Warringah Council v Carl Vlachos
[1998] NSWLEC 118
•08/06/1998
Land and Environment Court
of New South Wales
CITATION: Warringah Council v. Carl Vlachos [1998] NSWLEC 118 PARTIES: APPLICANT
Warringah CouncilFIRST RESPONDENT
SECOND RESPONDENT
Carl Vlachos
Tania VlachosFILE NUMBER(S): 40305 of 1997 CORAM: Pearlman J KEY ISSUES: :- LEGISLATION CITED: Warringah Local Environmental Plan 1985 cll 5, 6
Environmental Planning and Assessment Model Provisions 1980 cl 35
Factories, Shops and Industries Act 1962CASES CITED: Bertram and Anor v Warringah Shire Council (1991) 72 LGRA 39) ;
Doyle v Newcastle City Council (1990) 71 LGRA 55 at 60);
Tweed Shire Council v Litonia Pty Ltd and Ors (31 August 1993 unreported);
Willis v Ku-ring-gai Municipal Council (1992) 75 LGERA 308;
Warringah Shire Council v Mudie (Perrignon J, 6 August 1981 unreported);
Egan and Ors v Hawkesbury City Council and Anor (1993) 79 LGERA 321 at 327DATES OF HEARING: 18/06/98, 19/06/98 DATE OF JUDGMENT:
08/06/1998LEGAL REPRESENTATIVES:
APPLICANT
Mr J E Hannaford, Solicitor
Wilshire Webb
RESPONDENT
Mr W N Marks, Barrister
T. H. Walker, Hedges & Co
JUDGMENT:
By this class 4 application, Warringah Council seeks to restrain the respondents, Mr and Mrs Vlachos, from using the garage at their premises as a commercial kitchen.
Mr and Mrs Vlachos are the registered proprietors of No 4A Violet Avenue Forestville. They have converted the garage which is situated on the premises into a commercial kitchen and they are using that kitchen for the manufacture and sale of fishcakes.
Background
On 4 June 1992, the council granted to the respondents development consent subject to conditions for a detached dual occupancy ("the dual occupancy consent") upon land being lot 4 in DP 23231 which was known as No 4 Violet Avenue, Forestville. Thereafter building approval was granted, and a new dwelling, which is now known as No 4A Violet Avenue, was constructed. The respondents live in No 4A ("the premises"), and No 4 is currently unoccupied.
Part of the dual occupancy development carried out by the respondents involved the erection of a garage. In early 1997, the respondents converted that garage into a commercial kitchen, by installing, amongst other things, a coolroom, a double sink, a gas frying cooker and grill, shelving and a bench.
According to the evidence of the respondents, Mr Vlachos manufactures and sells fishcakes in the following way:
* Fishcakes are made from fish, flour and vegetables. Flour and water are used to make a batter, which is then deep fried in order to make crumbs. The crumbs are dried and cooled, and then mixed with fish (which has been minced) and vegetables (which have been chopped) and formed into fishcakes which are grilled and then stored in the coolroom;
* The flour is delivered by truck, approximately every two months. Mr Vlachos said the most he had ordered was 20 bags of flour each weighing 25kg. Oils used to be delivered, but recently Mr Vlachos has himself picked up the oil, which comes in a 25 litre container, and lasts from seven to 14 days. The fish is obtained, frozen and filleted, from the fish markets at Pyrmont every seven to ten days. Vegetables are bought and collected from Flemington markets every Saturday;
* Orders are made by customers by telephone, although some customers have a general standing order;
* When the fishcakes which are ordered have been made, they are placed into insulated foam boxes, and delivered by Mr Vlachos personally to the various customers;
* When the business commenced, Mr Vlachos had about five customers, but he now has about 20 customers. He delivers fishcakes over a wide area, including Miranda, Cronulla, Crows Nest, Dee Why and St Ives;
* The business is not advertised and there are no advertising signs upon the premises. Mr Vlachos has built up the business by taking samples of fishcakes directly to potential customers;
* Mr and Mrs Vlachos are the only persons involved in the business on the premises.
There was some communication between the council and the respondents and their solicitors in early 1997 regarding the use of the premises. The respondents assert that they lodged a building application with the council either on 25 February 1997 or 5 March 1997, seeking approval for the building works involved in the conversion of the garage. In any event, they ultimately lodged a development application on 1 July 1997, seeking development consent for "home occupation - commercial kitchen". That development application was refused by the council on 15 September 1997.
