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.