Land and Environment Court of New South Wales CITATION : Botany Bay City Council v Big Transport Pty Limited [2005] NSWLEC 286 APPLICANT: Botany Bay City Council PARTIES : RESPONDENT: Big Transport Pty Limited FILE NUMBER(S) : 40166 of 1997 CORAM: Pain J Contempt :- whether failure to comply with consent orders made by the Court KEY ISSUES: Words and Phrases :- "storage" - "maintenance" Botany Local Environmental Plan 1995 LEGISLATION CITED: Environmental Planning and Assessment Model Provisions 1980 DATES OF HEARING: 30/05/2005 DATE OF JUDGMENT: 05/31/2005 APPLICANT: Ms J Blunden (solicitor) SOLICITORS: Messrs Houston Dearn O'Connor LEGAL REPRESENTATIVES: RESPONDENT: Mr A Galasso (barrister) SOLICITORS: DC Chambers & Associates JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pain J 31 May 2005 40166 of 1997 Botany Bay City Council v Big Transport Pty Limited JUDGMENT 1 Her Honour: These proceedings concern a Notice of Motion dated 21 February 2005 brought by the Botany Bay City Council ("the Council") seeking orders that the Respondent be found guilty of contempt for failing to comply with an order made by the Court on 10 September 1997. Background 2 On 16 June 1978, the Respondent sought development consent for development to be carried out at 11-15 Clevedon St, Botany ("the site"). The development application includes at cl 5 a description of the proposed development application as follows: Storage and maintenance for our three prime movers and trailers in connection with our carrying business. 3 The Council gave development consent to the Respondent on 8 November 1978 subject to certain conditions. Condition 21 of the development consent stated: All work carried out on the vehicles in the form of maintenance is to be conducted only within the building on the subject land. Condition 22 of the development consent stated: The open areas within the subject land are only to be used for storage and manoeuvring of company vehicles and cars mentioned in the application form and not for the storage of good or materials of any other description. 4 In 1997, proceedings were initiated by the Council seeking orders that the Respondent had breached the terms of the development consent. Consent orders were made by the Court on 10 September 1997. Order 3 of the consent orders provided: The Respondent is forthwith restrained from breaching Condition 6, 21 and 22 of the Town Planning Consent. 5 In 2002, proceedings were initiated by the Council seeking orders that the Respondent was in contempt of Court by breaching order 3 of the consent orders dated 10 September 1997. The Respondent pleaded guilty to contempt and was fined by the Court. 6 On 21 February 2005 the Council filed a Notice of Motion seeking orders that the Respondent be found guilty of contempt of this Court for again failing to comply with order 3 of the consent orders made by the Court on 10 September 1997. The Statement of Charge reads as follows: 1. The Respondent is alleged to be guilty of contempt of Order 3 made by this Honourable Court in these proceedings and dated 10 September 1997 in that on 2 August 2003, the Respondent disobeyed condition 21 of Town Planning Consent No1. 78-T-151 dated 10 November 1978 in that work was carried out on that day in the form of maintenance to vehicles in the open areas and not within the buildings as required by condition 21. 2. The Respondent is alleged to be guilty of contempt of Order 3 made by this Honourable Court in these proceedings and dated 10 September 1997 in that the Respondent has disobeyed condition 22 of Town Planning Consent No1. 78-T-151 dated 10 November 1978 in that the open areas within the subject premises were used for the storage of goods and materials namely containers, equipment for unloading containers and trailers on the following dates: (a) 19 February 2003; (b) 4 April 2003; (c) 9 April 2003; (d) 14 April 2003; (e) 5 June 2003; (f) 26 July 2003; (g) 9 August 2003; (h) 15 August 2003; (i) 20 June 2004; and (j) 21 November 2004. Evidence 7 The Council relied on an affidavit sworn by Mr Greg Baker, a Council compliance officer, on 10 November 2004 and affidavits sworn by Mr David Caple, a Council ranger, on 15 November 2004 and 17 March 2005. The Respondent relied on an affidavit sworn by Mr Robert Brumnic, director of the Respondent, dated 24 May 2005. Mr Baker, Mr Caple and Mr Brumnic all gave oral evidence at the hearing. 8 The Council adduced evidence from both Mr Baker and Mr Caple of numerous drive past inspections of the site undertaken by the two Council officers between 19 February 2003 and 21 November 2004. Photographs were taken, generally from the car, on each occasion. Mr Baker gave evidence that on 2 August 2003 he observed a prime mover on the site with the bonnet raised. On this occasion, a person was leaning into the engine bay of the prime mover and working on the engine and Mr Baker heard the clanking of metal on metal. 9 In their affidavits, Mr Baker and Mr Caple gave evidence that on the dates referred to in the Statement of Charge they observed the following goods and materials located on the site in addition to the three prime movers and three trailers allowed under the development consent: (a) 19 February 2003 – one container on the site; (b) 4 April 2003 – two trailers, one container and pallets and equipment for unloading containers; (c) 9 April 2003 – two trailers, and pallets and equipment for unloading containers; (d) 14 April 2003 – five trailers and pallets; (e) 5 June 2003 – one trailer; (f) 26 July 2003 – six trailers and three containers; (g) 9 August 2003 – eight trailers and five containers; (h) 15 August 2003 – three trailers; (i) 20 June 2004 – six trailers; and (j) 21 November 2004 – five trailers and four containers. 