Council of the City of Townsville v Blower [1993] QPEC 7

'• El ·12 ·rrr s·r::-- .~~:~~~..,l lif State Reporting Bureau 'i ,.) TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) PLANNING AND ENVIRONMENT COURT JUDGE O'SULLIVAN P&E No 1 of 1993 COUNCIL OF THE CITY OF TOWNSVILLE and STEPHEN BLOWER BRISBANE .. DATE 12/02/93 JUDGMENT 1 Applicant Respondent -- 1 of 9 -- 120293 mmb/at (O'Sullivan DCJ) HER HONOUR: I publish my reasons. The orders I make will be the orders set out at the bottom of page 6 and at page 7 of my reasons. JUDGMENT 2 10 20 30 40 50 60 -- 2 of 9 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT TOWNSVILLE QUEENSLAND No. 1 of 1993 BElWEEN: AND: COUNCIL OF THE CITY OF TOWNSVILLE Administration Building, Walker Street, Townsville in the State of Queensland Applicant STEPHEN BLOWER of 53 Twelfth Avenue, Railway Estate, Townsville in the State of Queensland Respondent REASONS FOR JUDGMENT - O'SULLIVAN D.C.J. Delivered the 12th day of February, 1993 This is an Application by the Council of the City of Townsville for an Order that the Respondent be restrained from contravening or failing to comply with the provisons of the City of Townsville Town Planning Scheme in carrying out a prohibited use of land namely Light Industry (Contractor's Yard) on land situated in the Residential "D" Zone. The land is located at 53 Twelfth Avenue, Railway Estate, Townsville ("the land"). -- 3 of 9 -- 2 The Respondent carries on a business called "Chop 'n Chip Tree Fellas" ("the business"). He admitted in Affidavit material that he carried on this business on the land until 2 November, 1992 when he was visited by an employee of the Respondent. He denied that he has since carried on the business on the land. The Respondent read various Affidavits by Mr Kenna, a Technical Officer, Planner employed by it; by Mr Gopal, a Town Planner employed by it, and by a number of residents who live near the land. Some of these persons also gave oral evidence and were cross- ) examined. They described what they had seen and heard on the land, the footpath, the road reserve and the road in front of the land. Mr Blower denied that many of the activities described by the residents had taken place, and it is therefore necessary for me to assess the credit of the depondents and witnesses, and to make findings of fact. Based on all the evidence, I make the following findings of fact: 1. A quantity of woodchip and mulch has been on the land. 2. Activities have taken place on the land involving the use of machinery, equipment, a Bobcat, chainsaws and trucks. 3. There has been loading and unloading of woodchip on the land. 4. There has been lifting and movement of logs on the land. 5. Logs have been moved onto and off the land. 6. Woodchip and wood have been moved around the land at various times, including but not restricted to, the weekend of 5 -7 February 1993 when they were used for the purpose of landscaping of the land. 7. There has been chopping up of logs and wood on the land. ) -- 4 of 9 -- 3 8. Trucks have entered and left the fand carrying branches and other materials. 9. The premises on the land have been used for telephone, secretarial and adminstrative purposes associated with the business. 10. The activities of employees of the business have been co-ordinated at the land. 11. Vehicles used in connection with the business have been parked and stored on the land. Since November 1992, the incidence of this has declined, largely because the vehicles have been parked and stored on the footpath, road reserve and road in front of the land. 12. Some equipment used in connection with the business has been stored on the land; some was moved from the land on the week-end 5- 7 February, 1993. I find that, except where indicated, these matters continued to the date of the hearing of this application, 9 February, 1993. I consider that the evidence does not establish that it is more probable than not that woodchipping and mulching have taken place on the land. It may be that they have taken place on the foothpath or road reserve in front of the land, but I make no specific findings as to this. I make no findings of fact concerning the parking of vehicles on the foothpath, road reserve or road in front of the land because these are areas over which I have no jurisdiction. They do not form part of the land and thus do not come within the Zones set out in the Respondent's Town Planning Scheme. I was referred to various By-laws of the -- 5 of 9 -- 4 Respondent which it was submitted governed the uses complained of by the Respondent and the residents on the foothpath, road reserve and road.I consider that these areas are not within the purview of the Respondent'sTown Planning Scheme. Even if these uses are incidental to and necessarily associated with the business, they are not uses of the land. ... Whether offences have been committed and legal action is open to the Commissioner of Police, Department of Transport or other