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. 2 UNREPORTED JUDGMENTS held: In the proof of continuous use of land for the purposes of an extractive industry and in the determination of conflicting evidence, the Court of Appeal was bound to take into account the influence of demeanour upon the trial judges in the resolution of the conflicting evidence. Abalos v Australian Postal Commission (1990) 171 CLR 167, applied. Town and Country Planning (General Interim Development) Ordinance 1946. County of Cumberland Planning Scheme Ordinance 1951. Shire of Baulkham Hills Planning Scheme Ordinance 1964. Shire of Baulkham Hills Interim Development Order No 118, 1977. Kirby P I agree with Meagher JA. Meagher JA This appeal follows two earlier appeals to this Court in this matter, the case having been remitted to the Land & Environment Court on two previous occasions after appeals from decisions of Stein J. Now it returns to this Court once more, this time on appeal from Pearlman J, Chief Judge of the Land and Environment Court. The details of the history of this action are set out in the judgment of Kirby P in Steedman and Anor v The Council of the Shire of Baulkham Hills (No 2) (1993) 31 NSWLR 562, at 564-5; 80 LGERA 323 at 324-5. As a result the facts relevant to this appeal need only be stated briefly. The case concerns an application by Mr Steedman and his wife, the appellants and owners of lot 202, Pitt Town Road, Kenthurst, for a declaration that their land enjoys existing use rights under s109 of the Environmental Planning and Assessment Act 1979, and can therefore legally be used for extractive industry despite the fact that consent has never been granted by the council. Mr and Mrs Steedman became the owners of the land when they completed a contract to purchase lot 202 in December 1989. Mr Peter Kemp lived on the property before 1951 when, under the ownership of his father, it formed part of one large 514 acre block. In 1951 there was a subdivision of that original block. Mr Peter Kemp built a house on a lot adjoining lot 202. The block which had become lot 202 was first owned by his father, but later it passed to him. Mr Peter Kemp therefore owned two adjoining blocks between the date upon which lot 202 passed to him and 1989, when lot 202 passed to the Steedmans. In 1951 and for some time thereafter the primary use of lot 202 was as an orchard. There is no dispute that before the original 514 acre block was subdivided it was used for the quarrying of rock and the extraction of soil. In the case cited above, this Court found that there was a separate and independent use of the Kemp property for the purpose of an extractive industry at 12 July 1946, which was the date of commencement of the Town and Country Planning (General Interim Development) Ordinance, the first planning instrument to apply to the land. There is no dispute that from 1975 until 1988 quarrying activities were conducted on the subject land by a Mr Dixon. The crucial matter is whether the use was continuous between these times. A preliminary issue which arises is whether her Honour correctly categorised what was done on the property at certain times as something less than extractive industry, and as such irrelevant to the issue of continuance of use. The "cutting of large rock, or floaters, to provide flagging and ballast; the blasting, cutting, ripping, removal and crushing of sandstone; and digging and removal of soil" were held to be "within the genus of extractive industry". However, having made reference to the planning definitions, her Honour found that the collection of bush rock by hand from the surface of the property did not qualify as extractive industry, and that continued use must involve some extraction of rock from the URJ STEEDMAN v BAULKHAM HILLS COUNCIL [No 3] (Meagher JA) 3 land. Mr Davison for the appellants contended that collecting bush rock did constitute use as an extractive industry, and made the broad submission that North Sydney M C v Boyt's Radio and Electrical (1989) 16 NSWLR 50 at 57(CA); 67 LGRA 344 at 355 is authority that definitions in planning instruments are of no assistance in determining whether existing use rights persist. In my opinion the submission must fail. The case referred to is authority that definitions in planning instruments may not impose planning restrictions in retrospect, but no more. In this case the definitions were in place at the various times at which the appellants sought to prove the use was continuous, and are helpful. The definitions speak of "the winning of extractive material from the land upon which it is carried on", and her Honour was not incorrect to observe that a process of removing those materials from within the ground is required. It was necessary for her Honour to decide whether the use, found to be existing in 1946, continued thereafter, so that at the time of the coming into effect of each successive planning instrument which applied to the land the existing use provisions operated to obviate the necessity to obtain consent to continue to use the land for an extractive industry. Her Honour decided it was not continually used in the required manner. Her Honour decided it was not used for extractive industry during two periods, one between 1952 and 1958 and one between 1966 and 1975. The County of Cumberland Planning Scheme Ordinance commenced on 27 July 1951. The Shire of Baulkham Hills Planning Scheme Ordinance commenced on 17 April 1964, and the Shire of Baulkham Hills Interim Development Order No 118 commenced on 13 May 1977. These dates fall outside the gaps in use found by her Honour. By the time the 1964 ordinance came into effect there had been a gap in use of six years during the 1950s, and on her