Fairfield City Council v Ly and Ors

Construction and Interpretation :- whether use of premises within definition of shop under Fairfield Local Environmental Plan 1994 and therefore prohibited - whether zone objectives can define permitted use

KEY ISSUES: Injunctions and Declarations:- whether to make a declaration that current use is a shop - whether use is sale of motor vehicle components - whether to make consequential orders following declaration that awning already constructed lacks development consent

Discretion :- whether reasonable time should be granted to enable development consent to be obtained - whether to suspend order for demolition pending application for development consent

LEGISLATION CITED: Interpretation Act 1987 s 35 Fairfield Local Environmental Plan 1994

CASES CITED: Council of the City of Sydney v Waldorf Apartments Hotel Sydney Pty Limited [2008] NSWLEC 97 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

APPLICANT Mr A Thompson (solicitor) SOLICITORS Ritchie and Castellan LEGAL REPRESENTATIVES: RESPONDENTS Ms L Andelman SOLICITORS Ho Ledinh Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 Her Honour: This is a Class 4 application filed by the Council seeking declarations and consequential orders in relation to activities being conducted by the Second and Third Respondents on the First Respondent's premises. The first declaration sought is that the premises are being used as a shop (a prohibited use) and an order is sought restraining that use. A second declaration sought is that an awning has been constructed without development consent. An order for demolition of the awning is sought. The premises are at 220-224 Cabramatta Road, Cabramatta West, (Lot A DP 367011). The Respondents are represented by the same legal representatives who advised they can be dealt with together. Evidence/chronology 2 The Council relied on the lengthy affidavit of its officer, Mr Collins, dated 8 August 2008. The affidavit identifies a long history of use of the premises for the selling of car parts. The First Respondent bought the premises in March 1991. At that time the premises were zoned residential under the relevant environmental planning instrument. The Third Respondent has rented the premises from the First Respondent since 1992. His son is the Second Respondent and he has operated the business in more recent years. Development application 803/91 was lodged for a spare parts shop and barber on 15 November 1991 and refused. That use was prohibited in a residential zone. The land was rezoned to Special Industrial 4(c) in the Fairfield Local Environmental Plan 1994 (the LEP) in August 1994. Development application 4471 was lodged for a spare parts shop in July 1994. That DA was granted consent for 12 months in August 1994. Development application 1378/98 for a spare parts shop was lodged with the Council in March 1998 and consent was granted for "Retail of Automotive Spare Parts" for 12 months. Development application 341/2000 was lodged for a two storey extension to the existing spare parts shop in February 2000 and was refused in 2001.

3 As identified in Mr Collins' affidavit, the awning presently constructed at the rear of the premises was built in 2004 without development consent. Development application 1016/2004 was lodged in June 2004 seeking consent for a steel framed open fronted colourbond shed for the storage of car parts. That was refused by the Council in October 2004. 4 There is no dispute by the Respondents about the material Mr Collins appends to his affidavit or the contents of his affidavit. There are a large number of documents and photographs setting out the interactions between the Council and the Third Respondent, Mr Charles Trinh, over many years. The photographs show the activities at the premises and are similar to photographs attached to the affidavit of Mr Trinh dated 21 November 2008. His affidavit also states that he fitted car parts at the premises. 5 Mr Trinh also gave oral evidence with the assistance of an interpreter. He stated that he did not receive anything from the Council in relation to the development application lodged in 2004 for the structure at the rear of the premises. There had previously been a shed structure at the rear of the premises when he first rented the property. He identified this on a plan tendered as part of his evidence. He agreed in cross-examination that the structure was not connected to the house. This was demolished in early 2004 at the Council's request as it was considered unauthorised development. Mr Trinh gave oral evidence that he understood that it had to be demolished in order for him to obtain consent for a new DA he was to lodge with the Council. As he did not hear from the Council after he lodged the DA he built a new awning later in 2004 as his premises were being damaged by rain. An affidavit of Mr Cammareri, building designer, was also relied on which attached plans of proposed development for the premises. The First and Second Respondents did not give evidence. 6 The Respondents accept that the new awning was built without authorisation and intend to lodge a DA once the issue of whether the use of the premises as a shop has been resolved. The Respondents also accept that the current use of the premises requires development consent if it is a permissible use. Issues (i) Premises being used as a shop? 7 The premises are zoned 4(c) Special Industrial under the LEP. Item 3 of the land use table permits development for any purpose other than purposes which are prohibited in item 4. Shops are prohibited. The Council alleges that a shop is being conducted by the Respondents and seeks a declaration to that effect in the Class 4 application.

