Land and Environment Court of New South Wales CITATION : Hastings Municipal Council v Hastings Sand & Gravel Supplies Pty Limited & Anor [1989] NSWLEC 215 APPLICANT Hastings Municipal Council PARTIES : FIRST RESPONDENT Hastings Sand & Gravel Supplies Pty Limited SECOND RESPONDENT Tefif Pty Ltd FILE NUMBER(S) : 40281 of 1988 CORAM: Cripps J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979 The Council of the City of Parramatta v Brickworks Limited 128 CLR 1; Norman v The Council of the Shire of Gosford & Anor 132 CLR 83; CASES CITED: Eaton & Sons Pty Limited v The Council of the Shire of Warringah 129 CLR 270; Baulkham Hills Shire Council v O'Donnell 62 LGRA p 7 ; Lane Cove Municipal Council v Lujeta Pty Limited 58 LGRA 157); Pioneer Aggregates (UK) Limited v Secretary of State for the Environment & Ors 1985 AC 132 DATES OF HEARING: DATE OF JUDGMENT: 07/01/1989 LEGAL REPRESENTATIVES: JUDGMENT: His Honour: Hastings Sand and Gravel Supplies Pty Limited and Tefif Pty Limited are the owners of Lots 34 and 35 DP227884 and Lot 38 DP236901 respectively. The three lots are on the southern side of Princess Avenue, Wauchope. Gravel and aggregate is stockpiled on the three lots and also on Lot 33, an area immediately to the east. The issue before the Court is whether Lots 34, 35 and 38 have existing use rights. The subject land (and including Lot 33) is zoned 2(b) (Residential "V" ((Village and Township Zone)) pursuant to Hastings Local Environmental Plan made on 2 October 1987. The use of the subject land for the stockpiling of gravel and aggregate is permissible with Council's consent. Prior to 2 October 1987 the land use was controlled by IDO 1 Shire of Hastings gazetted on 26 May 1967. Under IDO 1 the land was zoned 2 Village or Township. The zoning also permitted stockpiling with consent. It is common ground that the Council has not consented to the use of the subject land for the purpose of stockpiling gravel, sand and aggregate. The Council asserts that the use is unlawful and asks that the respondents be restrained from continuing to use the land for that purpose without first obtaining the necessary consent. Although the respondents originally claimed an "existing use" right under s 107 of the Environmental Planning and Assessment Act, it is clear that because there is an entitlement under the relevant planning scheme to use the land for stockpiling with Council's consent, the entitlement of the respondents must be found in s 109 of the Act. At the time of coming into force of IDO 1 and Hastings LEP stockpiling was a permissible, and not prohibited, use. Accordingly, the entitlement of the respondents derives, if it derives at all, from the fact that on 26 May 1967 the stockpiling was not unlawful and that it has continued since that time. The Council concedes that if stockpiling of gravel, sand and aggregate was relevantly a use in 1967, any rights created by the Environmental Planning and Assessment Act pursuant to s 109 are not lost by reason of the amendments in 1985 to s 109. In 1985, s 109 of the Environmental Planning and Assessment Act was amended to overcome the perceived disadvantages to planning consequent upon a series of decisions of the High Court (The Council of the City ofParramatta v Brickworks Limited 128 CLR 1, Norman v The Council of the Shire of Gosford & Anor 132 CLR 83, and Eaton & Sons Pty Limited v The Council of the Shire of Warringah 129 CLR 270). It would appear that the amendments to s 109 were intended to bring s 109 entitlements into line with the protection accorded to existing use rights protected under s 107 (see Baulkham Hills Shire Council v O'Donnell 62 LGRA p 7 for a discussion of the meaning and effect of the amendments to s 109). In the present case, the circumstance that the entitlement arises, if it arises at all, under s 109 is of greater advantage to the respondents than if it had arisen as an existing use right protected by s 107. The statutory limitations since 1 February 1986 on rights created by s 109 do not have retrospective effect (see Lane Cove Municipal Council v Lujeta Pty Limited 58 LGRA 157). Accordingly, in the present case the issues are whether stockpiling was relevantly a use of the subject land (being Lots 34, 35 and 38) in May 1967 and, if it was, whether that use has continued. In the latter regard it is not submitted by Council that the protection afforded by s 109 is lost because of the intensification of use because if intensification occurred, it occurred prior to 1 February 1986. The Council's claim is that with respect to Lot 34 the use of the land for stockpiling was discontinued in 1971 and replaced by a use for the purpose of manufacturing prestressed concrete beams. Whether the concrete beam manufacturing use constituted an abandonment of the stockpiling use is