The proposed building is described as "Proposed New Fruit and Vegetable Market". It notes on the building the figure 110m2 with scale dimensions of 12.2 and 9.0. The site plan shows 30 car parking spaces flanking the proposed building on 3 sides with 12 spaces slightly encroaching onto lot 30. Apart from that minor encroachment lots 30 and 31 are not shown to be affected by the proposal.

The more detailed plan of the proposed building is in plan form only and by measurement shows a building with dimensions of 11.6 x 8.35 with overhanging awnings on all sides of the building 3m wide at the front and rear of the building and 1800m wide at each side of the building. Notations of "storeroom", "display" and "check-out" are shown on the plan. Openings are provided at the front and rear of the building with notations of "roller shutter".

On 19th April, 1978 the Applicant granted development consent (No. 258/78) to carry out development described as "the erection of a roadside stall" on "lot 29-31 Section B Deposited Plan 1443" subject to specified conditions including the following:-

"(1) The total floor area of the roadside stall, coolroom and ancillary store area is not to exceed 110m2. Awnings located on the eastern and western sides of the stall respectively to have dimensions no greater than 11.6m x 3.0m.

(3) The old stall to be demolished immediately upon completion of the new store .........

(6) No goods, boxes etc to be displayed or stored outside the building."

On 26th April, 1978 the Applicant granted building approval under Part XI of the Local Government Act 1919 to working drawings of the "proposed fruit and vegetable market". The building depicted by the drawings is consistent with the building depicted by the plans referred to in cl. 13(3) of the IDO. The construction materials of the proposed building were shown as brick walls, metal roofing and aluminium and steel roller shutter doors. The only inference that can be drawn from the plans is that the proposed building was to be a substantial and permanent building.

Evidence adduced by the Applicant indicates that the Applicant first became aware of breaches of the conditions of development consent in June 1979. On the occasion of an inspection of the subject property by the Applicant's Town Planning Inspector on 19th June, 1979 it was noted that goods were displayed on the walkway under the awning outside the floor area of the approved development and that "the existing coolroom had not been demolished". That inspection also revealed that footings had been poured to the south of the approved building "apparently with a view to expanding the development".

A subsequent inspection on 26th September, 1979 by the Applicant's Town Planning Inspector revealed inter alia, that the loading-dock at the rear of the building "is used for storage purposes and in this regard galvanised iron sheets have been fixed to the existing columns to shield the goods from the afternoon sun" and that the "coolroom from the demolished stall has now been located to an area in close proximity to the rear of the approved stall and is used for storage of produce". The inspection also revealed that "goods offered for sale ......... are not confined to fruit and vegetables .......".

A similar inspection of the subject property on 19th November, 1979 revealed, inter alia, the storage of goods and boxes etc outside the building.

On an inspection undertaken on 28th November, 1979 the Applicant's Town Planning Inspector measured the floor area of the stall and calculated the floor area to be 121m2.

According to the evidence just mentioned the Applicant became aware in 1979 of the breaches of the conditions of the 1978 development consent, the subject matter of the current proceedings which were commenced some 9 years later. The documentary evidence adduced indicates a protracted history of correspondence between the parties between 1978 and 1985 concerning aspects of the Respondents' use of the property to which the Applicant raised objection. The history of correspondence also involved the Minister for Planning and Environment and the N.S.W. Planning and Environment Commission. It appears from correspondence from the latter that the introduction into the IDO in 1978 of the special enabling provision made by cl. 13 was done so "to legitimise the existing fruit and vegetable shop and to prevent further commercial usage of the site".

In the course of the aforesaid history of correspondence there have been at least two development applications to extend the roadside stall (refused by the Applicant) and an application for a rezoning of the subject property to allow for the extension of the existing roadside stall (also refused by the Applicant).

During the aforesaid period (1978-1985) the Applicant has at least on three separate occasions resolved to take civil enforcement proceedings in this Court against the Respondents. On 5th July, 1983 the Applicant when refusing a development application to extend the roadside stall also resolved "to proceed with the class 4 proceedings in the Land and Environment Court to cause the existing development on the land to conform with the development consent originally issued by Council in relation to the size and design of the development approved and in relation to the range of goods to be sold ie restricting all range of goods to that of a fruit and vegetable market only".

