HOPE v THE COUNCIL OF THE CITY OF BATHURST

Kirby P I agree with the judgment of Mahoney JA and with the orders which his Honour proposes.

Mahoney JA The appellant Mr Hope has upon his land at Kelso a large quantity of timber. On 10 March 1987 the Council of the City of Bathurst took proceedings against him seeking an order, inter alia, that he remove all of the timber stored on his land. On 31 August 1987 his Honour Mr Justice Cripps, Chief Judge of the Land and Environment Court, made orders accordingly.

Mr Hope has appealed to this Court against his Honour's orders.

The proceeding is one in which, within s58 of the Environmental Planning and Assessment Act 1979, there is an appeal to this Court on fact and on law.

Mr Davison, for the Council, has based his case upon s76 of the Environmental Planning and Assessment Act. His submission is that what Mr Hope was doing is a breach of the relevant planning instrument, that it is therefore a breach of that section, and that Mr Hope should be restrained accordingly.

At the time when the proceeding was commenced, the relevant town planning instrument was the Town and Country Planning, Bathurst Planning Scheme Ordinance, the original form of which was published in the Government Gazette of 24 November 1972. That Ordinance was superseded by the Bathurst Local Environmental Plan 1987 made by the Minister for Planning and Environment on 20 March 1987 and published in the Government Gazette of 27 March 1987.

The proceeding and this appeal have proceeded on the basis that the restraints imposed by the Ordinance and the Plan are the same and that nothing turns upon the fact that, during the pendency of the proceeding, such a change has occurred.

Under each of the instruments, the only purpose for which the land or the buildings on the land of Mr Hope could be used was "dwelling-houses". The land and the buildings could, under each of them, be used for some other purposes with council consent and could not be used for other purposes, even with consent. It is common ground that no relevant consent has been given.

The learned judge found that, since 1976, Mr Hope has stored a large quantity of timber on the land, the value of which Mr Hope estimated to be approximately $56,000. The timber has comprised some 400 bundles. It occupies an area approximately 130 metres square. Photographs tendered at the hearing show that the timber is piled so high that it extends beyond the roof level of a single storey house on the adjoining block.

Mr Hope said that he bought the timber "mainly because I am afflicted with the embarrassing habit of not being able to resist a bargain", because "'it is always very useful to have large quantities of timber around rural property" and because he "had in the back of" his mind that "the timber would possibly come in useful if I were able to build houses on my land which I hope to subdivide in the not too distant future". He said also that he had in his mind "when I was negotiating to buy the timber that it would suit the experimenting I had been doing over the past few years... ".

Mr Tooby, a town planner of the Council, said that in 1976 Mr Hope had enquired whether the Council would "permit me to store timber on my land" and when asked for what purpose, he said, inter alia: "The timber will be used for the erection of project homes on my proposed subdivision at Kelso and in experimental works in my pilot factory which I propose to build on the site'.

He told Mr Tooby that "... I had a problem finding a suitable storage site. Irrespective of Council's approval or not, I will have to store the timber on the land and I would meet any Council objection if it arose".

Mr Hope does not, I think, accept the whole of Mr Tooby's evidence. But however this be, the circumstances in which the timber has been stored on Mr Hope's land are, in my opinion, sufficiently clear.

The timber, apart perhaps from a small quantity which may have been sold, remains on the land. It has not been suggested that Mr Hope has any existing use rights.

Mr Hope has, in his Notice of Appeal, taken, in substance, two main points. That his Honour erred in holding that the use of the land was a use for the purpose of the storage of timber; and that his Honour's order has deprived him of a right which, he claims, accrued to him by virtue of the Limitation Act 1969.

His Honour considered the circumstances of the use to which Mr Hope was putting the land. He said:

In my opinion, the storage of timber is not and never has been for a purpose ancillary

to that of a dwelling house. Nor is it the use of land for the purpose of erecting a

dwelling house. It is the use of land for the purpose of storing timber. That use is prohibited under Bathurst Local Environmental Plan.

Mr Hope has submitted that his Honour erred in that he made a finding that the use of the land was a use for the purpose of storage of timber. The use was, Mr Hope contends, a use as a dwelling-house. The storage of timber is, he has submitted, incidental to the use of the land as a dwelling-house in the same way as the use of it to keep a motor vehicle or a collection of motor vehicles would be the use of it as a dwelling-house. He submitted that a collection of postage

URJ HOPE v THE COUNCIL OF THE CITY OF BATHURST (Mahoney JA) 3

stamps and their storage on the land would be incidental to his use of the land as a dwelling-house; he saw what he had done with respect to the timber as being analogous to this.

Under the Ordinance and the Plan the land cannot be used for any purpose other than a dwelling-house. The question whether, where what is done on land goes beyond the ordinary incidents of dwelling upon it, what is done constitutes the use of it as a dwelling-house or something more has been considered by the courts on a number of occasions. The question is one of fact and degree. In Lizzio v Ryde Municipal Council 155 CLR 211 at 216-7, Gibbs CJ said: "Obviously a person who is entitled to use land for the purpose of a dwelling-house may use it for incidental purposes, such as garaging his car or housing his boat. No doubt in some circumstances a householder who on an isolated occasion used his land for the purpose of making sales from a stall might be held to be doing no more than using his land for the purposes of a dwelling-house. For instance, if a householder allowed his land to be used annually as the site for a fete to raise money for some charitable purpose, the use of the land in that way might be regarded as simply incidental to its use for the purposes of a dwelling-house. The question is one of fact and degree. Having regard to the regularity and extent of the activities involved in selling the flowers, and to the fact that some of the flowers were grown on other land, there is no reason to disagree with the decision reached in the courts below that the use of the land in the present case could not be regarded as merely incidental to its use for the purposes of a dwelling-house. In those circumstances, some further remarks of Glass JA in Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 161 become apposite: "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...'".