essentially a question of fact to be determined by reference to whether a new planning unit or new planning history began in 1971 (see Pioneer Aggregates (UK) Limited v Secretary of State for the Environment & Ors 1985 AC 132). It would seem to me that if existing use rights attached to Lot 34, the use of a very small part of it for a bed for the manufacture of concrete girders would not have relevantly broken the continuity of use. However, because I am not satisfied there is any existing use entitlement, for reasons which I will presently explain, the question does not arise. In 1962 an area of approximately 50 acres was subdivided into 12 residential allotments and a residential allotment being Lot 13 of approximately 44 acres (see DP 217318). The subject land and Lot 33 was included but not separately identified in residential Lot 13. In January 1965 the land was further subdivided. Residential Lot 13 in DP217318 was subdivided to create residential Lots 16, 17 and 18 and a residual Lot 19 of approximately 18 acres (see DP224972). What are now Lots 34, 35, 38 and Lot 33 were included but not separately identified in residual Lot 19. In October 1965 residual Lot 19 in DP224972 was subdivided to create a further 16 residential lots of about 30 perches each, one lot (Lot 33) of approximately one acre and residual Lot 36 of approxiately 2 acres. Lots 34 and 35 were created and what is now Lot 38 was included but not identified in Lot 36 (see DP227884). DP227884 recorded the dedication of Princess Avenue, a street approximately 66 feet wide and being U-shaped joining Rocks Ferry Road at its northern and southern ends. In June 1970 residual Lot 36 was further subdivided into three residential lots (being Lots 38, 40 and 41) and one residual lot of approximately one acre (DP239601). Evidence Mr Hayes has sworn two affidavits. He is a director of and controls both respondents. Until 1972 he was the manager of the business which was being carried on on on the northern side of Rocks Ferry Road and about 300 metres from the nearest part of the subject land. In his first affidavit Mr Hayes deposed generally that when the subdivisions creating Lots 35, 34 and 38 ie those created in 1975 and 1970, were "going through", he used the subject lots for stockpiling. He said that in 1970 he leased part of Lot 34 and Lot 33 to Mr Richards for the construction of a concrete pad for manufacture of prestressed bridge girders. In his second affidavit he said that Lots 38, 34 and 35 had been in fact used for stockpiling since 1961 and that he had some loose arrangement with Mr Trotter, the former owner of the subject lots, pursuant to which he undertook to assist Mr Trotter to construct Princess Avenue. He said that in the course of that activity he stockpiled on the subject land. He said that in 1973 Mr Trotter tra nsferred the subject land to his companies in lieu of payment for work done. Mr Hayes' evidence is supported by Mr Ireland who said that between 1962 and 1974 he carted gravel for Mr Hayes from stockpiles on "land around the plant which I understand is Lot 38 and ... Lots 34 and 35". He said that stockpiling was being undertaken on all lots prior to the construction of Princess Avenue. The evidence of Mr Hayes and Mr Ireland is in direct conflict with that of Mr Phillips and Mr Thompson. Mr Phillips lives in Princess Avenue right opposite Lot 38. He says that he built his house in 1966 and at that time Princess Avenue had not been created and there was no stockpiling on the subject land. He said that although Princess Avenue was constructed some time after he built his house in 1966, no stockpiling occurred on the subject land until about 1970 and he fixes that time by reference to the birth of his daughter. Mr Thompson does not state when the stockpiling began. However, he said that there was no stockpiling until after Princess Avenue had been constructed. As far as I am able to discern, the construction of Princess Avenue probably commenced some time in 1966. The onus is on the respondents to establish existing use rights. In my opinion, the onus has not been discharged. The evidence of Mr Hayes is extremely vague which is somewhat surprising in view of the fact that it was his companies that undertook the work associated with the construction of Princess Avenue and it was his companies which stockpiled the material. Mr Hayes was in charge of the activities of both companies until about 1972. Mr Phillips was criticised by Mr Green, on behalf of the respondents, on the ground that he might be biased in view of the fact that he objects to the nuisance created by stockpiling. I have had regard to the circumstance that both Mr Phillips and Mr Thompson find the stockpiling activity offensive. Nonetheless, I have formed the firm impression that their