Liverpool City Council v Maller Holdings Pty Limited

County of Cumberland Planning Scheme Ordinance 1951 7Part XIIA of the LG Act 1919 as amended in 1945 provided for the making of town and country planning schemes. The CCPSO was made as a prescribed scheme under Pt XIIA of the LG Act 1919 in a schedule to the Local Government (Amendment) Act 1951 and took effect on 27 June 1951. Under the CCPSO, buildings in zone 13 Special Uses, where the property was located, could be erected or used for any purpose with the consent of the responsible authority. Development was as defined, as stated by cl 3 of the CCPSO, in s 342T of the LG Act 1919 which stated: "Development" in relation to any land includes the erection of any building, and the carrying out of any work, and any use of the land or building or work thereon for the purpose for which the land or building or work was last being used. 8There is no definition of stables in the CCPSO. Applications for consent for the use of land were provided for under cl 41(1). Applications for the erection of a building were provided for under cl 41(2). The CCPSO was varied in part by the LPSO.

Liverpool Planning Scheme Ordinance 1972 9The LPSO was proclaimed as a schedule to the LG Act 1919 and came into effect on 23 June 1972. Clause 4(1) defined the following: "Horse training establishment" means premises used for the training, educating and breaking-in of horses, and includes ancillary buildings such as stables, feed rooms, staff residential quarters, amenities buildings, garages and trainer's residence. "Stables" means a building or place used or intended for use for the purpose of receiving, maintaining, boarding or keeping a horse or horses. 10Development has the same definition as in the CCPSO. Buildings or works in the residential A3 zone, where the property was located, may not be erected or carried out or used for the purposes of: Column IV Column V Purposes for which buildings or works may be erected or carried or used only with the consent of the responsible authority Purposes for which buildings or works may not be erected or carried out or used Any purpose other than those prohibited by Column V Boarding houses; bulk stores; caravan parks; car repair stations; clubs; commercial premises; forestry; gas holders; generating works; hotels; industries other than home industries; institutions; junk yards; liquid fuel depots; mines; motels; motor showrooms; places of assembly; refreshment rooms; residential flat buildings other than units, of single-storey construction, for aged persons; roadside stalls; sawmills; service stations; shops; stock and sale yards; transport terminals; warehouses.

11Stables were permissible with consent in the Residential A3 zone where the property was located, not being a prohibited development under Column V. 12Part IV, headed "Existing buildings, Existing Works and Existing Use of Land" cl 27 provided: (1) Notwithstanding the provisions of Part III but subject to the provisions of Part II of this Ordinance, an existing building or an existing work may be maintained and may be used for its existing use and an existing use of land may be continued notwithstanding that such existing use is for a purpose for which buildings or works may not be erected or used or for which land may not be used under Part III of this Ordinance in respect of the zone in which such existing building or existing work or such land is situated. (2) Where in accordance with subclause (1) of this clause, an existing building or an existing work may be maintained and used for its existing use or an existing use of land may be continued, and such use is permissible by virtue of a consent granted under the County of Cumberland Planning Scheme Ordinance, such consent and any conditions attached thereto may be enforced as if it were a consent granted under this Ordinance, or such conditions were attached to a consent so granted. 13Part V, cl 32 headed "Consent" provided for the making of an application for consent. 14Part VIII, cl 74 headed "General" provided: The revocations, pursuant to paragraph (d) of subsection two of section 342L of the Act, of the County of Cumberland Planning Scheme to the extent to which it applies in respect of all land within the City of Liverpool shall not affect - (a) the preservation, continuance or enforcement of any right, privilege, obligation or liability acquired, accrued or incurred under that Scheme in respect of any land to which this Ordinance applies before such revocation; (b) the taking of legal proceedings in respect of any offence under that Scheme committed in respect of any land to which this Ordinance applies before such revocation. 15Clause 75 provided: Nothing in this Ordinance shall prevent the erection of a building or the carrying out of any work and the use of such building or work in accordance with the terms of the Town and Country Planning (General Interim Development) Ordinance or of any permission or modification thereof granted under Division 7 of Part XIIA of the Act and under that Ordinance or under an interim development order which permission has not been revoked, or of any consent granted under the County of Cumberland Planning Scheme if the erection of the building or the carrying out of such work was commenced, but not completed, before the appointed day or is substantially commenced within a period of twelve months after that day. 16Clause 77(1) provided: Where permission to erect any building or to carry out any work or to use any building, work or land or to do any other act or thing has been granted under Division 7 of Part XIIA of the Act or under any Ordinance made under that Part or where any consent for any such purpose has been granted under the County of Cumberland Planning Scheme and conditions have been imposed which are not inconsistent with any provisions of this Ordinance, the conditions shall have effect as if they were conditions imposed under this Ordinance and may be enforced accordingly.

Liverpool Local Environmental Plan 1997 17Under the LLEP 1997, which came into effect on 29 August 1997, the property was located in the Residential 2(b) zone. Clause 4 and Sch 1 of the LLEP 1997 repealed the LPSO. Animal boarding or training establishment was defined in cl 6 as: a building or place used for the breeding, boarding, training or keeping of, or for caring for, animals for commercial purposes, and includes a riding school and veterinary clinic. 18Under cl 9 animal boarding or training establishments and veterinary hospitals could be carried out with development consent in the Residential 2(b) zone. Road transport terminals and transport depots were prohibited in the Residential 2(b) zone under cl 9. 19Clause 45A dealt with development within the Residential 2(b) zone and provided: The Council must not grant consent for development, including residential development, within the 2 (b) zone unless it is satisfied that: (a) the proposed development will be directly connected with or complementary to the horseracing industry at the Warwick Farm Racecourse and to the operation and management of racehorse training stables in the area, and (b) the proposed development will not have an adverse impact on the viability of existing racehorse training stables in the area, and (c) the proposed development will not have an adverse impact on the unique character of the area and existing racehorse training community.

Liverpool Local Environmental Plan 2008 20The LLEP 2008 now applies to the property, as reflected in the charge. The dictionary provides the following definitions: animal boarding or training establishment means a building or place used for the breeding, boarding, training, keeping or caring of animals for commercial purposes (other than for the agistment of horses), and includes any associated riding school or ancillary veterinary hospital. freight transport facility means a facility used principally for the bulk handling of goods for transport by road, rail, air or sea, including any facility for the loading and unloading of vehicles, aircraft, vessels or containers used to transport those goods and for the parking, holding, servicing or repair of those vehicles, aircraft or vessels or for the engines or carriages involved. transport depot means a building or place used for the parking or servicing of motor powered or motor drawn vehicles used in connection with a business, industry, shop or passenger or freight transport undertaking. truck depot means a building or place used for the servicing and parking of trucks, earthmoving machinery and the like. 21The property is located in the R2 Low Density Residential Development Zone. 2.3 Zone objectives and Land Use Table (1) The Land Use Table at the end of this Part specifies for each zone: (a) the objectives for development, and (b) development that may be carried out without development consent, and (c) development that may be carried out only with development consent, and (d) development that is prohibited. (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. (3) In the Land Use Table at the end of this Part: (a) a reference to a type of building or other thing is a reference to development for the purposes of that type of building or other thing, and (b) a reference to a type of building or other thing does not include (despite any definition in this Plan) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone. (4) This clause is subject to the other provisions of this Plan. 2.5 Additional permitted uses for particular land (1) Development on particular land that is described or referred to in Schedule 1 may be carried out: (a) with development consent, or (b) if the Schedule so provides-without development consent, in accordance with the conditions (if any) specified in that Schedule in relation to that development. (2) This clause has effect despite anything to the contrary in the Land Use Table or other provision of this Plan. 22The Land Use Table provides: Zone R2 Low Density Residential 1 Objectives of zone · To provide for the housing needs of the community within a low density residential environment. · To enable other land uses that provide facilities or services to meet the day to day needs of residents. · To provide a suitable low scale residential character commensurate with a low dwelling density. · To ensure that a high level of residential amenity is achieved and maintained. 2 Permitted without consent Home-based child care; Home occupations 3 Permitted with consent Attached dwellings; Bed and breakfast accommodation; Boarding houses; Building identification signs; Business identification signs; Child care centres; Community facilities; Dwelling houses; Educational establishments; Environmental facilities; Environmental protection works; Exhibition homes; Exhibition villages; Flood mitigation works; Group homes; Health consulting rooms; Home businesses; Home industries; Places of public worship; Recreation areas; Respite day care centres; Roads; Secondary dwellings; Semi-detached dwellings 4 Prohibited Any development not specified in item 2 or 3 23The R2 Low Density Residential Zone Land Use Table is subject to cl 16 of Sch 1 as provided in cl 2.3(4) and cl 2.5(1). Schedule 1 is headed "Additional permitted uses" of which cl 16 provides: 16 Use of certain land at Warwick Farm in Zone R2 (1) This clause applies to land in Zone R2 Low Density Residential, east of the southern rail line at Warwick Farm. (2) Development for the following purposes is permitted with consent: (a) animal boarding or training establishments, (b) farm buildings, (c) veterinary hospitals. 24There is no definition of stables in the LLEP 1997 or the LLEP 2008.