The relevant statutory provisions
The premises are situated within zone no. 2(a) (Residential `A') under the Warringah Local Environmental Plan 1985 ("the WLEP").
Under that zoning, development for the purpose of certain dwelling-houses is permissible without consent. Development for a number of specified purposes is prohibited, and all other development falls within an innominate class and is permissible with consent.
Included amongst the list of prohibited development is "industries". The term "industry" is defined in cl 5 of the WLEP as follows:
"`industry' means -
(a) any manufacturing process within the meaning of the Factories, Shops and Industries Act, 1962; or
(b) the breaking up or dismantling of any goods or any article for trade or sale or gain or as ancillary to any business;
but does not include an extractive industry;"
"Home industry" is not specifically noted in the list of prohibited development, but, since it is defined in cl 5 of the WLEP as meaning "an industry carried on in a building ...", it follows that it is included within the term "industries" in the list of prohibited development.
"Home occupation" is defined in cl 5 of the WLEP as follows:
"`home occupation' means an occupation carried on in a dwelling by the permanent residents of the dwelling which does not involve any of the following -
(a) the registration of the building under the Factories, Shops and Industries Act 1962 or the licensing of the premises under the Dangerous Goods Act 1975;
(b) the employment of persons other than the residents;
(c) interference with the amenity of the neighbourhood by reason of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil or otherwise;
(d) the display of goods, whether in a window or otherwise;
(e) the exhibition of any notice, advertisement or sign (other than a notice, advertisement or sign exhibited on that dwelling;
(f) the use of premises as a brothel;"
Clause 6 of the WLEP adopts the provisions of the Environmental Planning and Assessment Model Provisions 1980 ("the model provisions"), subject to some exceptions. One of the exceptions is the definition in the model provisions of the term "home occupations", and hence the definition I have just quoted from cl 5 of the WLEP is the relevant definition. Furthermore, cl 6(2)(c) provides that the words cl 35(c) of the model provisions is amended by omitting the words "carried on in dwelling-houses".
Clause 35 of the model provisions, as amended by cl 6(2)(c) of the WLEP, provides as follows:
"35 Nothing in the local environmental plan shall be construed as restricting or prohibiting or enabling the consent authority to restrict or prohibit:
(a) ...
(b) ...
(c) home occupation."
The effect of this somewhat complex arrangement is that the WLEP does not prohibit or restrict the use of a dwelling for a home occupation so long as the occupation meets the criteria specified in the definition.
The issues
Having regard to the circumstances I have described and the relevant statutory provisions, the issues for determination are as follows:
(1) Are the premises being used for a "home occupation", in which case the respondents would not be contravening any relevant statutory provisions, or are they being used for an "industry" or "home industry" in which case their use for that purpose is prohibited?; and
(2) Is the use of the garage at the premises for the purpose of a commercial kitchen in breach of conditions 1 and 3 of the dual occupancy consent?
Home occupation or industry?
One of the elements of the definition of "home occupation" in the WLEP is that it must be an occupation carried on "in a dwelling".
The word "dwelling" is defined in cl 5 of the WLEP as follows:
"`dwelling' means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile."
The council's case is that, for two reasons, the use of the garage for the manufacture and sale of fishcakes is not carried on in the dwelling. First, the council claims that the use is being carried on within the garage and not within the dwelling. Secondly, the council claims that the activities which constitute the use are being carried out over a wide geographical area and therefore are not being carried out wholly or substantially within the dwelling.
In a dwelling?
The plans and sketch plans which were tendered in evidence show that the garage as built is a rectangular structure, the northern wall of which adjoins the southern wall of the dining area of the house. Residential access to the garage is via a door which, as delineated on the plans, comes off a brick paved area, and vehicular access is via a roller door to the street. (The brick paved area is in fact a concrete slab with a driveway access across the kerb to the street, and I will return later to this aspect of the development).
The expression "in a dwelling" does not require that the home occupation be confined to within the four walls of the dwelling house (Bertram and Anor v Warringah Shire Council (1991) 72 LGRA 39) and the expression "in a dwelling" must be taken to mean "in the curtilage of the dwelling" (Doyle v Newcastle City Council (1990) 71 LGRA 55 at 60) or, as I explained in Tweed Shire Council v Litonia Pty Ltd and Ors (31 August 1993 unreported), within the immediate surroundings of the dwelling.
