Land and Environment Court of New South Wales CITATION : Mansfield v Wyong Shire Council [2000] NSWLEC 131 APPLICANT: James Mansfield PARTIES : RESPONDENT: Wyong Shire Council FILE NUMBER(S) : 10441 of 1999 CORAM: Talbot J KEY ISSUES: Development :- existing use - proof of Environmental Planning and Assessment Act 1979 s 106, s 107 LEGISLATION CITED: Environmental Planning and Assessment Regulation 1994 Land and Environment Court Act 1979 s 38(2) Local Government Act 1919 s 342T, Div 7, Pt 12A Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270; CASES CITED: Londish v Knox Grammar School and Ors (1997) 97 LGERA 1; Norman v Gosford Shire Council (1975) 132 CLR 83; Timbarra Protection Coalition Inc v Ross Mining NL and Ors (1999) 46 NSWLR 55 DATES OF HEARING: 19/06/2000, 20/06/2000 DATE OF JUDGMENT: 06/23/2000 APPLICANT: Mr W R Davison SC SOLICITORS: Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT: Mr W P O'Rourke (Solicitor) SOLICITORS: Deacons Graham & James JUDGMENT: IN THE LAND AND Matter No. 10441 of 1999 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 23 June, 2000 James Mansfield Applicant v Wyong Shire Council Respondent REASONS FOR JUDGMENT 1. These are class one proceedings wherein the applicant relies on the establishment of existing use rights to support his application for development consent to use the subject land for the purpose of mobile home manufacturing. 2. The property at No 850 Mandalong Road, Dooralong, known as "The Farm", comprises 219 acres of land. 3. The preliminary question posed for determination is as follows:- Whether the land the subject of this application has the benefit of existing use rights such as to permit the grant of consent for the use of the said land for mobile home manufacturing. 4. The evidence has been presented in formal affidavits and a number of the witnesses have been cross-examined. 5. At the outset I asked the parties whether, notwithstanding that these are class one proceedings and pursuant to s 38(2) of the Land and Environment Court Act 1979 the Court is not bound by the rules of evidence, nevertheless, the Court should apply the rules of evidence to allow the proper consideration of the matter before the Court. 6. Because of the nature of the objections raised during the reading of the affidavits and cross-examination and the way in which they were dealt with, the question did not arise again. During argument I ventured a preliminary view that in practice the rules of evidence should be applied if the proof of a jurisdictional fact ( Timbarra Protection Coalition Inc v Ross Mining NL and Ors (1999) 46 NSWLR 55) or the characterisation of development ( Londish v Knox Grammar School and Ors (1997) 97 LGERA 1), such as the establishment of existing use rights, is necessary. The evidence The applicant's witnesses 7. Mrs Pamela Mansfield gave evidence that her father, Herbert Farrell Ryan, conducted a steel fabrication business in partnership with a Mr Fisher under the name of Fisher and Ryan. The business was conducted at Whitebridge in Newcastle and commenced prior to 1956. Her father was an ironmonger and trained as a welder. He was a qualified boilermaker. 8. Mrs Mansfield says that after her parents bought the subject property the steel fabrication business of Fisher and Ryan was undertaken at the subject premises as well as at Whitebridge. Between 1956 and 1972 the land was used for steel fabrication of components for farm sheds and other metal items used in the building industry. She remembers watching her father and other employees during the period 1956 to 1977 working with welding equipment and other tools in one of the sheds on the property. The shed was also used to store timber and steel products used in the manufacturing process. When large steel frames and trusses were assembled the work was generally done outside the sheds. Mrs Mansfield further gave evidence that from 1956 to 1977 the manufacturing works were conducted in various locations on the subject premises including three identified sheds. 9. From about 1958 until 1975 Keith Grose lived on the subject premises. He was employed assisting other employees to assemble the prefabricated steel products which were wholesaled to various building contractors. 10. Mrs Mansfield and her husband John took over the business in 1977 through their company, Eaga Pty Ltd. While the area specifically identified by Mrs Mansfield was largely used in conjunction with the steel fabrication business established by her father on the subject premises in 1956, she also told the Court the family conducted poultry farming and grazed cattle on other parts of the land. She sums up the position by saying that through various corporate entities her family has conducted a steel fabrication business at the subject premises on a continuous basis since 1956 and this has included the assembly of finished products from components produced on site. 11. Mr John Mansfield is married to Pamela Mansfield and confirmed that Mr Ryan purchased the premises in 1956 and commenced steel fabrication of components for the housing and building industry shortly thereafter. Mr Ryan continued to operate the steel fabrication business at Whitebridge until