Honour's findings there was no legal use at its commencement. Consent as required by the instruments would not have been necessary had the land been continuously used for the purposes of an extractive industry, but, once a use was terminated, the instruments again operated to require consent to recommence the use. It is necessary at this point to give some details of Mr Kemp's involvement with the property, and of his involvement in the case during the various hearings. It is he who claims to have used the property continuously between 1946 and 1975 to quarry rock, cut flagstone and collect bush rock. The evidence of the other witnesses of fact went to corroborating or contradicting this claim. In the first proceedings before Stein J he gave evidence of having conducted quarrying activity an the land throughout the relevant period, and many other witnesses supported this account. Unfortunately he did not reveal the effects of the subdivision in 1951, and much of his evidence related to the adjoining property also owned by him. As a result much evidence given by him and by others in support of him was irrelevant at best. This fact became apparent during the second hearing before Stein J, and the credibility of Mr Kemp was damaged. This detracted from the evidence of those other witnesses who deposed that he worked a quarry continuously on the subject land. His credit was further damaged by inconsistencies in explaining taxation documents and other matters, and his credit has been damaged when he has been involved in other proceedings related to this action. Both Stein J and her Honour received evidence from Mr Kemp in person, and both rejected him as a witness of truth. On that matter this court cannot interfere. 4 UNREPORTED JUDGMENTS The issue of continuance will now be dealt with. Mr Davison, counsel for the appellants, accepted that his clients bore the onus of proving continuance. The main issue in the proceedings in this Court is whether the primary finding of fact made by Pearlman J was supported by the evidence before her: ie that the land was not, between 1946 and 1988, continuously used for the purposes of an extractive industry, that term being used with reference to the definitions in the various planning instruments mentioned above. The evidence before her consisted of the evidence which had been before Stein J, together with the evidence of two additional witnesses called before her, Mr Kemp and Mr Clarke. The appellants sought to rely before her Honour upon the evidence which came before Stein J in the first two hearings in the Land and Environment Court. Mr Davison of counsel submitted that on a 'global view' of this evidence it was clear that use was never discontinued. In these proceedings the issue is limited to use during the gaps found by her Honour. In other words, for the purposes of this appeal, it is accepted that the land was used for the purposes of an extractive industry from 1946 up to 1952, from 1958 up to 1966, and from 1975 to date. Her Honour's findings are largely based on findings of credit made by Stein J. Her Honour was unimpressed with the evidence of the appellants and their witnesses, as Stein J had been before her. The evidence can be set out as follows. I will first consider the first gap in use between 1952 and 1958. Before Stein J several witnesses called by the appellants deposed inter alia that a quarry "the size of a courtroom" had been operating on the land. It eventually became clear, however, that the activity in question was taking place on the adjoining property. This damaged the credit of Mr Kemp and Mrs Wallace, Mr Kemp's sister, and it cast doubt on the evidence of the Appellants' other witnesses. The evidence of Mrs Wallace was rejected and described as unreliable. Her insistence that a quarry on the land was continuously worked was inconsistent with the aerial photographs. Mr Fletcher, a long time neighbor of Mr Kemp's, gave evidence that he had frequently flown over the property whilst in the air force between 1952 and 1972 and saw evidence of freshly cut sandstone. Stein J found him to be prone to exaggeration, and her Honour found his evidence to be non-specific and unhelpful. A surveyor, Mr Moriarty, gave affidavit evidence that Mr Fletcher could not have seen the things he claimed to have seen from the height he had specified. Mr Bodium, a former employee on the original property, gave evidence that, up to 1958, he regularly saw trucks laden with sandstone leaving the Kemp property. He also deposed that heavy machinery was used to work a relatively large quarry on the property, but was unsure of its position. Stein J did not accept him as a witness of credit, and described his memory as "a combination of observations, reconstruction and exaggeration". Her Honour considered his evidence to be insufficiently specific. Mr Stephenson gave evidence that he regularly bought rock from Mr Kemp during the period, but Stein J held his evidence to be of little use. He was a landscaper, and therefore was interested in bush rock rather than cut rock, and he did not know the extent of the property or where the rock came from. He was unaware there was an orchard on the property, indicating that his recollection that any rock came from lot 202 may have been faulty. Mr Webb deposed that he supplied explosives to Mr Kemp in the late 1950's. He was uncertain of actual times. The evidence might relate to activities over the road, and in any case it falls outside the period in issue. Mr Booth, an earth moving contractor, gave evidence that he purchased stone from the Kemps from 1950 to 1964. If this were the case there could have been no gap in use in the URJ STEEDMAN v BAULKHAM HILLS COUNCIL [No 3] (Meagher JA) 5 