Thereafter on 3rd July, 1984 the Applicant in refusing development consent to a further application to extend the existing roadside stall resolved to "proceed with the legal proceedings and that depending upon the outcome of the proceedings, it might be appropriate for the Council to consider draft local environmental plan action at some future stage". The reference in the resolution to the possibility of "draft local environmental plan action at some future stage" appears to derive from comments made by the Applicant's Chief Town Planner in his advice on the development application.

Apparently the reference caused the Applicant's Solicitors some difficulty resulting in a resolution passed by the Applicant on 11th September, 1984 "clarifying" its earlier resolution by adopting the following advice of its Chief Town Planner:-

"Chief Town Planner advises that the reference to possible future draft local environmental plan action in the previous report to Council and its decision was purely in response to the proposition put to Council by the owner at that time which was not supported by the Council and was merely an indication that should Council be unsuccessful in the legal proceedings, or should planning circumstances change at some undetermined future stage, draft local environmental plan action might then be appropriate."

The Applicant's resolution of 3rd July, 1984 appears to have prompted an application on behalf of the Respondents by Consultant Town Planners made to the Applicant on 11th April, 1985 for a rezoning of the subject property "regardless of whether legal action is pending or has commenced".

On 4th June, 1985 the Applicant adopted the advice of its Chief Town Planner "to adhere to its previous decision to proceed with legal action in relation to non-compliance with the terms of the original Development Consent and not prepare the draft local environmental plan as requested". The Respondents' Consultants were advised of the Applicant's decision by letter dated 18th June, 1985.

Thus despite its decisions in 1983, 1984 and finally June 1985 to take class 4 proceedings in this Court to enforce the conditions of the 1978 development consent these anticipated proceedings were not commenced until May 1988. No explanation was given to the Court for the delay in commencing the legal proceedings and although the Respondents have not asserted any detriment caused by the delay, I think the Applicant's unexplained and extensive delay is a material factor on the question of discretion.

The only other evidence I need to note is that of Mr. Crawford and Mr. Montgomery following their joint inspection of the subject property on 3rd March, 1989 (ie immediately prior to the commencement of the hearing). Each noted that the development presented as an 'untidy development' by virtue of the storage of large quantities of boxes, crates, bottles and other goods. This evidence was not challenged and I accept it. However it is not entirely clear to me that the evidence is relevant to any issue raised in the proceedings because I take the evidence to refer to the presence of disused boxes etc (see paragraph 2(f) of Mr. Montgomery's affidavit sworn 7th March, 1989) and not to merchandise for sale. On this basis the restrictions imposed by cl. 13(6) of the IDO are not relevant. Similarly it is doubtful whether Condition 6 of the 1978 development consent is relevant, since its reference to "goods, boxes etc" appears to be principally directed to goods etc for sale. Even if this is the case Mr. Crawford's o

pinion (see paragraph 6 of his affidavit sworn on 7th March, 1989) that non-compliance with the development consent "would allow the present use to continue in what is an uncontrolled, untidy and in some respects an unsightly state" is not accepted because it fails to consider the effect of Condition 7 of the development consent requiring compliance with the requirements of Council's Health and Building Department. It may be assumed that such requirements adequately deal with questions of untidiness and unhealthiness in the use of the subject property.

In any event the substantial case sought to be advanced by the Applicant in relation to the admitted breach of Condition 6 concerns the storage of goods for display and sale.

Mr. Crawford in his last mentioned affidavit expressed the opinion that "any expansion or intensification of the existing development on the subject land ............ would be in conflict with the objectives of the zone and the broader planning objectives of the Denham Court area" (paragraph 10). This was a reference to the land to which LEP No. 149 applies and to the scenic rural and topographical features of the Denham Court area and to the existence in parts thereof of "very high quality rural/residential" development.