8 "Shop" is defined in the dictionary to the LEP as: … a building or place used for the purpose of retail sale, auction sale, hire or display for the purpose of sale or hire of goods, materials and merchandise, but does not include a building or place elsewhere defined in this plan. 9 The land use table for the 4(c) zone in the LEP includes a number of objectives for development in the zone. Item 1(c)(iv) of the table (zone objectives) states: What are the objectives of the zone? The objectives of the zone are: … (c) to allow retail development only: (i) where associated with, and ancillary to, light industrial purposes on the lame land; (ii) for the display and sale of bulky goods; (iii) where it primarily serves the daily convenience needs of the local industrial work force; or (iv) for motor orientated activities that is, the use of a building or place associated with the sale by retail of motor vehicle components of goods, where that building or place has a work bay or area for the fitting of motor vehicle components or a large area for the handling, storage or display of motor vehicle components or goods but not the use of a building or place elsewhere defined in this plan, and only if the proposed development will not detrimentally affect the viability of any nearby business centre.

10 The table states in item 3 that: What is permitted only with development consent? Any purpose other than a purpose included in item 4.

Item 4 identifies a number of prohibited uses and "shop" is identified. 11 The Council argues that the use of the premises as a shop has been ongoing since June 1999 when development consent DA 1378/98 expired after 12 months. Firstly, the Council submitted that the use is that of a shop because the activity was the retail sale of goods. The Council conceded that a development which met the description of the objective identified in item 1(c) was permissible with consent. The Council argued that that use did not meet the description of permissible retail development as there was no dedicated work bay or area for fitting car parts. Further there was not a large area for the handling, storage or display of motor vehicle components or goods.

12 Alternatively, the Council submitted that as item 1(c)(iv), inter alia, appeared in the objectives it may not be identifying a permissible retail development use. That argument would mean that the two development consents granted in 1994 and 1998 were not able to be given consent if the terms of the LEP had been strictly applied. I found the alternative Council argument difficult to understand. 13 The Respondents submitted that the issue to be determined is: Whether or not the development is for motor orientated activities because the use of the property is for the sale by retail of motor vehicle components or goods where: (i) there is a work bay or area for the fitting of motor vehicle components or goods OR (ii) there is a large area for the handling, storage or display of motor vehicle components or goods. 14 The Respondents submitted that the description in item 1(c)(iv) was met on either limb of item 1(c)(iv) as identified in the issue to be determined. That description is included in the exception to the definition of shop being a building or place elsewhere defined in the plan. There was an area for the fitting of motor vehicle parts at the front of the building facing Cabramatta Road. Mr Trinh gave affidavit evidence that he fitted car parts at the premises. A large area is devoted to the handling, storage and display of motor vehicle components or goods. The bottom floor of the existing building is used for storage on the whole of the eastern side and on the western side is a display area and shop. The rear of the building under the awning is further used for storage of motor vehicle goods. Finding 15 Whether the issue is defined as whether the use of the premises is as a shop (Council's case) or motor orientated activities (Respondents' case) the same issue arises of how the LEP for the 4(c) zone operates in relation to the First Respondent's premises. The definition of shop in the dictionary of the LEP states that it does not include "a building or place elsewhere defined in this plan". The description of retail development allowed in the 4(c) zone is a description of a permissible use, which the Council accepted on its first argument. While the description appears in a section headed "the objectives of the zone", the detailed provisions of item 1(c), including (iv), describe development which can be given consent under item 3. Apart from the sub-items appearing in the section headed "objectives" they are written as if intending to identify an intended use. 16 The LEP is a statutory instrument. The heading "What are the objectives of the zone" is not determinative as it is not part of the instrument; s 35(2) Interpretation Act 1987. Item 1(c)(iv) is not limited only to consideration as an objective for the zone which must be complied with under cl 8 of the LEP. While item 4 refers to shops as prohibited development, the definition of shop in the dictionary does not include a building or place otherwise defined in the plan. Such a definition appears in item 1(c)(iv). I consider that a building or place which meets the description in item 1(c)(iv) is permissible use in the 4(c) zone and that development consent can be sought from the Council for such a use. That is further confirmed by other references to retail development which is permissible in the zone in item 1(c)(i), (ii) and (iii). That the Council has considered that a use of this type is permissible with consent is confirmed by the two development consents granted for 12 months in 1994 and 1998.

