Penrith City Council v Konemann - [2017] NSWLEC 79 - NSWLEC 2017 case summary — Zoe

NSWNSWLEC

Penrith City Council v Konemann

[2017] NSWLEC 79

Land and Environment Court (NSW)|2017-02-06|Before: Molesworth AJ

View original source

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2017-02-06

Before

Molesworth AJ

Catchwords

[1999] NSWCA 139 Barclay v Wollongong City Council (2005) 139 LGERA 167
[2005] NSWLEC 160 Baulkham Hills Shire Council v Ko-Veda Holiday Park Estate Ltd (2009) 167 LGERA 395
[2012] NSWCA 126 Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116
[2013] NSWLEC 147 Chambers v Maclean Shire Council (2003) 57 NSWLR 152

Source

Original judgment source is linked above.

Catchwords

[1999] NSWCA 139 Barclay v Wollongong City Council (2005) 139 LGERA 167[2005] NSWLEC 160 Baulkham Hills Shire Council v Ko-Veda Holiday Park Estate Ltd (2009) 167 LGERA 395[2012] NSWCA 126 Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116[2013] NSWLEC 147 Chambers v Maclean Shire Council (2003) 57 NSWLR 152[2003] NSWCA 100 Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400[2007] NSWLEC 114 Cracknell & Lonergan Architects Pty Ltd v Leichhardt Municipal Council (2012) 193 LGERA 151[2012] NSWLEC 194 Director-General, Department of Planning and Infrastructure v Glass Recovery Services Pty Ltd (2015) 207 LGERA 397[2001] NSWLEC 89 Gray v Woollahra Municipal Council [2004] NSWSC 112 Great Lakes Council v Lani (2007) 158 LGERA 1[2007] NSWLEC 681 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498[2000] NSWCA 44 J&J O'Brien Pty Ltd v South Sydney City Council (2002) 121 LGERA 223[2002] NSWCA 259 Jones v Sutherland Shire Council (1978) 38 LGRA 432[2016] NSWLEC 14 Mosman Municipal Council v Keesing [2006] NSWLEC 836 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Judgment (56 paragraphs)

[3]

A council alleges that rural land is being used unlawfully

These civil enforcement proceedings, brought under s 123 of the Environmental Planning and Assessment Act 1979 ('EPA Act'), concern the use of a rural block of land, Lot 40 in DP 2120 ('Lot 40'), within the Mulgoa Valley. Penrith City Council ('Penrith Council') alleges that Lot 40 is being used for an innominate prohibited purpose under the applicable environmental planning instrument and is, therefore, unlawful. More specifically, Penrith Council asserts that the use of Lot 40 is in contravention of s 76B of the EPA Act. Penrith Council claims that the particular innominate prohibited purpose of use is that of junk yard and/or storage premises or, alternatively, waste or resource management facility. On this basis, Penrith Council seeks a declaration to this effect and other consequential orders.
As the registered proprietors of Lot 40 are deceased, Penrith Council brings these proceedings against their two sons, Mr Grahame Konemann ('the First Respondent') and Mr Stuart Konemann ('the Third Respondent'), and the Executors of the Estate of their late mother ('the Second Respondent'). The First and Second Respondents were said by Penrith Council to each be entitled to 40 per cent of Lot 40. However, the activities on Lot 40 which are the subject of these proceedings principally concern the First Respondent. While the First Respondent hotly contests Penrith Council's case, the Second Respondent and Third Respondent do not.
In addition to its primary claim that Lot 40 is being used unlawfully, Penrith Council also seeks to enforce two statutory orders that it issued on the First Respondent. These orders required certain actions to be taken with respect to specified items kept on Lot 40. However, Penrith Council said that these additional claims were the 'belts and braces' to its primary case. If the Court were to find that Lot 40 is being used unlawfully and make the consequential orders sought, these additional claims may not need to be determined. The success of Penrith Council on its primary claim would be sufficient to dispose of the matter.

[4]

Summary of the issues

In these proceedings, the issues in dispute can be conveniently grouped into three categories. The first category of issues relate to the determination of Penrith Council's primary claim that Lot 40 is being used for a prohibited purpose and, therefore, in contravention of the EPA Act. The second category of issues relates to Penrith Council's separate (and possibly alternative) claim that the First Respondent has breached two statutory orders pertaining to Lot 40; namely, an "Order 10" issued pursuant to s 124 of the Local Government Act 1993 ('Local Government Act') ('the s 124 Order') dated 6 May 2014 and an "Order 1" issued pursuant to s 121B of the EPA Act ('the s 121B Order') dated 25 June 2014. The third category of issues relate to the final orders that the Court could make to resolve these proceedings.
Although these three categories of issues were comprehensively examined before the Court, I have decided that it is unnecessary and unwise to consider and make findings on all of these issues. As mentioned above, Penrith Council submitted that its claims relating to the s 124 Order and the s 121B Order are the "belts and braces" to its primary claim that Lot 40 is being used unlawfully. The claims "would provide another layer of jurisdiction to the Court to make orders requiring work to be carried out" (Transcript, 3 February 2017, p 32). Given my decision with respect to Penrith Council's primary claim, I consider that it is unnecessary and unwise to resolve the issues arising from these statutory orders. So to do would be unwise because no consequential relief has been sought in relation to the s 124 Order and the consequential relief sought in relation to the s 121B order has the potential to conflict with the primary relief sought and confuse or impede the final resolution of this dispute. Of course, the approach I have taken is appropriate here because Penrith Council implicitly accepted that there would be no utility in resolving the dispute relating to these statutory orders.
In deciding that it is not necessary for the Court to determine the issues regarding the statutory orders, it should not be taken that the Court believes it was inappropriate or unnecessary for those statutory processes to be commenced by Penrith Council. The Court has formed that view after fully considering the parties submissions on the orders.

[8]

The relief sought by Penrith Council

The relief sought by Penrith Council comprises: 1. A declaration that Lot 40 has been used and is continuing to be used for the prohibited purposes of junk yard or storage premises or waste or resource management facility in breach of s 76B of the EPA Act; 2. A declaration that the First Respondent has breached the EPA Act by failing to comply with an order issued to him under s 121B of that Act; 3. A declaration that the First Respondent has breached the Local Government Act by failing to comply with an order issued to him under s 124 of that Act; 4. An order restraining the Second Respondent from using Lot 40 for the purposes of junk yard or storage premises or waste or resource management facility; 5. An order compelling the First Respondent to comply with the s 121B Order; 6. An order compelling the First, Second and Third Respondents to: 1. Cease storing shipping containers, derelict vehicles and scrap metal on Lot 40; 2. Remove all shipping containers from Lot 40 within 30 days; 3. Reduce the number of derelict vehicles - including unregistered, damaged and dismantled vehicles - on Lot 40 to 5 cars within 30 days; 4. Remove the accumulated scrap metal - including vehicle parts, waste building materials, metal containers and drums - from Lot 40 within 30 days; and 5. Cease importing any further shipping containers, derelict vehicles and scrap metals to Lot 40. 1. An order empowering Penrith Council to enter Lot 40 to confirm compliance with Order 6 or to carry out the work identified therein if Order 6 has not been complied with in the specified time; 2. An order that regulates and conditions the power of Penrith Council to carry out the work identified in Order 6; 3. An order that Penrith Council cause the above orders to be registered on the title of Lot 40 (or, alternatively, registered in the General Register of Deeds); 4. An order that the First Respondent pay Penrith Council's costs; 5. An order that the parties have liberty to restore on three days' notice; and 6. Any other order that the Court see fit.

[9]

The regulation of development

Under s 4 of the EPA Act, development is defined to mean, inter alia, "the use of land". The EPA Act regulates development by way of a threefold system of classifying development. As was explained by Ipp JA in Chambers v Maclean Shire Council (2003) 57 NSWLR 152; [2003] NSWCA 100 at [33], the three categories of development are delineated under Div 1 of Pt 4 of the EPA Act: The first category is that provided by s 76(1). Section 76(1) concerns specified developments that, by an "environmental planning instrument", may be carried out without the need for development consent. The second category of development is set out in s 76A(1) and concerns a specified development that, by an environmental planning instrument, may not be carried out except with development consent. The third category is set out in s 76B. It concerns developments that, by an environmental planning instrument, are prohibited, or a development that cannot be carried out on land with or without development consent.
Relevantly for these proceedings, sections 76A and 76B prohibit a person from carrying out development on land in specified circumstances: 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.
The EPA Act provides that any person may bring proceedings in this Court to remedy or restrain a breach of the EPA Act, including a breach of ss 76A or 76B: s 123 of the EPA Act (see also s 20(1)(c) of the Land and Environment Court Act 1979).

