Council of the Shire of Mulgrave v Peterkin & Ors [1994] QPEC 1

IN THE PLANNING AND ENVIRONMENT COURT HELD AT CAIRNS QUEENSLAND P & E Application No. 3 of 1993 Before Row DCJ [Mulgrave Shire Council v. A.G.& S.J. Peterkin & Ors] BETWEEN: COUNCIL OF THE SHIRE OF MULGRAVE Applicant - and - ANTHONY GEORGE PETERKIN AND SHEILAGH JOYCE PETERKIN First Respondents - and - ROBERT JOHN GRIFFITHS AND PAMELA GAI GRIFFITHS Judgment delivered: Catchwords: Counsel: Solicitors: Hearing Date(s): Second Respondents REASONS FOR JUDGMENT 10/01/1994 - Cairns J.J. Haydon for the Applicant W.L. Cochrane for the Respondents MacDonnells for the Applicant Marino & Smith for the Respondents 10 January 1994 - Cairns -- 1 of 7 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT CAIRNS QUEENSLAND p & E Application No. 3 of 1993 BETWEEN: COUNCIL OF THE SHIRE OF MULGRAVE Applicant ANTHONY GEORGE PETERKIN AND SHEILAGH JOYCE PETERKIN First Respondents AND: ROBERT JOHN GRIFFITHS AND PAMELA GAI GRIFFITHS Second Respondents 10th January 1994 REASONS FOR JUDGMENT - ROW D.C.J. Delivered the 10th day of January 1994 - Cairns In this application, the Council of the Shire of Mulgrave (the applicant} seeks a declaration that the use of the subject is unlawful and prohibited by the Planning Scheme of the applicant. It is further alleged that the respondents have failed to comply with the order of the Court made on 30 July 1993 on five particular occasions, as is particularised in the affidavit material filed herein. The applicant seeks an order that the injunction, which was suspended until 12 noon on 23 November 1993, operate without suspension forthwith. Affidavit and oral evidence was adduced by the parties in relation to the various issues under consideration. The onus is on the applicant to establish the facts and matters alleged, which would warrant the making of the various declarations and/or -- 2 of 7 -- 2 orders as sought. The onus is, in those circumstances, on the applicant to establish that, in relation to the matters alleged or any of them, there has been a use of the land which is unlawful and prohibited by the Planning Scheme, and/or there has been a breach of the order of the Court made on 30 July 1993. As is not unusual in cases of this instance, there is a significant conflict between evidence led on behalf of the applicant, and that led on behalf of the respondents. The applicant's evidence relies on the evidence of Mr. Colley and Mr. Kuch, who are residents in the immediate locality of the subject land. Each has, over a period of time, made observations as to the nature and the extent of the activity which has been carried out on the subject land. Evidence on behalf of the respondents was called from Mr. Peterkin, who is one of the proprietors of the business conducted on the subject land. Mr. Griffiths, one of the lessors, gave evidence in relation to certain matters associated with the said activity on the land. In addition, evidence was given by two employees of the business conducted thereon, namely Ms. Warne, who is employed as a shop assistant and Mr. Dessent, who is employed in a capacity which requires him to carry out work in relation to the operation of the end loader and whose duties further include the making of deliveries to the various customers of the business. An application by the respondents, Griffiths, for the rezoning of part of the subject land to permit the mixing of potting and garden mix was lodged with the applicant on 18th August 1993. No decision has been made thereon. -- 3 of 7 -- 3 Mr. McDonald gave evidence relating to one particular incident wherein he alleges that on 15 August he met Mr. Peterkin at the business premises and made some observations as to what was being carried on at that time. He says that at that time the business was closed and there was no manufacturing of material being carried out at that particular time. He is somewhat independent of the parties. In assessing the evidence of the various witnesses, consideration ought to be given to other extraneous or independent matters which may provide some assistance in determining the reliability or force to be given to any of the evidence. Photographs taken by Mr. Colley were propounded as being of some significance. However I am not satisfied that they do provide any basis, whereby the evidence given by him becomes more probable than not in the circumstances. To the contrary, the photographs, Exhibit PAC1, support the proposition that at that time mixing of material was not taking place. The evidence of Mr. Peterkin, in my opinion, does, in relation to the photographs contained in Exhibit PAC1, establish that it is improbable that, on that occasion, there was mixing of materials as ~s alleged by Mr. Colley. The