Di Domenico & Anor v Hervey Bay City Council [2000] QPEC 21

The facts and circumstances relied upon by the Council were:-

(a) the land is zoned "Particular Development - Caravan Park" pursuant to Council=s Transitional Planning Scheme;

(b) the land is partly used for the purpose of a shop;

(c) any kiosk on site is restricted to the purpose of rendering services to travellers and tourists staying on the premises;

(d) no development permit has been obtained for the use of the land as a shop;

(e) the failure to obtain a development permit and/or to continue to operate the kiosk as a shop is a development offence.

[3] An enforcement notice was issued dated 9 March 1999. It required the appellants to refrain from committing Athe offence@, to stop the use of the site for the purpose of a shop open to the general public and to ensure that the development complies with the original town planning approval as prescribed - Particular Development - Caravan Park.

[4] The onus in this appeal rests with the Council. Section 4.1.50(5) is as follows:

AIn an appeal by a person who is given an enforcement notice, it is for the entity that gave the notice to establish that the appeal should be dismissed.@

[5] Originally the relevant local authority for the area was the Burrum Shire Council. On 1 July 1976 the area was transferred to the Woocoo Shire and then on 1 July 1982 the area was transferred to the Town of Hervey Bay. The Town Planning Scheme for the extended area of the City of Hervey Bay came into existence on 21 March 1985 (Government Gazette of 23 March 1985). Then on 29 March 1996 the current Hervey Bay Planning Scheme commenced.

[6] Before 27 April 1974 the site was not zoned. On 27 April 1974 an interim development by-law was gazetted. Section 3 of the IDB required that a person should Anot use any land ... within the town planning scheme area without first obtaining the consent of the Council so to do.@ The provisions of the IDB were continued in existence by virtue of successive Orders in Council until the 1985 Hervey Bay Planning Scheme commenced. Pursuant to that scheme the site was included in the Special Facilities - Caravan Park Zone. Then on 29 March 1996 the current Hervey Bay City Planning Scheme was gazetted and that scheme included the site in the Particular Development - Caravan Park zone.

[7] On 10 April 1974 the then owner of the site applied to the Burrum Shire Council for consent to use the site as a caravan park. The consent issued on 13 June 1974 and on 9 September 1974 building approval was given for the amenity blocks, laundry and office on the site. It has been used as a caravan park ever since, Di Domenico purchasing it in 1985.

[8] No planning approval has ever been given for the carrying on of the use of a shop on the site. When the caravan park was established it seems that there was also established a small kiosk on the site. However on 8 December 1989 Di Domenico applied for Council approval for the construction of a dwelling and shop and that building approval was given on 4 June 1990. The plans refer both to a Ashop@ and a Akiosk@. The Council's certificate of classification refers to a Ashop" of 38.7m². During the course of that application Di Domenico spoke to Mr. Orr, the Council=s building inspector and at Orr=s suggestion the entrance to the shop/kiosk was re-located from the street to a point within the site. I accept that one of Orr=s reasons for that was to discourage sales to the general public but I also accept that Di Domenico (whose English is even now not fluent) did not comprehend that and thought that it was simply to avoid the necessity to apply for a re-zoning of the site.

[9] I accept that since he bought the caravan park in 1985 Di Domenico, first from the kiosk and later from the new kiosk/shop, has sold convenience items not only to the patrons of the caravan park but to the public generally. He has done so openly. He has advertised his business in the local paper and by the use of footpath signs. Since 1991 the kiosk/shop has held a certificate of registration under the Council's Food Hygiene Regulations which classified the kiosk/shop as a "general food store". The annual certificate of registration since then has referred to it as a "Food Shop".

[10] Until 1988 when Mr. Matthews took up occupancy of a nearby shop in a newly developed and properly zoned business development, the caravan park kiosk/shop was the only convenience store in the general area.

[11] The affidavits of Mr. and Mrs. Clark (former proprietors of the caravan park) and Mr. and Mrs. Johnston establish that from at least May 1978 the kiosk at the caravan park has operated as a general convenience store, that is a shop. It must have been operating as such from some earlier date because when the Clarks took over the premises the shop was already established.

[12] Part III of the 1985 Scheme preserved existing lawful non-forming uses and s.4.3 of the 1996 Scheme has a similar effect. So the first question is whether the kiosk/shop is a lawful non-conforming use.