[14]

Penrith Local Environmental Plan

Under the PLEP 2010, which commenced on 22 September 2010, Lot 40 is predominantly zoned as "E3 - Environmental Management" land and a small eastern area of the allotment is zoned as "E2 - Environmental Conservation" land: cll 1.3(1) and 2.2 and Land Zoning Map - Sheet LZN_007. The relevant land use tables for both zones are set out under Pt 2 of the PLEP 2010 in the following terms: Zone E2 Environmental Conservation 1 Objectives of zone • To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values. • To prevent development that could destroy, damage or otherwise have an adverse effect on those values. • To protect, manage, restore and enhance the ecology, hydrology and scenic values of riparian corridors and waterways, wetlands, groundwater resources, biodiversity corridors, areas of remnant indigenous vegetation and dependent ecosystems. • To allow for low impact passive recreational and ancillary land uses that are consistent with the retention of the natural ecological significance. 2 Permitted without consent Nil 3 Permitted with consent Environmental facilities; Environmental protection works; Flood mitigation works; Recreation areas; Roads 4 Prohibited Business premises; Hotel or motel accommodation; Industries; Multi dwelling housing; Recreation facilities (major); Residential flat buildings; Restricted premises; Retail premises; Seniors housing; Service stations; Warehouse or distribution centres; Any other development not specified in item 2 or 3 Zone E3 Environmental Management 1 Objectives of zone • To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values. • To provide for a limited range of development that does not have an adverse effect on those values. • To minimise conflict between land uses within the zone and land uses within adjoining zones. • To ensure development is compatible with the environmental capabilities of the land and does not unreasonably increase the demand for public services or public facilities. • To preserve and improve natural resources through appropriate land management practices. 2 Permitted without consent Extensive agriculture; Home occupations 3 Permitted with consent Agriculture; Animal boarding or training establishments; Building identification signs; Business identification signs; Cellar door premises; Cemeteries; Community facilities; Dual occupancies; Dwelling houses; Eco-tourist facilities; Environmental facilities; Environmental protection works; Farm buildings; Flood mitigation works; Funeral homes; Home-based child care; Home businesses; Home industries; Information and education facilities; Recreation areas; Roads; Roadside stalls; Rural supplies; Secondary dwellings; Tourist and visitor accommodation; Veterinary hospitals 4 Prohibited Aquaculture; Hotel or motel accommodation; Industries; Intensive livestock agriculture; Multi dwelling housing; Residential flat buildings; Retail premises; Seniors housing; Service stations; Serviced apartments; Turf farming; Warehouse or distribution centres; Any other development not specified in item 2 or 3
The nominate purposes of development included in these land use tables are defined in the Dictionary to the PLEP 2010: cl 1.4. As will be explained below, the following definitions are of relevance to these proceedings: waste or resource management facility means any of the following: (a) a resource recovery facility, (b) a waste disposal facility, (c) a waste or resource transfer station, (d) a building or place that is a combination of any of the things referred to in paragraphs (a)-(c). resource recovery facility means a building or place used for the recovery of resources from waste, including works or activities such as separating and sorting, processing or treating the waste, composting, temporary storage, transfer or sale of recovered resources, energy generation from gases and water treatment, but not including re-manufacture or disposal of the material by landfill or incineration. waste disposal facility means a building or place used for the disposal of waste by landfill, incineration or other means, including such works or activities as recycling, resource recovery and other resource management activities, energy generation from gases, leachate management, odour control and the winning of extractive material to generate a void for disposal of waste or to cover waste after its disposal. waste or resource transfer station means a building or place used for the collection and transfer of waste material or resources, including the receipt, sorting, compacting, temporary storage and distribution of waste or resources and the loading or unloading of waste or resources onto or from road or rail transport. storage premises means a building or place used for the storage of goods, materials, plant or machinery for commercial purposes and where the storage is not ancillary to any industry, business premises or retail premises on the same parcel of land, and includes self-storage units, but does not include a heavy industrial storage establishment or a warehouse or distribution centre.
Additionally, it is noted that Lot 40 is identified as land that possesses scenic and landscape values pursuant to cl 7.5 of the PLEP 2010: cl 7.5(2) and Scenic and Landscape Values Map - Sheet SLV_007. Clause 7.5 provides that: 7.5 Protection of scenic character and landscape values (1) The objectives of this clause are as follows: (a) to identify and protect areas that have particular scenic value either from major roads, identified heritage items or other public places, (b) to ensure development in these areas is located and designed to minimise its visual impact. (2) This clause applies to land identified as "Land with scenic and landscape values" on the Scenic and Landscape Values Map. (3) Development consent must not be granted for any development on land to which this clause applies unless the consent authority is satisfied that measures will be taken, including in relation to the location and design of the development, to minimise the visual impact of the development from major roads and other public places.

[15]

Sydney Regional Environmental Plan No. 13 - Mulgoa Valley ('SREP 13')

Prior to the commencement of the PLEP 2010 on 22 September 2010, Lot 40 was regulated under the (now repealed) SREP 13 and, according to Penrith Council, was zoned as "Zone No 1 - Rural Conservation" land: citing cl 7. Under cl 8 of the SREP 13, the land use table for this land use zone was in the following terms: Zone No 1 Rural Conservation 1 Objectives of zone The objectives of this zone are: (a) to conserve the rural, heritage and natural landscape of the valley, (b) to provide for the development of agricultural, residential, tourist and recreational land uses which are compatible with the rural and natural landscape and heritage of the valley, (c) to protect the visual amenity of the valley, (d) to avoid fragmentation and alienation of prime agricultural land, (e) to maintain the low density of rural settlement, and (f) to allow for the development and maintenance of the Warragamba - Prospect water supply facilities. 2 Without development consent Agriculture (not involving the erection of any buildings); water supply facilities on land owned by the Water Board. 3 Only with development consent Any purpose other than a purpose included in item 2 or 4. 4 Prohibited Advertising structures; amusement parks; boarding-houses; bulk stores; car repair stations; caravan parks; commercial office space; commercial premises; drive-in theatres; educational establishments; extractive industries; food outlets; general stores; heliports; hospitals; hotels; industry (other than rural and home industries); institutions; intensive livestock keeping; junk yards; liquid fuel depots; mines; motels; motor showrooms; offensive and hazardous industries; places of assembly; places of worship; poultry farming establishments; racecourses; reception centres; recreation facilities; residential flat buildings; saw mills; service stations; shops; stadiums; stock and sale yards; transport terminals; warehouses; waste disposal.
Relevantly for these proceedings, the SREP 13 adopted the defined term of "junk yard" from the (now repealed) Environmental Planning and Assessment Model Provisions 1980 ('Model Provisions'): cl 5(1) of the SREP 13 and cl 4 of the Model Provisions. Under the Model Provisions, junk yard was defined to mean: land used for the collection, storage, abandonment or sale of scrap metals, waste paper, rags, bottles or other scrap materials or goods used for the collecting, dismantling, storage, salvaging or abandonment of automobiles or other vehicles or machinery or for the sale of parts thereof.

[20]

Penrith Council's claim that Lot 40 is being used unlawfully

Penrith Council's principal contention in these proceedings is that Lot 40 is being used for a purpose that is prohibited and, therefore, unlawfully. The activities said by Penrith Council to comprise this prohibited use include "the receipt, collection, dismantling, storage, salvaging and abandonment of large quantities of materials and resources, including but not limited to, waste materials, materials, scrap materials and metals, vehicles and machinery" ('the use') (Amended Points of Claim at [7]). More specifically, Penrith Council alleged that the items on Lot 40 relevant to the use include approximately "40 car bodies, 8 trucks, 10 trailers, 5 shipping containers, 4 caravans, 9 site sheds [and] 13 scrap materials deposits" (Closing Submissions at [39]).
Penrith Council submitted that the proper characterisation of the use of Lot 40 is that of the use of land for the purpose(s) of "junk yard" and/or "storage premises" or, alternatively, "waste or resource management facility" (Closing Submissions at [54] and [56], see also further amended summons at [1]). Penrith Council claimed that the use of Lot 40 for any of these purposes is prohibited under the applicable land use tables the PLEP 2010. Additionally, Penrith Council submitted that use for any of these purposes is a separate and independent use that does not fall within the ambit of, and is not ancillary to, any other lawful use of Lot 40. Consequently, Penrith Council contended that all of these prohibited uses of Lot 40 are unlawful because they contravene s 76B of the EPA Act. Penrith Council justified this claim in the following way.
Under both the "E2 Environmental Conservation" and "E3 Environmental Management" land use tables to the PLEP 2010 [which are the applicable land use tables regulating the development of Lot 40], a number of purposes of development are expressly nominated as "permitted without consent", "permitted with consent" or "prohibited" (see Div 1 of Pt 4 of the EPA Act).
Relevantly, these land use tables do not expressly nominate the use of land as a junk yard, storage premises or waste or resource management facility development as purposes of development that are "permitted without consent", "permitted with consent" or "prohibited". However, both land use tables specify that "any other development not specified" as "permitted without consent" or "permitted with consent" is "prohibited". Hence, Penrith Council submitted that any independent, non-ancillary use of Lot 40 for the purpose of junk yard, storage premises or waste or resource management facility will constitute an innominate - and therefore prohibited - use of land under the PLEP 2010. Penrith Council asserted that the purpose of the use must be that of an innominate prohibited purpose because the use is not for any of the purposes nominated as being permissible with or without consent of any of the expressly nominated prohibited purposes (Summary of Argument at [29] and [31]).

