Stubberfield v Newing

[1993] QCA 204

THE COURT OF APPEAL	[1993] QCA 204
SUPREME COURT OF QUEENSLAND

Appeal No. 218 of 1992

Brisbane

Before Mr Justice McPherson

Mr Justice Pincus

Mr Justice Shepherdson

[Stubberfield v. Brisbane City Council & Newing]

BETWEEN

JOHN RICHARD STUBBERFIELD

(Applicant) Appellant

- and -

BRISBANE CITY COUNCIL

(First Respondent)

- and -

MALCOLM VICTOR NEWING

(Second Respondent) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 07/06/1993

This appeal and cross-appeal concern a piece of land, of approximately a hectare in area, situated at Lacey Road, Carseldine, which is owned by the second respondent Malcolm Newing and others. On the land are a sawmill, sheds, timber storage facilities and the like, by means of which the business of Aspley Timbers is carried on. Until recently timber has been sold to the public either in the form of sawn lengths, or as shooks, or alternatively as roof trusses, lattice work, and other products manufactured at the site. Since the judgment appealed from, Mr Newing and his partners have stopped selling at the site and have moved their manufacturing activities elsewhere.

The appellant, who was the applicant in the court below, is John Richard Stubberfield. He owns a piece of land with a house on it next to the subject land. He would prefer not to have the nuisance, as he considers it to be, of the sawmill beside his house. He no longer lives there himself but he says the sawmill and associated activities make it difficult to lease the house. To put a stop to it he applied to the Planning and Environment Court for various declarations and orders, including restraining orders, in respect of the activities being conducted on the land and the use being made of it.

In relation to much of the relief sought the applicant was substantially successful in the court below. Briefly stated, the judge held that the only lawful uses permitted on the subject land were sawmill, case factory, and storage shed. She also declared that the Register of Non-Conforming Uses, which is kept by the first respondent Council, contained the entry "timber yard"; but that this use and the activities of fabrication and manufacture of timber products were unlawful; and that the right to use the land as a case factory had ceased, and that while the installation of moulding and planing machines was not ancillary to any lawful use of the land. Her Honour issued an injunction restraining the second respondents, his servants and agents from using the subject land for the purpose of a timber yard and the fabrication or manufacture of timber products.

In the course of the appeal hearing, at which both the appellant and second respondent appeared in person, Mr Newing announced that, having moved his manufacturing process elsewhere, he no longer opposed the declarations and orders restraining manufacturing and fabricating activities on the subject land. His concession with respect to those matters means that the only substantial questions remaining for determination in the appeal and cross-appeal are whether or not the second respondent and his associates were continuing to conduct a sawmill on the land; and whether or not they were entitled to use the land as a timber yard involving sales of timber, whether it was sawn on the land itself or brought there after being sawn somewhere else.

The use of the land for sawmilling activities has a history going back to mid-1962, when the owners at that time sought the approval of the Council to erect a sawmill on the land. After some initial vacillation the Council on 20 September 1962 resolved to grant permission for the erection of a sawmill and a case mill (or case factory, as it is later described). The permission was stated to be subject to various conditions; one that is said to be relevant here is:

"(b) A license first to be obtained from the Department of Forestry before commencing building operations."

In 1964 legislation was passed introducing a town plan to control the use of land in Brisbane according to the zone in which the particular parcel of land was situated. It was evidently not until 1979 that the then owners applied for and in 1980 obtained registration, as an existing non- conforming use of the land, of particulars that were, so far as material, entered on the Register of Non-Conforming Uses as follows:

"Existing non-conforming use of the land and
buildings or other structures:
Timber Yard, Saw Mill, Case Factory, Storage and
Car Shelter."

These particulars have remained on the Register since 1980. However, it is the appellant's contention : (1) that use of the land for the purpose of a sawmill was discontinued after 1 December 1978 (which is the relevant date for present purposes), and so has under provisions of the legislation ceased to be a non-conforming use under the Town Plan; and (2) that, because at that date the uses to which the land was being put did not include a timber yard, entry in the Register of "Timber Yard" as an existing non- conforming use was not authorised. In the decision under appeal her Honour rejected the first but accepted the second of these two contentions.