In this case, the manufacture and sale of fishcakes takes place principally within a garage which is attached to the dwelling. Although the garage was modified to convert it to a commercial kitchen, the garage structure itself was actually constructed when the dwelling was constructed, and the modifications were for the most part internal. These facts distinguish this case from Willis v Ku-ring-gai Municipal Council (1992) 75 LGERA 308, where, although the proposed use was to be generally carried on within an existing garage and workshop, extensions and alterations were proposed.
I am satisfied that the use which is being carried out in the garage is a use which is carried on "in a dwelling".
Geographical location
The council contends that the activities being carried out by Mr Vlachos cover a wide geographical area and cannot therefore be regarded as being carried out "in a dwelling".
Mr Hannaford, for the council, points to deliveries of fishcakes to suburbs ranging far and wide over the Sydney area, and to Mr Vlachos' personal collection of raw ingredients on a regular basis. I infer in this regard also that Mr Vlachos makes some forays outside the premises in order to expand his business by offering samples to prospective customers.
But, as Kirby P (as he then was) pointed out in E. S. Turnbull Pty Ltd v Wollongong City Council (1990) 71 LGRA 240 at 248) (in connection with the expression "home employment" in a context similar to the present use of the expression "home occupation"), access and egress to the dwelling is inherent in the notion of a money earning occupation, and "[I]t is in this sense that some limited movement of traffic to and from the dwelling-house must be taken to be tolerated by the provision of an exception for `home employment'".
The occupation which the respondents carry on is properly characterised, in my opinion, as the manufacture and sale of fishcakes. It is essentially carried on in the dwelling. Orders are taken by telephone inside the dwelling, and those orders are fulfilled by the manufacture of the fishcakes in the commercial kitchen within the garage. The delivery of the finished products, the obtaining of raw products, and the occasional showing of samples, does not derogate from the essential character of the "occupation" which is carried on by the respondents. Their activities are a far cry from the courier service which was the subject of E. S. Turnbull v Wollongong City Council, or the tow truck business which was the subject of Warringah Shire Council v Mudie (Perrignon J, 6 August 1981 unreported).
I am satisfied therefore that the "occupation" carried on by the respondents is carried on "in the dwelling" despite a limited number of the components of the activity being carried out in a wider geographical area.
An industry?
The next plank of the council's argument is that the activities being carried on in the premises are properly characterised as an "industry" within the definition of that term in cl 5 of the WLEP, and that, so characterised, they constitute a separate and independent use of the premises for that purpose and are therefore prohibited.
The council relies upon para (a) of the definition of "industry", that is, any manufacturing process within the meaning of the Factories, Shops and Industries Act 1962. In that Act, "manufacturing process" is defined as follows:
"... any handicraft or process in or incidental to the making, assembling, altering, repairing, renovating, preparing, ornamenting, finishing, cleaning, washing, breaking up, or adapting of any goods or any articles or any part of an article for trade or sale or gain, or as ancillary to any business, and includes any handicraft or process declared by the Governor, pursuant to this Act, to be a manufacturing process."
Although that definition is wide and comprehensive, and should not be given a restricted construction (per Mahoney JA in Egan and Ors v Hawkesbury City Council and Anor (1993) 79 LGERA 321 at 327, it must be construed in its context. Read literally and comprehensively, that definition would cover most activities which would otherwise qualify as "home occupations". In the present case, the manufacturing and sale of fishcakes might strictly speaking fall within a "... process in or incidental to the making ... of ... goods ... for trade, sale or gain ...".
However, the context of the definition is the prohibition of "industries" in a residential zone. In such a zone, no doubt, many of the activities which would be encompassed by the definition of "manufacturing process" would be inappropriate activities. On the other hand, in such a zone some activities carried on within a residential dwelling might not be inappropriate. Such a possibility is expressly contemplated in the WLEP, by virtue of the adoption of cl 35 of the model provisions, that is, "home occupations" as defined are not to be restricted or prohibited. If an activity is properly characterised as a "home occupation" then, by virtue of cl 35, it is not prohibited (cf E. S. Turnbull v Wollongong City Council at p 247) nor is it subject to any restriction by the council, and hence it may be carried on without development consent, even though it might, strictly speaking, fall within the definition of "industry".
Conclusion
For the reasons I have outlined above, I am satisfied that the occupation carried on by the respondents is being carried on "within the dwelling".