[21]

The First Respondent's rebuttal of the claim that Lot 40 is being used unlawfully

The First Respondent's principal argument in these proceedings is that Lot 40 is not being used for the purpose of a junk yard, storage premises or waste or resource facility. Consequently, the First Respondent denied that Lot 40 has been used unlawfully in contravention of the PLEP 2010 and s 76B of the EPA Act. The First Respondent said that Penrith Council bears the onus to prove, on the balance of probabilities, that Lot 40 is being used by the respondents for "…the receipt, collection, dismantling, storage, salvaging and abandonment of large quantities of materials and resources" and that this use is properly characterised as one of the "…three particular (alleged) prohibited uses: junk yard, storage premises or waste or resource management facility".
The First Respondent asserted that if Penrith Council fails to prove that Lot 40 is being used as a junk yard, storage premises or waste or resource management facility - as alleged and pleaded by Penrith Council - then the First Respondent would have no case to answer regarding the use of Lot 40. The First Respondent submitted that the Court should not engage in the broader inquiry of whether the relevant use of Lot 40 is some other innominate use of land that is prohibited under the relevant land use tables to the PLEP 2010. It was said that this would be procedurally unfair because the First Respondent had not prepared for such a case - because Penrith Council did not plead "…the issue generally to say that the use is some other prohibited use, it has concentrated is [sic] case on three particular (alleged) prohibited uses" - and would be necessarily deprived of the opportunity to make relevant submissions and to tender relevant evidence.
The First Respondent argued that he would only need to demonstrate that the use of Lot 40 is properly characterised as being a permissible residential use of Lot 40 "…[i]f and only if, the Court finds" that Lot 40 has been used as alleged by Penrith Council and "…is characterised as one of the Prohibited Uses defined by the Council".

[22]

The First Respondent's contention that Penrith Council has failed to show that there is no extant development consent

The First Respondent submitted that Penrith Council bears the onus to prove that no development consent exists which would, under s 109B(2)(c) of the EPA Act, shield the allegedly prohibited use(s) of Lot 40 from being unlawful: citing Cracknell & Lonergan Architects Pty Ltd v Leichhardt Municipal Council; (2012) 193 LGERA 151; [2012] NSWLEC 194 at [34]. The First Respondent argued that Penrith Council has failed to discharge this onus because it has provided no evidence that its searches for applicable development consents extended to the date when planning controls first commenced for Lot 40. The First Respondent said that Penrith Council did not "…call any evidence that any search was undertaken of its consent register prior to 1972" or "…any evidence of the use of the land, its zoning or any other matter that would enable the Court to make an inference that there is no such consent in existence". Moreover, it was argued that Penrith Council had not provided an adequate explanation as to why the search for development consents did not examine records prior to 1972. The First Respondent submitted that it is no answer to this "…gaping hole in its evidence" that these are civil proceedings. The fact remains that Penrith Council has, according to the First Respondent, failed to satisfactorily prove that there is no development consent for the carrying out of the allegedly prohibited use(s).
The First Respondent referred to two authorities in support of its contention: Jones v Sutherland Shire Council (1978) 38 LGRA 432 (said to be undisturbed on appeal) and Baiada v Waste Recycling and Processing Service of NSW (1999) 130 LGERA 52; [1999] NSWCA 139.
In respect of the former decision, the First Respondent submitted that Waddell J held, at 437, that a partial search by a well-intentioned council officer was "singularly inadequate" because the evidence was not given in compliance with s 14CH of the (now repealed) Evidence Act 1898. The First Respondent said that Waddell J considered that, for the council to establish that there was no record in its files of an existing development consent, it was required to adduce evidence by a person able to: state what was the council's relevant system of record-keeping during the relevant period, say that a development consent would have been recorded in a particular way, and confirm that he or she had searched the records and was satisfied that there was no record of any development consent being granted for the relevant use.
In respect of the latter decision, the First Respondent submitted that it was held, albeit in different circumstances, that the respondent council bore the onus to prove the existence (or otherwise) of a development consent because it was the holder of the relevant records (at [53] and [60]-[61]), but that the same test applied.

[24]

Penrith Council's contention that Lot 40 is being used as a junk yard

Penrith Council submitted that the proper "common sense and practical" characterisation of the use of Lot 40 (quoting Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 at [45]) is that of use of land for the purpose of a junk yard. It was argued that this characterisation properly reflects a "…level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on…" (quoting Chamwell Pty Ltd v Strathfield Council at [36], in which Royal Agricultural Society (NSW) v Sydney City Council (1987) 61 LGRA 305 is cited at 310).
In support of this contention, Penrith Council referred to the definition of junk yard in cl 4 of the Model Provisions and the definitions of junk and junk yard in the Macquarie Dictionary. As Penrith Council noted, the term junk yard is not included or defined in the PLEP 2010. In the Model Provisions, junk yard was defined to mean "land used for the collection, storage, abandonment or sale of scrap metals, waste paper, rags, bottles or other scrap materials or goods used for the collecting, dismantling, storage, salvaging or abandonment of automobiles or other vehicles or machinery or for the sale of parts thereof". This definition of junk yard was incorporated into the SREP 13, which used to apply to Lot 40.
In the Macquarie Dictionary, the first of seven definitions provides that junk is "any old or discarded material, as metal, paper, rags, etc" and defines junkyard to mean "an open-air place where junk is stored". Penrith Council submitted that it is open to the Court to use these definitions to assist in the determination of whether Lot 40 is being used for the purpose of junk yard: citing Baulkham Hills Shire Council v Stankovic [2005] NSWLEC 110 at [17] and [25]. However, Penrith Council emphasised that the Court should be cautious in applying these definitions and should focus primarily on construing the term junk yard in town planning terms: citing House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at [25]-[33].
Penrith Council provided to the Court a substantial body of evidence relating to the historical and current use of Lot 40. However, the primary evidentiary material that Penrith Council relied upon to make good its claim that Lot 40 is being used for the purpose of a junk yard - in particular, as an "open-air place" used for "the storage of 'any old … material'" - was that contained within, or exhibited to, the affidavits of: Mr Joseph Vecchio, a senior compliance officer of Penrith Council; Mr Matthew Rawson, a senior environmental planner of Penrith Council; Ms Karen Callinan, a resident neighbouring Lot 40, and the First Respondent (Closing Submissions at [44]).
According to Mr Vecchio, Penrith Council first became aware of the existence of "waste, scrap, salvage, or derelict structures, building materials, and vehicles" on Lot 40 in January 2001, following the receipt of a written complaint. In response, a Penrith Council officer inspected Lot 40 and recorded, in a file note, the presence of "20-30 [H]olden [car] wrecks, 3 tow truck half bodies, [s]tack of bricks (convict) & wood" on Lot 40. Some years after this inspection, on 27 October 2015, Mr Vecchio attended a property neighbouring Lot 40 in response to a telephone complaint concerning the storage of vehicles on Lot 40. From this property, Mr Vecchio observed on Lot 40 what he identified in a file note as "an array of stored shipping containers, scrap metal, derelict vehicles, and [a] recent deposit of building materials such as drums, metal containers, concrete and soil". This file note included 23 photos which were said to show the "derelict material" on Lot 40. Mr Vecchio's evidence also included five aerial images of Lot 40 dated between 2 March and 6 November 2016.
On 13 January 2017, Mr Vecchio and Mr Rawson carried out a further inspection of Lot 40 in the presence of the First Respondent. Mr Vecchio claimed that he observed the following items on Lot 40 during this inspection: 5 shipping containers, 9 site sheds, 51 derelict vehicles (including at least 24 car bodies, several utility vehicles ("utes") and several trailers), 12 scrap metal deposits, fencing materials, concrete pallets, 8 deposits of building materials, 4 caravans, 2 forklifts, a train carriage and 7 trucks. Mr Rawson's account of what he observed during this inspection was largely in similar terms to that of Mr Vecchio. Additionally, Mr Vecchio took 122 photographs throughout the inspection, which he said depicted many of the items that he had identified on Lot 40.
In addition to the evidence provided by its own officers, Penrith Council also relied on the evidence of Ms Callinan. In particular, Penrith Council referred to three photographs that Ms Callinan took of Lot 40 from her property on 1 March 2016 and 23 June 2016 (Annexures L and M to the Affidavit of Karen Callinan sworn on 10 August 2016). Ms Callinan said that these photographs depicted "the scrap metal and junk … kept on" Lot 40.
Penrith Council also relied upon the evidence of the First Respondent. First, Penrith Council cited the statement of the First Respondent that fencing materials and used cars are amongst "[t]he items that have existed on [Lot 40] from time to time". Secondly, Penrith Council noted the First Respondent's statement that he has, in the past, "…regularly attended auctions of new (surplus) and second hand goods to see if there was anything that I could use on [Lot 40]…". Thirdly, Penrith Council referred to the First Respondent's evidence that he "…keep[s] a number of cars, including car wrecks, on [Lot 40]…". Fourthly, the First Respondent's admission that he has "…approximately 15 to 17 trailers on [Lot 40]" was relied upon by Penrith Council. Finally, Penrith Council cited the First Respondent's evidence that he uses: a tipper truck on Lot 40, "…for picking up dirt or feed or the like"; a "tilt tray" truck, "to move vehicles, containers, etc", and a water truck, "to collect water for the goats in times when water is scarce".
Finally, although strongly objected to by counsel for the First Respondent, Penrith Council relied upon Mr Rawson's evidence that that the appropriate characterisation of the relevant use of Lot 40 is that of junk yard.
From this body of evidence, Penrith Council contended that the Court should reach "the common sense and practical" conclusion that Lot 40 is being used as a junk yard. That is to say, the Court should find that Lot 40 is being used as "an open-air place where junk ['any old material'] is stored". Penrith Council asserted that "[t]he extensive number of automobiles, containers, materials, and 'sheds' spread across [Lot 40]" shows that Lot 40 is used for purposes, which on the First Respondent's evidence, include "collecting, dismantling, storage and salvaging for parts for other vehicles on Lot 40".
Penrith Council submitted that the present circumstances were analogous to those in Baulkham Hills Shire Council v Stankovic. In the circumstances of that case, the Court held that a property (which was zoned Residential 2(a) under the applicable local environmental plan) on which "a large amount of bricks, piles of timber, scrap metal, general rubbish, used cars, two used trucks, old whitegoods, empty bottles and pigs" were kept, was being used as a junk yard.