10 On each of the occasions, the containers were located inside the trailers. Mr Baker also gave evidence that on the three occasions that pallets were observed on the site, the pallets were used to prop up trailers located on the site and were not stored in the yard. 11 The Respondent adduced evidence from Mr Brumnic in relation to the nature of the business located at the site. Mr Brumnic stated in his affidavit that the Respondent's business involved the transportation of containers to and from the container depot at Port Botany to customers' premises. Generally, once a container is collected from the port a trailer holding containers is delivered immediately to the customer. If delivery is not made, the driver brings the trailer holding the containers to the site and parks the trailer on the site temporarily until the customer's premises are open for delivery. If a customer's premises are not open, the driver waits or temporarily parks the trailer on the site and returns to the port to obtain another delivery. Containers are not removed from the trailer on the site. 12 Mr Brumnic gave evidence that containers which are not able to be delivered on the same day or within a couple of days as they were collected from the port are transferred directly to the Respondent's storage facilities at Patrick Logistics Pty Limited ("Patricks"). Occasionally if there are unexpected delays or traffic jams, containers are unable to be delivered to the storage facilities at Patricks and are parked on the site until the next morning. Mr Brumnic also gave evidence that the Respondent also owned a vehicle storage facility at Pagewood. The Pagewood premises are used by the Respondent to store spare trailers and prime movers. 13 In relation to the trailers owned by the Respondent, Mr Brumnic gave oral evidence that the "equipment for unloading containers" referred to in the Statement of Charge and seen in the photographs taken by Mr Baker, was equipment that was permanently attached to the trailer and formed part of the trailers owned by the Respondent. This evidence was supported by Mr Brumnic's oral evidence in cross-examination. Council's submissions Condition 21 14 The Council submitted that the Respondent had breached order 3 of the consent orders dated 17 September 1978 by maintaining vehicles located at the site on 2 August 2003. Relying on photographic evidence provided by Mr Baker of an employee of the Respondent working under the hood of a vehicle and Mr Baker's oral evidence that the sound of the works were metal on metal, the Council argued that the maintenance of vehicles was carried outside buildings located on the site in contravention of condition 21 and order 3. Condition 22 15 The Council submitted that the Respondent had breached order 3 of the consent orders dated 17 September 1978 by storing goods and materials on the site. Relying on evidence provided in the affidavits of Mr Baker and Mr Caple, the Council submitted that the Respondent had stored goods and materials on the site on the following dates: (k) 19 February 2003; (l) 4 April 2003; (m) 9 April 2003; (n) 14 April 2003; (o) 5 June 2003; (p) 26 July 2003; (q) 9 August 2003; (r) 15 August 2003; (s) 20 June 2004; and (t) 21 November 2004. 16 As the term "storing" was not defined in either the Botany Local Environmental Plan 1995 or the Environmental Planning and Assessment Model Provisions 1980, the Council relied on the definition of "store" and "storage" in the Oxford Dictionary. The Oxford Dictionary provides: Store Of a receptacle: To hold, keep, contain, have storage-accommodation for Storage Capacity or space for storing. 17 In this respect the Council submitted that good and materials were "stored" on the site immediately after the goods and materials were detached from the prime movers. When goods and materials, such as trailers, were detached from the prime movers, they ceased to be in transit and were stored on the site. 18 Relying on the evidence provided in the affidavits of Mr Baker and Mr Caple, the Council submitted that as there were more than three prime movers and three trailers located at the site on each of the dates, the Respondent was alleged to be in breach of condition 22 and consequently order 3. The Council argued, on the basis of evidence provided by Mr Baker and Mr Caple, that there were occasions when trailers were left on the site periodically during the day and on some occasions over the weekend. Accordingly, the Council submitted that the Respondent had "stored" goods and materials on the site in contravention of order 3. 19 The Respondent rejected the Council's arguments and submitted that it was not in contempt for either of the two charges. Finding 20 These proceedings seek contempt orders in relation to the Respondent's actions which are said to be in breach of conditions 21 and 22 of the development consent dated 8 November 1978 as referred to in the Court's order 3. This raises the question of what is the meaning of these two conditions. While the same conditions were the subject of the previous contempt proceedings in 2002 there does not appear to have been any determination of the meaning of the development consent relevant to the circumstances before me. Condition 21 21 Condition 21 requires that there be no maintenance work on vehicles conducted outside the Respondent's building. The evidence relied on is that of Mr Baker, who on 2 August 2003 photographed from his car outside the premises a man looking under the bonnet of a prime mover on the