MURDOCH v HOLROYD CITY COUNCIL

The appellant's failure to remove the fill constituted storage on the land in which the appellant was a participant; the trial judge was justified in concluding that there was a storage on land of material which constituted a use of land within meaning of s4 and thus a breach of s76(2).

Priestley JA. Cohen AJA will give the first judgment.

Cohen AJA. This is an appeal from orders made by Stein J in the Land & Environment Court. Orders were in fact made initially in March 1994 and after further submissions he made additional orders of a more specific nature on 2 May 1994 but other than on a general order restraining the respondent those orders were stayed pending the completion of proceedings in this Court.

The proceedings were commenced by the Council of the City of Holroyd against the appellant, Mr Murdoch. Two declarations were initially sought but the first was not pressed after certain of the evidence made it obvious that it could not succeed. The declaration which was pressed and which was made by his Honour was that the premises which are owned by the appellant were being used by him for the purpose of the storage of fill without development consent having been obtainedin accordance with the provisions of s 76 of the Environmental Planning & Assessment Act 1979.

The facts are set out in the judgment of the Court below and it is not necessary that they should all be repeated. There were some essential findings of fact which have not been attacked in the course of this appeal. The relevant facts related to the placing of fill on the vacant land and the extent of the participation of the appellant either in the placing or the spreading of that fill and in his subsequent acquiescence in the placing of other fill.

The relevant findings which are set out at pp 138 and 139 of the appeal book could be summarised in the following form: The appellant did not directly authorise Mr Wilson, who was a witness and who had admittedly placed fill on the land, to dump that fill. It was further found that the appellant had asked Mr Wilson to level and tidy the land and to move some of it to form a barrier. There

was a further finding by his Honour that he had no doubt that the appellant tacitly approved of the dumping of waste by Mr Wilson on the land and he knew of that fact and deliberately refrained from doing anything about it.

His Honour was satisfied that the appellant took no step to have any of the fill removed.

There was evidence that other persons, apart from Mr Wilson, had dumped fill on the land but on the findings of his Honour this was done without any express authorisation, direction or permission of the appellant, although again he took no steps to prevent the dumping reoccurring.

As the result of these findings his Honour came to the conclusion that the appellant knew what was happening to his land having been told specifically by the council and also by his agent and a concerned neighbour. The view of his Honour was the council was entitled to a declaration that the subject land was being used by the respondent for the purpose of the storage of fill.

Section 76 of the Environmental Planning & Assessment Act provides that development may not be carried out except with the consent of the relevant council having been obtained and a person shall not carry out development on land unless that consent has been obtained. One might have thought in lay terms that development would mean the using of land for subdivision or building purposes but the word has a wider meaning, as is shown by the definition in s 4 of the Act. It relates to a series of possibilities being the erection of buildings, the carrying out of work on the land, the use of that land or building or work on it and the subdivision of the land. The use of the land is, in effect, the subject of these proceedings and in that regard the council has relied upon what the Court below has found that the continued retention of the wrongly dumped fill on the land amounted in thecircumstances to a storage of that fill and that, in turn, constituted a use of the land. It is not disputed by counsel for the appellant that in certain circumstances storage on land can constitute a use and thus through the definition can also constitute development within the meaning of s 76.

It was urged upon the Court, however, that mere storage without any positive act on the part of the owner would not constitute use so as to come within the section. We were taken through a number of cases under various Acts, principally the Local Government Act, which have dealt with the extent to which an owner can be said to be using land. In some of those it was quite clear that the owner had no control or ability to control what was done on the land and it was held that there was no use by that owner. On what was, in effect, dealt with on a sliding scale various other authorities were pointed to to show how, in other circumstances, owners have been found to have used land, even though the direct use was not by the owner. Certainly there have been cases such as were referred to whereby owners have been found who have acquiesced in the wrongful use of land and to that extent, therefore, would have been themselves regarded as users.

In the case before us the evidence of the appellant contained in an affidavit indicated that he had authorised Mr Wilson, to whom I have previously referred, to spread fill which had been placed on the land so as to tidy it up, as had been described, and also to pile the fill in order to prevent persons from entering theproperty from the frontage of the land onto the Great Western Highway. One might pause to say that this seems to have been a somewhat useless exercise as there was ample access to the property from the rear frontage. However, that is by the way. It is to be assumed, therefore, that the appellant was aware that soil had been wrongly placed on the land and his authority was to have it spread for

URJ MURDOCH v HOLROYD CITY COUNCIL (Priestley JA) 3

the reasons that I have just given. That, in itself, in my view constituted an active participation to some extent in the use of the land for the storage of fill.

It has been pressed upon us that the lack of participation in the placing of the fill is an essential aspect of the claim against the appellant. In my opinion his Honour was correct in considering the fact that the appellant was a party at least to the spreading of fill and as his Honour has found he tacitly approved of the dumping of further waste. The fill continued to remain on the land without any steps being taken by the appellant to remove it. In my opinion that constituted storage on the land of the improperly placed fill and it was a storage in which, at least in part, he had been a participant. Whether that is an essential question does not seem necessary in these proceedings for me to decide. I am of the view that his Honour was justified in coming to the conclusion that there was a storage on the land of material and to that extent that this constituted a use of the land within the meaning of the definition and thus was a breach of s 76(2) of the Act. For those reasons I would dismiss the appeal.

Priestley JA. Despite the efforts of counsel for the appellant who presented the appellant's case with commendable clarity to persuade the Court that Stein J was wrong in his decision in this case, in my opinion, both for the reasons given by Cohen AJA and those of Stein J himself, the decision made in the court below must stand. I agree with Cohen AJA that the appeal should be dismissed with costs.

Sheller JA. I see no error in the conclusion to which Stein J came. Despite the careful submissions of Ms Duggan for the appellant, for the reasons given by the other members of the Court I agree the appeal should be dismissed.

Priestley JA. The order of the Court, therefore, is that the appeal should be dismissed with costs.

Solicitors for the appellant: FW EWART and EWART Counsel for the respondent: BJ PRESTON

Solicitors for the respondent: PIKE PIKE and FENWICK