In reaching her conclusion on the first question the learned judge adopted and applied the meaning of "sawmill" given in the Oxford Dictionary (2nd ed.), which defines it as "a factory in which wood is sawn into planks or boards by machinery ...". On appeal the appellant strongly challenged the applicability of that meaning of sawmill in the present context. Instead, he argued, the term "Saw Mill" in the relevant entry in the Register meant a place where whole logs were sawn into pieces of timber. He submitted that only the initial cutting of a log was sawmilling; thereafter the process became one of cutting timber not sawmilling.

The underlying aim of the submission was to sustain an argument that the sawmilling use conducted on the land had been discontinued for a period of six months or more; if accepted, this would have the consequence that, under cl.28.1.2(a) of the Town Plan, the right to continue the non-conforming use, or to resume it, would be lost.

In support of this aspect of the submission the appellant referred us to evidence in the transcript that was said to show that at some time past the second respondent had ceased to bring in and cut whole logs at the site, and was simply milling timber, much of it Oregon pine imported from overseas or timber sawn elsewhere than on the land. As to that, Mr Newing himself acknowledged that sawing whole logs was something that has been taking place on the land only infrequently in recent times. The evidence was that, when the sawmill was first established, it had engaged in cutting up whole logs into lengths of timber, which were sold to furniture makers or used in fabricating cases on site. However, apart from whole logs, other timber was also brought on to site in the form of 5/8" boards which were sawn or used to make the cases or boxes. When the demand for such cases fell off the business turned to making other things like roof trusses and lattice work, which were fabricated from timber brought to the site in the form of flitches. Some of it was the Oregon pine imported from abroad; some of it was hoop pine or other locally grown timber.

It is doubtful whether or to what extent evidence of details of the precise activities that were performed on the land in the past can be allowed to influence or control the proper meaning to be ascribed to words, like "Saw Mill", entered in the Register. Evidence about the activities carried on at the time the particulars of non-conforming uses were so entered may have relevance in deciding whether a non-conforming use has ceased. In that regard, the proper approach to the matter is identified by Kitto J in Shire of Perth v. O'Keefe (1964) 110 C.L.R. 529, 535:

"Then the provision is made that the land may continue to be used for that purpose : not that the precise manner of use for that purpose may alone continue but that use generally for that purpose may continue. The application of the by- law in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date. This question being answered, it remains only to inquire, when a use that is being made of the premises at a later date is challenged as not being authorized ... whether that use is really and substantially a use for the designated purpose. That will often be a question of fact and degree ...."

Later in the same judgment, his Honour went on to approve the observations of Sugarman J. in Bonus Pty Ltd. v. Leichhardt Municipal Council (1954) 19 L.G.R. (N.S.W.) 375, 378, to the effect that "purpose" was intended to refer to:

"... such ranges of activities as may be described in the ordinary use of language by expressions descriptive of trades, industries, manufactures, shops or places of public amusement, such as the expression 'retail butcher's shop', rather than to the details of the particular aggregation of activities."

It was accepted that the same approach should be adopted in relation to the uses to which the land was originally and is now being put. The process is primarily one of identifying and comparing broad categories of activities conducted on the land at different times.

In the end we have reached the firm conclusion that the question whether the sawing of whole logs on the subject land has ceased for a period of six months or more is not one that must be resolved in order to determine this appeal, even assuming it to be within the power of the Court to determine such a question in proceedings of this character.

Underlying the appellant's contention on this aspect of the appeal is the proposition that a process is not one of sawmilling unless what is being cut is whole logs; neither flitches nor baulks of timber, however large, will suffice: sawmilling means cutting up whole logs and nothing else.