1950's. Stein J made no express findings on his credit. Her Honour, however, while accepting that between 1950 and 1952 he purchased cut flagstone from the property, found that he was referring in the middle years only to bush rock which was not split in any way. Mr Smith gave evidence that he drove a truck for Mr Booth for fourteen years, and began going to the Kemp property in about 1950. He saw Mr Kemp cutting "floaters" and working a bit of a quarry. His evidence was held by her Honour to be consistent with Mr Booth having purchased cut stone in 1950, 1951 and 1952, but not evidence that there was activity beyond the collection of bush rock in the following six years. I take the same view. Mr Wallace, Mr Kemp's brother-in-law, gave evidence in the first hearing that rock was carved full-time by Mr Kemp from 1956 until 1958. Stein J observed him to be "prone to exaggeration in his description of stone cutting activities and their frequency". Mr Webster, counsel for the respondent, submitted that his statements are inconsistent with the photographic evidence, to which I now turn. Mr Reeks was also called upon in the first proceedings to give expert evidence involving interpretation of aerial photographs, and he swore further affidavits in the second hearing before Stein J. He concluded that nothing in the photographs indicated any excavation had taken place between 1947 and 1961. When, in cross examination, Mr Davison for the appellants attempted to cast doubt upon his evidence by asking him hypothetical questions about what the tracks in the photographs might not reveal, and whether a quarry might have operated under the cover of trees, he did admit the possibility that a manual stone cutting operation could be obscured in the photographs. His responses, whilst somewhat equivocal, indicated that he thought the chances of a stone cutting operation continuing during this period were remote. The photographs cannot be seized upon as evidence in favour of the declaration. It remains unlikely that there was excavation and cutting of stone without the photographs showing worn tracks or scarred land. Mr Reeks did indicate a rock face at a point on the 1955 photograph labelled AAM3, but both he and Mr Moriarty felt that it was likely to be a natural outcrop. Mr Moriarty, a surveyor retained by the council, gave evidence that the tracks shown in the 1955 photograph "became more difficult to see than in the 1947 photography and [this] indicates to me that little if any use has been made of them in the intervening years". He was of the opinion that the photographs began to reveal excavation between 1961 and 1965. During cross examination Mr Moriarty agreed that there may have been some gentle activity indicated by tracks in the 1955 photograph, but this was to admit a remote possibility rather than to express a positive opinion. Mr Brown, the chief town planner of the Respondents, had also examined the aerial photographs and found that no discernable quarrying was revealed. Dr Mitchell was called by the appellants in the second trial to give expert evidence as to the aerial photography. He found seven sites where bush rock had been taken from the ground, but found that there was no excavation in the period between 1946 and 1961, with the exception of one site off the subject land. He found that trees twenty feet tall had grown in the excavation sites since 1947. Mr Dixon, a quarrymaster who later was to work on the property, gave evidence which supported Dr Mitchell's conclusion that all the excavation sites on the property were disused, with the exception of one which was identified as being the quarry on the adjoining land. He carefully inspected the property in 1965. Unsurprisingly, both Stein J and Perlman CJ thought the photographic evidence fatal to the appellants' case. 6 UNREPORTED JUDGMENTS Mr Davison submitted that the reliance placed upon the photographic evidence by Stein J was misplaced, and that inconsistencies between the evidence of Mr Moriarty and Mr Reeks detract from the value of this evidence. After examining the affidavits of Mr Moriarty and Mr Reeks, I can see no reason to think that any improper inferences have been drawn from this evidence. Their conclusions had the same effect. The photographs showed that the only possible extraction was of a small scale type that aerial photography would not reveal. This worked against the credit of some, but not all of the witnesses, and the remaining testimonies were rejected because they seemed to represent a less than dispassionate account of the truth, and were pitted against more convincing accounts given by witnesses who were accepted. The evidence failed to discharge the onus of proof. Stein J held he was "not satisfied that the use, if it existed in 1951, was not abandoned at some time between 1951 and 1957-58." Her Honour held that the evidence indicated against continuous use between 1952 and 1958 even on its broadest construction. Although Stein J did not in clear words find a lack of credit in all of the witnesses whose account supported the Appellants' case, this Court since Abalos v Australian Postal Commission (1990) 171 CLR 167 is required to take into account of the subtle influence of demeanor. His Honour's acceptance of Mr Clarke, who gave evidence before her Honour and will be dealt with further below, and Mr Dixon, whose evidence was consistent with the aerial photographs, carries an implication that the evidence of the other witnesses was disbelieved. I cannot see any appellable error in the conclusion that the Appellants failed to demonstrate continuous use in the six years between 1952 and 1958. This brings us to the second gap in use, this time of ten years duration, between 1966 and 