bodies, pursuant to the Respondent's By-laws ,or other Acts or Regulations, ) are not matters which are relevant to the granting of a restraining order under section 2.24 of the Local Government (Planning and Environment) Act 1990-1992 ("the Act"). I consider that these ,J matters are not within the words "contravenes or fairs to comply with a provision of a planning scheme" as used in sub-sections 2.23 ( 1) and 2.24 (4) of the Act. I consider that the findings I have listed above as items 1-12 support the conclusion that the land has been used, and continues to be used, 1J for the purposes of the business. Pursuant to the Respondent's Town Planning Scheme, the business is 17 a Light Industry, and thus prohibited in the Residential "D" Zone. I am satisfied that the Respondent has contravened or failed to comply with a provision of a planning scheme, continues to do so, and thus has committed and continues to commit an offence under section 2.23 of the Act. -- 6 of 9 -- 5 The issue then becomes whether it is appropriate to remedy or restrain that offence. This is a matter for the discretion of the Court. The factors which ought to be taken into account were considered by the Court of Appeal in NRMCA (Qld) Ltd v Andrew (1992) 75 LGRA 64, adopting A.C.R. Trading Pty. Ltd. v Fat-Sel Pty. Ltd. (1987) 11 NSWLR 67. These include practical inconvenience attendant upon the grant of an injunction, whether or not there were complaints in the neighbourhood, whether persons who complained were residents of the area, whether the activity complained of was causing damage and the length of time during which it had been carried on. There was evidence that Mr Blower was requested by letter from the Respondent to do certain things which may be summarized as: ceasing chipping and mulching, ceasing storage of vehicles and removing signs. Mr Blower said that he had attended to all these matters, and the evidence largely supported this although the storage of vehicles is less clear than the other two activities. There was evidence that a contract of sale for the land has been signed by the owner, Mr Blower's sister. The nominated date for settlement is 8 March, 1993. The date for the payment of the deposit is 17 February, 1993. Mr Blower gave evidence that he intends to move the telephone to premises at 111 Tully Street, South Townsville. He intends to move the vehicles associated with the business to land at Roseneath, Townsville which he and his sister have purchased. The contract shows the date -- 7 of 9 -- 6 for completion as 19 January 1993. Mr Blower plans to construct certain facilities on the Roseneath land which are necessary for the business. I consider that the parking of vehicles on the foothpath, road reserve and road, and the noise associated with loading and moving them, are the activities which have caused greatest annoyance, and possibly danger, to the residents. As I have already said, these are not matters which can be made the subject of a specific restraining order. It may be of course that if a restraining order is issued that the use of the 0 business on the land cease forthwith, then one would expect that the practical effect of such an order might be that vehicles associated with the business might not continue to be parked in these areas. I accept the evidence of the Respondent that the materials which have been on the land for some time were substantially used in landscaping of the land on the week-end of 5-7 February, 1993. G I am satisfied that the use of the land is unlawful and prohibited by the C relevant provisions of the Respondent's Town Planning Scheme. ( Taking into account the factors which are relevant to the exercise of " my discretion, I have reached the view that the Respondent ought to be restrained from conducting the use of land at 53 Twelfth Avenue, Railway Estate as Light Industry (Contractors Yard). I order that an injunction issue forthwith to restrain the Respondent from carrying on the business of "Chop 'n Chip Tree Fell as" on the land -- 8 of 9 -- 7 and all activities whatsoever associated therewith including, but not limited to, the parking and storage on the land of all vehicles used for the purposes of that business (except two vehicles used by the Respondent and his sister, Christine Ellen Blower) ; the use, repair and storage of all machinery and equipment associated with that business; the provision of telephone, secretarial and administrative services for that business. I further order that the injunction be suspended until 17 February 1993 or such later date as may be ordered by the Court following application (if any) for such extension of time, except insofar as it concerns the provision of telephone, secretarial and administrative services, in which respect the injunction shall be suspended until 8 March, 1993 or such later date as may be ordered by the Court following application (if any) for such extension of time. I grant the parties liberty to apply. -- 9 of 9 --