Historic consents granted under the CCPSO and LPSO 25Development consents granted for the property under the CCPSO and the LPSO were produced from the Prosecutor's files. Exhibits F to K tendered by the Prosecutor and exhibit 1 tendered by the Defendant contained these. No development consents granted for the property under the LLEP 1997 or the LLEP 2008 were produced and none are relied on by the Defendant. I was informed that a fire had occurred on the premises where the Prosecutor's records were stored and many were destroyed. It is possible the Prosecutor's paper records for the property are incomplete. 26The following consents were granted under the CCPSO by the Prosecutor. On 4 February 1966 development consent no 95/66 was granted for "the erection of a dwelling and garage for motor vehicle" without condition (exhibit 1, p 231). 27On 17 February 1967 development consent no 103/67 was granted for the "erection of addition of 2 stables to existing stables" which was unconditional (exhibit 1, p 230). 28On 8 December 1967 development consent no 1226/67 was granted for "the erection of a Boys Room 30' x 12'" (the Boys Room) (exhibit 1 p 229). 29On 19 February 1971 development consent no 171/71 was granted for the "addition of six (6) stables to be erected" unconditionally (exhibit 1, 228). 30In 1971 development consent no 537/71 was granted for "the erection of manure bin attached to existing stables." 31The following development consents were granted under the LPSO. On 14 July 1978 development consent no 587/78 was granted for the "erection of a grain silo" on condition that the "silo and premises generally to be used for private purposes only and not for commercial storage or sales to other parties" (exhibit 1, p 224). The development application identifies that the present use of the property at the date of application (10 July 1978) was "racing est", the land use as at 23 June 1972 was "racing est" and the use of the property as a "racing est" commenced in 1966 (exhibit 1, p 225). 32On 6 February 1987 development consent no 39/87 was granted for the "erection of a stable building comprising ten (10) stables attached to the existing stable building" on condition that "development [is] to take place generally in accordance with Development Application dated 28th January 1987, except as modified by the undermentioned conditions" (exhibit 1 p 218). Condition 2 states "the land is subject to flooding and further details (as to the accuracy of which Council gives no warranty) may be obtained from Council or the Department of Public Works. Council expressly absolves itself from responsibility for any damage or injury sustained as a result of or in any way connected with flooding of the subject land." The application form to which that development consent relates describes the proposed development as "horse stables", states the then land use was "residential and horse stables" and that the development is not permissible in the zone (exhibit 1 p 220).

Building approvals granted pursuant to Part XII of the Local Government Act 1919 33Building approvals granted under Ordinance 71 of the LG Act (Pt XII) were in evidence. On 28 February 1966 building permit no 99/66 was granted for "a brick dwelling and garage" (exhibit F). This permit accompanied development consent no 95/66. The building permit was subject to the following conditions: (i)Compliance with the Local Government Act, 1919, and Ordinances thereunder. (ii)That the building shall be erected on a building line of NOT LESS THAN TWENTY-FIVE (25) FEET back from the street alignment except in (i) commercial districts (ii) rural, non-urban and green belt areas - 66 feet (iii) rural, non-urban and green belt areas - 100 feet where land fronts a county road. (iii)That 48 hours notice in writing be given to Council for inspection of trenches before foundations are laid, foundations before trenches are filled, drains before they are covered in and framework when complete. Buildings are not to be used or occupied until approval granted by Council. (iv)Effectively cross ventilate underfloor area. (v)Roof struts not to bear on ceiling. (vi)Water piping run along behind wall lining to be in copper. (vii)Garage not to be used for human habitation. 34On 14 March 1966 building permit no 260/66 was granted for the erection of six "brick stables addition" on the western side of the property (exhibit G). The conditions of this building permit are the same as conditions (i) to (iii) of the permit above at par 33. Additional conditions are: (i)Stable floor drainage to be connected to the sewer. (ii)Flyproof manure bin to be provided and adequate precautions to be taken to minimize fly breeding. (iii)Roofwater to be connected to stormwater line to street. (iv)Structure not to be used for human habitation. 35On 7 January 1967 building permit no 1333/66 was granted for the erection of two "brick stables addition" on the southern boundary (exhibit H). The conditions of this permit are the same as the permit above at par 34 with the addition of: (v)Stable and horse yard area to stand not less than 30ft clear of any dwelling. 36On 21 February 1967 building permit no 199/67 was granted for the erection of "brick addition" to stables unconditionally (exhibit J). The conditions of this permit are the same as the permit above at par 35. This permit accompanies development consent 103/67. 37On 5 March 1971 building permit no 217/71 was granted for the erection of "brick building containing 6 stables" (on the northern side) (exhibit K). This accompanies development consent 171/71. The conditions (i) to (iii) are the same as the permit above at par 33. Additional conditions of this permit are: (i)Building to stand wholly within the boundaries of the site...(unreadable) from the dwelling. (ii)Roofwater to be conveyed in rubber ring jointed vitreous clay pipeline to the street gutter. Drainage from the stable floors where possible to be discharged to the sewer. NOTE: soiled drainage not to be discharged to the stormwater drainage system or the street. (iii)Building to be structurally sound and completed to neatly conform with the existing stable buildings. 38There are 18 stables in total approved by development consents in evidence and for which a building permit has been approved. There are eight stables for which only building permits are in evidence (two, exhibits G, H). As will become clear there is no issue identified in relation to the eight stables for which there is a building permit only.

