Strathfield Municipal Council v Alpha Plastics Pty Limited
[1988] NSWLEC 14
•07/27/1988
Land and Environment Court
of New South Wales
CITATION: Strathfield Municipal Council v Alpha Plastics Pty Limited & Ors [1988] NSWLEC 14 PARTIES: APPLICANT
Strathfield Municipal CouncilFIRST RESPONDENT
Alpha Plastics Pty LimitedSECOND RESPONDENT
THIRD RESPONDENT
Aubrey Jack Whiteley
Florence May WhiteleyFILE NUMBER(S): 40125 of 1987 CORAM: Hemmings J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act, 1979 CASES CITED: Woollahra Municipal Council v. Banool Developments Pty Limited (1973);
Woollahra Municipal Council v. T.A.J.J. Investments Pty Ltd;
Interior Plaster Co. Pty Ltd v. Ryde Municipal Council;
Attorney-General v. B.P. (Australia) Ltd (1964);
ACR Trading Pty Ltd & Anor v. Fat-sel Pty Ltd (1987);
Warringah Shire Council v. Sedevcic (1987)DATES OF HEARING: DATE OF JUDGMENT:
07/27/1988LEGAL REPRESENTATIVES:
JUDGMENT:
HIS HONOUR: The Council of the Municipality of Strathfield ("Council") seeks orders concerning the lawfulness of the use of premises known as 31 Courallie Avenue, Flemington. The second and third respondents are shareholders and directors of the first respondent ("Alpha"), which is the registered proprietor of the land.
Erected on the land is an industrial building which is occupied by Alpha. It is situate within a Residential 2(a) zone pursuant to the Strathfield Planning Scheme Ordinance which was prescribed on 21st February, 1969. Purposes for which buildings or works may not be erected or carried out or used in that zone include industries and warehouses. Council alleges that the land is used for a prohibited purpose, i.e. the repair, storage and distribution of machinery.
The said building was erected prior to 1952 with the consent of the responsible authority pursuant to the County of Cumberland Planning Scheme. The land was leased by the then owner, the Housing Commission of New South Wales, to Alpha for a term of fifty years from 16th August, 1952 for use as a "factory", or for such other purpose that has the previous consent of the lessor in writing.
On 30th April, 1968 Council as the responsible authority pursuant to the County Scheme approved the use of the land as "warehouse area, office for the storage of twist drills and drill sets", subject to conditions. At that time the land was zoned for industrial purposes and the said use permissible with such consent. It is common ground that the land was used for such purpose on the "appointed day" of the Strathfield Planning Scheme Ordinance.
On 1st October, 1986 Council's Town Planner, Mr D. Smith, inspected the land and observed that it appeared to be used for the storage of machinery, including large items such as lathes and presses. He interviewed Mr A.J. Whiteley, the second respondent, who informed him that the use of the land was for the repair, storage and distribution of machinery.
Council on 10th October, 1986 served notice on Mr Whiteley pursuant to the Environmental Planning and Assessment Act, 1979 ("the E.P.& A. Act") directing him to: |CF2.|PSI
"Cease using the premises for the repair, storage and distribution of machinery and ancillary fittings unless and until development consent has been obtained." |CF1.|PSO
Council contacted the owner, now known as the Department of Housing, which advised on 23rd December, 1986:|CF2.|PSI
current lessee of the property known as Lot 88, which commenced on the 16th August, 1952, and b) So far as the Department is aware, the lessee property as head lessor and has not abandoned c) So far as the Department is aware, the lessee the lease which requires the lessee to use the repair, storage and distribution of machinery is Planning Scheme Ordinance.
2. The only possible existing use of the land within approved by Council on 20th April, 1968.
3. The land was vacant and not used for any purpose and the contrary not having been established is to be abandoned.
4. The continuance of such use is therefore not discontinued and replaced by a number of uses the consent authority.
6. The continued use thereof is not authorised by is that approved on 30th April, 1968.
2. That existing use has never been abandoned and has restraining such use should be made.
Mr Smith joined Council in 1981. He first inspected the land at about July 1983 when Council considered a development application to use it for a "factory/office for roasting coffee beans by means of electrically operated small coffee machine". He observed that the land was vacant and empty at that time and kept it under observation from time to time, from a motor vehicle whilst using the public road.
On 9th August, 1983 Mr Smith reported to Council on such application and recommended rejection notwithstanding that the land had existing use rights. Council refused the application and the land remained vacant.
On 13th December, 1984 he again inspected the land and observed that it was being used for the manufacture of kitchen cupboards and bench tops. Such use terminated in 1985 after notice from Council. Mr Smith regularly passed the land in the performance of his duties and formed the opinion that it thereafter remained vacant.
