Land and Environment Court of New South Wales CITATION : North Sydney Municipal Council v J F McLean Investments Pty Ltd & Anor [1988] NSWLEC 26 APPLICANT North Sydney Municipal Council PARTIES : FIRST RESPONDENT J F McLean Investments Pty Ltd SECOND RESPONDENT Tiptop Smash Repairs Pty. Ltd FILE NUMBER(S) : 40205 of 1988 CORAM: Bignold J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979. Warringah Shire Council v. Sedevcic (1987); CASES CITED: North Sydney Municipal Council v. Clarke and Walker Pty. Ltd. (1988); Holroyd Municipal Council v. Attard (1988); Strathfield Municipal Council v. Alpha Plastics Pty. Ltd. & Ors. (1988). DATES OF HEARING: DATE OF JUDGMENT: 10/14/1988 LEGAL REPRESENTATIVES: JUDGMENT: Bignold J.: In these class 4 proceedings the Applicant claims an injunction against each of the two Respondents in respect of the use of the rear portion of residential premises situate at No. 49 Sinclair Street, Crows Nest (owned by the 1st Respondent) for purposes other than for the purpose of a dwelling-house. Although the injunctions sought are very broadly framed the particular use of the rear portion of the aforesaid premises which has prompted the Applicant to commence these proceedings is the parking of motor vehicles on the land in circumstances where that activity is clearly related to the use made of the adjoining premises No. 1 Bruce Street, Crows Nest (owned and operated by the 2nd Respondent) as a motor vehicle smash repair business. The evidence indicates that the motor vehicles so parked are motor vehicles which fall into one or more of four categories - (i) motor vehicles awaiting repairs which are carried out in the aforesaid adjoining premises owned and operated by the 2nd Respondent; (ii) motor vehicles awaiting collection by their owners after such repairs have been completed; (iii) motor vehicles owned by the management or working personnel of the smash repair business; or (iv) motor vehicles owned by friends of Mrs McLean the Managing Director of both the 1st Respondent (as owner of premises No. 49 Sinclair Street) and of the 2nd Respondent (as owner of the business conducted at premises No. 1 Bruce Street). The evidence establishes that the highest number of motor vehicles observed so parked at any one time on the occasion of inspections carried out on behalf of the Applicant is 11. The evidence also establishes that on each of the aforesaid inspections (there was evidence of 7 inspections between 22nd September, 1986 and 3rd August, 1988) the majority of the cars so parked were not in a smashed condition. The Respondents concede that the parking use made of the rear portion of No. 49 Sinclair Street is a prohibited use in terms of the applicable environmental planning instrument, ie the North Sydney Planning Scheme Ordinance (prescribed in 1963). Under that Scheme the property is zoned Residential 2A. In that zone the Scheme absolutely prohibits inter alia, the following purposes for which land may be used - car repair stations, commercial premises and industries other than home industries. The premises at No. 1 Bruce Street upon which the 2nd Respondent conducts the smash repair business is, in common with other lands forming a strip along either side of the Pacific Highway from St. Leonards to the Crows Nest Public School, zoned Business (Services) 3(e) under Interim Development Order No. 60 - Municipality of North Sydney. Within that zone the planning instrument permits (with the consent of the Council) a number of specified uses being generally either commercial or residential in character. However it is common ground that the smash repair business conducted by the 2nd Respondent is not so permitted and it is common ground that it continues as an 'existing use' within the meaning of Division 2 of Part IV of the Environmental Planning and Assessment Act 1979. The evidence establishes that that business has been conducted on the premises for some years prior to 1962. Those premises are physically developed by a single storey factory building which apparently occupies the entire site. The 2 Respondents are related Companies apparently in the control of Mrs Joan McLean who is a director and shareholder with her three daughters of the 1st Respondent and is a director and shareholder with her son-in-law of the 2nd Respondent. Mrs McLean purchased No. 1 Bruce Street in 1970 from the then owner Mr Tumiotto. At the time of her purchase the rear portion of No. 49 Sinclair Street was being used for the purpose of parking cars. That use has continued up to the present time. Mr Tumiotto, the previous owner of No. 1 Bruce Street, had owned the property since 1968. He had worked as a panel beater at the premises since 1962 and when he purchased the premises in 1968 he became a part owner of the business. In 1967 Mr Tumiotto had purchased the adjoining residential premises No. 49 Sinclair Street and he resided in the dwelling-house erected thereon. During his occupation of the Sinclair Street premises he parked cars in the rear portion of the premises, being cars owned by himself, his family, his friends and persons who wanted work done on their cars at the adjoining smash repair premises. In 1977 Mr Tumiotto sold the Sinclair Street premises to the 1st Respondent. The evidence does not indicate whether Mrs McLean ever occupied the dwelling-house erected on the Sinclair Street property. It appears that that dwelling-house has been occupied by successive tenants. The evidence establishes that the dwelling-house is currently leased to Mr Philip Hudson who has resided there for the past 18 months. Mrs McLean gave evidence. She has worked at the business conducted by the 2nd Respondent at No. 1 Bruce Street since 1970 being engaged in the general office work. She currently works there 2 or 3 days per week. One of her daughters does the office work on the other 2 days of the week. She gave evidence that she believed that if the 2nd Respondent could not continue to use for the purpose of parking the rear