[25]

The First Respondent's rebuttal that Lot 40 is not being used as a junk yard

The First Respondent contended that Lot 40 is not being used for the purpose of junk yard. The First Respondent said that this must be so because the use of land as a junk yard is not an innominate use under the PLEP 2010. The First Respondent submitted that, under the PLEP 2010, the term junk yard cannot "…be ascribed a legal meaning that is separate and distinct from the defined terms" in the PLEP 2010 and, therefore, cannot be classified as an innominate use for the purpose of the applicable land use table to the PLEP 2010.
The First Respondent claimed that junk yard is not an innominate use under the PLEP 2010 because the term junk yard, in town planning terms, has the same meaning as the defined term in the PLEP 2010 of waste or resource management facility. The use of land as a junk yard, so the First Respondent submitted, is subsumed within the use of land as a waste or resource management facility. The First Respondent suggested that Penrith Council's approach of seeking to both construe the meaning of junk yard and characterise the use of Lot 40 as a junk yard "misses a first and fundamental step". This is to say, Penrith Council has failed to show that it is necessary to look beyond the PLEP 2010 to characterise the relevant use of Lot 40.
To make good its contention that the use of land as a junk yard is not distinct from, but rather falls within, the use of land as a waste or resource management facility, the First Respondent challenged both Penrith Council's method of construing the meaning of the term junk yard and its proposed definition of this term.
First, the First Respondent questioned Penrith Council's approach of determining the general town planning meaning of the term junk yard by considering a dictionary definition and a definition in both the repealed Model Provisions and SREP 13. The First Respondent said that Penrith Council had taken a "somewhat vague and fluid" approach of adopting a "melting pot" definition of the term junk yard, derived from both the Macquarie Dictionary and the repealed Model Provisions and SREP 13. Additionally, the First Respondent submitted that Penrith Council's reliance on Baulkham Hills Shire Council v Stankovic to support such an approach was misplaced. The First Respondent submitted that the Court should approach the relevant findings in this decision with caution because, amongst other reasons, the local environmental plan "…under consideration specifically prohibited junkyards, but did not define them and it was therefore necessary to give the term meaning".
Secondly, even if Penrith Council's approach were to be followed, the First Respondent claimed that Penrith Council did not properly construe the meaning of the term junk yard. The First Respondent submitted that instead of selecting "a single word from the Macquarie Dictionary [that is, junk yard] to support an argument that junkyard is merely a collection of 'old' items, Penrith Council should have referred to a range of dictionary definitions of 'junk', 'junkyard', 'scrap' and 'scrap yard' to determine the plain and ordinary meaning of the word 'junk'. After so doing, the First Respondent posited that the plain and ordinary meaning of 'junk' is "…a waste material in that it considered [sic] to be 'any old or discarded material', 'of little value' including metal, paper, rags etc, and being anything that is regarded as worthless or mere trash', trash being commonly known as rubbish".
The First Respondent contended that this plain and ordinary meaning was consistent with the definition of junk yard in the repealed Model Provisions and SREP 13, which was said to confirm that "the goods collected, stored or abandoned are classified as being a waste product (i.e. of no use see [Warringah Council v Ulrich [2012] NSWLEC 234]) or collected for the sale of the parts". Thus, although conscious of the need not to slavishly apply dictionary definitions (citing House of Peace Pty Ltd v Bankstown City Council at [28]), the First Respondent said that "…it is clear that junk is a type of waste product". Indeed, the First Respondent concluded that it would lead to absurd results if junk was not understood to mean a type of waste product.
Thirdly, the First Respondent challenged Penrith Council's omission to consider whether the use of land as a junk yard falls within the meaning of a waste or resource management facility as defined in the PLEP 2010. Referring to these defined terms, the First Respondent submitted that this defined use of land incorporates the "…collection of waste products and also storage for sale of the parts (i.e. by recycling or resource recovery)". Thus, the First Respondent claimed that, taking into account the plain and ordinary meaning of junk and junk yard, a junk yard is a waste or resource management facility. If correct, it was submitted that the relevant use of Lot 40 cannot constitute an innominate use of junk yard but can only constitute an innominate use of waste or resource management facility.
In the event that the Court was to find otherwise, the First Respondent submitted that Lot 40 is not being used as a junk yard because the items relevant to the use in issue are not junk. The First Respondent cited the decision of Warringah Council v Ulrich at [35]-[43] as being instructive as to the determination of whether items constitute junk. The First Respondent submitted that whether or not an item is junk ought to be determined by applying a "part subjective and part objective test". In approaching this determination, the First Respondent submitted that the Court would be cautious in relying upon the decision of Baulkham Hills Shire Council v Stankovic.
As evidence of the proposition that the relevant items of Lot 40 are not junk, the First Respondent relied upon his evidence that he: purposively collects items on Lot 40; has an intention to use these items, some of which are purchased at auctions; restores vehicles on Lot 40 as a hobby; has re-purposed a shipping container as a goat shelter and other containers to protect personal items from the weather; and uses some of the items to carry out maintenance and building projects, such as completing the construction of a rural shed.

[26]

Penrith Council's contention that Lot 40 is being used as a storage premises

Penrith Council submitted that Lot 40 is also being used as a storage premises. Although not expressly listed as a purpose of development in either the "E2 Environmental Conservation" and "E3 Environmental Management" land use tables to the PLEP 2010, the term storage premises is defined in the Dictionary to the PLEP 2010 (see above). Penrith Council argued that Lot 40 is being used as a storage premises because it is "…being used to store items for the purposes of returning an income".
Penrith Council submitted that the use of Lot 40 by the First Respondent to store items in exchange for some income would be sufficient for the use to be characterised as being for the purpose of a storage facility even if the First Respondent did not make a substantial profit from so doing. This submission was said to be supported by Tweed Shire Council v Litonia Pty Ltd [1993] NSWLEC 144 at 3 (lines 5-11), in which it was held that "[w]hether or not a 'business' or 'commerciality' is involved becomes irrelevant - what is critical is the scale and degree of the use of land … it matters not, in my opinion, that it is carried on by the Second Respondents solely as a hobby and with no intention of profit or gain. For planning purposes, its features are, in scale and degree of use, identical to a commercial venture."
The primary evidentiary material which Penrith Council said justified a finding that Lot 40 is being used as a storage premises is the evidence of Mr Vecchio, Ms Callinan and the First Respondent. Penrith Council argued that this body of evidence demonstrates, on the balance of probabilities, that Lot 40 is being used as a place for the storage of items for commercial purposes.
With respect to Mr Vecchio's evidence, Penrith Council reiterated its reliance on the evidence identifying "an array of shipping containers, scrap metal, derelict vehicles, and building materials such as metal drums and containers, concrete, and soil" on Lot 40. Penrith Council also relied upon the evidence of Mr Vecchio concerning the preparation for, and holding of, an auction at Lot 40 on 25 October 2015. In a file note of an inspection of Lot 40 conducted by officers of Penrith Council on 19 August 2015, the First Respondent is reported to have informed the officers that "…all this stuff will be going when I have the auction … planned for the 2nd week in October". In an agency agreement/receipt made out to the First Respondent by Complete Auction Services, dated 12 September 2015, the following is written: "Onsite Auction to held [sic] on this property on 25th of October. Costs 12% + GST … Flat Rate $5,000 + GST … Advertising $3,000 + GST … Min charge $8,800 inc GST".
The pertinent evidence of Ms Callinan was said by Penrith Council to be that comprising three collections of photographs of Lot 40 taken by Ms Callinan from her property on 24 October 2015, 25 October 2015 and 27 October 2015. Ms Callinan stated that: the photographs of 24 October 2015, the day before the scheduled auction on Lot 40, showed trucks delivering material to Lot 40; the photographs of 25 October 2015 showed the vehicles of people attending the auction; and the photographs of 27 October showed "a large collection of material just behind the front premises of [Lot 40]". Ms Callinan also provided a CD-ROM video allegedly showing the delivery of scrap metal to Lot 40 on 24 October 2015.
Penrith Council placed significant weight on the evidence of the First Respondent as demonstrating that Lot 40 is being used as a storage facility. In particular, Penrith Council relied upon three statements of the First Respondent in his affidavits. First, in relation to used cars purchased at auction, the First Respondent said, "I have repaired the cars and driven them for a while before selling them". Second, in response to a photograph of a forklift on Lot 40, the First Respondent said, "I have since sold the forklift in that photograph". Third, in explaining the location of shipping containers on Lot 40, the First Respondent stated, "I recall that I placed the shipping containers in that location for sale at the auction scheduled in October 2015 but they did not sell at that time".
Similarly, Penrith Council also referred to the First Respondent's oral evidence. Penrith Council submitted that the First Respondent had confirmed that he had received money from the following transactions in connection with to his use of Lot 40: sales of approximately 40 car batteries for $5 each; the sale of a car for $2,000; the sale of another car for $1,500; gross sales of $22,000 from the auction held on 25 October 2015; occasional payments from scrap metal merchants for scrap metal; and occasional payments, amounting to hundreds of dollars, from recycling facilities for scrap materials.