the early 1970s. From 1956 Mr Mansfield observed Herbert Ryan and his employees at work on the subject premises manufacturing steel and other metal components such as roof trusses and building frames. Equipment and materials including welding tools, saws, timber and raw steel were stored in one of the sheds identified for evidentiary purposes as shed 3. Tradesmen and labourers were observed at work in various locations on the subject premises. Although the majority of preliminary work was undertaken in shed 3, sheds 1 and 2 and an outside area now occupied by sheds 4 and 5 were also used depending on the volume of work at any one time. Mr Mansfield says that he assisted in the manufacture and assembly of finished products at the premises. These included rural sheds, shearers' quarters, temporary accommodation units, cattle yards, grain sheds, garages and warehouse buildings. The prefabricated metal products were sold wholesale from approximately 1956 to 1972. He recalls that a factory foreman supervised other tradesmen and labourers at the subject premises during the period 1957 to 1973. Mr Mansfield gave instances of carrying out steel fabrication projects in connection with his family home at Bellevue Hill and subsequently at Dural. Ultimately, in 1977 he and his family moved to the subject property and after one year built a new home, many components of which were manufactured at the premises. When the family moved to the premises, Mr Ryan, according to Mr Mansfield, was then using the property for steel fabrication, poultry farming and cattle grazing. A large chicken shed was constructed in 1980 from components manufactured at the premises. 12. In addition to metal building components, Mr Mansfield says various other metal products were manufactured including furniture frames and beds, chairs, tables and other household products, many of which were manufactured specifically for use at the Christadelphian Conference Centre at Rathmines. The Mansfield family are members of the congregation. This work was done on a voluntary basis. 13. Mr Mansfield also said that from 1972 components used for building project houses were supplied and manufactured at the subject premises. Timber wall frames and wall trusses were manufactured and assembled at Dooralong. From 1977 to approximately 1985, due to changes in the building and housing industry, Mr Mansfield explained that the family began to produce more finished products from components manufactured on the subject premises. In 1988 the business became known as Universal Manufactured Homes and again, due to market changes and technology, a variety of materials in addition to steel and metal products were used. The first manufactured home was completed on the subject property in 1988. According to Mr Mansfield, the industry established by Mr Ryan, including steel fabrication, manufacture of metal building components and the assembly of the same has been carried out continuously on the property at Dooralong since 1956. 14. Keith Edward Grose resided with his father at the subject premises from about the age of 12. He recalls that at that time, approximately 1957, Mr Ryan conducted a business at Whitebridge in Newcastle fabricating steel and steel products and that Mr Ryan would also carry out steel fabrication at the subject premises. He recalls that on occasions, usually weekends, Mr Ryan and some of his employees would come to the subject premises to fabricate and assemble steel frames and trusses and then load these onto a truck and drive to the property where they were to be assembled. He observed Mr Ryan working with his employees manufacturing roof trusses and components for rural sheds. They used welding equipment and steel saws to manufacture the building components. In the early period of his years at the subject premises, Mr Grose said that the work was usually done on weekends and sometimes would not occur for a month or two at a time. As the years progressed, however, the steel fabrication work at the subject premises became more regular and organised. During the 1970s he stated that John Mansfield became involved in the steel fabrication work and more of it was carried out on the subject premises. From 1965 he was employed by Mr Ryan on a casual basis and worked with his tradesmen who were fabricating steel and assembling steel products. Most of his work was involved in the erection of buildings at the subject premises from components fabricated both on site and at Whitebridge. He says that during the period from 1975 to 1984 the steel fabrication work at the subject premises increased to the point where it was carried out on a daily basis. Finally, Mr Grose said that in his observation the subject premises has been used continuously since at least 1958 for the fabrication, manufacture and assembly of steel products used in the housing and building industry. 