Fairfield City Council v Mangos And Ors.

Land and Environment Court (NSW)|2004-06-11|Before: Bignold J, Mr J

CITATION : Fairfield City Council v Mangos And Ors. [2004] NSWLEC 298 APPLICANT: Fairfield City Council PARTIES : RESPONDENT: Mangos And Ors. FILE NUMBER(S) : 41123 of 2003 CORAM: Bignold J KEY ISSUES: Injunctions and Declarations :- injunctions-garaging of motor vehicles and equipment used in concrete business in a rural-residential zone-characterisation of use-whether a "transport depot". LEGISLATION CITED: Fairfield Local Environmental Plan 1994 Canterbury Municipal Council v Wallspace Advertising (Australia) Pty Ltd (1982) 47 LGRA 135; Cooper Brookes (Wollongong) Pty Ltd v Federal Commission of Taxation (1981) 147 CLR 297; CASES CITED: Hanlon v Law Society [1981] AC 124; Solicitor-General for NSW v Foodbarn Pty Ltd (1975) 32 LGRA 157; Warringah Shire Council v Raffles (1978) 38 LGRA 306 DATES OF HEARING: 20/05/2004 DATE OF JUDGMENT: 06/11/2004

APPLICANT: Mr J Thompson (Barrister) SOLICITORS Kencalo and Ritchie

IN THE LAND AND Matter No: 41123 of 2003 ENVIRONMENT COURT Coram: Bignold J OF NEW SOUTH WALES 11 June 2004

By its Further Amended Class 4 Application filed 11 February 2004, the Council seeks declaratory and injunctive relief in respect of the use of premises known as No 206 Cecil Road, Cecil Park (the subject property) for what is asserted to be for the purposes of a "transport depot" within the meaning of the Fairfield Local Environmental Plan 1994 (the LEP).

It is not in dispute that the subject property is included in Zone No 1(a) 'Non Urban - Residential" created by the LEP and that within that zone the purposes for which development is prohibited as expressed in cl 8 of the LEP include a "transport depot" which is a term defined in the Dictionary to the LEP (vide cl 5(1)) as follows: Transport depot means any building or place used for the servicing, garaging, parking or repair of motor powered or any motor drawn vehicle used in connection with passenger or goods transport, business or industry, but does not include a building or place elsewhere defined in this plan.

The Respondents (who are related persons - both as individuals and corporations) deny that the subject property is relevantly being used as a "transport depot". Rather, they assert that the relevant use of the subject property which is the subject of the present proceedings is "an innominate commercial use" which in terms of the LEP is a permissible purpose of development (subject to the grant of development consent).

Although the Council's class 4 application claims alternative declaratory and injunctive relief by reference to another defined category of development in terms of the LEP, namely "home business" (being a permissible purpose of development within the Zone No 1(a) ("Non Urban - Residential") since the Respondents place no reliance upon this category of development the Council has properly abandoned its claims to the alternative relief.

Accordingly, the case has been conducted by both parties upon the common basis that it raises but one issue, namely whether the use made of the subject property (other than its residential usage which is authorised by a existing development consent) is or is not for the prohibited purpose of development as a "transport depot".

It is agreed between the parties that if the Court were to uphold the Council's case then the injunctive relief to which the Council would thereby become entitled should be suspended for a period of three months in order to enable the Respondents to relocate that use to another appropriate site. Conversely, it is agreed that if the Court were to uphold the Respondents' case, the Respondents should be afforded the opportunity to obtain any requisite development consent from the Council for that use (which on the Respondents' case is a use that requires the grant of development consent) since all earlier attempts to obtain development consent have been refused by the Council for reasons which include the fundamental ground that the use is properly characterised as a "transport depot" in terms of the LEP and is therefore absolutely prohibited development in respect of the subject property.

It follows from the foregoing introductory remarks that there are two issues to be determined in the present case, namely -

(ii) the proper planning characterisation of that use.