[27]

The First Respondent's rebuttal that Lot 40 is not being used as a storage premises

The First Respondent contended that Lot 40 is not being used as a storage premises, as defined in the Dictionary to the PLEP 2010, because the keeping of "goods, materials, plant or machinery" on Lot 40 cannot be said to be "for commercial purposes". In determining whether or not the items on Lot 40 are stored for commercial purposes, the First Respondent submitted that the Court should rely upon the plain and ordinary meaning of "commercial purposes" in its context within the PLEP 2010. In order to elicit this meaning, the First Respondent referred to the dictionary definition of "commercial" - "engaged in commerce: capable of returning a profit … preoccupied with profits or immediate gains" (quoting the Macquarie Dictionary).
The First Respondent also referred to the decisions of Maschewski v Murray Shire Council [2015] NSWLEC 1251 and La Vie Developments Pty Ltd v Shellharbour City Council [2010] NSWLEC 1277 as being of assistance. In the former decision, the First Respondent said that the Court construed "commercial purposes" to mean that the use must be carried out for the purpose of turning a profit. In the latter decision, it was said that Moore SC (as his Honour then was) found, at [3], that a commercial purpose required engagement for the purpose of profit on a continuous or repetitive basis. In contrast, the First Respondent disputed Penrith Council's submission that reliance could be placed on the unreported decision of Tweed Shire Council v Litonia Pty Ltd [to construe the defined meaning of storage premises. This decision was said by the First Respondent to not be on point because it concerned the question of "whether poultry were kept for the 'business of operating a farm'". The First Respondent submitted that this authority cannot be of assistance in ascertaining whether the relevant alleged use of Lot 40, to store goods, is carried on for a commercial purpose.
The First Respondent argued that the evidence before the Court proves that Lot 40 is not being used to store items for commercial purposes. The evidence that Penrith Council relied upon to show otherwise was criticised. The relevant sales (40 car batteries for $200, some excess scrap metal and two restored cars) were said to be insufficient to demonstrate a use for commercial purposes. Similarly, the First Respondent emphasised his own evidence that he harboured no intention to make any profit from the relevant auction on Lot 40.
The First Respondent said that it was noteworthy that the auction agency agreement included his signed statement that he had "no reasonable expectation of profit or gain from the activity undertaken and consider that I do not meet the definition of an enterprise for tax purposes".
Finally, the First Respondent submitted that the above evidence should be considered in the context that he was attempting to "…divest himself of property to appease [Penrith Council]". The First Respondent suggested that it would be perverse if Penrith Council could rely on this evidence of the auction to demonstrate a use of Lot 40 to store items for a "commercial purpose".

[28]

Penrith Council's contention that Lot 40 is being used as a waste or resource management facility

Penrith Council submitted that if the Court is not satisfied that Lot 40 is being used as a junk yard or a storage premises, then the relevant use should be characterised as that of waste or resource management facility. As set out above, the term waste or resource management facility is defined in the Dictionary to the PLEP 2010 to mean "any of the following: 1. a resource recovery facility, 2. a waste disposal facility, 3. a waste or resource transfer station, 4. a building or place that is a combination of any of the things referred to in paragraphs (a)-(c)."
Penrith Council contended that the relevant definition is that contained within limb (d). Therefore, the definitions of the phrases in (a) - (c), are all significant.
Penrith Council did not particularise in what way Lot 40 is being used as a combination of a resource recovery facility, a waste disposal facility and/or a waste or resource transfer station. However, Penrith Council submitted that the determination of whether or not Lot 40 is being used as a waste or resource management facility turns on the meaning of waste. On this point, Penrith Council said that "[t]he Court's consideration of 'waste' in [Director-General, Department of Planning and Infrastructure v Glass Recovery Services Pty Ltd (2015) 207 LGERA 397; [2015] NSWLEC 49] was in circumstances where the defendant using the material the council alleged to be waste, was, in the hands of the defendant, used for a commercial purpose and so was not abandoned and therefore not waste". Penrith Council contended that Lot 40 is being used as a waste or resource management facility because there are many items on Lot 40 which have "…been abandoned on [Lot 40] by their previous owners, and or because the respondents do not use the items for a commercial purpose": citing Director-General, Department of Planning and Infrastructure v Glass Recovery Services Pty Ltd at [76]-[84].
In support of this alternative characterisation of the use of Lot 40, Penrith Council reiterated its reliance on the evidence referred to above. Penrith Council submitted that it also relied upon "…the first respondent's oral evidence that he has scrap metal on the land being material he no longer has any use for and wishes to scrap, and that he has kept scrap metal on [Lot 40] since at least 10 June 2014".
Finally, Penrith Council relied upon the First Respondent's oral evidence concerning the use of three skip bins on Lot 40. The First Respondent gave evidence that there are three skip bins on Lot 40 which are owned by metal scrap companies, namely, Sims Metal Management, Sell and Parker and CMA Recycling. The First Respondent has a different arrangement with each company. In relation to the skip bin owned by Sims Metal Management, the First Respondent has received, on occasion, hundreds of dollars for supplying the materials taken by Sims Metal Management from the skip bin (when the material is over a certain weight). The First Respondent said that he had a similar arrangement with CMA Recycling. In contrast, the First Respondent gave evidence that he receives no payment for the materials taken by Sell and Parker from their skip bin kept on Lot 40.

[29]

The First Respondent's rebuttal that Lot 40 is not being used for the purpose of a waste or resource management facility

The First Respondent submitted that the term waste or resource management facility is defined in the Dictionary to the PLEP 2010 as a broad term encompassing "a greater subset of waste uses". However, the First Respondent argued that all of these subsets have a common threshold requirement that is relevant to the present proceedings. That is, the relevant items kept by the respondents on Lot 40 must be "waste". The First Respondent contended that the relevant items on Lot 40 are not waste and, therefore, the relevant use of Lot 40 cannot be characterised as that of waste or resource management facility.
In respect of the determination of whether the items on Lot 40 are waste, the First Respondent identified that both the PLEP 2010 and EPA Act do not define waste. The First Respondent referred to the decision of Sutherland Shire Council v Benedict Industries Pty Ltd (No 8) [2017] NSWLEC 4 - which was said to have considered the meaning of waste in the context of the definition of waste disposal facility - as being apposite. In particular, the First Respondent relied on the following passage, at [194]: Both Shannongrove [Pty Ltd v Environment Protection Authority (2013) 84 NSWLR 668; [2013] NSWCCA 179] and [Environment Protection Authority v Terrace Earthmoving Pty Ltd (2013) 84 NSWLR 679; [2013] NSWCCA 180] were applied by this Court in Director-General, Department of Planning and Infrastructure v Glass Recovery Services Pty Limited [2015] NSWLEC 49; (2015) LGERA 397 (at [77]-[84]). In that case Pain J noted that cases 'considered the view of the owner of the waste'. It was held that the buying of secondhand goods (used glass) did not constitute 'waste'.
The First Respondent conceded that Penrith Council was correct in submitting that the relevant items were found not to be waste in Director-General, Department of Planning and Infrastructure v Glass Recovery Services Pty Limited because the items were used for commercial purposes. However, the First Respondent submitted that this decision does not stand for the principle that the question of whether or not an item constitutes waste turns on whether it is used for commercial purposes. Rather, in order to determine what waste is, it was said to be necessary to undertake an "inquiry into the factual matrix of how the material is obtained and used".
In light of the interpretation of the meaning of waste by the courts, the First Respondent claimed that Penrith Council has not demonstrated that the relevant items on Lot 40 are waste. The First Respondent submitted that Penrith Council's reliance on evidence that he had discarded scrap metal (used in the building of a farm shed) and other materials (which the First Respondent said that he would have kept if not for the pressure applied by Penrith Council) was misguided. What the evidence demonstrated, according to the First Respondent, was that he purchased the bulk of the relevant items on Lot 40 at auctions for "…use on the property or in advancement of his hobby of restoring cars". The relevant items are neither "surplus" nor abandoned on Lot 40. Rather, the items were purchased at value and are intended to be used by the First Respondent.
In the alternative, the First Respondent submitted that even if the relevant items are waste, the relevant use of Lot 40 cannot properly be characterised as any of the specified meanings of waste or resource management facility in the PLEP 2010.
First, the First Respondent said that the use cannot be that of a resource recovery facility (limb (a) of the definition) because there is no evidence that any resources have been recovered on Lot 40 or that the specified processes in the definition have been undertaken. Second, the First Respondent claimed that because the definition of a waste disposal facility (limb (b) of the definition) requires that the relevant items on Lot 40 have been 'disposed' of at Lot 40, the items must have no utility (beyond that of being recyclable or of use in resource recovery). Hence, as the evidence of the First Respondent shows that the items have not reached this point - that is, the end of their useful life - Lot 40 is not being used for the "disposal of waste". The First Respondent also submitted that there is no evidence that the items are used for recycling or resource recovery activities. Third, the First Respondent argued that the use of Lot 40 is not that of waste or resource transfer station (limb (c) of the definition) because there is no evidence that the relevant items are transferred, such as by being loaded or unloaded onto or from road or rail transport.