[13] The 1974 consent of the Burrum Shire Council was to use the site as a caravan park. There was no consent to use the land for any purpose which involved selling goods. The 1974 IDB defined "use" to include "any use which is incidental to and necessarily associated with the lawful use of the land in question". The Council concedes that the creation and use of a kiosk would fall into that category provided that the business of the "kiosk" be restricted to selling convenience items to residents of the caravan park and to their bona fide guests and visitors. It cannot, the Council argued, be the business of selling to the general public.

[14] It is clearly incidental to and necessarily associated with the use of a caravan park that the owner of the park should conduct premises from which to sell convenience items such as newspapers, milk, packaged food and drink etc., to its residents and their bona fide visitors. Indeed it seems to me that the proper range of items for sale would best be determined by the demand of the residents and the guests. For example, at a seaside caravan park, items such as fishing lines, bait, sunscreen lotions etc. would be legitimate commodities for sale. Perhaps premises of that type might best be described as a kiosk, a term which is defined in the Macquarie Dictionary as:

"a small light structure for the sale of newspapers, cigarettes etc; a building or part of a building for the sale of light refreshments as at a hospital, railway station, park etc."

although one is familiar with "kiosks" operating on a grander scale than that definition suggests. But in my opinion nothing turns on the name; rather the question is whether the kiosk/shop which Di Domenico conducts is "incidental to and necessarily associated with the use of the caravan park".

[15] This question can sometimes be a nice one, involving questions of degree. See Boral Resources (Qld) Pty Ltd v. Cairns City Council [1996] QCA 249; (1996) 91 LGERA 323 at 326-8. But here I think the degree or essence of the business carried on from the kiosk/shop goes clearly beyond what is incidental to the business of a caravan park. The business of a caravan park does not contemplate the attracting of retail custom from the general neighbourhood. And as Boral, holds at p.327 the use must not just be incidental to but also necessarily associated with that of the caravan park. There is no necessity for a caravan park to sell convenience items to the public generally.

[16] So in my opinion the maintaining of the Di Domenico shop/kiosk use is not a use within the description "incidental to and necessarily associated with" the maintaining of the caravan park use. It goes far wider and operates as a shop for which no consent was given in 1974 under the IDB, nor under the 1985 Planning Scheme (where the term "general store" would probably fit the kiosk/shop) nor under the 1996 Planning scheme where the term "local store" would probably describe it). I am thus unable to find that the kiosk/shop has ever been, or is now, an existing lawful non-conforming use. So none of the relevant Planning Schemes have ever extended protection to it.

[17] The Council has satisfied the onus of establishing that the appeal should be dismissed. (N.B. But see now the addendum which commences at para. [22].

[18] The lodging of the notice of appeal by Di Domenico had the effect of staying the operation of the enforcement notice, (IPA s.4.1.33(1)). An order dismissing the appeal would revive the enforcement notice (s.4.1.33(1)).

[19] Peculiar circumstances exist in this case. The prohibited kiosk/shop use has been in existence at least for over twenty years undisturbed by any objection from the Council or anyone else for that matter. It was not established by Di Domenico but by a predecessor in title. Di Domenico bought the caravan park in the belief that he could lawfully continue to run the kiosk/shop business, and has done so for fourteen years since. His belief has been encouraged by actions of the Council in issuing a certificate of classification and Food Hygiene Certificates in respect of his "shop". While the Council, in doing so was "wearing a different hat", not its "planning hat" and cannot be said to have issued the necessary planning approval, I am satisfied Di Domenico did not appreciate that. Nor would many others in his position. His evidence is that the kiosk/shop income is essential to the economic health of the overall business of the caravan park. Until last year there was no other convenience shop in the neighbourhood. So the kiosk/shop has been filling an obvious need, in the planning sense, for over twenty years. Had Di Domenico made the appropriate application to the Council (for re-zoning) under the Local Government (Planning and Environment) Act 1990 it is difficult to see how it could have been refused. Perhaps a development application under IPA would also be successful.

[20] I note in passing that had this been an application for an enforcement order under s.4.3.22 of IPA, I would be able to state the time by which the order is to be complied with (s.4.3.26(3)(b)). That could have given Di Domenico time to make a development application while continuing to run the kiosk/shop business. It might also give rise to the exercise of principles such as those discussed by Kirby JA in Warringah Shire Council v. Sedevic (1987) 63 LGRA 361.

[21] Because of the peculiar circumstances of the case I propose to defer giving my judgment for a brief period to allow those advising Di Domenico time to consider his position.