Were historic development consents and building permits in force during charge period? 39The Prosecutor submitted that the current use of the property as a transport depot, truck depot or freight transport facility, as defined in the Dictionary of the LLEP 2008, is not an animal boarding and training establishment permitted under cl 16 of Sch 1. It was not development (not being home-based childcare or a home occupation) permitted without consent under item 2 of the Land Use Table for the R2 Low Density Residential Zone and was not permitted with development consent under item 3 of the Land Use Table. It was therefore prohibited as identified by item 4 of the Land Use Table and cl 2.3 of the LLEP 2008. 40The Defendant submitted that numerous development consents granted under the CCPSO and the LPSO and building permits granted under the LG Act 1919 Ordinance 71 in combination allow the use of 26 stables on the property. By the operation of s 109B of the EPA Act the Defendant argued that these consents and permits continue to allow the use of the property for stables. This use continued during the charge period and was not prohibited. 41A threshold question arises as to what constitutes or should constitute the Prosecutor's case in light of these historic consents and building permits. The Prosecutor submitted that the s 76B charge with the consequent need to characterise the use to determine if it is prohibited under the LLEP 2008 arises for determination first. The Defendant argued the consents underpinned by the operation of s 109B should be dealt with as part of the Prosecutor's primary case. A number of issues arise from the parties' submissions. One is who has the onus of proving the consents and permits continue in force whether in fact these do so, and if in force how should they be construed. Regardless of my conclusion on where the onus of proof lies, if the consents and permits do continue in force the impact on the Prosecutor's case must be considered because of the relationship between s 76B and s 109B which I discuss below at par 89. It is necessary to consider the operation of Pt 4 of the EPA Act to answer the issues raised. 42The Prosecutor agrees, as advised in recent additional submissions, that the building permits continue in force under s 109B by virtue of two sets of transitional provisions and these are set out below for completeness. No issue arises in the proceedings about the lawfulness of the stables buildings as structures. What is in issue is the use of the stables buildings. Whether the building permits also authorise the use of the buildings was raised recently as an issue by the Court. It appears that the effect of the transitional provisions is that they do so authorise as they have the same effect as development consents, as I will refer to below. 43The focus of argument at the substantive hearing was whether the development consents granted under the CCPSO and LPSO continued in force under s 109B of the EPA Act. I consider this below but it now appears given more recent submissions from the parties and in light of the concession by the Prosecutor that the building permits continue in force under s 109B, that this issue is less contentious than in the substantive hearing.

Environmental Planning and Assessment Act 1979 Act 44In s 4, Definitions, "development" means: (a) the use of land, and (b) the subdivision of land, and (c) the erection of a building, and (d) the carrying out of a work, and (e) the demolition of a building or work, and (f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument, but does not include any development of a class or description prescribed by the regulations for the purposes of this definition.

Division 1 Carrying out of Development - the threefold classification 45Sections 76A, 76B and 76C of the EPA Act provide: 76A Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. (2) For the purposes of subsection (1), development consent may be obtained: (a) by the making of a determination by a consent authority to grant development consent, or (b) in the case of complying development, by the issue of a complying development certificate. ... 76B Development that is prohibited If an environmental planning instrument provides that: (a) specified development is prohibited on land to which the provision applies, or (b) development cannot be carried out on land with or without development consent, a person must not carry out the development on the land. 76C Relationship of this Division to this Act This Division is subject to the other provisions of this Act, unless express provision is made to the contrary. 46Sections 106 - 109B Division 10 - Existing Uses provide: 106 Definition of "existing use" In this Division, existing use means: (a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4 of this Part, have the effect of prohibiting that use, and (b) the use of a building, work or land: (i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and (ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse. 107 Continuance of and limitations on existing use (1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use. ... 108 Regulations respecting existing use (1) The regulations may make provision for or with respect to existing use and, in particular, for or with respect to: ... 109 Continuance of and limitations on other lawful uses (1) Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained. (2) Nothing in subsection (1) authorises: (a) any alteration or extension to or rebuilding of a building or work, or (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or (c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of the use therein mentioned, or (d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or (e) the continuance of the use therein mentioned where that use is abandoned. ... 47Section 109B (introduced on 1 July 1998) provides: 109B Saving of effect of existing consents (1) Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force. (2) This section: (a) applies to consents lawfully granted before or after the commencement of this Act, and (b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and (c) has effect despite anything to the contrary in section 107 or 109. (3) This section is taken to have commenced on the commencement of this Act. (1 September 1980) 48Section 109B was introduced into the EPA Act in 1998 but states that it is operative from the commencement of the EPA Act as provided in subsection (3).

Transitional provisions 49The transitional provisions relevant to development consents are contained in the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 in Sch 3 titled Savings, transitional and other provisions (commenced 1 September 1980), which provides: 7 Consents, approvals and permissions (1) Any consent, approval or permission granted in respect of an application made under a former planning instrument, and in force immediately before the appointed day, shall, subject to subclause (2), continue in full force and effect subject to: (a) the operation of any provision of that instrument or any term or condition of that consent, approval or permission governing or relating to the currency, duration or continuing legal effect of that consent, approval or permission, and (b) the operation of any condition (other than that referred to in paragraph (a)), restriction or limitation, subject to which that consent, approval or permission was granted. (2) Where no provision or term or condition of the type referred to in subclause (1) (a) operates in respect of a consent, approval or permission therein mentioned, the provisions of section 99 of the Environmental Planning and Assessment Act 1979 shall apply to that consent, approval or permission as if it were a consent referred to in that section which had taken effect on the appointed day. (3) The provisions of section 103 of the Environmental Planning and Assessment Act 1979 shall apply to a consent referred to in subclause (1) as if that consent were a consent referred to in that section. (4) A consent, approval or permission referred to in subclause (1) is taken to be a development consent within the meaning of the Environmental Planning and Assessment Act 1979. 50The transitional provisions relevant to the building permits follow. Upon the coming into force of the Local Government Act 1993 (LG Act 1993), the ongoing force and effect of building permits granted under the LG Act 1919 was addressed by way of savings provisions under the 1993 Act. In particular, cl 14 of Sch 7 to the LG Act 1993 provides as follows: Existing approvals 14. An approval given by a council or council officer under the old Act or an ordinance under the old Act, and in force immediately before the commencement of division 1 of Part 1 of Chapter 7, if it is an approval, or an approval of a kind, that may be given under this Act, continues in force and is taken to have been given, and may be revoked or modified, under this Act. 51The reference in this clause to "the old Act" is a reference to the LG Act 1919 according to cl 1 of Sch 7 to the LG Act 1993. 52Savings and transitional provisions were brought into force under the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998. Clause 45 Approvals provided: (1) Subject to Division 1, an approval for a prescribed activity granted and in force under the unamended LG Act 1993 (including an approval arising under Division 1 but not including an approval for an activity specified in item 6 of Part A of the Table to section 68 of that Act) is taken to be a development consent granted under the amended EP&A Act 1979. 53The Prosecutor submitted that for the purposes of understanding how cl 45(1) applies, it is relevant to note: (a)The qualifying words "subject to Division 1", which appear at the beginning of cl 45(1), have no relevant application for present purposes. (b)The term "prescribed activity" is defined in cl 3 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 to mean an activity specified in certain terms of the Table to s 68 of the unamended LG Act 1993. Those terms relevantly included the erection of a building (an approval that could be granted under Item 1, Part A to the Table to s 68 of that Act). (c)The express exclusion from the ambit of cl 45(1) of "an approval for an activity specified in Item 6 of Part A of the Table to s 68" is the exclusion of an approval to "use or occupy a building before it has been completed ...". That exclusion has no relevant application for present purposes. 54The Prosecutor submitted that upon the coming into force of the 1998 amendments and the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998, the building permits were taken to be development consents granted under the EPA Act for the erection of buildings which the building permit approved. The Defendant agreed and further submitted that as the building permits were to be taken to be development consents under cl 45, these permits also permitted use for a particular purpose, here stables. That submission is accepted given that it reflects the wording in cl 45. 55I will now focus on the development consent submissions of the parties.