Under cross-examination Mr. Crawford conceded that the subject property is not in the midst of the Denham Court rural/residential development and that the development on the subject land has "minimal effect" on the rural/residential amenity of the area. Once it is appreciated that the present proceedings do not involve any question of the "expansion or intensification of the existing approved development" Mr. Crawford's opinion is again not really relevant to any issue to be determined in these proceedings.

THE ISSUES IN DISPUTE

(i) Roadside Stall or Shop?

The principal issue debated in these proceedings concerns the question whether the Respondents' use of the subject premises is as a roadside stall or as a shop. In this respect no distinction is made in the evidence between such use in 1978 or such use in 1989 or during the period 1978-1989. On the evidence I find the user during this period to be materially unchanged.

The determination of this issue is decisive of the question whether there is any "existing use" entitlement in respect of the subject property that is based upon the 1978 development consent notwithstanding the effect of LEP No. 149 to absolutely prohibit in zone No. 1(i) (Rural (Landscape Interest) Zone) which applies to the subject property, development for the purposes of "roadside stall" and "shops".

The Applicant argues that there is no relevant 'existing use' within the meaning of s.106 of the Environmental Planning and Assessment Act for the following reasons --

(i) the retailing use of the subject property at all material times has been as a shop and not as a roadside stall;

(ii) the only lawful retailing use of the subject property is as a roadside stall in accordance with the 1978 development consent;

(iii) accordingly when LEP No. 149 came into force on 1st May, 1987 (being the relevant date for the definition of 'existing use' in s.106 of the Act) the subject property was not being used for a lawful purpose;

(iv) hence the use of the subject property is not an 'existing use' within the meaning of s.106 of the Act.

I must say at once that this argument which fastens onto the legal effect of the making of LEP No. 149 sits ill at ease with the facts of the present case including those canvassed in the protracted history of dealings between the parties in the period 1978 to 1985 that I have earlier recited. I must also say that I found Counsel's attempt to justify the belated manner in which the question "roadside stall or shop" has been raised by reference to the making of LEP No. 149 in May 1987 to be opportunistic and I cannot escape the conclusion that the making of LEP No. 149 was seised upon as a relevant legal fact upon which Counsel could mount the 'existing use' argument and thereby avoid any adverse consequences of the obvious delay by the Applicant in commencing legal proceedings in this Court to enforce the conditions of the 1978 development consent. By this I mean that the issue of 'roadside stall or shop' was always available to be raised by the Applicant (eg it could have sued for injunction to enjoin the pr

ohibited 'shop' use of the subject property in 1979 from the moment it first became aware of the wide range of goods offered and sold from the subject property).

However there is no escaping the fact that the Applicant's claim to principal relief in these proceedings fairly and squarely raises the 'existing use' question and in this legal context the question of 'roadside stall or shop' assumes a new significance. In Trimboli v. Penrith City Council (1981) 48 LGRA 323 this Court held that an existing use as a roadside stall "does not establish the creation of existing use rights as a shop" (p.333).

The principles upon which the present issue is to be decided are the same as those applied by the Court of Appeal in Drummoyne Municipal Council v. Cavallabro (1982) 46 LGRA 416 namely --

(i) where an existing use is relied upon, it must be a lawful use;

(ii) the only lawful use that can be relied upon in this case is that which is allowed by the terms of the 1978 development consent;

(iii) the 1978 development consent must be properly construed, recognising that the term "roadside stall" is not defined; and

(iv) whether the present use of the subject property is a continuation of the 'existing use'.

The Applicant's argument that the Respondent's retailing use of the subject property was at all material times use as a 'shop' is founded on the decision of Needham J. in Warringah Shire Council v. Pollifrone (1976) 32 LGRA 361 (The appeal from the decision to the Court of Appeal was dismissed by consent).

In that case Needham J. posed the question "shop or roadside stall?" in order to consider whether the Council was "empowered by the Ordinance to consent to the use ....... for the retail purpose for which it is now being used, or whether that use is unlawful and unable to be condoned" (p.365) the significance of the question being "if it is a roadside stall and not a shop, the plaintiff has power to give consent to its continued use, if it is a shop, it is prohibited" (pp.367/368).