site. He gave evidence that he heard a sound consistent with metal on metal suggesting the use of tools. Mr Brumnic's evidence as director of the Respondent company was that all maintenance work took place inside the building. Only water and oil checks are conducted by drivers outside in the yard. I do not consider that maintenance of vehicles includes checking of oil and water levels in the prime movers outside the building on the site. 22 Contempt proceedings such as this must be proved to the criminal standard, namely proof beyond reasonable doubt. It is not clear that the man photographed is doing anything beyond looking at the engine. I do not accept that he was doing more than checking oil and water levels in the absence of any further information such as could have been obtained by Mr Baker leaving his car, speaking to the man and viewing more closely the work being undertaken. The Council does not succeed on the first charge (see par 6). Condition 22 23 The Council has alleged that on numerous separate occasions the Respondent has breached condition 22 by storing trailers, containers, unloading equipment and pallets on the site (see par 6). Mr Brumnic's evidence is that the containers and unloading equipment are attached to the trailers at all times in the yard, so that these are not separate items from the trailers. In accordance with Mr Brumnic's evidence I do not consider the instances relating to the containers and the unloading equipment on 19 February 2003, 4 April 2003, 26 July 2003, 9 August 2004 and 21 November 2004 constitute separate breaches. Accordingly, it is only necessary for me to deal with the storing of trailers on all dates specified in the second charge (apart from 19 February 2004) and the storing of pallets on 4 April 2003, 9 April 2004 and 14 April 2003. 24 There is no dispute that the consent is limited to three prime movers. Rather the issue is whether the number of trailers is limited under the development consents. The Council has argued that any more than three trailers at the premises constitutes a breach of condition 22. The Council's case does not distinguish between the use of trailers at the premises in the day to day business operations, and the storage of trailers when detached from a prime mover. This is said to be the correct interpretation of the development consent and the development application as referred to in condition 22. I do not consider that the development consent is clear cut in this regard. The Respondent argued a broad approach to the interpretation of the consent was warranted when all the conditions of consent are considered so that there was no limit on the number of trailers able to be used on the site. The Respondent submitted that there is no cause to constrain "vehicles" apropos the consent, because in combination all of the other conditions operate to control environmental impact. So, for example: · vehicles are not to be parked on the street (condition 22) · there is to be no storage of goods on the street (condition 7) · there is to be no neighbourhood amenity impacts (condition 1) · control on noise emission (condition18) 25 Based on the conditions of consent (see particularly conditions 1, 4, 7, 14, 18, 20, 22 and 23) and the development application to the extent referred to in condition 22, the preferable view is that the consent is for three prime movers and an unspecified number of trailers to be used at the premises but with storage for only three trailers and three prime movers allowed at the premises. 26 The issue then arises of what is meant by "storage". The development consent refers to the "storage" of vehicles in condition 22. I agree with the Respondent's submission that the "storage" of vehicles is different from the parking of vehicles, essentially for temporary purposes. This is clear given reference in the development consent in conditions 4, 14, 20 and 23 to the parking and/or standing of vehicles and/or trailers, rather than these conditions referring only to the storage of vehicles. 27 I agree with the Respondent's counsel that "storage" of vehicles does not commence the moment that a trailer is disconnected from the prime mover and is left in the Respondent's yard. The meaning of "storage" must be considered in its context rather than applying without moderation the dictionary meaning of "to hold". Here there is clearly a difference between parking trailers, with or without containers on them, while waiting to further use them for collection or delivery in the course of a day, overnight or over a weekend, and placing them elsewhere for storage when not required in the daily operations of the business. Where trailers are used in the day to day operation of the Respondent's business I do not think they can be considered as being in storage when they are left on the premises pending their further use the same or next working day. I consider trailers used in this way are parked for a relatively short period, not stored. 28 I accept the Respondent's submission in relation to the pallets (4 April 2003, 9 April 2004 and 14 April 2003) that these are few in number, not stored in the yard and are used to prop up trailers. I do not consider that the Applicant has proved the circumstances giving rise to contempt in relation to the second charge. Accordingly the Applicant's Notice of Motion ought be dismissed. I have not yet heard submissions on costs. Orders 29 The Court makes the following orders: 1. The Notice of Motion dated 21 February 2005 is dismissed. 2. The exhibits are to be returned. 3. The question of costs is reserved. 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.