15. Other witnesses have given corroborating evidence that in the years since 1962 they were either involved in, as employees or members of the family, or observed activities involving construction and fabrication work at the premises. The council witnesses 16. The council witnesses generally are persons familiar with the property or who lived nearby during the relevant period. The purpose they were called was firstly, to show that they did not observe trucks carrying materials or products used for a steel fabrication business using the local roads at any time during the period since 1956. Secondly, they were called to give evidence that it is only in recent times, since construction of mobile homes has commenced on the premises, that any noise of manufacturing activities has become audible outside the site. All of these witnesses expressed the view in one way or another that if there had been a manufacturing industrial process involving steel fabrication they would most likely have known about it. 17. The council seeks to draw the inference that because the activities were not observed or noticed by the neighbours, they were either so sporadic or inconsequential as not to amount to a use of the land. 18. The council also relies on the alleged failure of the applicant to prove what the exact nature of the use was on any relevant date, that is, immediately before there was a requirement to obtain development consent or the date upon which the use of the land for industrial purposes became prohibited. The relevant planning instruments 19. It is not in dispute that at all relevant times since 1961 the use of the land for industrial purposes was either prohibited or required development consent. 20. As from 6 January 1961, Ordinance 105 applied to the land and consent was required for development defined in s 342T of the Local Government Act 1919 ("the LG Act 1919") which included any use of land "for a purpose which is different from the purpose for which the land … was last being used" . 21. The use of the land for industrial purposes was first prohibited by Wyong Planning Scheme Ordinance ("Wyong PSO") which came into effect on 3 May 1968. 22. Section 106 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") which came into force on 1 September 1980, defined an existing use as the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Div 4A of Pt 3 or Div 4 of Pt 4, have the effect of prohibiting that use. It is accepted by the parties that Wyong PSO is such an instrument. 23. Between 3 May 1968 and 1 September 1980 the Wyong PSO authorised the continuation of the use of the land for any existing use at that date, notwithstanding the prohibition contained in that instrument. 24. The industrial use was further prohibited by Wyong Rural Lands Local Environmental Plan made on 31 July 1987. 25. The use is now prohibited pursuant to Wyong Local Environmental Plan made on 15 February 1991. 26. Accordingly, the use having been prohibited since 1968, it can only be carried on if it is a use for a lawful purpose at the relevant date. In order to establish the use was lawful at the time it was undertaken, it would either have to have the benefit of a consent or be a use which commenced prior to the introduction of planning controls. 27. According to Mr Davison SC, so long as the purpose of the use was not different after 1961, the extent of it was not inhibited by the controls introduced in that year. After 3 May 1968 the use remained permissible as an existing use under the Wyong PSO. After 1 September 1980 it is protected by s 107 of the EP&A Act as an existing use defined in s 106. 28. As the applicant only seeks to rely on existing use rights for the purpose of steel fabrication, Mr Davison submits that because the evidence shows that that use has been continuous since before 1961, the applicant is entitled to make an application with respect to the change of the existing use to another use in accordance with s 108 in the Regulations under the EP&A Act. 29. Although Mr Davison claimed at the outset that the existing use rights should be proclaimed in respect of the whole of the property or at least that part of it which is situated between Mandalong Road and the creek even though the steel fabrication has never taken place over the whole of that area, he ultimately accepted that the applicant could be content with a finding that existing use rights existed in respect of the area comprising sheds 1 to 5 shown on a particular sketch plan produced in evidence, together with the curtilages of those sheds and the access thereto and a further hatched open area, shown on the sketch plan, adjacent to the sheds. 30. According to the applicant the extent of the activity or its frequency is not a relevant factor in determining whether or not the activity was carried on at a relevant time. So long as the use was continuous through the relevant period, before and after the relevant day then that is sufficient to establish that it was occurring on the relevant day. In other words, frequency and continuity are not coterminous. A use can be continuing notwithstanding that it is intermittent or only occurs at regular intervals. The applicant's case is that the commencement of the use in 1956 has been established together with its continuance from then until the present, thereby being relevantly carried on through and on the dates in 1961, 1968, 1980, 1987 and 1991. Between 1961 and 1968 the only relevant event could be whether there is development for a different purpose at any point during that time. From 1968 therefore the actual use is relevant and must be shown to be maintained if the applicant's case is to be successful. 