Prosecutor's submissions 56The Prosecutor submitted that the Defendant has mistaken the onus of proof it bears. If the Prosecutor establishes that the Defendant has carried out prohibited development under the LLEP 2008, the onus shifts to the Defendant to prove on the balance of probabilities that the development is permissible pursuant to s 109B relying on the historical consents, citing Wollongong City Council v Ensile Pty Ltd; Wollongong City Council v Hogarth (No 4) [2008] NSWLEC 149; (2008) 71 NSWLR 563. 57In Ensile Jagot J held that existing and continuing use rights under s 107(1) and s 109(1) of the EPA Act are exceptions to the general statement of liability that development may only be carried out in accordance with an environmental planning instrument (EPI). The onus was on the defendants to bring themselves within that exception on the balance of probabilities, at [20]. The lack of existing or continuing use rights was not an element of the offence that must be proved beyond reasonable doubt by the prosecutor but a matter the defendant must prove on the civil standard, at [26]. Firstly, the Prosecutor submitted this reasoning should also apply to s 109B uses. Secondly, while s 109B has a realm of operation different to s 107(1) and s 109(1), it is a species of the genus of existing and continuing use rights per Cracknell & Lonergan Architects Pty Ltd v Leichhardt Municipal Council [2012] NSWLEC 194; (2012) 193 LGERA 151 and Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23; (2009) 165 LGERA 184. If the Defendant wishes to rely on s 109B by way of defence it bears the onus of doing so on the balance of probabilities. 58Section 109B does not arise unless the development is prohibited under the LLEP 2008. If the use of the property is for a transport depot or truck depot or a freight transport facility as defined in the LLEP 2008, the Defendant must prove all of the elements of s 109B, as found in Currency Corporation Pty Ltd v Wyong Shire Council [2006] NSWLEC 692; (2006) 155 LGERA 230 at [31] and following. Even if the Defendant could prove that the existing consents permitted the current use of the property in the charge period, a s 109B defence fails because the development consent was not in force within the meaning of s 109B, in conformity with the fourth reason in Currency Corporation at [37] - [46] which also applied the Court of Appeal decision in Auburn Council v Nehme [1999] NSWCA 383; (1999) 106 LGERA 49. 59Further, if the independent use, properly categorised, is for a horse transport business variously described, the historical consents do not permit that use. If it is necessary to construe the development consents for stables, the context for the granting of approval in a residential zone as buildings additional to a dwelling house must be considered. The historical approvals permitted the erection and use of stables as an adjunct to the use of the property for the purposes of a dwelling house. None of the historical consents, sensibly construed, permit the use of the property for the purpose of a transport depot, truck depot or a freight transport facility as defined under the LLEP 2008. The planning history of the area, where the property is located under the CCPSO and LPSO, and more recently by way of context the LLEP 1997 and 2008, whereby over time racing establishments with stables have been permitted in the residential zone should be considered when interpreting the consents.

Defendant's submissions 60The Defendant submitted the Prosecutor bears the onus of proving beyond reasonable doubt that the activities the subject of the charge do not fall within other parts of the threefold classification of development in Pt 4 of the EPA Act. The Prosecutor must establish beyond reasonable doubt that the development is not permissible without consent or is one that needs consent and already has the benefit of the consent. The onus is on the Prosecutor to establish beyond reasonable doubt that no consents authorise the use the subject of the charge. 61Ensile does not support the Prosecutor's submissions as it is not directed to s 109B and should not be. It considered existing and continuing uses which are different in character to s 109B. Ensile is restricted to the consideration of s 107(1) and s 109(1), these being limited types of development dependent on facts peculiar to the history of the particular use and matters likely to be within the knowledge of a defendant. Consents the subject of s 109B will be known to a consent authority, as in this case, the Council files providing the relevant information. The consents are not a defence but a matter about which the Prosecutor must make good its case of prohibited development. There is no authority on this point. 62Consents (both development consents and building approvals) for stables have been granted over the years and continue in force. Those consents authorise the use of the property for the purposes of stables. 63The Prosecutor relied on Currency Corporation and the Court of Appeal's decision in Nehme. Nehme has been distinguished many times. Nehme turned upon whether or not there was an appropriate transitional provision, at [26]. As it transpired, the Court did not have the transitional provisions before it at the time of the decision in Nehme. Nehme was distinguished in Caltex Australia Petroleum Pty Ltd v Manly Council [2007] NSWLEC 105; (2007) 155 LGERA 255 as was the fourth reason in Currency Corporation. The Court's reasoning in Caltex squarely applies in the circumstances of this case. Because of the operation of s 109B, the LLEP 2008 neither prohibits the use for stables nor requires further consent to be obtained. 64The use authorised by the consents must be determined, which does not require a characterisation of the use permitted under the consents. The question of characterisation of the purpose of a use is separate from the question of construction of consents. Consents must be construed according to their terms per House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 at [37] citing Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321 at [28]. House of Peace held that a use permitted by a development consent should be construed broadly. The consent is not personal to the applicant but enures for the benefit of subsequent owners and occupiers per Else-Mitchell J in Royal Ryde Homes. 65The consents were validly granted under the CCPSO and the LPSO. The various consents authorise the use of the property for stables. The CCPSO had no definition of stables. Its ordinary meaning as now found in the Macquarie Dictionary, online version 2013 is "1. a building for the lodging and feeding of horses, cattle, etc...". The definition of stables in the LPSO was a building or place used for the purpose of receiving, maintaining, boarding or keeping horses. There can be little doubt that the stables on the property are being used for the purpose of stabling horses. No condition is imposed in any of the consents requiring a minimum or maximum stay period in the stables for horses and no hours of operation are specified. Delivery of horses during the charge period is consistent with the use of the property for stables. 66The Prosecutor must prove beyond reasonable doubt that the consents do not authorise the use of the property for stables in order to establish its case. 67As a result of these submissions there are three matters about which I will make findings, namely whether the Defendant bears the onus of proof in relation to the development consents, whether the development consents continue in force under s 109B of the EPA Act and how the development consents and building permits be should construed.

Defendant bears onus of proof of development consents 68The first issue to determine is whether the Prosecutor or the Defendant bears the onus of proof that the historic consents continue in force. Ensile held that in criminal proceedings the onus of proof on the balance of probabilities rested on a defendant in relation to proof of existing and continuing use rights provided in s 107(1) and s 109(1). The Prosecutor submitted the same approach should apply to s 109B if relied on by a defendant. The reasoning in Ensile does not explicitly apply to s 109B and the judgment does not refer to s 109B as that was not raised by the issues in that case. 69Jagot J canvassed the relevant principles of construction that apply citing the High Court in Vines v Djordjevitch (1955) 91 CLR 512 at 519, Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA5; (1990) 168 CLR 594 and Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249 at 257-258. It is useful to set out Chugg here (Ensile at [13]): In Chugg (at 257-258) the High Court expresses itself as follows: "For the purpose of assigning the onus of proof, a distinction is made between a requirement which forms part of the statement of a general rule and a statement of some matter of answer, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an 'exception'), which serves to take a person outside the operation of a general rule. The distinction does not depend on the rules of formal logic. Rather, the categorization of a provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction. Where some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention 'to impose upon the accused the ultimate burden of bringing himself within it': The intention may be discerned from express words or by implication. ... 70Jagot J considered the scheme of the EPA Act identifying that environmental planning instruments (EPIs) are made under Pt 3 and take effect through Pt 4 in sections 76, 76A and 76B. Her Honour stated that these sections contain a statement of the complete factual situation which must be found to exist before a person obtains a right or incurs a liability under these provisions at [21]. Her Honour then considered in [22] that s 107(1) and s 109(1) involve some special grounds of excuse, justification or exculpation which depend on new or additional facts citing Vines v Djordjevitch. This was supported by the chapeau to s 107(1) and s 109(1) that "nothing in this Act or an environmental planning instrument prevents the continuance or a use of a building, work or land for a lawful purpose..." and "nothing in an EPI operates so as to require consent to be obtained under this Act for the continuance of a use of a building ...." Development in breach of an EPI is forbidden to be done but these uses are defeated or excluded by these special provisions, at [22]. Addressing s 76C at [24], which states "the Division is subject to other provisions of the Act", Jagot J held that section does not specifically refer to the existing use provisions in Div 10 of Pt 4 per Macarone v McKone (1985) 56 LGRA 305 but to the Act generally per ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67. 71Her Honour concluded that the defendants bore the onus of establishing the exception of existing or continuing use rights on the balance of probabilities. The defendants had to do more than point to a real possibility in the evidence whereupon the prosecutor must negative the possibility beyond reasonable doubt. The defendants had to bring themselves within the exception on the balance of probabilities, at [26]. 72The use authorised by existing consents provided for under s 109B are not based on knowledge peculiar to a defendant, unlike existing and continuing uses under s 107(1) and s 109(1). I agree with the Defendant that s 109B is a different category of use to existing and continuing uses provided for in s 107 and s 109, a conclusion also reached in Cracknell & Lonergan at [38]. While Warlam states that all these sections are existing uses in the sense that all are in Div 10 it was not necessary in that case to consider this question. The legislative regime and reasoning identified by Jagot J otherwise apply to s 109B given the opening words of that section are very similar to s 107(1) and s 109(1) and its location in Div10 with s 107(1) and s 109(1). The question remains one of statutory construction in light of the principles identified in Ensile. There appears no basis for disagreeing with Jagot J's analysis. I consider that reasoning also applies to s 109B by parity of reasoning. 73That conclusion means that the Defendant has the onus of proving on the balance of probabilities that it is within the exception identified in s 109B, namely that an activity carried out or use of land is the carrying out of development in accordance with a consent granted and in force. That answers one of the preliminary questions raised by the parties' submissions but does not assist in resolving the Prosecutor's case. It is therefore logical to next consider whether the Defendant has discharged the onus it bears of establishing that the consents are in force by virtue of s 109B, an issue also addressed in the parties' submissions summarised above.