In respect of these two issues, it is to be noted that there is no dispute in the evidence concerning the nature of the relevant use of the subject property, although the evidence adduced by the Respondents indicates that that use (which has continued for the past three years) has very recently been reduced in scale and intensity by virtue of the relocation to other premises of some of the activities erstwhile conducted on the subject property. However, the real dispute between the parties has exclusively focussed upon the proper characterisation of the use, but only by reference to the defined term "transport depot" in the context of the LEP, and in particular, the zoning controls imposed by cl 8 of the LEP. As will be shown, this dispute principally turns on the proper interpretation of the defined term, being a matter keenly in dispute between the parties. B. THE RELEVANT USE OF THE SUBJECT PROPERTY

The following description of the relevant uses of the subject property is derived from the affidavit of the second Respondent sworn on 4 March 2004.

The subject property comprises lot 31 in Deposited Plan 874589 having an area of 1.016 hectares with a private road access (shared by other neighbouring properties) from Cecil Road. The subject property is owned by the first Respondent, having been purchased in 1998 as an undeveloped lot. Following acquisition, the first Respondent obtained from the Council the grant of development consent for the erection of a dwelling house, garage and machinery/workshop shed, which were constructed during the period from late December 1998 to 1999 with the second Respondent (the husband of the first Respondent) carrying out most of the building work.

The machinery/workshop shed is a substantial building having dimensions of 16 m (width) by 23 m (length) (with 368 m2 floor space) constructed on a concrete slab with concrete panel walls and colourbond metal roof. It has two colourbond metal roller shutter doors on the front elevation and another colourbond metal roller shutter door on the rear elevation. The shed is erected close to the common property boundary with No 204 Cecil Road and is set back some 58 metres from the street frontage.

The first and second Respondent reside in the substantial dwelling-house erected on the subject property. The second Respondent is the sole director and shareholder of the third Respondent which carries on a concreting and formwork business in NSW under the business name "In-City Concreting" (The registered office of the third Respondent is at the subject property).

The first Respondent is the sole director and shareholder of the fourth Respondent (also having its registered office at the subject property) which owns vehicles and equipment including the following items (which are garaged at the subject property): (a) a Scania P94 table-top truck, registration number XEG-780 (12 tonne); (b) a Komatsu PC95R-2 hydraulic excavator (91/2 tonne); (c) an Isuzu FSR500 table top truck, registration number UYH-938 (4 or 5 tonne); (d) a New Holland bobcat; (e) a Ford Trader, 3 tonne table-top truck, registration number YUN-957 (f) a Ford Courier ute, registration number WQC-646

The second Respondent is also an employee of the third Respondent carrying out concreting work for it and supervising works undertaken by the third Respondent under its business name. Its business is generally conducted during weekdays, and occasionally on Saturdays and never on Sundays.

The nature of the business is concrete laying and concrete formwork undertaken at various building sites in Sydney. The business also engages sub-contractors (from 1 to 10 at any one time) to carry out its work.

The third Respondent leases from the fourth Respondent vehicles and machinery used in connection with the conduct of its business.

The third Respondent garages the leased vehicles and machinery in the machinery/workshop shed erected on the subject property. It is this use which the Council asserts to be use for the prohibited purpose of a "transport depot" in terms of cl 8 of the LEP.

The use made of the garaged vehicles and machinery occurs in the following manner (vide par 13 of the second Respondent's affidavit): INCY garages the leased vehicles and machinery in the Machinery and Workshop Shed at the Subject Property. It makes use of the vehicles in the In-City Concreting business in the following ways - (a) The excavator is moved from site to site on the Scania Truck as required for use on In-City Concreting's jobs. The excavator is not used on all of In-City Concreting's jobs. I estimate that INCY would use the excavator on average about 3 days each week. (b) The bobcat is moved from site to site on the Isuzu truck. The bobcat is used on far fewer jobs than the excavator. I estimate that on average the bobcat would be used 1 day each week. (c) The Ford Trader truck is used for transporting formwork to job sites. Formwork basically forms part of the tools of a concreter. The timber pieces are used and re-used in concreting jobs. The Ford Trader truck is used every day on In-City Concreting's jobs. (d) The Ford Courier ute is used by workers to go to job sites where repairs might be necessary. It is not used to transport machinery. I estimate that on average the Ford Courier would be used 1 day each week.