After citing the Ordinance definition of 'shop' which expressly excludes other buildings including a roadside stall and noting that the Ordinance gives no assistance by way of definition in determining whether a building is a roadside stall (p.367) Needham J. proceeds at pp.368 and 369 to examine earlier decisions in N.S.W. where the question had been considered but not answered, before reaching his own conclusions as expressed in the following passages at pp.369/370:-

"What, then, is a "roadside stall" within the meaning of the definition of "shop"? I suppose the words bring to mind certain structures which would clearly be roadside stalls, for example, a long table placed outside a country dwelling upon which the produce of the property is displayed for sale to passing motorists; a small, covered bank of shelves, similarly placed, containing restricted classes of produce. But is a roadside stall one which sells only local produce? I see no reason why it should be. Must it be small and impermanent? Again, there seems no reason why it should be such. I confess that I am unable to provide the definition of roadside stall which should have been contained in the Ordinance but was not. I can merely consider the features of this structure and the use to which it is put and decide whether it is a roadside stall as distinct from a shop.

The most outstanding feature, I suppose, is that it is by the roadside. It sells produce of its owner. Having said that, I can think of no other characteristic of the structure or the use to which it is put which would tend to the conclusion that it was a roadside stall and not a shop. Features which tend to a contrary conclusion are, its size, its permanence, its interior layout, the fact that it appears to be, from the photographs and from inferences available from its contents, a lock-up structure, the number of people employed in running it, the extent of the produce on sale (the equivalent of a greengrocer's stock), the fact that much of the stock is purchased elsewhere, the presence of mobile trolleys and a cash register, the refrigerated cabinet, the weekly turnover and the fact that it has regular customers as well as passing trade. In my opinion, those factors add up to a retail enterprise which could not be characterized as a roadside stall."

In Trimboli McClelland CJ though noting that Needham J. in Pollifrone did not attempt to supply the missing definition of a roadside stall (p.332) proceeded to consider the evidence before him by reference to "factors" identified by Needham J. as "adding up to a retail enterprise that could not be characterised as a roadside stall" (p.333).

In Sutherland Shire Council v. Loney (1986) 59 LGRA 376 Stein J. after citing the abovementioned passage from Pollifrone stated at pp.381/382:-

"Insofar as there may be thought to be some inconsistency of approach between Pollifrone and Cenatiempo v. Cumberland County Council (1961) 8 LGRA 81 I tend to prefer that of Jacobs J. in the latter. His Honour stated (at 83):-

"I think that some difficulty may arise by the use of the word 'stall', a word which I have used myself quite often in this judgment. A stall in the definition is not a shop, but a stall may be a place to which persons come so that they may purchase goods, as well as a place where goods can be stored for purposes of nearby sale. What must be looked at in the present case is the purpose of the structures; and the purpose in the case of each stall was for use in connection with roadside selling."

Further, it seems to me that Pollifrone may be distinguished from the subject case since it was dealing with the question of rebuilding."

A similar question to that raised in Pollifrone was considered by the Full Court of the Supreme Court of South Australia in Skaventzos v. Vander-Lee (1974) 31 LGRA 298 (a decision that does not appear to have been cited in Pollifrone). In that case the relevant planning regulations defined 'shop' in a similar manner to the definition considered in Pollifrone ie the definition expressly excluded a "roadside stall", the latter term was not being defined.

At p.305 the Full Court considering the question whether the relevant building fell within the express exception of "roadside stall" stated:-

"The first thing to notice is that a stall is treated as a kind of shop for the purposes of the definition. If it were not so regarded it would be pointless to exclude it by particular reference from the general definition.