Historic development consents in force under s 109B 74Proof of the existence of the development consents and approvals in this case is relatively straightforward in that these were produced from the Council's paper files. As already noted these are likely to be incomplete. The next issue to arise is whether these consents and approvals are in force by virtue of s 109B and the transitional provisions introduced when the EPA Act commenced, Sch 3 cl 7 of the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979. The Prosecutor argued that these consents are not in force relying on the fourth argument in Currency Corporation. 75Currency Corporation and Caltex considered the application of s 109B in civil law contexts. Caltex was a referral on a question of law from a commissioner of the Court in Class 1 proceedings. Currency was also a Class 1 proceeding, an appeal from a deemed refusal by a local council of a development application for a residential flat building, in the course of which the existence of existing use rights arose for consideration by a judge. Both cases required detailed consideration of particular transitional and other provisions in different planning scheme ordinances in order to address whether existing consents continued to have effect as provided under s 109B and/or whether existing use rights existed as provided in s 107. 76In Currency Corporation the facts varied from this case, for example, the consent in question was a certificate of approval in 1974 under the Strata Titles Act 1973 and was held not to be a consent under the Wyong Planning Scheme Ordinance 1968 (Wyong PSO). Of most relevance is the fourth ground, being a finding that the 1974 approval was not in force at the relevant date, assuming it was a consent, at [38]. After a detailed consideration of the Wyong PSO and authorities such as Nehme Biscoe J concluded in obiter that the consent did not continue in force it having been spent so that no reliance could be placed upon it, at [44]. 77In Caltex I considered in considerable detail Nehme (Handley JA with whom Beazley and Meagher JJA concurred) in the Court of Appeal and Currency Corporation together with other relevant Court of Appeal decisions such as Harris v Hawkesbury Shire Council (1989) 68 LGRA 183 and House of Peace and other first instance cases. I concluded at [74] - [83] that the reasoning in Nehme and the fourth finding in Currency Corporation relied on by the Prosecutor should be distinguished based on the wording of the planning scheme ordinances concerned. It is unnecessary to set out the detailed provisions considered in those judgments, they being more than adequately identified in both judgments. The key matter to observe is that, as the Defendant submitted, the LPSO transitional provisions cl 27(2) (see par 12) is identical to cl 27(2) in the Windsor Planning Scheme Ordinance 1973 (Windsor PSO) considered in Harris. I applied Harris in Caltex in concluding that a consent did continue in force under the Manly Planning Scheme Ordinance 1968 (Manly PSO) by virtue of s 109B. In addition, the transitional provisions in clauses 66, 67 and 69 in the Manly PSO in Caltex were very similar to the Windsor PSO considered in Harris (and different to the Wyong Planning Scheme Ordinance (Wyong PSO) considered in Currency Corporation). These clauses are also very similar if not identical to clauses 74, 75 and 77 in the LPSO set out above at par 14 - 16. Given this similarity, my detailed reasoning in Caltex at [48] - [83] should also apply here, resulting in a conclusion that the development consents relied on by the Defendant issued under the CCPSO continue in force. 78The two development consents (nos 103/67, 17/71) issued under the CCPSO continue in force under the LPSO by operation of clauses 27, 74, 75 and 77. Under cl 7 Sch 3 of the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 set out at par 49, on the coming into effect of the EPA Act they also continued in force. The 1987 development consent (no 39/87 for ten stables) granted under the LPSO continued in force by operation of s 109B once introduced and under the transitional provisions identified above in par 49 which applied before that section was introduced.