On a typical work day the conduct of the third Respondent's business involves the following activities occurring at the subject property (vide par 14 of the second Respondent's affidavit): - (a) The sub-contractors engaged by INCY on a particular job meet at the Subject Property at about 6:00am. They arrive in their own vehicles and park outside the Machinery and Workshop Shed on the Subject Property. (b) I provide the sub-contractors with instructions about the concreting jobs to be carried out. Sometimes there is a need to load formwork onto the Ford Trader truck. This does not always happen, as it is usually loaded with formwork from previous jobs. The excavator and bobcat do not need to be loaded as they remain on their respective carrying vehicles. (c) The sub-contractors depart from the Subject Property by about 6:30am, taking such of INCY's leased vehicles as are being used that day. As I have stated above, only the Ford Trader truck would get used every day. (d) Most of the sub-contractors take their own vehicles when they leave the Subject Property in the morning. Only if a sub-contractor was needed to drive one of INCY's leased vehicles would that person return to the Subject Property in the afternoon. Most of them choose their own path after leaving work in the afternoon. (e) Such of the leased vehicles as are in use are returned to the Subject Property in the afternoon, between 1:00pm and 5:00pm. The time varies depending upon the work in hand.

The vehicles and machinery garaged in the machinery/workshop shed at the subject property are not repaired on the property. Repairs take place at a mechanic's workshop located away from the subject property.

As I have earlier mentioned, recently the second Respondent and third Respondent have scaled down the use made of the subject property in connection with the third Respondent's business. This fact is deposed to in the second Respondent's affidavit sworn 10 May 2004 in the paragraphs 6 to 21 (inclusive) which state as follows: 6. In paragraphs 8 to 15 of my earlier Affidavit, I set out information concerning the business of In-City Concreting. 7. The business of In-City Concreting has grown to the point where it is no longer practical for all of its vehicles to be garaged in the Workshop Shed and for all of its formwork to be stored in the shed. Similarly, it will not be practical for all contractors to attend at the Subject Property on each workday to receive instructions. 8. Recent and proposed changes that have affected the business are - a. New jobs obtained in last 12 months. b. Engagement of additional contractors to handle increased work. c. Proposed purchase of a new ford Trader truck in May 2004. 9. In about February, on behalf of INCY, I entered into discussions with Tony Marisa concerning premises at 70 Pratten Street, Kemp's Creek in New South Wales ( the Kemp's Creek premises ). The Kemp's Creek premises are about 6 acres. There are some old sheds on the premises that are about 1500 square metres in total. 10. The sheds on the Kemp's Creek premises have some security in the form of fencing, but nothing like what INCY has at the Workshop Shed and the Subject Property.
On about 28 April 2004, I reached an agreement with Tony Marisa for INCY to make use of the Kemp's Creek premises. I expect that INCY will use an area of about 800 square metres within the sheds on those premises. This area may grow over time.
It may be that in due course the agreement will be reduced to a formal lease. However, Tony Marisa is the sort of person who does business according to a handshake and so far has not required such formality. 13. INCY commenced using the Kemp's Creek premises on about 29 April 2004. Since that date, INCY and In-City Concreting have been using the Kemp's Creek premises for the vast majority of In-City Concreting's business. All formwork has gone over to the Kemp's Creek premises, as has machinery used to finish concrete, concrete vibrators, trowelling machines and other equipment. Contractors now meet at the Kemp's Creek premises on work days for obtaining their instructions, rather than at the Subject Property. The Ford Trader Truck is parked at the Kemp's Creek premises, as will the proposed new Ford Trader Truck be when it is purchased later this month. 14. I propose to keep the following items in the Workshop Shed that are connected with the business of In-City Concreting - a. The excavator and the Scania Truck on which it is moved. b. The bobcat and the Isuzu Truck on which it is moved. c. The Ford Courier ute. d. A hand held rock-breaker and generator. 15. I should make it plain that I have a range of personal tools and pieces of equipment that I have collected over the years for my own use. I would like to continue to store my own tools and pieces of equipment in the Workshop Shed. 16. The Workshop Shed is a far more secure place for these items than in the old sheds at the Kemp's Creek premises. I referred to the security improvements made at the Subject Property in paragraph 39 of my earlier Affidavit. 17. Further, I am the only person who drives the Scania Truck. On days when the excavator is required by In-City Concreting, I drive the Scania Truck to work sites and then drive home with it at the end of the day. If the excavator is not required then I drive the Ford Courier ute to work sites, or sometimes the Isuzu Truck if the bobcat is required. 18. As set out in paragraph 13 of my earlier Affidavit, the excavator is most commonly required by In-City Concreting on its jobs (average 3 times per week) and so the Scania Truck is the vehicle I most often drive to and from work. The bobcat is less often required than the excavator (average 1 time per week) and so I drive the Isuzu truck to and from work less frequently. I am using the ute only for travelling to and from the Kemps Creek premises, if neither the Scania Truck or the Isuzu Truck is required. 19. It does happen that the Isuzu Truck needs to be driven on the same day as the Scania Truck. On those days, someone other than myself needs to drive the truck that I am not driving. This occurs on average 1 time per week. 20. I expect that in future, with about the frequency of once per week, one or two of INCY's concretors would need to attend at the Subject Property to collect either the Isuzu Truck and/or the Ford Courier ute. However, most commonly I will be the person responsible for driving the vehicles kept in the Workshop Shed to and from work. I will be the only person driving the Scania Truck. 21. It may be necessary from time to time for a contractor to attend at the Workshop Shed to collect the hand-held rock breaker and generator. On average, I would expect this to happen about once a fortnight. The hand-held rock breaker and generator are valuable pieces of equipment best kept in a secure location.