portion of the Sinclair Street premises there would be severe detrimental economic consequences for the business. The denial of that continuing use, would in her opinion, necessarily lead to a reduction in the output of the work conducted by the business. She envisaged that staff numbers would need to be reduced and she did not know whether the business would thereupon be viable. This was because of the lack of space in the building erected at No. 1 Bruce Street to accommodate at the same time vehicles under repair and vehicles awaiting repairs or vehicles already repaired and awaiting collection by their owners. She did not think it feasible to make alternative arrangements to the existing parking use made of the rear of the Sinclair Street premises. Under cross-examination she indicated that the number of cars worked on at any one time in the Bruce Street premises would be 8 or 9 and possibly up to 12. The 2nd Respondent employed a Manager who was a panel beater and hired 3 permanent contractors (rather than employees) two being panel beaters and the other being a spray painter. 60-70% of the business involved insurance work which involved the damaged cars being assessed for insurance purposes before repairs were undertaken. The average repair job would take 3 days. No repair work was carried out on vehicles while they were parked at the rear of the Sinclair Street premises. Affidavit evidence was given by 4 residents of nearby residential properties in Sinclair Street (including the tenant of No. 49) that they have been aware for some years that the business conducted by the 2nd Respondent had used the rear portion of the adjoining Sinclair Street premises for the purposes of parking vehicles. They each stated that they have had no reason to complain about any noise associated with the parking use and expressed the opinion that they did not consider the use to be unsightly. Finally they stated that they had no objection to the use continuing. Both Mr Tumiotto and Mrs McLean gave affidavit evidence that during their respective involvements with the 2 properties (spanning a total period of more than 20 continuous years) they had never received a complaint about the use. The Applicant's Director of Development and Planning Mr Nangle also gave evidence that from his study of the Council's file no complaint had apparently been received by the Applicant about the parking use. The Respondents called evidence from an experienced Town Planner Mr David Kettle. He prepared a written report (which was tendered in evidence) for the purpose of considering "the environmental impact of using part of the premises at No. 49 Sinclair Street for car parking purposes in association with the adjoining Tip Top Smash Repair business operating at No. 1 Bruce Street". His conclusions are set out in section 4 of his report and include the following:- "(i) The parking use "is not at all incongruous when considered in relation to other land uses in the vicinity". "Consequently the use of the land has created no environmental impact in comparison with the great number of cars parked elsewhere in the vicinity both on and off the street (paragraph 4.3); (ii) "......... the use of the land is acceptable from both environmental and community perspectives" (paragraph 4.7)." Mr James Nangle, the Applicant's Director of Development and Planning gave evidence for the Applicant. In his affidavit he stated that since the publication in 1981 of the document "North Sydney in Profile 1981" the Applicant has had a consistent policy of seeking to arrest the use of residentially zoned land for non-residential purposes (paragraph 14). He stated that the control of unlawful uses of residentially zoned land was "a frequent and persistent problem especially in residential areas on the fringe of commercially zoned land". The nature of the problem had led in recent years to the appointment by the Applicant of an "un-authorised Use Officer" whose principal function is to implement the Council's policies in relation to the un-authorised use of land. Mr Nangle conceded that "it may not be possible for Council always to point to particular impact on amenity from an unlawful use". Nonetheless he subscribed to the "strong public interest in maintaining the intregity of existing zonings". Specifically in relation to the un-authorised use of the rear yard of No. 49 Sinclair Street. Mr Nangle expressed the following opinion:- "The use of the rear yard of 49 Sinclair Street creates a conflict, in environmental terms, with the adjoining property. In my opinion there would be additional noise associated with the current use of the subject property compared to residential use. The appearance is also unsightly from the street. The current use of the subject property also precludes use of the land for the purpose for which it is zoned or the re-development of land for more dense residential use. As viewed from the street the current use presents as a commercial and industrial activity." To the extent that the issue of the environmental impact of the unauthorised use is to be determined on the basis of the expert planning evidence I prefer the opinions of Mr. Kettle. Evidence was given of the history of zoning proposals for the subject land and its environs since 1982 when the Applicant prepared its draft local environmental plan. Under that draft plan both the properties owned by the 1st and 2nd Respondent were, in common which land situate between the Pacific Highway and Sinclair Street and located between the Mater Hospital in the south and Oxley Street in the north, zoned 3(gi) ("a Mixed Commercial/Residential Transition" zone). That proposed zoning was however abandoned by decision of the Applicant in 1986 not to proceed with the proposed transitional zonings. Thereupon No. 49 Sinclair Street was proposed to be zoned Residential 2(c) being the zoning now proposed by the 1988 draft local environmental plan adopted by the Applicant as recently as 20th September, 1988. Evidence was also