[30]

Penrith Council's contention that the prohibited use(s) of Lot 40 is (are) not ancillary to any permissible use

Penrith Council submitted that the prohibited use of Lot 40 as a junk yard and/or storage premises or, alternatively, a waste or resource management facility is not ancillary to any permissible use of Lot 40. The First Respondent accepted that Lot 40 has the benefit of the following three development consents: a development consent for a rural shed, which was granted on 13 December 2013; a consent for a dwelling, which was granted on 14 February 1973; and a consent for a garage, which was granted on 16 February 1972 (Affidavit of Mr Vecchio sworn on 23 June 2016 at [10]).
It was said by Penrith Council that the First Respondent had not provided any "…credible explanation as to how the nature and extent of items and materials spread across [Lot 40] in various locations is ancillary to the permissible uses of Lot 40". Rather, Penrith Council argued that the nature and extent of the prohibited use was of such an extent that it could not be ancillary to, in particular, the permissible residential use of Lot 40. The use was said by Penrith Council to go "…well beyond the expectation of what might be found … surrounding a dwelling house": citing Warringah Council v Ulrich at [10]-[12] and [44]-[57]. As a matter of fact and degree, the prohibited use is "…not truly minor [and] its underlying purpose is not residential and it is a separate use of the land": citing Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 161; Chamwell Pty Ltd v Strathfield Council at [27]-[28], [36] and [45] and Warringah Council v Swain [2010] NSWLEC 68 at [4]-[7] and [12].
In support of its contention that the prohibited use of Lot 40 is a separate and independent use of Lot 40 that is not ancillary to any permissible use of Lot 40, Penrith Council submitted that the Court should refer to Mr Rawson's evidence. Mr Rawson provided evidence to the Court that "…the nature and extent of these items and materials [on Lot 40] amounts to an independent use of [Lot 40], which is neither permissible with or without consent, and is prohibited". Mr Rawson reached this conclusion after considering the various items on and uses of Lot 40 and after assessing whether such activities were permissible under the PLEP 2010. Mr Rawson's evidence was challenged by counsel for the First Respondent. The Court has decided that it need not rely upon Mr Rawson's evidence in order to reach the conclusions it has with respect to whether the relevant use of land is ancillary to the lawful residential use of Lot 40.

[31]

The First Respondent's contention that the relevant use of Lot 40 is ancillary to the approved residential use

In its heading to the relevant section of its written submissions, the First Respondent stated that "[t]he use of the land is ancillary to the approved residential use". The First Respondent then submitted that "[i]f, and only if, the Court were to find that one of the prohibited uses was being carried out by the respondents, it would necessarily find that properly characterised, the use is for the purpose of 'residential use'". The First Respondent claimed that the relevant use of Lot 40 is not a use of land that is separate and independent of the approved residential use. This was said to be because "[t]here is no cogent evidence to suggest that the use of land is for two independent uses".
In support of this contention, the First Respondent asserted that the evidence demonstrates that the purpose of the relevant use of Lot 40 is the pursuit of various hobbies (which were conceded by the First Respondent to be unusual); that is, for his enjoyment. The First Respondent submitted that this is clear if the relevant alleged use of Lot 40 is understood in the context of the whole of the evidence.
First, the entirety of Lot 40 has the benefit of a development consent which approves the development of dwelling house. Secondly, Lot 40 does not have an average domestic yard but is an approximately 2.5 ha allotment, which allowing its occupier to explore hobbies that would not be open to those occupying an average domestic allotment. Thirdly, the First Respondent's use of Lot 40 to keep goats, which graze across the allotment, is accepted by Penrith Council to be ancillary to the residential use of Lot 40. Fourthly, the area of Lot 40 on which the relevant use is manifested is, according to the First Respondent, a relatively small area of the allotment. This small area was said to comprise the area around the "[s]hed paddock", which was claimed to also be used for the goats on Lot 40. The First Respondent asserted that this was confirmed by the evidence comprising the aerial photographs marked up by Mr Rawson in his affidavit of 19 January 2017.
In putting its case that the relevant use of Lot 40 is ancillary to the approved residential use, the First Respondent contested Penrith Council's reliance on Warringah Council v Ulrich. The First Respondent said that the circumstances considered in that decision were significantly distinguished from the present circumstances. In particular, the First Respondent drew attention to the Court's finding that the contested use of land was an innominate separate and independent use of the land that did not have the benefit of development consent. The First Respondent submitted that this finding was made having regard to the fact that the items collected in the average domestic yard "excluded" any other use by impeding the physical occupation and enjoyment of the land surrounding the house": citing [35]-[36]. In contrast, as identified above, the First Respondent submitted that Lot 40 is far larger than, and of a different nature to, an average domestic allotment.
It should also be noted that the First Respondent objected to Penrith Council's reliance on Mr Rawson's evidence that that relevant use of Lot 40 is an independent prohibited use. As per my ruling at the hearing, admitting such evidence subject to its weight and relevance, the Court has approached this evidence cautiously and has, ultimately, not accorded it any significant weight.

[32]

The First Respondent's claim that Penrith Council's case should be limited to an allegation of breach of s 76B of the EPA Act

The First Respondent submitted that it is not open to Penrith Council to raise a new issue in the proceedings of whether the relevant use of Lot 40 constitutes a breach of s 76A of the EPA Act; in that it is a form of development that requires (under the PLEP 2010), but does not have, development consent. The First Respondent advanced detailed arguments in support of this submission. However, given that Penrith Council confirmed in its closing oral submissions that s 76A is "not part of Council's case", it is not necessary to set out these submissions. Yet, it is necessary to set out the First Respondent's argument that Penrith Council's case is partially predicated on an erroneous understanding of s 76B of the EPA Act.
The First Respondent submitted that there is a clear difference between the application of s 76A and s 76B: citing Sutherland Shire Council v Benedict Industries Pty Ltd (No 8) at [15]-[18]. The former concerns a breach of the EPA Act whereby a person carries out development that requires development consent without obtaining development consent. In contrast, the latter concerns a breach of the EPA Act whereby a person carries out development that is (a) specified as prohibited development or (b) development that cannot be carried out with or without development consent.
The First Respondent submitted that Penrith Council has sought to advance an argument that ignores this distinction. Namely, Penrith Council was said to have submitted that the Court could find that the relevant use of Lot 40 contravenes s 76B(b) because it is development that otherwise requires consent. The First Respondent submitted that this argument conflates the provisions of s 76B(b) with s 76A. Section 76A relates to development that is classified under the relevant environmental planning instrument as development that is permissible with consent. Section 76B(b) relates to development that is either expressly (nominate) or not expressly (innominate) prohibited under the relevant environmental planning instrument.

[34]

The First Respondent's criticisms of Penrith Council's evidence

The First Respondent submitted that Penrith Council's evidence amounted to "…a rather salacious account of the use of [Lot 40] … that highlights either the items stored on [Lot 40] at a particular point in time, or focusses on a particular area of [Lot 40]".
In response to the evidence of Penrith Council relating to the state of Lot 40 between 2001 and 2014, the First Respondent submitted that none of this evidence could support any assertion that the relevant use of Lot 40 was occurring in this period. Rather, the First Respondent asserted that, on a fair reading of the evidence, Penrith Council only became concerned with the use of Lot 40 in 2014.
In terms of the evidence concerning the use of Lot 40 from 2014 to the present, the First Respondent provided a detailed chronological account and commentary of what it said was the relevant evidence (Closing Submissions at [71]-[79] and [94]-[122]). In summary, the First Respondent argued that the evidence relating to this period "…makes plain that there have been consistent improvements in the state of [Lot 40]" despite significant obstacles, such as an injury sustained by the First Respondent and unusual levels of rainfall. It is appropriate to identify three (of the numerous) pieces of evidence that the First Respondent relied upon in this respect.
First, it was said that a significant improvement in the state of parts of Lot 40 were evident by comparing the evidence of Mr Vecchio's file note of an inspection that he conducted on 27 October 2015 (and aerial photographs dated 6 November 2016) with Mr Vecchio's subsequent photographs of 13 January 2017. Secondly, the First Respondent referred to his "unchallenged evidence … that he has continued to progressively move items off the land, has been tidying the land and arranged an auction to take place in October 2015, at the Council's request, to divest himself of some of his belongings to appease the Council". Finally, it was asserted that Mr Vecchio's inspection of Lot 40 on 21 June 2016 "…disclosed that the progress continued on [Lot 40]…".
In addition to these submissions, the First Respondent criticised, or objected to, much of Penrith Council's evidence relating to the relevant alleged use of Lot 40. It is unnecessary to repeat the 16 or so criticisms of, or objections to, Penrith Council's evidence.
In terms of the First Respondent's reiteration of objections to evidence which were ruled upon, the Court has duly considered the relevant submissions in according weight to and relying upon such evidence. So too the Court has considered the various criticisms of Penrith Council's evidence in making the below findings. For example, the Court has taken into consideration the First Respondent's various criticisms that particular file notes, letters and other documents provided to the Court by Penrith Council are unreliable because they are redacted, unclear or incomplete.

