Council of the Shire of Pine Rivers v Dodt & Ors [1992] QPEC 19

) IN THE PLANNING & ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P. & E. Appln. No. 14 of 1991 BETWEEN: COUNCIL OF THE SHIRE OF PINE RIVERS Applicant NEVILLE RAYMOND DODT and ANNETTE DAWN DODT First Respondents AND: GRAHAM WILLIAM CHAPMAN and YVONNE ANN CHAPMAN Second Respondents REASONS FOR JUDGMENT - O'SULLIVAN, D.C.J. Delivered the f.~ day of Apr-i( 1992 The Council of the Shire of Pine Rivers ( "the Council") applies for a Declaration that the use of premises situated at 1300 Anzac Avenue, Kallangur ("the premises") described as Lot 2 and Lot 3 on Registered Plan No. 89150 ("the land") for a panel beating and/or spray painting workshop is unlawful. It also ·) applies for an order restraining the First Respondents (Neville Raymond Dodt and Annette Dawn Dodt) and, if necessary, the Second Respondents (Graham William Chapman and Yvonne Ann Chapman) from using the subject land for a panel beating and/or spray painting workshop. The land is zoned Residential "A" in the current Town Planning Scheme of the Council, which was gazetted on 14 May, 1988 ("the current Scheme"). The premises are presently used for motor vehicle repairs, which is a purpose for which premises may not be erected or used -- 1 of 11 -- ) 2 in the Table of Zones of the current Scheme. Repairing, servicing or modifying motor vehicles is within Appendix 10 in the definition of "Service industry" in the Definitions Part of the current Scheme. "Use" is referred to ( but not defined) in Part 1 of the current Scheme as follows: "The term includes: (i) In relation to land, the carrying out of excavation work in or under land and the placing on land or any material or thing that is not a building or other structure; and (ii) Any use which is ancillary to the lawful use of the premises in question." A similar definition of "Use" is contained ins. 1 .4 of the Local Government (Planning & Environment) Act 1990. "Ancillary" is defined in Part 1 of the current Scheme as "incidental to, subordinate to, and necessarily associated with: The term refers only to activities conducted on the same site." Minutes of the Council of 9 September, 1958 indicate (without being clear) that approval was granted for "a vehicle body repair works". A letter from the Health and Building Inspector of the Council dated 10 September, 1958 was sent to Mr Chapman stating that the Council "offered no objection" to a "Vehicle Body Repair Workshop". -- 2 of 11 -- 3 The Council issued a Certificate of Approval of Buildings dated 30 April, 1959 in respect of Resub 2 (now Lot 2) to be a "Vehicle Body Repair Workshop". Re sub 3 ( Lot 3 ) was not included, consistent with its not being included in the Building Application Form. The Council did not have a Town Planning Scheme or Interim Development By-law until 1961. The 1961 Interim Development By- ) Law of the Council required some form of Permit to be issued by ) the Council. In the Council's 1965 and 1971 Town Planning Schemes the land was included in the Residential Zone. A "Vehicle Body Repair Workshop" fell within the purpose definition of "Light Industries" in which Paint Spraying Works and. Panel Beaters were prohibited uses. The provisions of this Scheme required entry of details of non-conforming uses on "The Register of Non-Conforming Uses". No such entry was made in respect of ) the land. ) On 14 May, 1988 the current Scheme was gazetted. Part 3 of the current Scheme deals with Existing Lawful Non-Conforming Uses. Clause 31(1) states: "A person may continue an existing lawful non-conforming use of any premises but such use shall not be changed to another non-conforming use except with the prior consent of the Council pursuant to clause 32 hereof." rt was not contested that there had never been registration of any non-conforming uses on the land. It was agreed that the Council had not granted any consent pursuant to clause 32. -- 3 of 11 -- ) ) ) ) 4 It becomes necessary to determine the use of the land as at 14 May 1988, the date of gazettal of the current Scheme. It was clear from the evidence that Lots 2 and 3 have been used together by Mr and Mrs Chapman, and are one unit. In Ipswich City Council v Vaughan (1986) 61 L.G.R.A. 34, the Full Court of the Supreme Court of Queensland held that it is not necessary that the whole of the land in question be used for a particular purpose in order to constitute a use of the land for that purpose, and that as a matter of law it was permissible to treat the three lots in that case as one. In Eaton & Sons Pty Ltd v 129 C.L.R. 270, Gibbs J. said Warringah Shire Council (1972) that if the land is rightly regarded as a unit, and it is found that part of its area was physically used for the purpose in question, it follows that the land was used for that purpose. This case was followed in City of Nunawading v Harrington (1985) 55 L.G.R.A. 139, in which the Full Court of the Supreme Court of Victoria held that where land may properly be regarded as an integrated whole it is not necessary to show that all of it is used for the given purpose. I am satisfied that Lots 2 and 3 are an integrated whole. Evidence as to the use of the land was given by a number of local