The second Respondent was not cross-examined on his affidavits and I am satisfied that he has freely, candidly and accurately revealed the nature of the use made by the first to third Respondents of the machinery/workshop shed and the subject property in connection with the conduct of the third Respondent's business.

The affidavit evidence adduced by the Council does not add anything to the nature of the use which is fully revealed in the second Respondent's affidavit evidence except for the fact that that use has been the subject of many complaints received by the Council, especially from the owners and occupiers of the adjoining property (204 Cecil Rd), Mr and Mrs Kara. Those complaints asserted adverse environmental impacts of the use (early morning traffic movements and noise) on the prevailing rural residential amenity of the area. There is no need to elaborate on this evidence because no issue has been raised in the case that if the Court were to uphold the Council's case, the Court would, in the exercise of discretion, withhold the grant of injunctive relief on discretionary grounds.

The only other relevant evidence to note concerns the fact that the Council, since as early as October 2000, has been attempting by administrative action, to bring about the cessation of the Respondents' use of the subject property in connection with the third Respondent's business, while throughout the same period, the first Respondent has been seeking development consent to sanction the use. Throughout that extended but inconclusive process, the Council has consistently asserted that the use is an absolutely prohibited use, being properly characterised as a "transport depot" in terms of the LEP and the first Respondent (doubtless also acting on behalf of the second and third Respondents) has consistently rejected the assertion.

That inconclusive administrative process forms the immediate background to the commencement of the present proceedings on 12 September 2003. At that time, there was pending with the Council a development application lodged by the first Respondent on 6 June 2003 seeking development consent to "park four machinery trucks in the machinery/workshop shed erected on the subject property". That development application was refused by the Council about two months before the hearing of the present proceedings.

It is obvious that the parties' long running dispute now requires judicial determination and as I have earlier noted, that adjudication is confined (by virtue of the manner in which the case has been presented by both parties) to the question whether the relevant use constitutes use as a "transport depot" within the meaning of the LEP. C. IS THE RESPONDENTS' USE OF THE SUBJECT PROPERTY RELEVANTLY USE AS A "TRANSPORT DEPOT"?

Although the competing arguments largely turn upon different interpretations of the defined term "transport depot" in order to better appreciate the meaning and effect of that defined term it is necessary to contextualise its employment by cl 8 of the LEP which gives effect in the conventional manner to the "development control table".