[37]

The First Respondent's contention that he is entitled to challenge the validity of the section 124 order and the section 121B order

The First Respondent sought to rebut Penrith Council's claim that the First Respondent is unable to challenge the validity of the orders that Penrith Council alleges have been breached.
Penrith Council submitted (Opening Submissions at [50]) that the validity of the s 124 Order was not in dispute, however before the Court the First Respondent denied this. The First Respondent said that the starting point is that Penrith Council bears the onus to prove that the orders were validly given and have not been complied with. Therefore, Penrith Council has to persuade the Court, by adducing evidence, that the orders are legally valid "[b]efore one gets to the evidential burden". According to the First Respondent, this means that there was no requirement to plead the issue of validity, as was suggested by Penrith Council. In any event, the First Respondent said that the Court should exercise its discretion to allow the issue of validity to be part of the proceedings in light of the serious nature of the relief sought.
In support of his position that a collateral attack on the validity of the orders should be permitted, the First Respondent contended that "…there is judicial consensus in Australia that collateral attack is permissible whenever the validity of an administrative decision is relevant to criminal guilt or civil liability, and regardless of whether the error is patent or latent": citing Gray v Woollahra Municipal Council [2004] NSWSC 112; Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582; Selby v Pennings (1998) 19 WAR 520 and Robinson v Vanston [1999] VSC 541. The First Respondent also said that the Court should take note of the decision of Bobolas v Waverley Council (2012) 187 LGERA 63; [2012] NSWCA 126. Although the question of whether the Court could consider the validity of an order was not directly considered in this decision, the First Respondent said that it was relevant that the Court of Appeal set aside enforcement orders made by this Court in circumstances where it found that an order given under s 124 of the Local Government Act was invalid.
The First Respondent claimed that his position is also supported by the broader approach of this Court to statutory orders that entail serious consequences for non-compliance. Relevantly, the First Respondent outlined the following propositions. First, a statutory order requiring a person to do or not to do something that is subject to penal consequences will be strictly construed and will only be enforced if the order is expressed in clear and unambiguous language: citing Manly Council v Leech [2015] NSWLEC 149 at [22]. Secondly, the statutory order must be construed in favour of the defendant: citing Mosman Municipal Council v Keesing [2006] NSWLEC 836 at [11]. Thirdly, a statutory order must expressly convey its purpose clearly to the recipient: citing Foster v Sutherland Shire Council (2001) 115 LGERA 130; [2001] NSWLEC 89 at [8]. Fourthly, a statutory order must delineate what is required by way of implementation: citing Barclay v Wollongong City Council (2005) 139 LGERA 167; [2005] NSWLEC 160 at [35]-[38]. Finally, the validity of a statutory order depends on strict compliance with the applicable statutory conditions authorising the order: citing Terranora Group Management Pty Ltd v Director-General, Office of Environment and Heritage (2013) 200 LGERA 1; [2013] NSWLEC 198 at [40].
With respect to the s 121B order, the First Respondent contested Penrith Council's claim that, in the First Respondent's words, "…the appeal provisions in s 121ZK of the [EPA Act] show a legislative intention to limit the ability to question the validity of an order in class 4 proceedings if the appeal provision was not utilised". The First Respondent submitted that this claim is erroneous. Contrary to s 101 of the EPA Act, so the First Respondent submitted, s 121ZK does not provide a jurisdictional limit nor limit an appeal to a jurisdictional fact. Rather, s 121ZK is an appeal provision tied to the Court's merits review jurisdiction. The First Respondent also submitted that it was relevant that s 121ZO of the EPA Act provides that Div 2A of Pt 6 of the EPA Act does not limit the power of the Court under the Land and Environment Court Act 1979.
Additionally, the First Respondent disputed Penrith Council's claim that the validity of the s 121B Order was not in issue - and, therefore, that the consequential relief sought for non-compliance should be granted - because of both the alleged delay in raising the issue and the alleged partial compliance with the order. In relation to the claim of delay, the First Respondent said that the issue of validity was raised in the initial points of defence on 22 July 2016. The First Respondent asserted that, in contrast, Penrith Council only raised the issue of the permissibility of the collateral attack on 20 January 2017, in its points in reply to the First Respondent's amended points of defence. The First Respondent also said that concerns with the relief sought in the summons were raised with Penrith Council's solicitors on 9 May 2016 by way of an open letter. In relation to the claim of partial compliance, the First Respondent submitted that his taking of steps to "…tidy [Lot 40] should not be seen as an acceptance of the validity of the order".

[39]

Penrith Council's claim that the section 121B Order is valid

In the event that the Court were to permit the validity of the s 121B Order to be in issue, Penrith Council put forward two alternative arguments.
Penrith Council submitted that the s 121B Order is valid because there was no breach of the requirements for giving such an order as set out in Div 2A of Pt 6 of the EPA Act. In particular, Penrith Council submitted that both the applicable notice requirements, set out in s 121H, and the requirement for reasons to be given, set out in s 121L, were complied with. In respect of the requirement under s 121L, Penrith Council submitted that "…reasons for the s 121B Order are apparent for the words in which the Order is expressed". For example, Penrith Council quoted the following statements (amongst others) from the s 121B Order - under the heading "Reasons for Order" - as providing the requisite reasons for issuing the Order 1: "…the premises is being used to store large qualities [sic] of shipping containers, skip bins, derelict vehicles and scrap metal for commercial purposes" and "…as of 8 February 2014 there were 49 cars, 2 trucks, 14 shipping containers and large quantities of scrap material stored on the premise [sic]".
Alternatively, Penrith Council submitted that if the Court were to find that the requirement to provide reasons under s 121L had not been complied with, the effect of this breach "…ought not result in the exercise of the statutory power being invalid and of no effect": citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 and Sharples v Minister for Local Government (2010) 174 LGERA 129; [2010] NSWCA 36. Penrith Council argued that this was so because the legislative intent underlying Div 2A of Pt 6 is not that "any and every non-compliance with s 121L will result in the exercise of the statutory power being invalid and of no effect". The existence of s 121ZK, which provides a right of appeal to a person on whom an order is served, was said to be an important indication that any challenge of an order relating to s 121L is to be brought by way of an appeal under s 121ZK. According to Penrith Council, this supports the conclusion that a breach of s 121L would not result in the invalidity of the order. Penrith Council submitted that this is especially so if the breach of s 121L related "to the provision of surplus information in the Order, concerning the sale of items from Lot 40".
Furthermore, Penrith Council said that it is significant that s 121ZL provides for compensation to be awarded in circumstances where "…the giving of the order was unsubstantiated". This was said to be significant because it "…is a powerful indication that where the reasons for the giving of the Order are not sufficient to substantiate the Order then the statute provides for the consequence, namely the payment of compensation rather than declaring the exercise of the statutory power invalid and of no effect": citing, by analogy, McCudden v Cowra Shire Council (2016) 216 LGERA 219; [2016] NSWLEC 14. Finally, Penrith Council also referred to J&J O'Brien Pty Ltd v South Sydney City Council (2002) 121 LGERA 223; [2002] NSWCA 259 in support of its claim that "where, as here, circumstances exist for the making of Orders, such Orders can be lawful, notwithstanding an error by Council in the giving of the Order".

[42]

Penrith Council's claim that the First Respondent has breached a section 124 Order

Penrith Council submitted that the First Respondent has breached an Order 10 issued to the First Respondent on 6 March 2014, under s 124 of the Local Government Act: citing s 672. This s 124 Order required the First Respondent to remove certain specified articles "located in the front yard" "from the property" and store other articles "behind the dwelling in a tidy manner" by 9.00am on 27 May 2014. Penrith Council only seeks a bare declaration that the First Respondent has breached the Local Government Act.
In its initial written summary of argument, Penrith Council submitted that the items which were required to be removed from the front yard of Lot 40 were not removed in the stipulated timeframe. Moreover, Penrith Council alleged that articles which were required to be removed or stored behind the dwelling continued to be stored in the area immediately adjacent to the front door to the dwelling beyond the stipulated timeframe. This was said to be confirmed by two aerials photographs of Lot 40 - the first taken contemporaneously with the giving of the s 124 Order and the second taken the month after the expiry of the stipulated time frame for carrying out the s 124 Order - and the evidence of an inspection of Lot 40 carried out by Penrith Council some months after the expiry of the stipulated time for compliance.
However, in its closing submissions, Penrith Council only alleged that the First Respondent did not remove all of the 11 cars "located in the front yard" of Lot 40 "from the property" by "9am, 27 May 2014". In particular, Penrith Council alleged that the First Respondent did not remove 2 of the 11 cars "from the property" but, instead, re-located these cars to another part of Lot 40. Penrith Council said that this breach was, in effect, admitted to by the First Respondent in cross-examination. Relevantly, the First Respondent answered the following question in the affirmative, "Of the 11 cars that are identified in number 1 of the proposed order, two of those 11 cars were moved to a less visible position somewhere on Lot 40 after you received the notice. Is that your evidence?".