31. In the result, Mr Davison claims on behalf of the applicant that from 1956 to 1961 the evidence shows that Herbert Ryan used the subject site as an adjunct to the business at Whitebridge and thereafter the land was used for that purpose on a continuous, but intermittent basis for the customers of Fisher and Ryan until 1972 when the business at Whitebridge ceased and the subject property became the sole site for the activity. From 1977 the business has been carried on in the interests of the Mansfield family. The evidence makes it clear that the volume of use for the activity of steel fabrication was variable in the early stages. However, as I have already said, Mr Davison submits that has no effect on the fact of the use for the industrial purpose of steel fabrication. It was a use distinct and separate from the use of the balance of the land for farming and orchards. Although initially the fabrication of steel on the land may have been for the sole purpose of farm sheds at the Dooralong property, it expanded to other uses shortly thereafter. 32. The applicant therefore contends he has established the use for steel fabrication up to 1961 and that the use has been continued up to date. Admittedly there have been other activities such as the construction of sheds, shearers' quarters, cattle yards and other buildings, but the applicant only relies on the specific activity of steel fabrication for the benefit of an existing use. The case of the respondent council 33. Mr O'Rourke, who appears for the council, raises no issue about the planning instruments and the application of the provisions of Div 7 Pt 12A of the LG Act 1919 from 1961. 34. He says the evidence shows that initially the property at Dooralong was used as a citrus orchard, for cattle grazing, a home for the Grose family and a weekend retreat for the Ryan and Mansfield families. 35. However, the council's case is that the evidence does not establish the use for the purpose of steel fabrication immediately before the crucial date, 6 January 1961. The argument is that it is not enough to show that some steel fabrication took place, say six months before the critical date, on one of the infrequent occasions referred to by Mr Grose. Mr O'Rourke points to the lack of specificity of the applicant's witnesses in respect of the activities taking place at crucial times. Mr Grose had agreed in cross-examination that in the early years, fabrication on the site was mostly for construction of sheds built on the property and that any outside work happened only infrequently. 36. There is no direct evidence of what was actually being carried on at the property immediately prior to 6 January 1961. One witness, David Pogson, did not visit the property until 1962. He referred to Mr Grose undertaking steel fabricating activities "from a small fabricating shed near his house" . He recalled that the manufactured component parts were for rural sheds and the like. Mrs Mansfield, the daughter of Mr Ryan, said in cross-examination she could not remember workmen being on the property between 1956 and 1961, although in re-examination she said that she knew workmen were there although she did not see them. She had been told of the fact by her father. In cross-examination David Pogson described the nature of the parts fabricated by Mr Grose as cleating and angle beams for rural sheds and smaller items. It was not until a new broiler shed was constructed at the farm that the power supply was improved sufficiently to allow the use of welding and other equipment that required a reliable and more powerful source of electricity. This would account for the low intensity of the activities in the early years. It is not clear from the evidence when the first broiler shed was erected except that it was in the early 1960s. 37. Mr O'Rourke urges the Court to discount the weight of the applicant's witnesses generally for the following reasons:- (a) Most of them are relatives of the applicant who have a vested interest in the result. (b) It is to be inferred that if industrial works of the character claimed by the applicant were carried out on the subject land then the noise of these activities would have been noticed off the property, yet none of the council's witnesses had discerned any such noise over the years. (c) None of the council's witnesses had observed the transport of steel or steel products by truck along Jilliby Road, which is the logical route from the property in a southerly direction. (d) An application made to council for rural rating made no mention of the industrial use on the property. (e) Initially a town planner's report to council in support of an application for the erection of a dwelling made no reference to industrial activity, although this submission was subsequently corrected by the consultant town planner in later correspondence. (f) There is no mention of any claim to existing use rights in a letter written to council in 1991 in support of an application to continue building mobile homes in one of the sheds on the property. The letter makes the statement that