Clause 8 in respect of Zone No 1(a) relevantly provides as follows: Zone objectives and development control table 8. (1) Subject to the other parts of this plan, the following development control table states for each zone; (a) the objectives of the zone; (b) the purposes for which development may be carried out without development consent; (c) the purposes for which development may be carried out only with development consent; and (d) the purposes for which development is prohibited. (2) The Council must not grant consent to development on land within a zone unless it is of the opinion that the carrying out of the development would be consistent with one or more of the objectives of that zone. ZONE 1(a) NON URBAN - RESIDENTIAL 1. What are the objectives of the zone?

The objectives of the zone are: (a) to allow rural-residential development; (b) to achieve attractive high quality development which is sympathetic to the rural environment and minimises risks from natural and man-made hazards; (c) to ensure that development does not unreasonably increase demand for public facilities and services; (d) to allow people to carry out a reasonable range of agricultural activities which are compatible with the living environment of neighbours; and (e) to limit activities that have a detrimental effect on the environment, particularly on noise levels and on the quality of soil, air and water.

What is allowed without development consent? Nil. 3. What is allowed only with development consent?

Any purpose other than a purpose included in item 2 or 4.

What is prohibited? Abattoirs Hazardous storage Plant hire Advertisements Establishments Refreshment Rooms Amusement Centres Heliports Residential flat buildings Amusement Parks Hospitals Sawmills Brothels Hostels Service stations Bulky goods salesrooms or showrooms Hotels Serviced apartments Business premises Industry Shops Camping grounds & caravan parks Institutions Stock and sales yards Carparks other than those provided by the Council Clubs Intensive agriculture Transport depots Communication facilities Junkyards Transport terminals Entertainment facilities Light industry Vehicle body repair workshops Extractive industry Medical centres Vehicle repair stations Gaming taverns Mines Warehouses Generating works Motels Hazardous industry Motor showrooms Multi-unit housing Offensive industry Offensive storage establishments

There are a few preliminary observations that should be made concerning cl 8 and the development control table as it applies to Zone No 1(a) "Non-Urban Residential" before examining the competing arguments as to the meaning and effect of the LEP's definition of "transport depot", namely:

(i) cl 8(1)(d) states the "purposes for which development is prohibited" - some 47 "purposes" are nominated;

(ii) virtually each of the 47 nominated purposes is a term that is defined by the LEP (vide cl 5 and the Dictionary);

(iii) the definition of "transport depot" contains a word which is also defined by the LEP, namely "industry";

(iv) the definition of "transport depot" expressly excludes from its ambit "a building or place elsewhere defined in this plan";

(v) cl 8(1)(c) states as "the purposes for which development may be carried out only with development consent" any purpose "other than a purpose included in item 2 or 4" of the development control table ie innominate purposes of development are permissible with consent; and (vi) cl 8(2) forbids the granting of development consent for an innominate permissible purpose of development unless the consent authority "is of the opinion that the carrying out of the development would be consistent with one or more of the objectives of that zone".

The Council's argument is that the Respondents' use of the subject property for purposes associated or connected with, the third Respondent's concreting business falls within the definition of "transport depot" because that use relevantly involves the use of the subject property (including the machinery/workshop shed) for the garaging or parking of motor vehicles that are used in connection with the business conducted by the third Respondent. (The Council's argument at one time also embraced the notion that the relevant vehicles were used in connection with "goods transport", but this argument was properly not ultimately pressed.)

The Council's argument that the use of the subject property for the garaging and parking of the vehicles "used in connection with business" conducted by the third Respondent depends upon the adoption of an interpretation of the defined term "transport depot" so that it applies in respect of a vehicle "used in connection with (a) passenger or goods transport; (b) business; or (c) industry" where (a), (b) and (c) operate disjunctively. This understanding of the ambit of the definition was said by the Council to reflect its obvious and plain meaning.

The Respondents' competing argument proffered three different possible meanings of the defined term and in particular the qualifying clause "used in connection with passenger or goods transport, business or industry". (That clause obviously qualifies the word "vehicle".)