It is clear on the evidence that at all relevant times until its shares were acquired by Mr Whitely, Alpha used the land for various purposes, but from 1980 sub-let the land for a variety of other uses. Evidence was given by some former sub-lessees as to the use of the land at specified periods, but not for the whole of the time since the appointed day. Mr C.C. McFarlane was employed as manager by Alpha in a building renovation business from 1976 to 1980, and used the land in connection therewith as an office and for some joinery and the storage of fittings and equipment. For a period from 1980 to about 1985, by some informal arrangement with Alpha to share in the rents, he arranged the further sub-letting of the land for various purposes. Some such occupancies were for very short periods, but it was never vacant during that period for more than three or four months at any given time.
Mr McFarlane at all relevant times intended to use the land for its permitted use, which he believed was for office, warehouse and storage with minor manufacture and assembly.
During 1984 and 1985 Mr J. Sullivan was in partnership with his wife and others and traded as E&J Laminators. From September, 1983 to March, 1984 Brownflex Holdings Pty Limited sub-leased from Mr McFarlane and used the land for the manufacture of kitchen bench tops. The business used the land for the manufacture of bench tops from approximately March, 1984 to the end of March, 1985. Mr Sullivan had inspected the land in September, 1983, but was unaware that the land was owned by the Housing Commission. Mr Sullivan claimed that he observed that the land was used as a "timber joinery" prior to September, 1983, but at that time it was vacant.
Mr Whiteley first occupied the land on 19th August, 1985 as a sub-lessee of Alpha. He and his wife subsequently acquired the shares of that company on 12th October, 1985, and ultimately purchased the land in April, 1987. He states that the main use of the land at the present time is for the storage for sale of lathe "chucks". Deliveries to the land are made once or twice per week. New and second-hand lathes and other machinery are occasionally stored for sale. Some modification and repair is made occasionally to such machines in preparation for sale. The amount of modification and repair is small and this was confirmed from the electricity account, which averages only about $9.00 per week. Mr Whiteley claims that the present use of the land is 95% warehouse and 5% workshop, with 45% sales therefrom interstate or intrastate. Sales are to industry at wholesale prices, but no restriction is placed upon sale to retailers.
In December, 1985 Mr Smith inspected the land and advised the occupier that the consent of Council was required for use thereof.
After acquisition of the shares, Mr Whiteley carried out substantial renovation of the building, including repairing windows, guttering, painting and the provision of new electrical services and fencing.
Notwithstanding notice from Council pursuant to the E.P.& A. Act alleging a need for consent to the continuation of the use, Mr Whiteley decided that the first respondent as lessee should purchase the land. He thought that Council did not have any real control over the land because of its long ownership by the Housing Commission, but he would not have purchased the land if he had been aware that Council claimed that existing use rights had lapsed.
The alleged unauthorised use of the land only came to the attention of Council as a consequence of Mr Smith's observations in the course of his duties. Notwithstanding the use of the land for industrial purposes since 1952, not only had no complaint in connection with such use ever been made by any person, the continuation of the use is very strongly supported by most, if not all, of the large number of its neighbours. It is conceded by Council that if existing use rights were confirmed, it would consent to a change of use to the present use, subject to conditions.
The meaning of "existing use" was explained by Mason J. in Woollahra Municipal Council v. Banool Developments Pty Limited (1973) 129 C.L.R. 138; 28 L.G.R.A. 410 in a slightly different context, but his observations indicate what the phrase involves in this legislation. In Woollahra Municipal Council v. T.A.J.J. Investments Pty Ltd, 49 L.G.R.A. 123, at 131, Mahony J.A. said that:|CF2.|PSI
"It involves two related things: that there was, at the relevant date, a use of the premises; and that that use was for the relevant purpose." |CF1.|PSO
The function of existing use provisions in the E.P.& A. Act is to enable the continuance of a use for a particular purpose as at the appointed day (s.107), notwithstanding that it would otherwise be prohibited by the environmental planning instrument. The significance of "continue" and similar terms in this regard was also explained by Mason J. in Banool's case (supra) 415 et seq.
I am satisfied on the evidence that whenever the land was rendered vacant it was held for the purpose of being used by another tenant. If such proposed tenants' use is intended to be the existing use, the land is held and continued to be used for the existing use. However, if while vacant the purpose of the owner be to put the land to any other use and not the existing use purpose, or the owner uses it for such other purposes then, in my opinion, it is not possible to conclude that the premises were being used for the existing use purpose (T.A.J.J. supra at 132).
I accept the evidence of Mr Sullivan and Mr Smith which establishes that in about September 1983 the land was vacant, and that between December 1983 and March 1985 the continued use of the land was for industrial purposes, i.e. the manufacture of kitchen bench tops. That use, however, was prohibited by the provisions of the Strathfield Planning Scheme Ordinance and it was not for the said "existing use" within the meaning of the E.P.& A. Act; i.e. it was not the use of the land at the appointed day, and/or a change in that use approved by Council pursuant to cl.54 of the Regulations.
The owner of the land at all relevant times until 1987 was the Housing Commission or its successor, which demonstrated little interest in anything to do with it except for the receipt of rent. I accept that, at least during the period 1977 to 1985, the owner was aware that the land was sub-let and authorised or it was disinterested in the purpose for which it was used. Notwithstanding Mr McFarlane's belief and intentions concerning the existing use of the land or the correctness of that belief, I am satisfied that he made it available for sub-lease for light industrial purposes generally. If the actual use of the land during that period ever conformed with the purpose of the "existing use", in my opinion, it was purely coincidental.