Construction of development consents and building permits 79Having concluded that the development consents and building permits are in force as provided for in s 109B, and that they authorise the use of the structures on the property, the nature of the use under the consents and permits in the charge period arises. This requires the construction of the consents and permits in accordance with the well-established principles identified in House of Peace at [37] - [41]. The consents and permits refer to the permitted building being variously "brick stables addition" (twice), "the erection of addition of 2 stables to existing stables", "brick addition" to a (additional boxes on the southern side), "the addition of six (6) stables to be erected", "brick buildings containing 6 stables", "erection of a stable building comprising ten (10) stables attached to existing stable building on condition that development be carried out generally in accordance with the development application". 80Given the simplicity of the consents issued under the CCPSO and the LPSO (and by inference the permits under the LG Act Ordinance 71) that is a straightforward task according to the Defendant. The Prosecutor submitted that, also in accordance with the principles in House of Peace inter alia, the stables buildings and use were all intended to be additional to a dwelling house use and regard should be had to the residential zoning of the property. The first development consent in the series of consents produced from the Prosecutor's files granted in 1966 was for a dwelling house and garage (no 95/96). The reference in several subsequent consents and permits to stables additions was submitted to mean additional to the dwelling house use on the property. 81Mason P in House of Peace at [37]-[41] emphasised that a consent must be interpreted by its written terms with a liberal reading. Else-Mitchell J in Royal Ryde Homes at 324 stated that any lack of clarity or certainty is the responsibility of a council and it must take the consequences of that, a finding applied in many cases since. As a general principle no document is incorporated into a development consent unless it can be found expressly or impliedly to be incorporated. In relation to whether zoning of a property can apply to the construction of a development consent, I am not aware of any case where these principles have been applied so that the written terms of a development consent which are otherwise clear on their face have been interpreted by reference to the zoning of land. Further, under the CCPSO the property was in a zone identified as Special Uses and a wide range of uses were permissible with consent. Consequently, no underlying residential use could apply to the construction of the two development consents for stables granted under the CCPSO. 82Under the LPSO the property was located in a residential zone and has remained in such a zone ever since under the LLEP 1997 and LLEP 2008. That the property was zoned for residential use under the LPSO cannot on that basis alone assist in the interpretation of the development consent for stables (no 39/87) relied on by the Defendant. The planning regime under cl 45A of the LLEP 1997 whereby development directly connected with a horse racing facility at Warwick Farm which would adversely impact the character of the area could be approved in the Residential 2(b) zone cannot be applied to interpret the stables consents. Nor can the LLEP 2008 which provides in cl 16 Sch 1 that animal boarding or training establishments inter alia can be approved in the R2 Low Density Residential Zone. Both LLEPs came into operation long after the consents were granted in any event. 83The Prosecutor also relied on the fact that a dwelling house and garage were approved first on the property in 1966. There is no explicit reference to the consent for a dwelling house and garage (no 95/96) in any of the subsequent consents for stables on which the Defendant relies. The Prosecutor essentially submitted that the first consent must be incorporated by inference into the subsequent consents. But for the word addition there is no basis for doing so. The next consent granted for "erection of addition of 2 stables to existing stables" (no 103/67) cannot be construed to refer to the dwelling house consent by the word addition as it appears to relate to the words existing stables. The further references to addition in the development consents appear to mean most obviously additional stables. There is no basis in the principles articulated in House of Peace for interpreting all the stables consents as requiring that these be used only in conjunction with a dwelling house use. As identified above, Royal Ryde Homes is authority that any lack of clarity in a consent is the responsibility of the Council and it must take the consequences of that. 84The only consent which could possibly be construed as referring by inference to the dwelling house is no 39/87 which requires the development to be conducted in accordance with the development application dated 28 January 1987. An incomplete copy of the development application is in evidence as no plans are attached to it but are required to have been submitted by the application form. That the present use of the property is recorded in the application as 'residential and horse stables' does not give rise to an inference that the consent for the stables is so confined applying the principles in House of Peace. Those words on the application form are a factual statement of the use of the property at that time. I do not consider that the consent is qualified by inference as being conducted only in conjunction with a dwelling house by these words in the application form. 85The Prosecutor also relied on the consent for a silo (no 587/78) granted on condition that the silo and premises generally be used for private purposes only. The Defendant does not rely on that consent. It can have no application to the stables consents in the absence of any explicit or implied reference to it in these. 86The construction of the building permits was not separately addressed at the substantive hearing as argument proceeded on the assumption that all approvals were issued under the CCPSO or LPSO. The building permits were issued under the LG Act 1919 Ordinance 71 and are directed at the building of a structure rather than its use. The land being zoned residential does not affect the construction of the permits in the absence of any words linking a permit with that. There is otherwise no wording in the permits which suggests the use of the buildings is constrained. 87The permitted use under the development consents for stables relied on by the Defendant is stables, undefined in the CCPSO, defined in the LPSO as a building or place for the receiving, maintaining, boarding or keeping of horses. None of the consents and permits have relevant operational conditions such as defined hours of operation, limits on the length of stay of horses or limits on the mode of transport of horses to and from the premises. The concerns raised by the Prosecutor about length of stay of horses, hours of operation and delivery of horses are irrelevant to the construction of the various consents. 88The absence of conditions regulating the operational use of stables in the permits is also noted, albeit such conditions would not be expected in such permits.

Relationship of s 76B and s 109B 89I have found that the Defendant has proved the consents and permits continue in force to permit the unconfined use of buildings on the property as stables. It remains to consider the structure of the EPA Act to determine what elements the Prosecutor must prove or disprove given that finding. The Prosecutor submitted that only if development is prohibited under s 76B (meaning in this case through the characterisation of the purpose of the use of the property as a horse transport business variously described as a transport depot, truck depot or freight transport facility) does s 109B come into operation and such a defence only succeeds if consents continue in force which permit such a business. Given that the consents were granted under the CCPSO and LPSO which allowed different land uses to the LLEP 1997 and the LLEP 2008 such a submission if accepted would deprive development of land relying on a consent in force under s 109B of much of its protection under that section. For example, there is no definition of stables in the LLEP 2008 so that the use permitted by the consents is now prohibited given the operation of the relevant land use tables in the LLEP 2008. In this case the use of the stables to receive horses continues but the purpose for which horses are brought to the property has changed on the Prosecutor's case from a race horse training establishment up to about 2007 to a horse transport business from 2010. 90The answer requires the construction of Pt 4 of the EPA Act which is a separate task to the attribution of the onus of proof considered above in the context of Ensile. The wording of s 76B and s 109B does not suggest there is a particular hierarchy of consideration imposed by the EPA Act whereby s 76B must be applied exclusively first, with the prohibition of development under an EPI necessary before the operation of s 109B can arise (the Prosecutor's submission). Rather, it appears more in keeping with the EPA Act that these provisions operate concurrently. This view is reinforced by s 76C which provides that Div 1 where s 76B is located is subject to other parts of the Act unless otherwise stated. That section was given a wide compass in Ensile at [24] but in this case need only arise in relation to another division in Pt 4, being Div 10 where s 109B is located. 91Alternatively, the consideration of s 109B comes first in the sense that it states an EPI cannot prohibit development carried out in accordance with a consent that has been granted and is in force. Here the stables consents granted some time ago under the CCPSO and the LPSO and the building permits were in force at the time the LLEP 2008 was made. The permitted use of stables existed from the commencement of the LLEP 2008. No matter how the onus of proof of the existing consents falls, this is a fundamental issue for the Prosecutor's case. It is not addressed by submitting that the characterisation of use elements of the charge arise separately from and before the consideration of the stables use permitted by existing consents. Embedded in the Prosecutor's case characterising the purpose of the use of the property is the spelling of horses in the stables. That case theory does not address the permissibility of the ongoing stables use on the property which is inseparable from the Prosecutor's characterisation of use argument. 92For completeness I should note that the discussion at the substantive hearing was directed to the development consents and the CCPSO and LPSO. The building permits relied on by the Defendant were granted under Ordinance 71 of the LG Act 1919. My finding on the construction of the development consents apply equally to the building permits. 93The question is not that posed by the Prosecutor that, starting from an assumption that the use of the property by the Defendant is for the purpose of a "transport depot" or "truck depot" or a "freight transport facility" (all defined terms in the LLEP 2008), the Defendant must prove all the elements of s 109B in relation to such development, that is, that the consents and permits relied on permit the particular purpose of a use characterised in the Prosecutor's case.

All elements of charge not established 94It is necessary to apply these findings in the context of the elements of the charge relied on by the Prosecutor. The Prosecutor identified four elements it submitted it bore the onus of establishing (see par 3).

First and second elements 95The first element of the charge is that the Defendant carried out certain development at the property in the charge period. It is not disputed that Mr Maley is the sole director, secretary and shareholder of the Defendant (exhibit B tab 4). The Defendant has occupied the property since around June 2010. At about that time, the property was purchased by ACM Corporation Pty Ltd and JLMJ Investments Pty Ltd (exhibit B tab 1). Mr Maley is also the sole director, secretary and shareholder of ACM Corporation Pty Ltd (exhibit B tab 2). None of this is disputed by the Defendant. 96That development as defined in the EPA Act was carried out during the charge period is not disputed and is established by the evidence which I summarise below. 97The second element identified is that the LLEP 2008 applies to the property, which is also not disputed and is established. The Prosecutor tendered the LLEP 2008 as exhibit D and read the affidavit of Mr Chong, town planner for the Council. Mr Chong deposed that the LLEP 2008 applied to the property from November 2011 to the current date. Mr Chong also deposed that the property is zoned R2 Low Density Residential under the LLEP 2008.