We are not prepared to accept this contention. We do not think that in ordinary usage the meaning of the word "sawmill" or sawmilling is restricted in the manner suggested. On the contrary, it seems to us that the dictionary meaning adopted by her Honour corresponds much more closely to the sense in which the word was used in the particular "Saw Mill" entered in the Register of Non- Conforming Uses in 1980. Hence, even if the process of sawing whole logs has been discontinued for the requisite period, it does not follow that the land has not been continuously used for sawmilling. It is not disputed that sawing of timber other than whole logs has been taking place. On this aspect of the matter the decision below is not shown to be wrong.

Before passing to the second of the principal questions on appeal, it is necessary to mention another of the appellant's arguments in this context. It is that para.(b) of the conditions of approval granted by the Council in 1962 shows that "saw mill" was intended to have the specially restricted meaning for which he argues. Paragraph (b) was, it will be recalled, the condition which required the applicant to obtain at that time a licence from the Forestry Department. The legislation under which such licences were issued then was The Sawmilling Act of 1936. As the appellant emphasised, the Act contained a definition of "saw mill" that on one view confined its meaning to the sawing up of whole logs in their pristine state. However, even if in construing the words "Saw Mill" in the entry in the Register it is permissible to consider a definition in another and quite disparate statute, it would not be appropriate to do so here. The application to and approval from the Council in 1962 was not directed to the use of land - there was then no Town Plan - but to the erection of a building on it. It was made a condition of the Council approval to erect that building that a sawmilling licence be obtained first.

Perhaps the condition was inserted in order to protect the Council from any suggestion that by permitting the building it might be authorising an activity in it that could not lawfully have been carried on without that licence. Whatever the reason, the licence was required and it was duly obtained. Once this was done, as it was in 1962 or 1963, the condition was satisfied and its operation was exhausted. It did not survive to become, as the appellant claims it now, a condition "of any existing use" that is kept in force by virtue of cl.28.1.3 of the current Town Plan.

The decision that the "sawmill" use is lawful is therefore correct. However, it is another of the appellant's complaints that he was denied natural justice in the court below. He claims that the judge refused him or his representative an opportunity of being heard in opposition to the declaration made by the judge, which was that the sawmill use was a lawful use of the land. The point is, according to the appellant, that the judge had before her his application asking for a declaration that the right to continue the use of a sawmill had ceased, and in relation to this matter she had nothing else. No application was ever made to her by the respondent Newing for a declaration to the converse effect; that is, that the sawmill use continued as a lawful use. The consequence was, so it was submitted, that in law no such declaration could be made.

Considered as a matter of jurisdiction or even of discretion, the proposition contended for appears to be opposed to several of the authorities that were cited in support of it : see, for example, Re Maiorana (1970) 92 W.N. (N.S.W.) 363, 376. The appellant may be on stronger ground in suggesting that other submissions could possibly have been made or evidence called to oppose the declaration had the appellant or those representing him at the hearing known it might be made. So much may be accepted; but the answer to that contention is that, in the course of the hearing before us that the appellant has now had, he has been given an opportunity of presenting submissions as ample as any that could have been afforded him below; and that, as regards any additional evidence he could have tendered, it would have been relevant and admissible only if his primary submission had been successful, which was that sawmilling refers only to sawing up whole logs. There was never any doubt that the second respondent was sawing other timber on the land; it was one of the activities the appellant was trying to stop. Sawmilling in that sense was therefore undoubtedly taking place. There is thus no basis on which the appellant can fairly now assert that his rights were prejudiced by what he claims was refusal to hear him before making the converse declaration that sawmilling was a lawful use of the land.

The second major question, which arises on the cross-appeal, concerns the use of the land for a timber yard. Her Honour considered that a timber yard "can be described as the wholesale or retail sale of dimensioned timber", and on the appeal no one has cavilled at the adoption of that meaning. There is no doubt that one of the uses to which the land was being put is wholesale and retail sales of sawn timber. Before us Mr Newing confirmed that this was so. The question for decision is whether that use is authorised by the entry on the Register.