[22] Consequent on the delivery on 24 November 1999 of the above reasons Di Domenico applied to the Council for development approval in order to legitimise the operating of the kiosk/shop. That application was refused on 15 March 2000. In order to preserve his rights Di Domenico has filed a notice of appeal to this Court from that decision. The delay since I published my reasons has unfortunately been greater than I expected, caused by the length of time needed for Di Domenico to apply for development approval and for the council to consider it.

[23] Irrespective of that appeal, Mr Favell, for Di Domenico, has now submitted that notwithstanding the conclusion I reached in my earlier reasons (formal judgment having been deferred), I should exercise my discretion to relieve Di Domenico from the operation of the enforcement notice. Mr Connor for the Council submitted that I should not now allow argument directed to the exercise of my discretion, that any such argument should have been put at the original hearing. It is, of course, preferable that cases be not split but in the very odd circumstances of this case I decided to permit it. I then offered the parties the opportunity to call further evidence but they elected to base their arguments on the evidence already before me.

[24] Section 4.1.54 of IPA sets out the powers of this Court on appeal as follows:-

"4.1.54(1) In deciding an appeal the Court may make the orders and directions it considers appropriate.

(2) Without limiting subsection (1), the Court may -

(c) set aside the decision appealed against and make a decision replacing the decision set aside.

(3) If the Court acts under subsection (2)(b) or (c), the Court's decision is taken, for this Act (other than this decision) to be the decision of the entity making the appealed decision."

[25] The introductory words of that section, in the use of the permissive "may", make it clear that the Court retains a discretion when disposing of an appeal. That discretion is a wide one. See Warringah Shire Council v. Sedevic, above (at 364 per Kirby P.), a case that related to s.124 of the New South Wales Environmental Planning and Assessment Act 1979 which, relevantly, reads:-

"s.124(1) When the Court is satisfied that a breach of this Act has been committed ... it may make such order as it thinks fit to remedy or restrain the breach;

(2) Without limiting the powers of the Court under subsection (1) the Court may ........"

Thus the section is materially the same as s.4.1.54 of IPA.

[26] I was referred to some decisions of this Court under the provisions of s.2.24 of the Local Government (Planning and Environment) Act 1990 (for example NRMCA (Qld.) Ltd. v. Andrews (1991) QPLR 267). However they are of somewhat limited assistance because that section permitted "any person" to bring proceedings and it seems to be well settled that the discretion of the Court to interfere is rather broader when the proceedings are brought by a private citizen than when they are brought by a local authority or by the Attorney General. See, for example, Associated Minerals Consolidated Ltd. v. Wyong Shire Council (1975) A.C.538 at 559-60; Rowley v. Newcastle Leather Trading Co. Pty. Ltd. (1980) 46 L.G.R.A. 250 at 256. Section 4.3.11 of IPA restricts the bringing of the enforcement notice procedure to the assessing authority which may be, as it is here, a local authority. So the situation is akin to the intervention of the Attorney-General.

[27] In City of Prahran v. Cameron 1972 V.R.90 at 98, McInerney J. after referring to a considerable body of authority noted:

`In cases where the Attorney-General seeks an injunction to restrain illegal conduct the continuance or repetition of which affects the public generally ... it has been said that the courts ordinarily pay special regard to the fact that it is the Attorney-General who seeks the injunction. Indeed it has been said that the relief sought is refused only in exceptional circumstances.'

He pointed however to the decision of the Full Court of New South Wales in Attorney-General for New South Wales v. Greenfield 1961 N.S.W.L.R.824 and noted that the Court was not prepared to accept that doctrine in its unqualified form. The Court said (at 829):

`It is going too far to say that once a breach of Statute has been proved the Court must order an injunction or, at least, ought to do so, because the Attorney-General has brought the action in the exercise of his discretion. Although the bringing of the action is a matter for the discretion of the Attorney-General, the decision of it is for the Courts after hearing both sides, an advantage which the Attorney-General lacks.'

"A fortiori these remarks are applicable to applications instituted by a responsible authority under s.49(2) of the Town and Country Planning Act 1961."

[28] In the exercise of my discretion I will take into account all matters which have been advanced as relevant and bear in mind that I have had the advantage of having probably heard more than the Council did, certainly more from Di Domenico, (see Greenfield above). But I must also keep in mind the fact that the local authority is the elected body charged with the administration of the planning scheme and so it seems to me that something so compelling as to amount to exceptional circumstances would have to be found in order to deny relief to the local authority once a breach of the planning scheme has been found.

[29] I have found such a breach by Di Domenico. But despite that I have decided that the circumstances are so compelling, so exceptional, as to lead me to exercise my discretion in favour of Di Domenico.