Third element 98The Prosecutor presented evidence over four days of the activities conducted on the property in the charge period which largely addressed the first and third elements of the offence. The third element is that the purpose of the development characterised as a horse transport business variously described by reference to three definitions in the LLEP 2008 (transport depot, truck depot, freight transport facility) was prohibited under the LLEP 2008. This evidence was largely undisputed by the Defendant except that it submitted the permissible stables use was also established by this evidence. 99Business records tendered include the Defendant's conditions of carriage, driver logs and tax invoices (exhibit M), and the Defendant's employment records, invoices, log books, receipts and lease in respect of the property (exhibit N). 100The Prosecutor read affidavits of Mr Jauncey, Council's Team Leader Building Services, Mr Elkhoury, Council Compliance Officer and Ms Lette, Council's Environmental Health Officer. The affidavit of Mr Mulkerrins, Council's consultant Building Surveyor, was also read by the Prosecutor. The evidence from Council officers Mr Elkhoury, Ms Lette and Mr Mulkerrins corroborates the accounts of Mr Jauncey in relation to, respectively, the inspections of 18 August 2011, 12 September 2011 and 9 November 2011. 101Mr Jauncey's affidavit included conversations with Mr Murdock, who introduced himself as the Manager of Sydney Horse Transport on 18 August 2011, 12 September 2011 and 9 November 2011 where the nature of the business of horse transport conducted by the Defendant at the premises was identified. 102Concerning the 18 August 2011 inspection Mr Jauncey stated that he attended the property in the company of Mr Elkhoury. Upon arrival Mr Jauncey spoke with Mr Murdock. Mr Jauncey indicated he was attending in response to complaints and officially cautioned Mr Murdock. Mr Jauncey observed certain works had been carried out. 103Mr Jauncey saw two horse transport trucks parked on the property. The first was a white semi-trailer marked with the Sydney Horse Transport name. The second was a smaller red truck, which was wet and which had pools of water around it. Mr Jauncey observed that there were 28 stables located around the northern, southern and western boundaries. In oral evidence Mr Jauncey stated that there were 32 stables on the property. Mr Jauncey had a conversation with Mr Murdock. Mr Murdock, when asked by Mr Jauncey "What are the business operations?", replied as follows: From here, I manage the Sydney Horse Transport business. We transport horses throughout Australia and receive horses from overseas also. The horses come to us for transport to sale yards and race events. A lot of those horses are transported Melbourne-Sydney-Brisbane. There are no permanent horses stabled on the site and most of the horses kept on site are in transit. When horses are travelling or being transported from Melbourne to Brisbane or vice versa, they will be unloaded and spelled for the day in the stables before being reloaded and transported at night. In addition horses being flown in from overseas, particularly from New Zealand will be unloaded on the site and stabled, before further transport. We have a quarantine section in the stables which is located at the rear for overseas horses. 104Mr Jauncey asked Mr Murdock what the demountable building was for, to which Mr Murdock replied: It has showers and toilets in it and a recreation room with a television for the drivers use. All trucks have sleeping cabins and the drivers all sleep in the trucks. I even sometimes sleep in the office when I finish late. 105Concerning the 12 September 2011 inspection Mr Jauncey stated that he inspected the property with Ms Lette. Mr Jauncey saw two large Sydney Horse Transport trucks parked at the rear of the site, two high pressure water gurneys in a storage stall and a large movable set of steps. When they inspected the demountable building, which contained a recreation room, toilet, shower and bunk room, Mr Jauncey saw that there was a man asleep in the lower bunk. 106Mr Jauncey and Mr Murdock had a conversation to the following effect: Mr Jauncey: What are the gurneys in the stables used for? Mr Murdock: We use them to clean out the stables as well as for cleaning out and washing the trucks. Mr Jauncey: What about the step platform on wheels? Mr Murdock: That's so we can clean the top parts and roof of the trucks. 107Concerning the 9 November 2011 inspection, Mr Jauncey stated that he inspected the property with Mr Mulkerrins. He saw three large trucks parked on the site, two of which were Sydney Horse Transport trucks and one of which had the signage of "Prestige Racehorse Transport". He saw nine horses in the stables. Mr Murdock informed Mr Jauncey that all of those nine horses were in transit with a number to be taken to the wharves for boat transport to New Zealand. 108A neighbour Mrs O'Neill also swore an affidavit. Mrs O'Neill filmed trucks arriving and leaving the premises at a variety of times across all days of the week, from about August or September 2011 to June 2012) and the unloading and loading of horses from the trucks. Parts of the films were also shown in Court. The level of activity is considerable and the size of some of the trucks very large, requiring the trucks to use both sides of the road when turning out of the premises. The Prosecutor also read the affidavits of Mrs Adams who is another neighbour and Mr Leemon, a horse trainer. 109Mrs Adams stated that between 2002 and 2007, the property was used for the training of horses at the Warwick Farm Racecourse. During this period she regularly saw horses being walked to and from the racecourse for training and she knew by name the trainers operating from the property. Mrs Adams stated that the last trainer who worked from the property vacated it in about 2007 and that the property was then vacant until 2010. This is when the Defendant commenced its occupation of the property. Mrs Adams states that shortly after the property was purchased in 2010, demolition and building work was carried out on the property. Since the Defendant has commenced its occupation of the property, she has not seen any horses being walked or taken from the property to the Warwick Farm Racecourse. 110Mrs Adams stated that, since the Defendant commenced its use of the property, horse transport trucks are regularly parked on the property. On some nights there have been up to eight trucks parked there and it is not unusual for trucks to come and go at all hours of the night and early morning. Mrs Adams has seen trucks being washed and cleaned out on the property by "a big pressure cleaner" which happens daily and often on weekends. She says that the truck noise is extreme. 111Mr Leemon has lived and worked at No 2 Manning Street training horses at the Warwick Farm Racecourse since 1978. Mr Leemon stated that since about June 2010, the horse roll and walking area were removed and the rear of property was totally concreted. Mr Leemon stated that as a horse trainer he is familiar with the horses trained at the Warwick Farm Racecourse. He says that there are no horses kept on the property that train at the racecourse. 112Development carried out by the Defendant during the charge period includes: (1)the demolition or removal of the garage which was located between the dwelling house and the boundary of Mrs O'Neill's land (which can be seen in the Google Street View image taken prior to the charge period when the property was for sale in the street view and aerial images comprising exhibit A; affidavit of Mrs Adams at [13]); (2)the construction of a concrete driveway where the garage used to be situated providing vehicular access from Manning Street to the rear of the property adjacent to Mrs O'Neill's boundary (exhibit A); (3)the removal of the large tree and the grass or permeable areas in the rear section of the property (affidavit of Mrs Adams at [13]; affidavit of Mrs O'Neill at [13]); (4)the removal of the sand roll, horse walking machine and some feed rooms from the rear section of the property (Mrs Adams at [13]); (5)the concreting of the entirety of the property not otherwise having buildings or structures on it (affidavit of Mr Leemon at [3]; Mrs Adams at [13]; Mr Jauncey at [18]); (6)the erection of traffic control bollards located on the rear and sides of the concreted hard stand area (an example is visible in the two photos on page 8 of Annexure A to the supplementary affidavit of Mr Elkhoury); (7)the erection of vehicular gates on each of the driveways (Mrs Adams affidavit at [13]); (8)the erection of colourbond boundary fences with a height in excess of 2.5 metres (Mr Jauncey affidavit at [18(l)]); (9)the conversion of the dwelling house into an office (Mr Jauncey affidavit at [18(a)]; [24]; [25]); (10)the demolition of the "boy's room" which abutted the western side of the dwelling house (visible as a pale oblong shape on the aerial photo taken prior to the Defendant's occupation which forms part of exhibit A); (11)the installation of the demountable building and its fit out to make it suitable as a rest facility. 113The Defendant traded as Sydney Horse Transport and Brisbane Horse Transport during the charge period (exhibit B tabs 6 and 7). 114The Prosecutor submitted that in planning law, use of land must be for a purpose; Shire of Perth v O'Keefe at [534] - [535]. The purpose is the end to which land is seen to serve. It describes the character which is imparted to the land at which the use is pursued. The use of land involves no more than the physical acts by which the land is made to serve some purpose: Chamwell at [27] and [28]. In order to identify the purpose, it is instructive to identify the physical acts which were being carried out on the property during the charge period. 115During the charge period, horse transport trucks of varying sizes ranging from fairly large rigid trucks up to semi-trailers regularly drove onto the property. There were clearly a large number of truck movements both into and out of the property and also within the property (manoeuvring for parking and cleaning). 116The evidence of Mrs O'Neill was that many times from June 2010 she had seen more than 15 different trucks go in and out of the property on the same day. On some occasions she has seen up to five large horse transport trucks parked in the rear of the property with others waiting in the street or driveway to come in. 117The trucks which used the property included Sydney Horse Transport trucks and Brisbane Horse Transport trucks as well as other horse transport trucks. 118The Prosecutor submitted that this evidence shows that the property was regularly used for the parking of trucks during the day and often overnight, and during the following day and sometimes over long weekends. Trucks parked in both the rear of the property and also the front of the property, on concrete slabs which, given their continuing integrity, must have been designed and constructed so as to be able to cater for truck parking and movements. Structures on the property were protected by traffic bollards. 119Trucks were regularly cleaned on the property, both inside and out using the hot water gurneys stored on the property. The regularity of the cleaning of trucks is clearly depicted in the video evidence. Often many different trucks would be cleaned on the property on the same day in sequence over a period of hours and this process involved truck movements. During at least part of the charge period, this practice was so frequent on Saturdays as to prompt Mrs O'Neill to refer to it as "the Saturday Ritual". 120Not only were the hot water gurneys used to clean the trucks, but other devices, including a platform on wheels which allowed access to, and the cleaning of, the higher parts of the chassis and roofs of the trucks. 121At times, trucks came onto the property without horses and were cleaned. They came onto the property for that sole purpose, quite often on Saturdays. A telling example was observed by Mr Jauncey and Mr Elkhoury when they attended the property on 18 August 2011. On that date, they saw two trucks parked on the property, one Sydney Horse Transport semi-trailer and a smaller red truck which had been washed. Mr Jauncey asked the Defendant's manager "who owns the second red horse transport truck?" to which the manager replied "It belongs to a Randwick horse trainer who has come to the site to wash out his truck using the hot water gurney. I try to get the pits cleaned out at least once a week." 122The fact that the Defendant's manager added the last statement is indicative of the intensity of the truck washing on the property and, in that respect, is consistent with the account of Mrs O'Neill and the video footage she has taken of the property. 123Truck drivers slept and rested on the property. Provision was made on the property for that purpose by the installation and fitting out of the demountable building. The building was fitted out with bunk beds, cooking facilities and a recreation room with a television. The Court should be satisfied that truck drivers in fact used this facility to sleep in and rest. On one of only three inspections of the property, there was a man asleep in one of the bunks in the demountable building and while he was asleep there, there were two trucks parked on the property. 124A suggestion was put to Mr Jauncey in cross-examination that the person seen asleep on this occasion may have been a "yard boy", but no evidence was adduced to suggest that this was so. 125That drivers did in fact sleep and rest on the property is corroborated by the small sample of truck log book pages which the Defendant produced, which are consistent with the property being used for long rest stops required to satisfy occupational health and safety and transport regulation requirements regarding heavy vehicle drivers. 126In any event, on the many occasions when trucks did park overnight on the property, there are only three possibilities in relation to what the drivers did. Either the driver was asleep or resting in the demountable building or the driver was asleep or resting in his truck, or the driver had parked his truck on the property and departed. On any of these three scenarios, the property was being used for the overnight parking of trucks. There is also evidence that trucks were mechanically repaired on the property.