residents, a number of employees of the Applicant Council and by Mr Chapman on behalf of the Respondents. All witnesses had sworn Affidavits, and all (except Mrs Cathcart) gave oral evidence. -- 4 of 11 -- 5 The witnesses differed markedly in their characterization of the use of the premises. The local residents based their opinions on their physical observations of the premises. Most had not been inside the workshop on the premises. The Council employees relied to a considerable extent on their observation of the premises while they were driving past. Mr Bottger had been inside the workshop while Mrs Chapman was a member of the Council. Mr Lowcock had been inside the premises on one occasion ) in the early 1970' s when he was inside for approximately 30 minutes. He said that at that time the workshop was set up as ) ) ) a sheet metal manufacturing shop. In their Affidavits some of the witnesses referred to it being "common knowledge" that the Chapmans used the land for certain activities. I accept that such evidence ought not be relied upon. I agree with the submission of Counsel for the Respondents that the Council witnesses' evidence was impressionistic and based on casual observation. Nevertheless it is entitled to be accorded some weight. I agree that the local witnesses largely had no factual basis for the opinions they expressed, but I do not consider that this can be said of all their evidence, and their evidence ought to be accorded some weight. Mr Lowcock, Mr Thomas and Mr Chapman tendered photographs, taken on different dates. I consider that Mr Chapman was in the best position to give evidence concerning the use of the premises as he and his wife ran a business from them from about 1958 until September/October 1990. Nevertheless, the facts contained in his Affidavit and -- 5 of 11 -- 6 oral evidence must be tested by an examination of the conflicts between his allegations and that of other witnesses. The evidence of Mr Chapman may be summarized in the following manner. As at 14 May, 1988 his firm specialised in stainless steel. They did not do any panel beating on trucks or cars, these having ceased in the late 60's, with a transition period from about 1960. Since about 1966 they specialised in ) stainless steel work on milk tankers and "considerable" other stainless steel work. About 50 per cent was involved with milk ) ) ) tankers and about 50 per cent was general sheet metal work. In his oral evidence he referred to stainless steel silo vessels for dairies, and in his Affidavit to beer kegs, wheelchairs, cattle crates and components for sewerage treatment plants. They did spray painting of milk tankers on some occasions. He understood that there is only a technique difference between sheet metal work and panel beating work. There was spray painting of chassis and various components. They made pipes and associated pipe fittings for installation on tankers. They did not work with mild steel as it and stainless steel do not like each other in the same atmosphere. steel tank repair They became very well known as a stainless contractor. Mr Chapman agreed that the description "sheet metal worker" was an accurate description of the activities conducted at the workshop premises. The milk tankers were separated from the prime mover and they repaired the tanker. The prime mover was taken away. -- 6 of 11 -- 7 They did general metal fabrication work as well as repair of milk tankers but they always gave the milk tankers No. 1 priority. Mr Chapman tendered a photograph album which he said showed that they had repaired numerous vehicles over the years from 1966 until 1988. On my perusal they are predominantly if not exclusively photographs of milk tankers. Some of these photographs show a sign "Sheet Metal Work, Vehicle Body Work and General Fabrication". Mr Chapman said that he obtained Council approval for the sign and paid a fee. Telecom Yellow Pages for the years 1966 to 1982 were tendered which show a listing under "Sheet Metal Worker". There were no entries for Motor Body Builders, Panel Beaters/Spray Painters. Mr Chapman's explanation for this was that they were very well known as a stainless steel tank repair contractor. Mr Chapman explained that there are many, many components to a milk tanker, including cleaning pipes, pumps, vacuum breakers, lids, mudguards and walkways which were fabricated at the workshop and fitted to prime movers or milk tanker trailers. Mr Chapman said that on average about 100 tankers per annum were involved. The accuracy of this figure was challenged by the local residents and Council employees. Mr Chapman explained that some of the tankers came in more than once per month, and that -- 7 of 11 -- 8 some of the repairs were minor and took from 10 minutes to an hour and a half and were done on the footpath or in the gutter. Mr Lowcock, a Technical Officer Town Planning in the employ of the Council, said that he had seen milk tankers on the land on occasions, which he defined as half a dozen times. Mrs Cathcart, who lives in Anzac Avenue opposite the subject land, saw tankers 3 or 4 times a year. Mr Thomas, who lives in a residence behind the subject land, saw an occasional milk tanker parked on the roadway in front of the