The Respondents submitted that the qualifying clause could be interpreted with three possible meanings, namely -

(i) the relevant vehicle must be used in connection with either passenger or goods transport, or business, or industry;

(ii) the relevant vehicle must be used in connection with the business or industry of passenger or goods transport; and

(iii) the relevant vehicle must be used in connection with passenger or goods transport, or passenger or goods business, or passenger or goods industry.

Having postulated the three possible meanings of the qualifying clause ("used in connection with passenger or goods transport, business or industry") which are claimed to be justified for reasons of syntax (and especially by virtue of the use of commas in the qualifying clause in the definition), the Respondents' argument then proceeds to justify the rejection of possible meanings (i) and (iii) on the grounds that they produce inconvenient or absurd results (which were extensively illustrated in the argument). It is by that process that the Respondents advance as the true meaning of the qualifying clause, the remaining possible meaning, namely that the relevant vehicle must be used in connection with the business or industry of passenger or goods transport.

For my own part, I am not at all persuaded that the three possible meanings of the qualifying clause that have been suggested by the Respondents can be said to emanate from the use of a comma after the word "transport". If the comma had not been employed, the qualifying clause would have read "used in connection with passenger or goods transport business or industry" and the meaning of that inelegant phraseology would, I think, tolerably clearly be the meaning of the clause that was advanced by the Respondents in the present case as the preferable and appropriate meaning to adopt.

However, the presence of the comma after the word "transport" in the qualifying clause, in my opinion, presents an insurmountable obstacle to that meaning, even being ranked as a possible meaning.

In this respect, I consider the punctuation employed in the defined term "transport depot" to have a significant function, especially in its context where the disjunctive "or" appears between the words "business" and "industry". That context strongly favours the first possible meaning recognised in the Respondents' argument (being the meaning that is a advanced in the Council's case), namely that the qualifying clause creates three distinct and disjunctive elements or limbs, namely a vehicle - (i) used in connection with passenger or goods transport; or (ii) used in connection with business; or (iii) used in connection with industry.

As noted by Francis Bennion "Statutory Interpretation" 3rd ed at p 579: Punctuation is a device not for making sense, but for making sense plain. Its purpose as Bouvier ( A law Dictionary (1839)) said, is to denote the stops that ought to be made in oral reading, and to point out the sense.

In his comments on the use of punctuation as a guide to interpretation, Bennion cites the following extract from the speech of Lord Lowry in Hanlon v Law Society [1981] AC 124 at 197: I consider that not to take account of punctuation disregards the reality that literate people, such as parliamentary draftsmen, punctuate what they write, if not identically, at least in accordance with grammatical principles. Why should not other literate people, such as judges, look at the punctuation in order to interpret the meaning of the legislation as accepted by Parliament?

What I have just stated in favour of an interpretation that gives disjunctive effect to the three elements or limbs in the qualifying clause must be considered provisional in the sense that it is subject to the possibility that the proper interpretation of the qualifying clause is that it constitutes a compound or composite expression (see Bennion at 925 et seq) in which the words "passenger or goods" operate adjectively to govern each of the words "transport", "business" and "industry".

Ultimately, I have concluded that the qualifying clause does not constitute a compound or composite expression and that the words "passenger or goods" are not intended to operate adjectivally in a manner that would govern each of the words "transport", "business" and "industry". The principal reason for so concluding is that the word "transport" cannot reasonably be regarded as being in apposition with the words "business" and "industry".

For completeness, I also express the opinion that I can discern no relevant genus created by the words "passenger or goods transport" in the qualifying clause such as would require, by virtue of the ejusdem generis principle (see Bennion at 954 et seq,) a limited meaning to be ascribed to the general words "business" and "industry".

Having demonstrated that the two competing possible meanings of the qualifying clause that were advanced by the Respondents are not truly available interpretations in the present case in competition with the interpretation advanced by the Council, it remains for me to consider the Respondents' argument that that remaining possible meaning which their argument recognised (and which accords with the Council's contention) should nonetheless be rejected because it creates unintended inconvenient or absurd results, and instead another meaning should be adopted: see Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304/305 per Gibbs CJ and at 319/321 per Mason and Wilson JJ.