It follows, in our opinion, that a stall from which goods are sold by retail must necessarily be a shop, within the meaning of the regulations, but it is none the less necessary to distinguish a "stall" from a "shop", for what is excluded from the definition is not a "roadside shop" but a "roadside stall". It seems to us also to follow that the phrase "roadside stall" is not to be treated as a compound unseverable expression. There may, we think, be various kinds of stalls, and in various situations. They may be on private land on the occasions of fetes or other charity occasions; they may be set up for the sale of food to spectators at games. They may be "roadside" or not "roadside" for that adjective merely amounts to a geographical attribute of some kinds of stall. In order to be exempt from the definition of a shop, however, the "premises" must not only have the characteristics of a "stall" but they must also have the geographical attribute of "roadside". If the geographical attribute is lacking, then a s

tall, however characterized, is still a shop within the meaning of the regulations. Conversely, if the premises can be properly described as "roadside", it becomes necessary to determine whether they are the kind of shop which may properly be characterized as a stall.

What then distinguishes a "stall" from other kinds of "shops"? We think it must be the transient and unsubstantial character of the structure at which the retail selling of goods is conducted. In saying that, we are not to be understood as saying that a structure which is a "building" within the meaning of the Building Act is not a stall, and indeed, as we shall point out later, a "building" may include a stall, as we have described it, for some purposes of the planning regulations. But at least if the structure is, in common parlance, a "building" it is ipso facto less likely to be a "stall". Applying that to the present case, we think that the structure used by the respondents, was not only a building but had such attributes of permanence, structural solidity and the like as to take it out of the category of "stall"."

Although it may be difficult to totally reconcile the decisions in Pollifrone and Vander-Lee two common factors apparently of materiality to the determination of the question "roadside stall or shop" are (i) the roadside location and (ii) the physical nature of the building. Thus a building of significant size and solid and permanent construction is less likely to be held to be a 'roadside stall'. Nor is a building that is not located 'roadside'.

If the question posed in the present proceedings involved a similar statutory context to that involved in Pollifrone and Vander-Lee it would be difficult to resist the conclusion that the building on the subject property is a shop and not a roadside stall. However in my opinion the present case involves an drastically different statutory context which, in my opinion, ultimately renders Pollifrone and Vander-Lee inapplicable and unhelpful in the determination of the question posed by this case. This is because the 1978 development consent though not defining 'roadside stall' in effect provides its own dictionary. Firstly it is to be noted that the development consent in terms refers to "IDO 42" the significance of which is that it is permissible in the task of construing the development consent to have regard to cl.13 of the IDO (ie the special enabling provision). Secondly condition (1) of the development consent in terms indicates that the approved building is of significant size and of solid and permanent c

onstruction. Thirdly condition (2) makes it clear that the approved building is to be located a minimum of 45m from the new road alignment (the frontage of the subject property for a small depth was at all material times zoned for road widening purposes) of which setback the front 30m was to be thickly landscaped. The inevitable inferences from the imposition of conditions (1) and (3) are --

(i) the approved building was not intended as a 'stall' in contrast to a building of significant size and solid and permanent construction; and

(ii) the approved building was not intended as a 'roadside stall'.

Although the express terms of the conditions of the 1978 development consent are sufficient in themselves to require a construction of the development consent in a manner that necessarily denies the ordinary meaning to be assigned to the term 'roadside stall' (such as is to be found in Pollifrone and Vander-Lee) I think this conclusion is considerably reinforced if consideration is given to the provisions of cl.13 of the IDO.

As I have stated the express reference in the 1978 development consent to IDO 42 provides the clear link to cl.13 of the IDO, which in turn provides the sole foundation for the grant of the 1978 development consent.

The plan referred to in cl.13(3) of the IDO delineates the matters expressly provided for in conditions 1 and 3 of the 1978 development consent. Reference to cl.13 of the IDO, in my opinion, reinforces the inference that I have drawn, based upon the conditions of the 1978 development consent, that the reference to 'roadside stall' was not intended to bear its ordinary meaning. The same reinforcement is provided by direct reference to the plan referred to in cl.13(3) via the inference that is open on the evidence that the 1978 development consent was granted specifically in relation to that plan. It is for these reasons that I do not consider decisions like Pollifrone or Vander-Lee to assist the present task of construction. Having concluded that the 1978 development consent does not use the term 'roadside stall' in its ordinary sense (nor for that matter does cl.13 of the IDO) the question of construction remains ie what is meant by the employment of the term in the present case? Again I think it legitimate t

o have regard to extrinsic material in seeking to discover the true intention. It is not disputed that the purpose of the special enabling provision made by cl.13 of the IDO was "to legitimise the existing fruit and vegetable shop". What does this purpose mean?