evidence is reliable. Mr Phillips is able to fix both the construction of Princess Avenue and the commencement of stockpiling by reference to the building of his house and the birth of his daughter. Mr Thompson's memory of the events is not as good as Mr Phillips but he is correct, I think, in asserting that the stockpiling did not commence until after Princess Avenue was constructed. It follows that I do not accept the evidence of Mr Ireland that material was stockpiled on the subject land before Princess Avenue was constructed. In my opinion, Mr Hayes and Mr Ireland are mistaken in their recollection of when the stockpiling commenced. It follows that I am not satisfied that the respondents have discharged the onus of establishing existing use rights. Furthermore, the surrounding material available to the Court from Council's files is of some assistance in the resolution of this matter. In a report from the Shire Health Surveyor dated November 1970 to the Council, reference was made to the unauthorised stockpiling. The Health Surveyor was actually reporting into the erection of unauthorised buildings located next to the gravel crushing plant in Rocks Ferry Road. However, the report also said: "During this inspection it was noted that beside the general untidiness of the areas used by this firm (ie Hastings Sand and Gravel) there has been additional areas used for the storage of graded material especially in front of dwellings erected in Princess Avenue which has affected their outlook over rural grazing land, plus the construction of a large concrete pad which is understood will be used for industrial purposes". The reference to the dwellings in Princess Avenue and to the large concrete pad for the industrial purpose makes it clear that the "additional areas" referred to were Lots 34, 35 and 38. The Council's records reveal that after receiving the report referred to above, the Council's officers had meetings with Mr Hayes and he was requested that no further gravel be dumped on the "southern side of Princess Street" (the subject land) and that the existing stockpiles be removed. In my opinion, the records of the Council are capable of raising the inference that stockpiling on the southern side of Princess Avenue (ie the subject land) first took place in or about 1970. For the above reasons, I am not satisfied that Lots 34, 35 and 38 were physically used for stockpiling in May 1967. Furthermore, I am satisfied that Lots 34, 35 and 38 were relevantly used for the purpose of stockpiling in or about 1970. Because there has been no claim that the use of Lot 33 is unlawful, I am prepared to assume for the purpose of these proceedings that part of Lot 33 was used for stockpiling in May 1967. But even if part of Lot 33 were used for that purpose, it would not follow that lots 34, 35 and 38 were being used for stockpiling. First, because there is no material in the proceedings which persuades me that at that time it was intended to use Lots 34, 35 and 38 for stockpiling purposes. To be accorded the protection afforded by Part IV of the EP & A Act there must have been a present, though not necessarily physical, use of the land. The circumstance that part of Lot 33 was used for stockpiling in May 1967 (as I am prepared to assume) does not of itself raise any inference in favour of th e respondent's use of Lots 34, 35 and 38. As at May 1967, Lot 33 was a separate lot having been created (together with Lots 34 and 35) in 1965. As at May 1967, the evidence reveals no connection between Lot 33 and the lots to the west (being Lots 34, 35 and later 38) except that they were in common ownership. For the abovementioned reasons and in accordance with the principles established in Brickworks, Norman and Eaton I am of the opinion that the respondents have not established existing use rights. Accordingly, the present use of the land for stockpiling is unlawful. The respondents ask that any order made by the Court be suspended for one year to allow them time to relocate or to make application to the Council for consent. The Council did not oppose the application. I propose to suspend the operation of the order for a period of 12 months to allow the company to relocate its stockpiles or to make an application to the Council for consent. Accordingly, I make the order that the respondents and each of them be restrained from continuing to use the subject land for stockpiling without first obtaining the consent of the Hastings Municipal Council as required by the Environmental Planning and Assessment Act. I order that the operation of the above order be suspended for a period of twelve months from the date of p ublication of this judgment. I order the respondents to pay the Council's costs of the proceedings. 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.