On its face the entry in question appears to authorise such sales. It specifically identifies "Timber Yard" as one of the existing non-conforming uses. It is the first of the uses specified, which is a reason (although not a decisive one) for thinking that using the land as a "Timber Yard" was not intended solely as an activity ancillary to some other use, such as sawmilling on the land, or conducting a case factory there. It would scarcely have been possible for a timber yard to have been a use ancillary to some of the other uses specified in the list. There is thus no evident reason why "Timber Yard" in the entry in the Register should not be considered as much a distinct category of use as others that are listed there, like Case Factory, Storage, and Car Shelter. The learned judge nevertheless held that, although it was entered on the Register of Non-Conforming Uses, use of the land as or for a timber yard was "unlawful". The reasons for judgment do not disclose with complete clarity why her Honour reached that conclusion.

However, she did so after saying that the uses on the land at 1 December 1978 "did not include a timber yard"; that there were no significant changes of use between 1 December 1978 and the date of the entry in the Register, which was in February 1980; and that it followed that the entry in the Register was "incorrect". It seems that, in the light of the evidence of past user produced before the court at the hearing, the judge decided that the entry "Timber Yard" should not have been made in the Register at all, and on that footing she declared that use of the land for a Timber Yard was unlawful. We are not persuaded that it was open to her Honour to make findings or to grant relief to that effect.

Clause 28.1.1 of the Town Plan expressly declares that, subject to that section of the Plan, nothing in the Plan is to preclude the continuance of any existing use. There is a corresponding provision in s.3.1(1)(a) of the Local Government (Planning and Environment) Act 1990, confirming that a lawful use made of premises immediately before a planning scheme or amended scheme begins to apply is to continue to be a lawful user of the premises for as long as the premises are so used notwithstanding the use is a prohibited one. Section 3.2(1) of the Act specifies the contents of the Register of Existing Non-Conforming Uses in cases where the relevant planning scheme provides (as the Town Plan does here) that such a register is to be kept; by s.3.2(1)(e) of the Act, the Register is to include the nature of the use that is being made of the land.

Once an entry has been recorded in the Register the Act assumes that, unless the prescribed procedure for removing it from the Register is complied with, the use will remain lawful unless the planning scheme is amended to make it impermissible. Section 3.2(11) of the Act provides:

"(11) Where a use of land has been recorded in the register pursuant to this section, the use is to be and remain an existing lawful non-conforming use of the premises until -

(a)  such time as action is taken pursuant to this section that removes that recording in the register;

(b)  the use becomes lawful pursuant to section s.1;

or

(c)  the relevant planning scheme is amended in a manner that makes the use a permitted or permissible use."

The procedure for removing the recording of a use in the Register is prescribed in s.3.2(2)(b); it contemplates an application by the owner or occupier of the premises for such removal, which is not relevant here. No action of that kind has been taken by Mr Newing or his associates.

It follows that under s.3.2(11) the use "Timber Yard" recorded in the Register remains an existing lawful non-conforming use of the premises. In addition to that provision, cll.28.2.10 and 28.2.11 of the Town Plan provide as follows:

"28.2.10 The register of Existing Non-Conforming Uses kept pursuant to clause 28.2.2. shall, with respect to any premises to which an entry therein relates be conclusive evidence that those premises were on the date for the purposes of that entry, being lawfully used for the existing non-conforming use described in that entry.

28.2.11 An extract from the Register of Existing Non-Conforming Uses purporting to be certified as such by the Town Clerk shall upon production thereof alone be evidence of the facts contained therein."

There is a comparable but not identical provision in s.3.3(8) of the Act, which makes a town planning certificate proof, and in the absence of rebutting evidence, conclusive proof of matters certified in the certificate; among the matters that are to be included in it are particulars of any uses listed in the Register : see s.3.3(5)(e).

There is nothing to suggest that s.3.3(8) of the Act was enacted in order to displace provisions like cll.28.2.10 and 28.2.11 of the Town Plan; on the contrary the intention disclosed by the legislation appears to be that those provisions of the Act should serve as a kind of statutory minimum designed to supplement provisions in town planning schemes that are more restrictive or less favourable than those contained in the Act. There is thus no reason why the provisions of cl.28.2.10 of the Town Plan should not continue to be given its full effect. Its effect is that an entry in the Register is to be conclusive evidence that the premises to which that entry relates were, on the date for the purposes of that entry, "being lawfully used for the existing non-conforming use described in that entry".