Based upon Mr. Crawford's concession in the course of cross-examination I find that the Applicant was aware of the fact that prior to 1978 the then existing stall was offering and selling a wide variety of goods other than fruit and vegetables. Taking these matters together it is clear in my opinion, and I so find, that the purpose of the special enabling clause 13 and of the grant of the 1978 development consent was to legitimise the existing retail or shop activity conducted on the subject property.

Accordingly I am of the opinion that properly construed the 1978 development consent sanctioned the use of the new building for retailing of goods of the types and range that had been sold by the Respondents from the premises prior to 1978.

Having already held that there has been no material change of use between 1978 and 1989 it follows that the Respondents' use of the subject property is sanctioned by the 1978 development consent and hence is for a lawful purpose and constitutes an existing use in terms of s.106 of the Environmental Planning and Assessment Act, which use, may notwithstanding LEP No. 149, be continued in accordance with s.107.

It follows that the Applicant has not demonstrated its entitlement to the primary relief claimed ie a prohibitory injunction against the Respondents' use of the subject property.

(ii) Does the 1978 Development Consent limit to fruit and vegetables the goods to be sold from the subject property?

The construction of the 1978 development consent I have just adopted provides the answer to this question. In my opinion the answer is "no".

This answer is, in my opinion sustainable on an independent alternative basis namely according to ordinary understanding in the community (cf Cavallaro at p.419) in 1978 (when the development consent was granted) that goods offered for sale at a roadside stall would not be confined to fruit and vegetables. The common understanding in the community of the range of goods offerred and sold from roadside stalls existing in 1978 is dramatically different from such understanding 20 or 30 years earlier such is to be found in decisions like Trimboli and Cumberland Councty Council v. Corben (1960) 6 LGRA 66.

Accordingly the Applicant has not demonstrated its entitlement to the prohibitory injunction claimed in respect of the sale of goods other than fruit and vegetables.

(iii) Should the admitted breaches of the 1978 Development Consent be enforced by prohibitory injunction?

The admitted breaches are set forth in paragraphs 10 and 12 of the Statement of agreed facts. They involve the display of goods outside the building ie at the shop frontage under the awning and the use of more than the maximum prescribed floor space of 110m2 (principally by dint of the detached structure housing the coolroom).

There has been little material placed before the Court from which I can fully appreciate either the adverse environmental effects of these breaches or the hardship likely to be suffered by the Respondents if the breaches are enforced by prohibitory injunction.

Prima facie the planning laws should be obeyed and public detriment by virtue of disobedience of them is presumed.

Moreover the evidence clearly establishes that the Respondents from the beginning of the operations of the new building have been seeking to expand the available floor space doubtless because the limitation is found by them to be inconvenient to the scale of their business. Incidentally I was not informed of any particular or special planning significance of the prescribed maximum floor space area of 110m2 although the correspondence from the Applicant and the N.S.W. Planning and Environment Commission establishes that the prescribed maximum was deliberately fixed and presumably was considered to be a fair compromise in the difficult task of "legitimising the existing fruit and vegetable shop and preventing further commercial usage of the site". Whether it is an immutable standard is not for me to decide in these proceedings.

As I have stated earlier the pronounced and unexplained delay by the Applicant in commencing these proceedings is a factor weighing against the exercise of the discretion in favour of the Applicant cf Blacktown Municipal Council v. Friend (1974) 29 LGRA 192. However I must also take into account the fact that the Respondents have not asserted detriment caused by the delay.