following the loss of a chicken growing contract and a considerable down-turn in the sales of stud cattle an alternative means of generating income was necessary " as our total income had come from the farm" . The emphasis appeared in the original letter. (g) In matter No 40141 of 1994 on 8 March 1995 the applicant and his son James Mansfield instructed solicitors then acting for them to sign consent orders that they, as the respondents, cease the use of the land for the purpose of the manufacture of mobile homes. The consent orders were made only after the applicant had the benefit of legal advice from his solicitor, Mr Cole. A note to the order refers to existing use rights relating to the land and Mr John Mansfield confirms that he understood at that time what existing use rights were. 38. Although Mr and Mrs Mansfield were able to rationalise some of the above matters put to them by Mr O'Rourke, it is nevertheless clear that they have at times been evasive and not entirely frank with the council in regard to activities on the land over the years. Are there existing use rights? 39. The change to the law which occurred in 1961 required only that development consent be obtained for a purpose which was different from the purposes for which the land or building or work was last being used. At that date the evidence discloses that the property was used for farming and citrus growing on the broad acres while there was some intermittent activity of steel fabrication, mostly in connection with the erection of sheds on the property, but occasionally for use at other places in connection with the business of Mr Ryan. 40. After 1961 the use of the land for steel fabrication purposes intensified and the business expanded to include the making of various farm structures from steel components. Originally the steel fabrication work was confined to the shed identified as shed 3 and at times the open area immediately adjacent to that shed. By 1968 the activity of steel fabrication had expanded to other sheds and the area surrounding those sheds, more particularly identified by a sketch plan used by the applicant's witnesses for that purpose. 41. Accordingly, the Court is satisfied that in 1968 when the existing use provisions of the Wyong PSO came into effect, the sheds referred to and specific outside areas were being used for the purpose of steel fabrication in the relevant sense. Although the evidence suggests that the industrial activity carried on in recent times is wider in scope, nevertheless, the only claim for existing use rights is in respect of steel fabrication. The Court is not able to find that the steel fabrication was merely ancillary to other uses or was subsumed by other activity on the land. Notwithstanding the doubt raised about the veracity of some aspects of the evidence given by the applicant's witnesses, it is not such as to cause the Court to disregard it entirely. It is sufficient to establish the criteria for an existing use. 42. The Court is satisfied on the balance of probabilities that the particular parts of the land referred to were being used for the purposes of steel fabrication at the relevant date in 1968 and that so far as that activity is concerned, being part of the overall activities on the subject land, there was no relevant change to the purpose of the use between 1961 and 1968. The nature of the use was not altered because there was an expansion in the activity; Norman v Gosford Shire Council and Anor (1975) 132 CLR 83. 43. However, the Court is not prepared to find that the existing use rights in respect of the activity of steel fabrication extend beyond the nominated sheds and the surrounding area identified in the evidence. 44. The facts in this case distinguish the finding of the majority of the High Court in Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 where a relatively small area was held by the owner and the Court was able to conclude that the whole of the land had the benefit of an existing use right even though the total area was not actually used for that purpose. Walsh J clearly recognised the prospect of the present factual circumstance when at 278 he said:- It seems plain that in some cases the physical use for a particular purpose of a small portion of a large holding would not warrant a finding that the whole area was used for that purpose. 45. The initial submission by Mr Davison that the whole of the property situated between Mandalong Road and a creek to the west, which comprises an area significantly greater than the actual area ever physically used for steel fabrication purposes, should be given the benefit of existing use rights for that purpose is rejected. 46. The answer to the question raised as a preliminary issue is that the use of that part of the land the subject of the application, identified as sheds 1, 2, 3, 4 and 5 and an area shown by black hatching in a sketch plan annexed and marked "A" to the affidavit of the applicant sworn 2 November 1999 and the access thereto from the Mandalong Road, for the purpose of steel fabrication is an existing use within the meaning of the definition contained in s 106(a) of the EP&A Act. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.