The expression "on the date for the purposes of that
entry" in cl.28.2.10 can only refer to the date of the entry
itself or to some other date that is specified in the entry.
What that date is in the present instance does not
precisely appear because the appeal record does not contain
a town planning certificate or an extract from the Register
as such, but simply the letter from the Town Clerk advising
that the Council had resolved to approve the application for
entry on the Register and identifying the particulars of the
uses that would be entered. The letter, which is dated 20
February 1980, records as "grounds" for approving the
application that the land and buildings were being lawfully

so used "immediately before the appointed day", and that

they had "continued to be so used".

It would certainly have been preferable if, instead of tendering the letter dated 20 February 1980, a town planning certificate had been put in evidence at the hearing. But that was apparently not done, and instead the whole matter was conducted, both in the court below and on appeal, on the basis that the letter was to be taken as embodying the particulars entered on or about that date in the Register of Non-Conforming Uses. Those particulars incorporated "Timber Yard" as one of the non-conforming uses in respect of the subject land. If, as the letter itself acknowledged, the land was being lawfully used for that purpose on the appointed day (which was 1 December 1978) and was continuing to be so used at the date of the entry on the Register, then it was not open to the judge in the Court below to find as she did that at 1 December 1978 the uses on the land "did not include a timber yard", or that the entry "Timber Yard" in the Register was incorrect. Her decision to that effect can only have been reached in disregard of the provisions of cl.28.2.10 of the Town Plan and s.3.2(11) of Local Government (Planning and Environment) Act 1990. As such it involved an error of law that enlivened the appellate jurisdiction and powers of this Court.

In the result we consider that the appeal should be dismissed and the cross-appeal allowed. The judgment below should be varied by omitting paragraph C and, in lieu thereof, declaring:

"C. That the following are existing lawful

non-conforming uses of the subject land:
Timber Yard, Saw Mill, Storage, and Car

Shelter;

and by omitting from the injunction forming part of the
judgment the words "unlawfully" and "a timber yard and".

The appellant is ordered to pay the respondent's costs of the appeal and of the cross-appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 218 of 1992

Brisbane
[Stubberfield v. Newing]

BETWEEN

JOHN RICHARD STUBBERFIELD

(Applicant) Appellant

- and -

BRISBANE CITY COUNCIL

(First Respondent)

- and -

MALCOLM VICTOR NEWING

(Second Respondent) Respondent

Mr Justice McPherson
Mr Justice Pincus

Mr Justice Shepherdson

Judgment delivered 07/06/93

Reasons for judgment by the Court

CATCHWORDS	LOCAL GOVERNMENT - Town Planning Scheme - Whether use is lawful non-conforming use - Whether definition of "sawmill" includes activity of sawing pre-cut timber or whether land being used as timber yard.
LOCAL GOVERNMENT - Whether use as timber yard lawful - Continuation of prior lawful use after imposition of Town Planning Scheme - Sections 3.1, 3.2, 3.3 Local Government (Planning and Environment) Act 1990
NATURAL JUSTICE - Opportunity to be heard.
Counsel:	Appellant in person Second respondent in person
Solicitors:	Appellant in person Second respondent in person

Hearing Dates: 25 and 26 March 1993

APPEAL DISMISSED & CROSS-APPEAL ALLOWED. JUDGMENT OF THE PLANNING AND ENVIRONMENT COURT VARIED BY OMITTING PARAGRAPH C OF THE JUDGMENT AND, IN LIEU THEREOF, DECLARING:

"C. That the following are existing lawful

non-conforming uses of the subject land:
Timber Yard, Saw Mill, Storage, and Car

Shelter".

AND BY OMITTING FROM THE INJUNCTION FORMING PART OF THE

JUDGMENT THE WORDS: "unlawfully" AND "a timber yard and".

ORDER THAT APPELLANT PAY RESPONDENT'S COSTS OF THE APPEAL
AND THE CROSS-APPEAL.