17 The next issue to determine therefore is whether the current use of the building satisfies the use in item 1(c)(iv) and is therefore not a shop and consequently not prohibited development. The definition has two limbs which are in the alternative as "or" is used. Satisfaction of either satisfies the definition. The area used for fitting of parts to cars is the parking area at the front of the shop. While that use of the parking area is likely to be considered unsatisfactory from a town planning perspective in part because of lack of safety arising from such a dual use, and also due to unsatisfactory exit arrangements as cars back directly onto Cabramatta Road, that area is an area for the fitting of motor vehicle components. The first limb appears to be satisfied.

18 In relation to the second limb, the use of the building and premises generally must be considered. The business activity is on the ground floor of the existing building which is in three separated and unconnected sections running from the front to the back of the building. The upstairs area is used as a residence and the entry for it is in the middle section of the ground floor which consists of a large entry area and staircase. The eastern side area is taken up entirely for storage of motor vehicle parts. The western side area consists of a shop counter and motor vehicle components and goods on display. While the eastern and western sections are physically separate with different front entrances, the areas can be considered together in assessing the area of use of the ground floor as a whole. A majority of the ground floor of the building is used for the storage or display of motor vehicle components.

19 The Respondents also relied on the use of the area under the unauthorised awning at the rear of the premises as part of their argument that the area used was "large". The Council submitted that it is not appropriate that reliance is placed on the presently unauthorised use under the awning. At this stage the entire use of the premises is unauthorised, including use of the area under the awning. The awning itself also requires development consent. For the purposes of determining the area of use of the premises, the area under the awning can be considered. That does not alter the circumstance that the awning requires development consent. 20 The area of the premises in front of the building used for carparking immediately off Cabramatta Road is also used for delivery to and handling of motor vehicle components and goods at the premises. That area can also be considered as part of the area referred to in the second limb of item 1(c)(iv). I consider that a large part of the "building or place" at 220 - 224 Cabramatta Road is being used for the handling, storage and display of motor vehicle components or goods as required by the second limb. The present use of the building is therefore permissible with consent in the 4(c) zone and is not a "shop" as defined under the LEP. Consequently I do not intend to make the declaration sought in prayer 1 of the Class 4 application. Whether I should make any order restraining the use of the premises for the sale of motor vehicle components I will consider below. (ii) Unauthorised awning at rear 21 A declaration and orders for demolition in relation to an awning at the back of the premises is also sought in the Class 4 application. The Respondents accept that the current awning requires development consent. Exercise of discretion 22 I must determine what declarations and orders I should make in this matter. As identified in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 and numerous other cases, the Court's discretion is wide; see cases including Sedevcic referred to in my judgment Council of the City of Sydney v Waldorf Apartments Hotel Sydney Pty Limited and Anor [2008] NSWLEC 97 at [79] - [82]. In Sedevcic Kirby P identified a number of relevant factors to consider when exercising discretion at 339 - 341, including the fact that the Court is enforcing public duties, not private rights in relation to breach of the planning laws. 23 The current use of the premises for the sale of car parts is longstanding, having commenced sometime in 1992. There have been two applications for development consent granted for a spare parts shop in August 1994 for 12 months and "retail for automotive spare parts" for 12 months in June 1998. The use of the premises since 1999 has been without development consent and that is conceded by the Respondents. 24 The Council has proposed one order restraining the use of the premises for the sale of motor vehicle components and a second order for the demolition of the unauthorised awning. Those orders are to be suspended for six months to enable the lodgement by the Respondents of a development application by 20 March 2009 and determination of that application by the Council. The Respondents argue that the two orders should not be made as that would be unfair but otherwise consider the requirement to lodge a DA by 20 March 2009 is reasonable. The Respondents' counsel stated that they have been willing to lodge a DA for some time but there appeared to be no utility in doing so given the Council's insistence that the current use was a shop and therefore a prohibited development. Mr Cammareri attaches a letter of advice to the Respondents' solicitor dated 20 October 2008 and plans for a proposed development of the site. No DA has yet been lodged.