In addition, it was not in dispute in this case that the occupation carried out in the premises is being carried out only by the permanent residents of the dwelling, and that none of the qualifying factors specified in paras (a) to (f) of the definition apply. In particular, there was no evidence of any impact upon the neighbourhood amenity by reason of noise or smell.
It follows, therefore, that the activities are properly characterised as a "home occupation" within the definition in the WLEP, and by operation of cl 35 of the model provisions, no development consent is necessary.
Breach of development consent?
The council contends that the respondents are in breach of conditions 1 and 3 of the dual occupancy consent.
Those conditions are in the following terms:
"1. Development being generally in accordance with plans numbered 92-90, dated 17.2.1992, submitted 27.2.1992 as modified by any conditions of this Consent.
3. All parking areas on plans granted consent herein being used solely for this purpose."
On the plan referred to, that is, plan number 92-90, there are no "parking areas" designated as such. However, the area of the garage is marked "garage".
I am satisfied that the conversion and use of the garage as a commercial kitchen for the purpose of the home occupation is in contravention of condition 1, because it could not be regarded as development generally in accordance with the plan.
I am also satisfied that such conversion and use is in contravention of condition 3. The denoting of a "garage" on the plan indicates that it is to be used for the parking of a vehicle and, since that is the only area on the plan that refers in any way to the parking of a vehicle, I infer that the reference in condition 3 to "all parking areas" is a reference to the garage. It appears, from photographs which were tendered, that the respondents' vehicle is parked, on occasions if not always, on the area to the east of the garage noted on the plan as "brick paved" ("the adjacent area"). As I have already noted, the adjacent area is not brick paved. Rather, it is a flat concrete slab sloping down at the kerb so as to provide vehicular access. As I understood the evidence of Mr Vlachos, the adjacent area is actually the concrete slab of a garage which was formerly located there.
Discretion
Having found (a) that the activities carried on by the respondents in the premises are a home occupation and do not require development consent, but (b) that the respondents are in breach of the dual occupancy consent, the question arises whether the Court should, in the exercise of the discretion which arises under s 124 of the EP&A Act, grant the relief sought by the council.
The council sought three orders:
* an injunction restraining use of the land for the purposes of making,
altering or preparing food for sale, trade or gain;
* an injunction restraining the use of the garage for those purposes and for any purpose other than as a garage in accordance with the dual occupancy consent; and
* an order requiring the carrying out of works, including demolition and removal of the commercial kitchen fittings, to enable the garage to be used as a garage.
Obviously, having regard to the findings I have made in relation to home occupation, the first order sought is not appropriate. The question of discretion arises only in relation to the other orders, because they are sought not only in relation to the council's allegation concerning the use of the premises, but also in relation to the council's allegation of breach of the dual occupancy consent.
There are a number of relevant matters to consider. They are as follows:
* The effect of the breach of conditions 1 and 3 is minor (rather than major), in the particular circumstances of this case. The garage has been built as the dual occupancy development contemplated. Its use for the purpose of the home occupation is permissible because it is within the curtilage of the dwelling. Hence the breach of the conditions in substance relates only to the use of the adjacent area instead of the garage for carparking;
* The use of the adjacent area for carparking has no adverse environmental impact. Mr J Essenstam, who is an environmental health officer employed by the council, gave evidence. Attached to his affidavit is a report from council officers to the council's development unit. It reveals that there is sufficient private open space available, despite the use of the adjacent area for carparking;
* Furthermore, the adjacent area appears to be well adapted for the purpose of carparking and it achieves the purpose for which a parking area was no doubt required, that is, to provide carparking space on the premises and avoid congestion of Violet Lane;
* The re-conversion of the garage to its original state (involving at least the removal of the commercial kitchen fittings) is likely to involve some cost, and that would be out of proportion to the breach which merely involves the use of the adjacent area instead of the garage for carparking;
* Mr Vlachos testified that the home occupation is the sole source of income for the support of himself, his wife and their 14 year old child. Mrs Vlachos has suffered from clinical depression since 1994.
All these circumstances lead me to the conclusion that, despite the respondents' breach of the dual occupancy consent, I should decline to make any of the orders which the council has sought.
Orders
In summary, I have found that the activities on the land constitute a home occupation, and development consent is not required. I have also found that the use of the garage for the home occupation is in breach of conditions 1 and 3 of the dual occupancy consent, but in the exercise of my discretion, I decline to make any of the orders sought.
Accordingly, my formal orders are as follows:
1. The application is dismissed.
2. The question of costs is reserved.
3. The exhibits may be returned.