The Respondents' written argument for rejecting the meaning of the qualifying phrase that was advanced by the Council, proceeded along the following lines (and I quote from their written submissions): 23. The construction, which involves treating business and industry entirely separately from passenger or goods transport should be rejected. 24. The definition would be too broad, with absurd results. It is clear that the LEP permits a variety of development in the 1(a) zone, including development defined in the Dictionary, such as dwellings, agriculture and rural industry. Motor vehicles may be associated with any of these developments. Consider the following examples - a. The definition would create a situation in which any garage, used for parking a vehicle used for travelling between home and a place of business, would be a transport depot. This would include any home shed in which a vehicle used for travelling to and from work is parked. It is possible to think of several examples. Suppose a solicitor with a private practice lives in the 1(a) Non-Urban - Residential zone and parks his or her car in a garage at home after work. The solicitor drives to work and uses the car to attend at court and at a variety of conferences. The car would relevantly be used in connection with business . The car is a motor vehicle and a single motor vehicle suffices for the purposes of the definition. There is no other definition of building or place in the Dictionary to the LEP that would remove the garage from the definition of transport depot . The premises would be a transport depot. b. Taking an example closer to the present proceedings, suppose the only vehicle kept in the Machinery and Workshop Shed was the Ford Courier ute and was used by Mr Mangos to drive to an from In-City Concreting's work sites each day. The use of the vehicle in connection with In-City Concreting would make the Premises a transport depot. Such results could not have been intended. It is a legitimate approach to interpretation to reject a construction that in operation would lead to absurdity or inconvenience. c. Taking agriculture as an example, it may well be the case that a person would wish to carry on agriculture as a business in the 1(a) zone. It is conceivable, if not likely, that a person carrying on agriculture as a business would use a variety of motor vehicles (including, potentially, trucks, utes, excavators and bobcats) that would need to be garaged at the premises. That garaging is not in terms excluded from the definition of transport depot because agriculture is an activity definition, rather than a building or place definition. Thus, a situation may arise in which the activity of agriculture is permitted, but the keeping of vehicles and equipment is not, because it would make the relevant building or place a transport depot. From a purposive point of view, a construction of the term transport depot is to be preferred that would permit the conduct of developments, such as agriculture, that are permissible with consent in the 1(a) zone. 25. In any event, it is consistent with the ordinary understanding of transport depots that they be connected with passenger or goods transport, rather than just the garaging of vehicles connected with any business. 26. For the foregoing reasons, the All Business construction should be rejected.

The Council's response to the Respondents' argument was that the argument was flawed because it had wholly failed to consider the operation of the well established planning doctrine of ancillary purposes in determining whether a particular development was permissible in a particular zone created by a planning instrument. Reference was made by the Council to the decision of Waddell J in Warringah Shire Council v Raffles (1978) 38 LGRA 306 which emphasised (by reference to earlier decided cases dating back to 1952) the necessity in applying planning law to distinguish between "the nature of a purpose and the nature of a use" (at 308). That well settled principle is equally applicable to the operation of cl 8 of the LEP which imposes controls on the carrying out of development by reference to "the purposes for which development" may or may not be carried out.

Waddell J, in Raffles cited the following classic statement in the judgment of Glass JA in Solicitor-General for NSW v Foodbarn Pty Ltd (1975) 32 LGRA 157: …..where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts. But the trial judge specifically found that sales by retail were not ancillary to other purposes of the defendants and no attempt has been made to subvert that conclusion. Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged.