The Court's discretion has recently been compendiously described in the following terms by the President of the Court of Appeal (Fatsel Pty. Ltd. v. ACR Trading Pty. Ltd. (1987) 64 LGRA 177 at p.192):-

"Nevertheless, it is important to appreciate the wide scope and purpose of the discretion conferred by s.124 of the Act. Clearly, it is not a warrant to set at sought the complicated and sensitively balanced provisions of the legislation, substituting for the operation of the law laid down by Parliament, the personal opinions of the judge hearing the case. On the other hand, it would be equally erroneous to ignore the discretion or to give it an unduly restricted operation. It is just as much part of the structure and scheme of the Act, for the enforcement of planning law, as are the other parts. In Warringah Shire Council v. Sedevcic (1987) 10 NSWLR 335; 63 LGRA 360, I collected the authorities and the principles which are applicable to the approach to be taken by a judge exercising the discretion conferred by s.124(1). That discretion is a mollifying one. It permits, in appropriate cases, the refusal of injunctive relief where to grant such relief would work such an injustice as to be disproportionate to th

e ends secured by enforcement of the legislation including by injunction."

In the present case although I have come to the conclusion that the grant of prohibitory injunction will not be disproportionate to the ends secured by enforcement of the planning laws by injunction I propose to suspend the operation of the injunctions for a period of 6 months in order to give the Respondents sufficient opportunity should they desire to make an application under s.52 of the Regulation to the Act to extend the existing building. I propose this action having regard to the course of history between the parties between 1978 and 1985 that I have earlier referred to, and particularly having regard to the somewhat uncertain and ambiguous stance of the Applicant in its function of initiating legal proceedings to enforce the current planning law and in determining any development application, which if granted, would change that law. Without entering upon the question I am satisfied that there is scope for a mutually satisfactory planning solution to be struck between the parties.

(iv) Should mandatory injunction be granted in respect of unauthorised building works?

In large measure this issue, in my judgment, is to be resolved consistently with the resolution of issue (iii).

However the Applicant has not satisfied me that the detached building housing the coolroom was erected by the Respondents without the requisite permission. As I mentioned earlier the evidence adduced on this matter was sketchy. It appears to me that the building pre-existed the 1978 building. Although it is not entirely clear it would appear that it was part of what condition 3 of the 1978 development consent called 'the old store' which was required by that condition to be demolished.

Accordingly the Applicant has not established its entitlement to a mandatory injunction in respect of this building or for that matter the coolroom (which is a portable structure) housed therein.

In declining to grant a mandatory injunction I would not wish the Respondents to conclude that they can continue to use the building with legal impunity. On the contrary the grant of the prohibitory injunction requiring compliance with Condition 1 of the 1978 development consent (the 110m2 floor space prescribed maximum) will mean that the Respondents will need to elect which of the buildings used in the approved retailing activity are to be so used in order that that condition be complied with. I would not want the Respondents to be under any mistaken impression in this respect.

So far as concerns the unauthorised works undertaken to the loading-bay, even if I were to accept Mr. John Galluzzo's evidence that they were undertaken for safety reasons, the evidence establishes that on various occasions the loading-bay space has been used for storage purposes. The temptation to so use it, given the apparent shortage of space suffered by the Respondents, is such as to be virtually irresistible.

Accordingly I propose to grant a mandatory injunction in respect of the unauthorised building work on the loading-bay but, like the prohibitory injunction, to suspend it for 6 months so that the Respondents have the opportunity to seek a planning solution with the Applicant by way of further development application or otherwise.

ORDERS

For the foregoing reasons I make the following orders --

1. Order that each of the Respondents, by themselves, their agents and servants be restrained from using the roadside stall situate on the property known as lots 29-31 Section B Deposited Plan 1443, Campbelltown Road, Ingleburn otherwise than in compliance with Conditions 1 and 6 of the development consent (No. 258/78) granted on 19th April, 1978.

2. Order that the Respondents demolish the unauthorised building works carried out to the loading-bay (namely the side roller shutter doors and the rear external wall) within 28 days.

(3) Suspend the operation of Orders 1 and 2 for a period of 6 months from 23rd March, 1989.

(4) Exhibits be returned.