given of the effect of North Sydney Local Environmental Plan No. 41 (made on 1st February, 1985) which zoned certain land situate between the Highway and Sinclair Street in the block immediately to the north of the properties owned by the Respondents, zone No. 3(g1) "Commercial/Residential". The draft 1988 plan, if enacted, proposes to repeal LEP No. 41. Thus the planning zoning history of No. 49 Sinclair Street and its immediate environs indicates a confirmation of the residential zoning first instituted in 1963 by the North Sydney Planning Scheme. The Applicant naturally relies heavily on the statutory zoning and the relevant history of that zoning. It will be convenient if I now state in summary fashion my findings relevant to the question of the exercise of judicial discretion in this case whether to grant the injunction sought to restrain what is an admitted breach of the planning law or whether to withhold that injunctive relief. I shall first state my findings which operate in favour of the Respondents -- (i) the unlawful use has existed continuously for more than 20 years; (ii) in the period it has not been the subject of any known complaint from neighbours or others; (iii) the existence of the unlawful use first came to the Applicant's attention in September 1986 from which date the Applicant has sought the cessation of the use; (iv) the existence of the unlawful use causes minimal or negligible, if any, adverse environmental impact; (v) though contrary to the statutory residential zoning (both present and proposed) the unlawful use does not totally or substantially offend that zoning by virtue of the fact that the dwelling-house located on the subject property continues to exist and is used for residential purposes; (vi) further to findings (iv) and (v) the unlawful user by virtue of its nature (relatively passive use of accommodating parked motor vehicles) and scale and character (using only the rear yard of the residential property for car parking purposes) does not involve a serious or substantial commercial intrusion into the residential zoning; and (vii) the grant of an injunction requiring the cessation of the unlawful use is likely to have some adverse economic/livelihood effects on the Respondents although these have not been estimated or quantified with any precision or detail. On the other hand my findings which operate in favour of the Applicant are as follows -- (viii) The Applicant's planning policies since 1981 have been to protect and enhance residential zonings and developments in the Municipality; (ix) There policies are steadfastly opposed to commercial intrusions into residentially zoned lands; (x) The Applicant has sought to rigorously enforce its residential policies and in the present case, upon becoming aware of the existence of the unlawful use in 1986, has consistently sought its cessation; (xi) The continuation of the unlawful use has the effect of denying the opportunity for an intensification of the existing residential use of the subject property allowed for by the statutory zoning (both present and proposed); (xii) In seeking the enforcement of the planning law in this case the Applicant is seen to be acting as the proper guardian of the public rights created and conferred by planning law. The guidelines for the exercise of the statutory discretion conferred by s.124 of the Environmental Planning and Assessment Act are not in doubt. They have been conveniently collected and expounded in the judgment of the President in Warringah Shire Council v. Sedevcic (1987) 63 LGRA 361. Applying the established guidelines to the facts of the present case I have come to the firm conclusion that in the exercise of the statutory discretion I should decline to grant the injunctions sought. As the President observed at p.365 in Sedevcic there is only limited benefit in the exercise of that statutory discretion in a particular case to be gained by drawing upon previous decisions. However as the President pointed out consideration of previous cases may be particularly helpful in the achievement of a generally consistent application by this Court of the statutory discretion conferred by s.124 of the Environmental Planning and Assessment Act. In the course of argument particular attention was focussed on the strikingly similar factual situation found in my decision in North Sydney Municipal Council v. Clarke and Walker Pty. Ltd. (unreported 8th January, 1988), where I exercised the statutory discretion by declining to grant the injunction therein sought (instead granting qualified relief). I merely refer to that decision for the purposes of illustrating cases where the statutory discretion is exercised by declining injunctive relief. Other recent illustrations of the Court exercising its statutory discretion by declining to grant injunctions are to be found in Holroyd Municipal Council v. Attard (unreported 8th January, 1988) and Strathfield Municipal Council v. Alpha Plastics Pty. Ltd. & Ors. (unreported 27th July, 1988). I have also given consideration to the question whether on the proven facts some more qualified and limited relief is justified along the lines raised in the course of argument eg restricting the maximum number of motor vehicles to be parked at any one time or restraining the parking use in respect of smashed vehicles as opposed to vehicles repaired and awaiting collection by their owners. The proved facts indicate that the majority of the vehicles parked are vehicles already repaired or vehicles owned by the management or personnel of the business conducted by the 2nd Respondent. On these facts I do not think that limited injunctive relief is justified. If the facts were different or were to change (eg the parking use was principally for smashed cars awaiting repairs) different considerations may operate. For the foregoing reasons I order that the application be dismissed. The question of costs is reserved. Exhibits may be returned. 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