probability that mixing was being carried out whilst the sprinkler was operating is unlikely. thereto. I accept the evidence of Mr. Peterkin relative A matter which I regard of particular significance is that both Mr. Griffiths and Mr. Peterkin, once the order of the Court was made, clearly became aware of the terms and conditions, and of the significance of that order. The evidence of Ms. Warne and -- 4 of 7 -- 4 the evidence of Mr. Peterkin establish that express instructions were given to staff members in relation to the limitations imposed by the Court order for the manufacture of material, and that those instructions were further identified by the placing on what is described as the white board, of the limitations of hours and days which were ordered by the Court. That Mr. Griffiths was aware of those limitations is quite clear. His evidence, in my opinion, is most impressive in relation to his desire to ensure that the terms of the Court order were carried out. The fact that he, on 6 August 1993, was the recipient of a telephone call from Mr. Colley, and his reactions immediately thereto further fortifies the view that I hold as to the importance which he attached to the Court order and its terms. I have no doubt that his evidence, as to what transpired subsequent to the receipt of the telephone call, is accurate. The fact that an offer was made by Mr. Griffiths to Mr. Colley to go and inspect the land at that time, which offer was refused, is of significance. The evidence of Ms. Warne, having regard to the limitation of her hours of employment, relates only to one specific occasion, namely 14th September 1993. No mixing of garden mix, she says, was carried out during the hours of employment, that is 12 noon to 6 p.m. The evidence of Mr. McDonald confirms that no mixing of product occurred on the subject land on the evening of 15th August 1993. Whilst I find his diary note of very little assistance, the date of his written statement gives some credence to his evidence. -- 5 of 7 -- 5 Mr. Dessent was left in no doubt of the nature of the instructions given to him by Mr. Peterkin that on no account was any potting or garden mix to be prepared outside of the days and hours as ordered by the Court. He certainly did not give me the impression that he would be one who would act contrary to the specific and clear instructions given by his employers. Since about 13th October 1993, no mixing of material has taken place on the subject land. All garden and potting mix is not processed off site and delivered "mixed" to the business. The observations made by Mr. Colley and Mr. Kuch are to be understood having regard to the evidence of Mr. Peterkin. In addition to the manufacturing process it is established by the evidence of Mr. Peterkin that there is work which is done on site preparatory to the manufacturing process being carried out on the subject land, and that, in addition, cleaning up and/or transfer of material on site is part and parcel of the normal business activities, but not part and parcel of the manufacturing process. ( The photographs themselves, I am satisfied, do not establish a manufacturing process. As was pointed out by Mr. Exhibit PAC2 establishes activity preparatory Peterkin, to the manufacturing process, which, on that occasion, was to take place the following day. Mr. Peterkin was the operator of the end loader in the various photographs of Exhibit PAC2. He says that the photographs do not show a mixing operation. I accept this evidence. On all of the evidence, I am not persuaded by the applicant that there has been manufacturing carried out on any of these specific days as alleged. In those circumstances I am not ( -- 6 of 7 -- 6 satisfied that the applicant has established that there has been a use of the subject land which was unlawful and prohibited by the Planning Scheme, or that the respondents have failed to comply with the order of the Court made on 30 July 1993. Until the application for rezoning is finally heard and determined, be it by the Council or on appeal by the Court, I propose that the injunction which has been granted be further suspended until the final hearing and determination of the application for rezoning. I dismiss the application. I order that the injunction granted on 30 July 1993 be suspended until seven days after the final hearing and determination of the application for the rezoning of part of the subject land. I further order that, during the period of the suspension, the respondents be permitted to manufacture growing media for a maximum of three days per week for two hours at any one time, on Mondays and Wednesdays between 1.00 p.m. and 4.00 p.m., and Fridays between 9.00 a.m. and 12 noon. I make no order as to costs. -- 7 of 7 --