1975. Many of the witnesses gave evidence relevant to both periods. Mrs Wallace was rejected by Justice Stein, who observed inter alia that she was over anxious to afford loyalty to her brother, Mr Kemp. Mr Webb gave evidence of having sold explosives to Mr Kemp, but he was not cross examined, and given the disparate locations at which Mr Kemp conducted operations using explosives his evidence was understandably held to be of negligable probative value. Mr Fletcher, the neighbour mentioned above, was rejected as a witness of truth by Stein J. Mr Dixon, the quarrymaster who was to begin a quarrying operation on the land in 1975, said in cross examination before Stein J that there had been no use for some years before 1975, and he was accepted as a witness of truth. Mr Davison for the Appellant tried to rely on the expert evidence to establish use in this period. Her Honour examined the affidavit of Dr Mitchell, and noted that it did not contain positive evidence of use as an extractive industry between 1951 and 1977. The affidavit includes a statement that a two wheeled track which was not apparent in the 1965 aerial photograph appeared in the 1970 photograph, near a "quarry and waste dump". This was not enough to convince her Honour that a finding of continued use should flow, and given the evidence of Dr Mitchell as to, first, the age of the excavations at the site (mostly 5 to 10 years old in 1991); and then a qualification in terms that some of the activity occurred off the subject land, and third, the fact of use as a waste dump, it would seem her Honour proceeded logically. In cross examination before Stein J, the appellants tendered notes written by Dr Moriarty at the time he examined the aerial photographs. They included a notation on the 1970 photograph which read: "tracks and some URJ STEEDMAN v BAULKHAM HILLS COUNCIL [No 3] (Handley JA) 7 evidence of activity clearing and digging". This would seem to be in the same place referred to by Dr Mitchell, and this evidence can be put aside for the same reasons. The documentary evidence was dealt with by her Honour, and nothing was put to this court which makes me think any of it is useful in deciding the question of continued use. I adopt her Honour's reasons for so doing. On the evidence which came before Stein J which was relevant to the second gap, a finding that use was not continuous seems a sensible one. In the result her Honour did reject the body of evidence which had come before Stein J as discharging the onus of proving continuous use between both 1952-1958 and 1966-1975, as Stein J had done before her. As well as reviewing this evidence, her Honour saw two witnesses, Mr Kemp and Mr Clarke, who gave fresh evidence. As mentioned above Mr Kemp was rejected by both her Honour and Stein J. Mr Clarke was called by the council. As regards the first gap, he gave evidence that to his knowledge there was no cutting of stone between 1955 and 1956. He claimed he would have known if stone was being taken by Peter Kemp before 1956. Her Honour indicated that this belief was unshakeable, and although she noted some personal animosity toward Mr Kemp, she accepted his evidence. Mr Clarke went to work at the quarry adjoining the subject land in 1965. As regards the second gap he gave evidence that there was no excavation on lot 202 between 1965 and 1972. He deposed that approximately 12-18 months prior to 1965 Peter Kemp had been extracting rock, but only from the quarry on the adjoining land. He gave evidence that soil had been extracted from the Kemp property by Mr Wallace until 1963 or 1964, but that this use ceased once Mr Wallace left his wife. Her Honour did accept that a soil business, a partnership between Mr Clarke, Mr Kemp and Mr Fletcher, was conducted on the land for one year up to 1966, but in accepting Mr Clarke as a witness of truth she noted contradictions between his and Mr Kemp's evidence. As a result her Honour found that Mr Kemp had not extracted rock either during the term of the partnership or the three or four years afterwards, during which time Mr Kemp had worked on other properties. This finding is one based on credit. Even if the body of evidence from the previous hearings were not fatal to the appellants' case, their claim to a declaration dissolves in the face of the acceptance of this fresh evidence. I find that there is no reason to disturb her Honours findings that use was discontinued between 1966 and 1975, nor the finding that it was discontinued between 1952 and 1958. The finding by Perlman J that there were two gaps in use logically raises the question whether, during the gaps, the appellant had abandoned any extractive use. This was an issue which was not the subject of any real debate before her honour; on the appellants' case because extractive use continued non-stop from 1946 onwards, and on the respondent's case because from 1946 to 1975 there was almost no use for extractive industry at all. Nevertheless, the findings having been made, the question of abandonment must be raised. In my view, given the lengthy nature of the discontinuance, her Honour was correct. It would have been open for the appellants to give evidence of subjective intention during the relevant periods, but they did not do so. The appellants' submission that the onus of proving abandonment should have been borne by the Council can be put aside because the only sensible inferences available discharge the onus. The appeal must be dismissed with costs. Handley JA I agree with Meagher JA. 8 UNREPORTED JUDGMENTS Appeal dismissed with costs. Counsel for appellant: W R Davison SC Counsel for respondent: J J Webster Solicitors for appellant: Heazlewoods Solicitors for respondent: Gordon Robilliard & Associates