Of particular relevance to the present case is the following passage at 308 in Raffles where Waddell J cites two cases where it was held in each case that the additional use involved a "separate planning purpose" from the residential purpose for which the land was also relevantly used - An instance of a use for a separate purpose is provided by Chesser v Morris (1958) 4 LGRA 175. In that case a cartage contractor parked his trucks alongside and on the same allotment as his private home which was in a residential zone within which the use of land for the purpose of any business was prohibited. The contractor was convicted by a magistrate of a breach of the residential zoning requirements. On appeal to the Supreme Court of Victoria it was held that it was open to the magistrate to find that the premises were being used for business purposes contrary to the zoning requirements. Similarly, in Franconi v Shire of Perth (1965) 11 LGRA 380 it was held that the parking of heavy vehicles used in connexion with a business could not be said to be an adjunct of the ordinary use of a house but a separate use for business purposes.

Raffles was referred to with approval by Hutley JA in the later Court of Appeal decision in Canterbury Municipal Council v Wallspace Advertising (Australia) Pty Ltd (1982) 47 LGRA 135 at 138: In this planning scheme, what can or cannot be done depends on purposes of the use (see cl 22) and the purpose must be formulated in broad terms for along with the purpose there go ancillary activities, which though compatible with the purpose of the use, are not properly so described: see Warringah Shire Council v Raffles (1978) 38 LGRA 306, at p 308. This is not inconsistent with the recognition of the possibility that there may be two purposes for a building.

Conformably to this very well established planning principle, in my judgment, the examples relied upon by the Respondents' argument suggesting absurd or unintended outcomes are all entirely and satisfactorily rebutted. There is in truth no absurd or unintended consequence of adopting the meaning of the qualifying clause in the definition of "transport depot" that commends itself as the ordinary and literal meaning of the clause in the context of the definition of "transport depot" and of its employment in the development control table created by cl 8 of the LEP.

Having established the true meaning of the LEP's definition of "transport depot" it necessarily follows, (and I did not understand the Respondents to dispute the application and outcome of this adopted meaning to the facts of the case) that the Respondents' use of the subject property in connection with the third Respondent's business in respect of both the extended use and the more recently scaled down use, falls within the ambit of the definition of "transport depot" as being the use of the subject property "for the garaging or parking…of motor powered vehicle(s)…used in connection with….business".

That use of the subject property is absolutely prohibited development within the meaning of cl 8 of the LEP. D. CONCLUSIONS AND ORDERS

For all of the foregoing reasons, the Council has established its claims to declaratory and injunctive relief in respect of the use of the subject property by the garaging or parking of vehicles used in connection with the third Respondent's concreting business.

As earlier noted, the Council has agreed that in the event of a prohibitory injunction being granted, it is appropriate to suspend that injunction for a period of three months to give the Respondents the opportunity to relocate the offending use to another site.

The only outstanding question which remained in dispute is whether the injunction should extend to the fourth Respondent, which owns the relevant vehicles, but leases them to the third Respondent. It was submitted that the injunction should not be applied to the fourth Respondent because it has not been shown to be implicated in what has now been held to be the unlawful use of the subject property.

Although the fourth Respondent is obviously related to the other Respondents in the manner that I have earlier noted, the mere fact that it is the owner of the relevant vehicles that are hired by the third Respondent in its business and that are parked or garaged by the first and second Respondents at the subject property, does not justify the grant of an injunction against it. Nor do the circumstances require the injunction (which will be directed to the other three Respondents) to be granted against the fourth Respondent in order that it provide an effective and complete remedy for the breach of the Environmental Planning and Assessment Act (EP&A Act) committed in this case.

Accordingly, the injunction will be directed to the first, second and third Respondents, each of whom is implicated in that breach of the EP&A Act.

For all the foregoing reasons, I make the following orders -

Declare that the first, second and third Respondents are using or causing to be used Lot 31 Deposited Plan 874589 known as No 206 Cecil Road, Cecil Park ("the premises"), for the purpose of a transport depot within the meaning of Fairfield Local Environmental Plan 1994.

Order that the first, second and third Respondents, by each of themselves, their servants, agents and contractors be restrained from using or causing to be used the said premises for the purpose of a transport depot within the meaning of Fairfield Local Environmental Plan 1994.

Suspend Order 2 for a period of three months to provide the opportunity for the transport depot to be relocated away from the said premises.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

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Judgment (78 paragraphs)

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Cases Cited (1)

Cited By (3)