Whilst I accept that the land was rendered vacant only at periods during which new tenancies were being sought, I am not satisfied that it was held by the owner or any other person for the purpose of it being used for its "existing use". In my judgment the land ceased to be used for its existing use at least from September, 1983 to April, 1985. Indeed, it is probable that the land has not been used for its existing use since 1977. It is well established in this Court that if land is not used for its existing use and is replaced by a new unauthorised use then such existing use is abandoned, and neither it nor the new use may be continued; Jeblon Pty Ltd v. North Sydney Municipal Council 48 L.G.R.A. 113, at 118; Interior Plaster Co. Pty Ltd v. Ryde Municipal Council, 48 L.G.R.A. 229.
I am satisfied on the evidence that the land ceased to be used for the "existing use" for a continuous period in excess of twelve months. Such existing use is therefore presumed pursuant to s.107(3) of the E.P.& A. Act to be abandoned unless the contrary is established. The onus to establish that such use is not abandoned rests with the claimant; Jeblon (supra) at 118.
The discharge of the onus to displace the presumption of abandonment arising pursuant to s.107(3) may involve proof of a mental element as to the intention of the owner or those acting with its authority (T.A.J.J. supra). The intention of Alpha, if relevant, is unknown, except to the extent it can be inferred from its informal agreement with Mr McFarlane. He was undoubtedly aware that the use of the land was nonconforming and that Council had refused a change thereof. Notwithstanding what he now says were his intentions, if relevant, without the necessary approval he permitted the use of the land for other industrial purposes. The intentions of the owner are unknown except that which may be inferred from its letter of 23rd December, 1986.
If the owner did not also actually consent to the change of use, I am satisfied that, notwithstanding its significance, the owner shut its eyes or was indifferent to the likelihood that the land was being used other than for the existing use. I am satisfied that the land so used between September 1983 and March 1985 for a purpose other than the existing use was with the consent or acquiescence of all persons likely to have an interest in the land.
In my judgment, the respondents have not discharged the onus to establish the contrary to the presumption that the existing use of the land was abandoned. In my judgment the present use of the land by the respondents, whether as described by Mr Smith or as described by Mr Whiteley, is not the "existing use" and is a use in breach of the said Ordinance and may not be continued pursuant to the provisions of s.107(1).
The orders sought by Council concern the enforcement of obligations imposed by the provisions of an Act of Parliament, in which Parliament has expressed itself on the public interest which exists in the orderly development and use of the environment; Attorney-General v. B.P. (Australia) Ltd (1964) 12 L.G.R.A. 209, 218. If an applicant has established that a breach of the law has occurred and, further, that a continuous breach is threatened, it is usually entitled to an injunction to restrain the threatened breach, subject to the exercise of the Court's discretion. Such discretion is a wide one, not given an unduly restrictive operation, and is just as much a part of the structure and scheme of the E.P.& A. Act for the enforcement of planning laws as are the other parts. It permits, in appropriate cases, refusal of injunctive relief where to grant it would work such an injustice as to be disproportionate to the ends secured by enforcement of the legislation; ACR Trading Pty Ltd & Anor v. Fat-sel Pty Ltd (1987)
11 N.S.W.L.R. 67, at 82. In that matter, time for the making of application pursuant to s.101 for prohibited development was considered by Kirby P. to be a relevant matter for consideration in the exercise of discretion. That course may also be appropriate for the subject premises. The relevant authorities and principles applicable to the approach to be taken when exercising such discretion are collected and explained by Kirby P. in Warringah Shire Council v. Sedevcic (1987) 10 N.S.W.L.R. 335, at 339-341.
In this matter I take into account that an industrial use of the land of some sort has continued since 1952, and as a nonconforming use since 1969. It is development within an industrial building of acceptable appearance and scale so as to be compatible with dwelling houses in the locality. It is well maintained and satisfactorily landscaped. Notwithstanding such nonconforming use, the operations on the land have never been the subject of complaint. To the contrary, as already observed, exceptionally strong support for the continuation of the present use comes unanimously from all relevant neighbours in the locality.
Mr Whiteley is an elderly man, with obvious pride in his work and in the high standard of his workplace. His use of the land has only come to the notice of Council as a consequence of the attention to duty of its Town Planner. If it had not been noticed in that way, I am confident that the present use would have continued on the land to the complete satisfaction of residents in the locality and without environmental harm.
I am fully conscious of my responsibility for the proper enforcement of planning laws, but I am unconvinced that in the circumstances of this case the orders sought are appropriate, particularly when weighed against the inevitable hardship to the respondents. I consider that this is an overwhelming case for the exercise of discretion in favour of the respondents, and that I should decline to make the order claimed.
I order:
1. Application dismissed.
2. Exhibits may be returned.
3. Costs reserved.
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