STEEDMAN and ANOR v BAULKHAM HILLS COUNCIL [No 3] [1994] NSWCA 299

STEEDMAN v BAULKHAM HILLS COUNCIL [No 3] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MEAGHER and HANDLEY JJA 20 and 21 October 1994, 21 December 1994 [1994] NSWCA 299

BUILDING CONTROL AND TOWN PLANNING — existing use rights — proof of continuous use — proof of abandonment — primary judge finds two breaks in continuous use — on appeal

APPEAL — second hearing — admission of evidence of first hearing — relevance of first judge's impression of credit of witnesses.

WORDS & PHRASES — "use in extractive industry".

BUILDING CONTROL AND TOWN PLANNING — environmental planning instruments — purposes for which building or land may be used — existing use rights — statutory protection — extent — whether actual use is a lawful use — proof of continuous lawful use in order to negative abandonment — whether continuously used for purposes of an extractive industry — complication of adjoining lots formerly parts of a single lot — taking of bush rock from land — whether constitutes "the winning of extractive material from the land"

APPEAL — findings of fact — credibility issues — primary judge admits evidence given in earlier proceedings reversed on appeal — relevance of earlier judge's impressions of credit of witnesses

WORDS & PHRASES — "used for purposes of an extractive industry".

APPEAL — findings of fact — credibility issues — primary judge admits evidence given in earlier proceedings reversed on appeal — relevance of earlier judge's impressions of credit of witnesses

WORDS & PHRASES — "used for purposes of an extractive industry".

held: Findings upheld - proof of abandonment established.

Land and Environment Court (Pearlman J) finds, on evidence, that land was not continuously used for extractive purposes on appeal to the Court of Appeal

held (Meagher JA; Kirby P and Handley JA concurring): (1) The "purposes of extractive industry" connoted some extraction of rock from the land such that removal of bush rock from the ground did not constitute use as an extractive industry. North Sydney Municipal Council v Boyt's Radio and Electrical Pty Ltd & Ors (1989) 16 NSWLR 50 (CA); 67 LGERA 344, explained; (2) The onus lay upon the party asserting existing use rights to prove continuous use of the land for the purposes of an extractive industry; (3) Upon the findings of fact made by the trial judge, and taking into account the influence of demeanour upon those findings, the Court of Appeal could not disturb the determination of fact that there were two periods when there was no proved extraction of rock on the subject lot; (4) To the extent that the council bore the onus of proof of abandonment, in the facts found, it discharged that onus. Steedman & Anor v Baulkham Hills Shire Council [No 2] (1993) 31 NSWLR 562 (CA); 80 LGERA 323, referred to.