Botany Bay City Council v B.I.G. Transport Pty Ltd [2006] NSWCA 57

New South Wales Court of Appeal

CITATION: Botany Bay City Council v B.I.G. Transport Pty Ltd [2006] NSWCA 57

HEARING DATE(S): 24 March 2006

JUDGMENT DATE: 24 March 2006

JUDGMENT OF: Handley JA at 1; Ipp JA at 2; Tobias JA at 3

EX TEMPORE JUDGMENT DATE: 03/24/2006

DECISION: Appeal dismissed with costs

CATCHWORDS: LOCAL GOVERNMENT – development consent – conditions – consent orders – whether breach – construction of development consent – use of premises – whether premises used for "storage" or other use – distinction between "storage" and "use" of transport vehicles - WORDS AND PHRASES – meaning – "storage"

LEGISLATION CITED: N/A

CASES CITED: Auburn Municipal Council v Szabo (1969) 67 LGRA 427 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498

PARTIES: Botany Bay City Council B.I.G. Transport Pty Limited

FILE NUMBER(S): CA 40530/05

COUNSEL: A: P. Clay with R. O'Gorman-Hughes R: Alan A Hyam

SOLICITORS: A: Houston Dearn O'Conner, Burwood R: D C Chambers & Associates, Brighton Le Sands

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): LEC 40166/97

LOWER COURT JUDICIAL OFFICER: Pain, NHM

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40530/05 LEC 40166/97

HANDLEY JA IPP JA TOBIAS JA

Friday 24 March 2006 BOTANY BAY CITY COUNCIL v B.I.G. TRANSPORT PTY LIMITED Judgment 1 HANDLEY JA: I agree with Tobias JA. 2 IPP JA: I agree with Tobias JA. 3 TOBIAS JA: On 16 June 1978 B.I.G. Transport Pty Limited (the respondent) made an application to Botany Bay City Council (the appellant) for development consent with respect to the property Nos. 11-15 Clevedon Street, Botany (the premises) for what is described in paragraph 5 of the application form as "Storage & maintenance for our three prime movers & trailers in connection with our carrying business." 4 On 8 November 1978 the appellant resolved to grant "Town Planning consent" to the application subject to 24 conditions. The formal consent No.78-T-151 (the consent) was issued on 10 November 1978 in which the "Premises" were described as 11-15 Clevedon Street, Botany and which identified as the "Brief Description of Proposal" the "Storage and maintenance of 3 prime movers". 5 Of primary relevance to the present matter were Conditions 21 and 22 of the consent which were in the following terms: "21. All work carried out on the vehicles in the form of maintenance is to be conducted only within the building on the subject land. 22. The open areas within the subject land are only to be used for the storage and manoeuvring of company vehicles and cars mentioned in the application form and not for the storage of goods or materials of any other description." 6 In 1997 the appellant initiated proceedings in the Land and Environment Court against the respondent in which it was alleged that the latter had breached certain conditions of the consent. On 10 September 1997 that court, by consent, made a number of orders of which Order 3 is presently relevant (Order 3). It provided as follows: "The Respondent is forthwith restrained from breaching Condition 6, 21 and 22 of the Town Planning Consent." 7 In 2002 the appellant initiated contempt proceedings in the Land and Environment Court alleging that the respondent was in breach of Order 3. The respondent pleaded guilty to the charge and was fined. 8 On 21 February 2005 the appellant filed a Notice of Motion in the Land and Environment Court alleging that the respondent had again breached Order 3 and was thus guilty of contempt. The Statement of Charge was 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." 9 As the primary judge found the respondent not guilty of the first charge, and the appellant does not appeal against that finding, it can be put to one side. With respect to the second charge, the appellant's evidence, which was not in dispute, was that two of its officers observed that in addition to three prime movers and three trailers, the following further "goods and materials" were observed to be stored upon the premises on the dates referred to in the second charge: "(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 The primary judge found, and the appellant does not challenge, that there were on the premises on the relevant dates trailers with containers inside them, that pallets used to prop up the trailers were located on the premises and that the equipment for unloading the containers was permanently attached to the trailer and formed part of it. Essentially, the appellant's case before the primary judge was that there was a breach of Condition 22 of the consent because firstly, the open areas within the premises were being used for the storage of more than three trailers and, secondly, the trailers the subject of the second charge were not connected to a prime mover and were, therefore, being stored upon the premises by virtue of that fact. 11 In this respect, the evidence established that each of the trailers referred to in the particulars of the second charge were not, at the relevant time, attached to a prime mover. Some of the offending trailers were empty and some had a container located within it. 12 The respondent adduced evidence, which was accepted by the primary judge and not challenged on the appeal, that although its business involved the use of three prime movers, it also involved more than three trailers. In this respect, the business involved transportation of containers to and from the container depot at Port Botany to the premises of the respondent's customers. Once a container was collected from the depot, the trailer holding the container was delivered immediately to the customer. However, if immediate delivery was not possible, the driver of the prime mover would bring the trailer with its container to the premises where it would be parked temporarily until the customer was able to accept delivery of it. 13 In these circumstances, after parking the trailer (with its container) on the premises, the driver of the prime mover would return to the container depot with an empty trailer in order to collect another container for delivery. 14 The respondent's evidence further established that a container which was unable to be delivered to the intended recipient within a couple of days of being collected at the Port Botany container depot would be transferred in its trailer directly to the respondent's storage facilities at another location. However, if there were unexpected delays or traffic jams so that the trailer with its container was unable to be driven to those storage facilities, it would be parked upon the premises until the next morning and occasionally over the weekend after which it would be delivered to the customer. 15 The primary judge determined the matter upon the basis that none of the allegedly offending trailers were, on the relevant dates, being stored upon the premises. She therefore concluded that there was no breach of Condition 22. She accordingly found the respondent not guilty of the second charge and ordered that the appellant's Notice of Motion be dismissed. It is against that order that the appellant appeals to this Court. 16 Three grounds of appeal were identified in the Notice of Appeal with Appointment but the third was not pressed at the hearing of the appeal. Further, in argument the appellant confined its case to the storage of more than three trailers (with or without containers). It did not challenge the primary judge's findings with respect to the pallets referred to in [9] above.