In my opinion, the decision of Cripps CJ was correct. The use to which Mr Hope has put the land by placing the timber on it is not, in the sense to which Gibbs CJ referred, merely incidental to its use for the purposes of a dwelling-house. It is not necessary to categorise what is the use to which in fact the land is thereby being put. His Honour described it as "the purpose of storing timber". I see nothing wrong in his Honour's conclusion. But, in the end, it is sufficient to say that the use is not the use of the land for the purposes of a dwelling-house. In my opinion, therefore, this ground of appeal fails.

The ground of appeal based upon the Limitation Act 1969 arises in the following way. It was open to the Council to prosecute Mr Hope if, as it has claimed, his use of the land was a breach of the Ordinance or the Plan. In fact, at one stage it did commence proceedings against him. Mr Hope has contended that, shortly after 20 May 1977, he was served with a summons to appear before the Court of Petty Sessions to meet a charge that what he was doing with the timber constituted "a bulk store under the Bathurst Planning Scheme Ordinance". That information was dismissed on 9 August 1977. He said that "shortly after 11 August 1978 I was served with another summons" in the same jurisdiction in respect of the matter. He submitted that the Council was estopped from the assertion made and, upon the Magistrate's determining that he should proceed with the matter, asked the Magistrate to state a case for the opinion of the Supreme Court. On 5 March 1979, when the matter came before the Supreme Court, counsel for the Council indicated to the court that it was proposed that

proceedings be taken in Equity. The hearing of the stated case was stood over. It was finally heard and dismissed on 23 May 1980. The hearing of the proceedings in the Court of Petty Sessions were recommenced and, on 2 June 1981, the Council withdrew its information. No proceedings had, Mr Hope said, been commenced in the Supreme Court in its Equity Division. The Council took no further legal proceedings until it commenced the present proceeding in the Land and Environment Court.

Mr Hope's submission was that the Council is now estopped from taking proceedings against him for a criminal offence in respect of his use of the land because the relevant limitation period for such an offence has expired. It is, he submitted, also barred from taking proceedings against him for a penalty because the period specified by s18(1) of the Limitation Act 1969 has expired. His argument concedes, at least it is clear, that the proceedings in the Land and Environment Court for injunctive relief are not in terms barred by the Statute of Limitations. However, the thrust of his submission is, I think, that an injunction is an equitable remedy, that the grant of it is discretionary, and that in determining whether an injunction should be granted in this case, the court should have regard to the fact that the relevant Statutes of Limitations applicable in respect of proceedings for criminal offences and penalties have expired. He submits that the Council's purpose in seeking injunctive relief is "to circumvent the prosecution". He cited in support of his submissions Peek v Gurney (1873) 6 HL 384; R v McNeil 31 CLR 76 at 100; and Cohen v Cohen 42 CLR 91.

In a proceeding for injunctive relief to restrain the breach of a town planning provision of this kind, the court retains a discretion to refuse relief. See and cf Blacktown Municipal Council v Friend (1974) 29 LGRA 192; South Sydney Municipal Council v Hadzinickitas (1977) 35 LGRA 159; Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335. I do not doubt that, if the purpose of the present proceeding were merely to circumvent the effect of the statutory limitations upon criminal or similar proceedings, it would be open to the court to refuse relief. I am not satisfied that the purpose of the proceeding should be categorised in this way.

I put aside the question whether what Mr Hope is doing constitutes a continuing offence.

If what he is doing is using the land in contravention of the Plan, the Council may seek to restrain him doing so. Subject to qualifications of the kind to which reference has been made in the cases, it is the duty of a responsible authority to take steps to ensure that plans of this kind are complied with.

The fact that the Council may be barred from taking proceedings by way of prosecution or to recover a penalty from Mr Hope is, insofar as it is a fact, a consideration to be borne in mind. But it is not determinative of the question whether an injunction should be granted. I have considered the evidence before the court as to what has been done, and not done, by the Council since Mr Hope brought the timber onto his land. Cripps CJ concluded that the history of what had happened did not bar the Council from the relief that it now seeks. As his Honour said: "The Council has always asserted that Mr Hope's use of the land was unlawful. It has repeatedly requested him to discontinue it. Mr Hope has demonstrated no prejudice to him by reason of any delay."

I do not differ, in substance, from his Honour's conclusion. Having regard to the circumstances as they have existed to date, I am of opinion that it is proper that appropriate relief be granted.

URJ HOPE v THE COUNCIL OF THE CITY OF BATHURST (Mahoney JA) 5

Mr Hope, in his Notice of Appeal, has referred to s20(2) of the Land and Environment Court Act 1979. He has submitted that the learned judge, in what did, misconstrued the section. I see nothing wrong in this regard with what his Honour did. In any event, for the reasons I have given, this is a case in which it is appropriate to grant injunctive relief.

No objection has been taken to the form of the orders made by Cripps CJ. His Honour, in effect, suspended the effect of his order until 20 December 1987. It is necessary therefore to make a consequential amendment to the form of the orders made.

In my opinion, the appeal should be upheld. The orders made by the learned judge should be varied by deleting from orders 3 and 4 "20 December 1987" and substituting "1 February 1989". Otherwise the orders made should be confirmed.

Mr Hope has substantially failed upon the appeal. He should pay the Council's costs of the appeal.

Appellant in Person Counsel for the Respondent: Mr WR Davison Solicitors for the Respondent: McIntosh McPhillamy and Co