premises. Mr Bolitho, who lives in a residence behind the subject land, said that milk tankers were repaired from time to time on the roadway outside the premises. Mr Bottger, Senior Building Surveyor with the Council, said he had seen milk tankers at the premises and parked on the road reserve outside the premises. Mr May, the Shire Clerk of the Council, said that he had seen milk tankers at the site on occasions. Most times they were parked wholly on the road reserve but sometimes partly on the subject land and partly on the road reserve. Mr White, who lives in a residence behind the subject land, said there were no more than 6 milk tankers a year (although he agreed in cross-examination that tankers could have been on the subject land while he was at work). Mr Chapman did not deny that the tankers were parked on the road reserve and on the roadway. In September/October, 1990 the Chapmans moved from the premises and they were leased to the First Respondents. They -- 8 of 11 -- 9 moved to larger premises at Dohles Rocks Road. The Dodts then used the premises for motor car repairs, including panel beating and spray painting. All the witnesses, other than Mr Chapman, denied that the premises had ever been used for a vehicle body repair workshop prior to 1990. They had different descriptions of the use. Mr McGrath described the land use as "metal manufacturing premises". Mr Lowcock referred to the business of "engineering sheet metal/ fabrication works". Mr Thomas described the use as "sheet metal workers, steel fabricators and light engineering with particular emphasis on stainless steel work". Mr Bolitho said he saw sheet metal work, structural steel work and general light engineering being carried out on the premises. Mr White spoke of a manufacturing business, making stainless steel pipes and fittings and repairing tanks and beer kegs. Mr May said that the Chapmans carried on the business of "sheet metal workers, steel fabrication and light engineering". Mr Bottger, who had the benefit of having been inside the workshop on the premises, said that the Chapmans were carrying on the business of sheet metal works, steel fabrication and light engineering, which included repairs and modifications to the stainless steel tankers of milk trucks. In Shire of Perth v O'Keefe (1964) 110 C.L.R. 529 the High Court said, at 535: -- 9 of 11 -- 10 "But at the outset it is necessary to observe that the 'existing use' by-laws take two steps which should be kept distinct from one another. First it is required that a purpose be identified as the end for which it can be seen that the premises are being used at the date of gazettal of the by-laws. Then the provision is made that the land may continue to be used for that purpose: not that the precise manner of use for that purpose may alone continue but that use generally for that purpose may continue. The application of the by-law in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date." The approach to be taken towards existing use rights has been the subject of much judicial discussion. Authorities state and I accept, that the rights should be as liberally construed as the language in its context allows: see for example Dorrestijn v South Australian Planning Commission (1984) 56 A.L.R. 295, 300; Parramatta City Council v Brickworks Ltd (1972) 128 C.L.R. 1, 25; Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 C.L.R. 138, 144; City of Nunawading v Harrington (1985) 55 L.G.R.A. 139, 144; North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 67 L.G.R.A. 344, 345 and 353. Counsel for the Respondents submitted that the appropriate level of abstraction of the use is "vehicle body repair workshop", the term used in the 1959 Certificate of Approval of Building. He submitted that this use has continued. He submitted that there has been a change over time in the type of vehicles repaired - from cars, to trucks to milk tankers, but this does not amount to a change of use. All are "vehicles". -- 10 of 11 -- 11 There has been a decrease in repairs of motor cars and trucks, and an increase in repairs of milk tankers. He cited City of Nunawading (supra) as authority for the proposition that the use to which land may be put and the activity on it may change, increase or decrease, so long as the same purpose is served. Counsel for the Applicant submitted that the use of the land as at 14 May, 1988 was sheet metal fabrication, with an incidental use being the repair of milk tankers. This use is different from the present use, whether that use is described as a vehicle body repair workshop, panel beating, spray painting or repairing, servicing or modifying motor vehicles. On the evidence as a whole, I find that as at 14 May, 1988 the land was used for stainless steel sheet metal work and fabrication involving milk tankers and other items. I find that use is different from the present use. There has not simply been a change in the type of vehicles being repaired. Lane Cove Municipal Council v Lujeta Pty Ltd (1986) L.G.R.A. 157 is therefore of no assistance. I accordingly make a Declaration that the use of premises situated at 1300 Anzac Avenue, Kallangur for a panel beating and/ or spray painting workshop is unlawful. -- 11 of 11 --