[30] I set out the features which I take into account in reaching that conclusion:-

(a) The shop use has been in existence for over 20 years;

(b) The shop use was not begun by Di Domenico but by a predecessor in title, at least one removed from him;

(c) Di Domenico bought the caravan park believing that he could lawfully continue the shop use and has done so for 14 years in that belief;

(d) The continuation of the shop use is essential to Di Domenico's economic running of the caravan park;

(e) That shop has been the only local store in the area until October 1998, thereby filling a community (and planning) need for a very long period;

(f) Di Domenico has regularly applied to State and Council authorities for the necessary permits and certificates to run the shop. Indeed his building permit in 1990 (when he re-built and re-located the shop) required the Council to be satisfied of the planning lawfulness of the use. See Building Act 1975, s.30BA.

(g) At that time in 1990, he discussed the new building with the Council officer, Mr. Orr. Had Di Domenico properly understood Mr Orr, he could then have applied for and almost certainly have obtained, an appropriate re-zoning. While I accept that Mr Orr attempted to explain the planning difficulties, Di Domenico did not understand him because of his imperfect grasp of English. However the important point is that despite a Council officer having actually turned his mind to the question of planning lawfulness, the Council did not take any formal step to inform Di Domenico that it was unlawful to operate the shop as he was doing.

(h) A report to the Council dated 2 July 1997, on a proposed new shopping centre for the neighbourhood, expressly dealt with the activities of the Di Domenico shop. It made no reference to illegality, referring only to the commercial competition which would be provided by the Di Domenico shop. Again, despite actual Council attention to the fact that Di Domenico was operating a shop for the public generally, the Council took no action for a further period of about 18 months, when it issued the show cause notice.

(i) Even if Di Domenico now restricted the shop use to one which is merely ancillary to the caravan park use (which would be lawful) it would inevitably still attract some outside custom so that breaches of the planning scheme, unintended by him, would be committed;

(j) No adverse effect on the general public because of the operation of the Di Domenico shop has been demonstrated;

(k) The only identified person who is adversely affected by the shop use is Mr. Matthews, the proprietor of a local store which opened in October 1998. I consider that Mr. Matthews must have taken into consideration the existence of the Di Domenico shop when deciding to commence business. I do not accept that Di Domenico, in an oral and apparently casual conversation, would have expressed an intention to cease the shop use, thereby misleading Mr. Matthews;

(l) It is noteworthy that s.4.3.11 under which the Council issued the enforcement notice, itself gave to the Council a discretion to do so irrespective of its belief that there had been a breach of the planning scheme. Thus the legislation does not make the issue of an enforcement notice an automatic consequence of the breach and must be taken to have left to the Council the discretion to consider all of the circumstances, such as those in this para [30].

[31] A submission of weight made by Mr. Connor was that an appeal having been lodged by Di Domenico against the Council's refusal of his application for development approval, the interests of justice would better be served by allowing that appeal to proceed. But it seems to me that the submission rather misses the point. I have concluded that the dictates of fairness and justice are so moved by the exceptional circumstances set out in para. [30] as to lead to an exercise of the Court's discretion in his favour. An appeal against the refusal of his development application would lead to the expenditure of considerable time and money (opposition to the appeal being likely) and would be heard and determined on planning principles in which discretion, based on principles of fairness and justice, would play no part.

[32] These factors reveal, to my mind, an extraordinary situation in which justice demands that Di Domenico be allowed to continue his shop use. They demonstrate exceptional circumstances.

[33] I was also referred by Mr. Connor to Parramatta City Council v. Pestell [1972] HCA 59; (1972) 27 L.G.R.A. 72 in support of an argument that, the Council having based the issue of the enforcement notice on reasonable grounds, its decision could not be impugned. I could only do so, he submitted, if I found that the Council acted on no reasonable grounds at all. I reject that submission because Pestell turned on the point that the relevant provision expressly referred to action taken consequent on "the opinion of the Council." It is well established by cases such as Pestell that in those circumstances, provided the opinion can be justified on some reasonable ground, it cannot be challenged. That is not the case here. Section 4.1.54 expressly gives me a discretion.

[34] The lodging of the appeal by Di Domenico against the issue of the enforcement notice had the effect of staying it pending my decision (s.4.1.33(1)). Thus I consider that the appropriate order is:

"I order that the enforcement notice dated 9 March 1999 directed to the appellants in relation to the use of a shop on the land described as lot 1 on RPJ42419, Parish of Vernon at 100 Jeppeson Road, Toogum be forever stayed."