25 These proceedings were instituted in August 2008. The affidavit of Mr Collins sets out the lengthy history of the use of the premises and is not in dispute. I have held that the current use of the building is a permissible use in the 4(c) zone. The parties have agreed that the Respondents should have until 20 March 2009 to file a development application with the Council. The main issue to determine in relation to the exercise of discretion is whether the orders restraining use of the premises for the sale of motor vehicle components and requiring demolition of the awning ought be made but then suspended for six months. The Respondents argue that, as they have been successful on the "shop" issue, the imposition of such orders is unreasonable and unnecessary. Given that I have not accepted the Council's argument in relation to the shop use and that no declaration on that issue has been made, an order restraining the permissible use of retail selling of motor vehicle components at these premises does not arise directly from the Council's Class 4 application. It is clear however from the evidence that a development application is necessary for the use currently being conducted on the premises.

26 I will make a declaration that the awning has been built without development consent. The unauthorised building and use of the current awning commenced in 2004 and is continuing. While I accept that Mr Trinh experienced language difficulties in his dealings with the Council as he does not speak English and required an interpreter in court for his oral evidence, he has a responsibility to ensure that the activities he undertakes are lawful. He did not wait for development consent for the awning in 2004 (which he did not obtain in any event) but rebuilt the awning without checking with the Council whether or not he had development consent. Given that lengthy history and the long period of unauthorised use I consider that I should make the order for demolition of the awning but suspend the order for six months as the Council proposes to allow the Respondents to lodge a DA by 20 March 2009 and then to have that assessed. I will not make the order restraining the sale of motor vehicle components sought by the Council as that does not arise from the Class 4 application relied on in the proceedings but note that development consent is required for the current use. Failure to obtain that consent will mean the Council can seek orders in this Court restraining the use.

Costs 27 Both parties seek costs. The usual rule in Class 4 proceedings is that costs follow the event. The Council has been partially successful in that it has obtained a declaration in relation to the awning and a consequential order for demolition but that has not required any argument given the concessions made by the Respondents. The main issue considered was whether the use of the premises was for a shop. The Council has been unsuccessful on that issue. I have a wide discretion, to be exercised judicially, in how costs should be awarded. I consider the appropriate order is that each party pay its own costs of the proceedings. Declarations and Orders 28 The Court makes the following declarations and orders:

1. A declaration that the Respondents have erected an awning at the rear of the premises at 220 - 224 Cabramatta Road, Cabramatta West, being Lot A in DP 367011 without first obtaining development consent pursuant to the Fairfield Local Environmental Plan 1994.
2. An order that the awning erected at the rear of the premises 220 - 224 Cabramatta Road, Cabramatta West, being Lot A in DP 367011, be demolished.
3. Order 2 is suspended for a period of six months from the date of this order to enable lodgement of a development application and building certificate application with the Applicant for use of the premises and retention of the awning. Such applications are to be lodged no later than 20 March 2009.
4. Each party is to pay its costs of the proceedings.

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