Conclusion on third element of charge 127The Prosecutor has established beyond reasonable doubt that the use of the property in the charge period was not in accordance with the LLEP 2008 as the use is not for the training, breeding, boarding, caring or keeping of horses on the property, and is therefore not permitted by cl 16 Sch 1 as an animal boarding or training establishment. The use of the property in the charge period can be characterised as a horse transport business.

Fourth element 128This brings me to the fourth element which the Prosecutor must establish, that the use was otherwise prohibited under the EPA Act. As already identified, the Defendant's response to the Prosecutor's case is that the use of the stables for the receiving of horses for the charge period was not prohibited by virtue of s 109B. That defence is not answered by the Prosecutor's case. I do not understand that the Prosecutor submitted the stables were not used for the spelling of horses which can also be described as the use of a building or place for the receiving of horses. 129None of the evidence relied on by the Prosecutor is substantially challenged by the Defendant who simply sought to demonstrate that the use of the property included use of the stables for holding horses and that the trucks which came to the premises usually carried horses which were loaded onto, or unloaded from, the trucks. That is established by the evidence of Mrs O'Neill and Mr Jauncey. Mrs O'Neill in cross-examination agreed with the proposition that having seen trucks come and go with horses, that it would be usual for there to be horses in the stables on the property because if they had bought horses in they would have to put them into the stables. Mrs O'Neill stated that this situation existed the entire time Sydney Horse Transport has been sending horses to the property (TS 100). The use of the stables for holding horses is also identified by Mr Murdoch. 130As the use in the charge period is consistent with the use permitted by the stable consents at least in part, the Prosecutor has not established the fourth element of the offence, that the conduct of the Defendant was forbidden by the EPA Act within the meaning of s 125(1). As already outlined above at par 90, s 76B is subject to other parts of the EPA Act, as provided for in s 76C. 131I have said that, at least in part, the use was not prohibited to the extent that the use of the stables is permitted. As the Defendant acknowledged in its case and without admission, had a charge been mounted based on the failure to comply with the existing consents different issues may arise. That is not the case mounted by the Prosecutor however. 132The Prosecutor did submit in written submissions that even if there was a possibility that the Defendant used the property for a purpose that was permitted under the LLEP 2008 as, say, an animal training or boarding establishment, there was an independent and dominant use of the property by the Defendant for the Defendant's horse transport business which included the spelling of horses in transit. Given my finding at par 90 about the structure of the EPA Act in Pt 4, that is not the correct comparison in contrasting the horse transport business use with what is permitted under the consents. Given that the stables use is permitted and unconstrained in that no operational conditions for that use are imposed in any of the historic consents, the part of the transport business which relies on bringing and taking horses to and from the property and the spelling of horses is part and parcel of the stabling of horses. That part of the business, however described, is permissible under the consents. That finding cannot be overcome by the characterisation of use undertaken by the Prosecutor given my conclusion on how s 76B and s 109B operate. 133Even if the dominant purpose is characterised as a horse transport business, a large part of that use is permitted in that it can also be correctly described as the stabling of horses carried out in accordance with the historic consents. That the purpose of that use can be variously described does not undermine the legal effect of the historic development consents. These findings mean that the Prosecutor has not established the fourth element of the offence. 134The possibility that some parts of the use of land such as the parking and servicing of trucks and the provision of short-term accommodation for drivers in transit are not part of or ancillary to the stables use and may not therefore be lawful is not the nature of the case charged. If this was to now be raised the Prosecutor would need to refashion the charge. Some of the issues that may arise where the use of land is found to be for two or more purposes were referred to recently in Botany Bay City Council v Pet Carriers International Pty Limited [2013] NSWLEC 147 at [28]. It is not appropriate to speculate further on what case could be mounted by the Prosecutor. I must rule on the basis of the charge presented. 135Before pronouncing finally on this matter by dismissing the charge, I understand the Prosecutor wishes to have an opportunity to consider the option of pursuing a stated case.

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. Decision last updated: 25 September 2013