[43]

The First Respondent's rebuttal that there has been no breach of the s 124 Order

The First Respondent contended that Penrith Council's claim that the s 124 order was not complied with must also fail because there is no evidence to support it. In other words, the First Respondent submitted that Penrith Council has failed to prove, on the balance of probabilities, that the works required to be undertaken were not, in fact, undertaken. The First Respondent challenged Penrith Council's claim in the following way.
First, Penrith Council's assessment of the evidence provided by the First Respondent in cross-examination concerning the s 124 Order requirement to remove the 11 cars "located in the front yard" of Lot 40 "from the property" was said to be erroneous. The evidence was not that the First Respondent only removed 9 of the 11 cars from the property, as Penrith Council claimed. Rather, the evidence was said to be that of the 13 cars in the front yard, the First Respondent removed 11 cars and re-located 2 cars.
Secondly, the First Respondent disputed Penrith Council's characterisation of the "front yard" as including that part of Lot 40 immediately outside the front door to the dwelling house. The First Respondent contended that the front yard could only be that part of Lot 40 between the dwelling house and the public road. This was said to be because, first, the power under s 124 to issue the Order 10 is only enlivened in respect of land in the immediate vicinity of public land and, second, such a characterisation would make the terms of the order ambiguous and, therefore, invalid.
Thirdly, the First Respondent submitted that the evidence did not support any allegation that the s 124 Order was not complied with due to the relevant train carriage not being located behind the dwelling house.
Fourthly, the First Respondent referred to a significant amount of Penrith Council's evidence which it said was inconsistent with Penrith Council's claim that the First Respondent did not comply with the s 124 Order. For example, the First Respondent submitted that no reference was made to the state of the "front yard" and no relevant photographs taken in Penrith Council's inspection of Lot 40 conducted on 27 October 2015.
Finally, this alleged absence of evidence indicating that there was a contravention of the s 124 order was juxtaposed with the First Respondent's evidence that, in his opinion, the s 124 Order was complied with.

[44]

The First Respondent's alternative contention that a declaration of breach of the s 124 order should not be made

Alternatively, in the event that the Court was to find that the s 124 Order is valid and has not been complied with, the First Respondent submitted that the Court, in exercising its discretion, should not make a declaration that the First Respondent has contravened the Local Government Act.
The First Respondent submitted that it is significant that Penrith Council only seeks a bare declaration of breach - that is to say, Penrith Council does not seek any consequential relief. The First Respondent conceded that a bare declaration may be appropriate in relation to offences under local government and planning legislation: Peter Young, Declaratory Orders (2nd ed 1984, Butterworths) at [1704]. However, the First Respondent argued that the Court, in determining whether the making of a bare declaration would be appropriate, ought to carefully consider the particular circumstances of the case: citing Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114 at [201]-[218] and Great Lakes Council v Lani (2007) 158 LGERA 1; [2007] NSWLEC 681 at [19]-[25].
The First Respondent argued that, in the present circumstances, such a declaration would have no practical effect. Furthermore, it was said that a bare declaration would not result in any change in the rights or duties of the parties, remedy past breaches or restrain any future breaches of the Local Government Act. The First Respondent also submitted that because the declaration would have the effect of declaring that the First Respondent has committed a criminal offence (citing s 672 of the Local Government Act, cf s 127(7) of the EPA Act), the Court would exercise considerable caution before so doing: Baulkham Hills Shire Council v Ko-Veda Holiday Park Estate Ltd (2009) 167 LGERA 395; [2009] NSWCA 160 at [135]-[139]. Finally, the First Respondent claimed that the only effect of the declaration would be to punish the First Respondent under the guise of remedying a breach: citing Great Lakes Council v Lani at [23]. This was said to be inappropriate in circumstances where the First Respondent manifestly took the s 124 Order seriously and has genuinely attempted to comply with the s 124 order by keeping the front yard of Lot 40 tidy.

[46]

The First Respondent's submissions regarding final orders

In the event that Penrith Council were to make good any of its claims, the First Respondent made a number of submissions regarding the orders sought by Penrith Council.
First, it was submitted that the Court should exercise its discretion to not make any of the orders sought on the basis that the First Respondent has taken real and genuine steps - both prior to the proceedings and during the past year - to address concerns that Lot 40 is being kept in an untidy manner. The First Respondent denied any suggestion, said to be made by Penrith Council, that he has purposively kept Lot 40 in a poor state to reduce the value of Lot 40 in anticipation of its upcoming sale.
Secondly, the First Respondent disagreed with Penrith Council's position that, in relation to consequential orders, "it is the usual course for a Council to draft very wide orders for later perfection" by the Court. Rather, the First Respondent said that this would be both unusual and unfair.
Thirdly, the First Respondent contended that the Court should not make an order in terms of Penrith Council's proposed Order 4, that the Second Respondent immediately cease using Lot 40 for specified prohibited purposes, because of an absence of evidence that the Second Respondent is so using Lot 40.
Fourthly, the First Respondent submitted that various particulars of the principal proposed order, Order 6, should not be imposed by the Court due to their ambiguity, both generally and in respect of the consequences of a failure to comply.
Fifthly, in relation to Penrith Council's proposed Order 7, the First Respondent submitted that the Court should exercise caution in making an order allowing Penrith Council to access Lot 40.
Sixthly, in relation to Penrith Council's proposed Order 7 and 8, the First Respondent submitted that the Court should be mindful of the limited power available to it in respect of making an order allowing Penrith Council to access Lot 40 to complete specified works: citing s 121ZJ of the EPA Act and ss 193, 200 and 678(1) of the Local Government Act.
Seventhly, in relation to Penrith Council's proposed Order 9, the First Respondent submitted that the Court should not make an order purporting to require the orders of the Court to be registered on the title to Lot 40. The First Respondent claimed that there is no power under ss 186 or 187 of the Conveyancing Act 1919 (NSW) to make such an order.
Finally, the first respondent submitted that the Court should not make any injunctive orders proposed by Penrith Council unless they are clear and unambiguous.

[48]

The use of the land is prohibited

I have decided that Lot 40 has been used and continues to be used for a prohibited purpose. Under the PLEP 2010, I am satisfied that the usage in question falls within the innominate prohibited category of use that is "[a]ny other development not specified in item 2 [permitted without consent] and item 3 [permitted with consent]" of the relevant E2 and E3 Zones. Accordingly, the use of Lot 40 is in breach of s 76B of the EPA Act.
Beyond my determinative finding that the use of Lot 40 falls within the prohibited innominate category, I am nevertheless also of the opinion that, as Penrith Council argued, the proper description of the purpose of what has been occurring on the land is that of "junk yard". With respect to my opinion as to how the E2 and E3 Zone land use tables are to be interpreted in the context of s 76B, I am not concerned that the term "junk yard" is not defined in the PLEP 2010. Just as dictionary definitions can have utility in a statutory interpretation exercise, so it is that a term found in a former planning instrument can be instructive. Given my innominate use finding, undertaking the unnecessary exercise of determining whether the relevant use is properly characterised as that of "junkyard' is of secondary importance. Nevertheless, I am satisfied the "old" definition of junk yard, as it appeared in the Model Provisions and was adopted by reference in the now repealed SREP 13, is apposite. This definition most closely encompasses what has been described in the evidence placed before the Court, in particular, the use which is clearly illustrated in the numerous relevant photographs provided to the Court.
Much of the hearing and the submissions of the parties focussed on the question of whether what has occurred and is occurring of Lot 40 is best characterised as a junk yard, storage premises, or waste or resource management facility, all of which are innominate prohibited purposes under the PLEP 2010. Certainly, elements of all of these purposes of use are arguably discernible, at least in part, on Lot 40. Irrespective of the outcome of the somewhat semantic exercise of examining the component characterising-activities occurring on Lot 40, the Court found itself inexorably drawn to the conclusion that it was not possible to characterise the use of Lot 40 for any of the uses which are listed under item 2 (permitted without consent) or item 3 (permitted with consent) of the relevant land use tables to the PLEP 2010. With the use being impossible to characterise as being one which is either permitted or permitted with consent, the characterisation exercise thereafter defaults to the prohibited innominate category of use.
In this case, having determined that the use is prohibited, where the innominate use category constitutes a "catch-all" provision, this could be the end of the present dispute. In circumstances where the use of Lot 40 is not capable of being encapsulated in one of the permitted or permissible uses within the zone, the supplementary exercise of precisely identifying the use as being more closely aligned to that of junk yard or storage premises, amongst a myriad of other prohibited uses, is of little utility. The use of the land is prohibited, pure and simple, because the range of alternatives all fall within "any other development not (otherwise) specified".
The First Respondent submitted that the use of land as a junk yard could not be a prohibited innominate use under the PLEP 2010 because it has been subsumed into the defined term of waste or resource management facility (which is defined in the PLEP 2010) and that it was unnecessary or inappropriate to look beyond the PLEP 2010 to characterise the relevant use of Lot 40. The Court is of the opinion that this approach fails to understand the parameters of the innominate category of uses that is commonly used in planning instruments. Preston CJ usefully explains the practice in Botany Bay City Council v. Pet Carriers International Pty Ltd at [30] An innominate purpose is one which the environmental planning instrument does not nominate by name as being within one of the three classifications, but rather identifies as falling within a particular classification by reason of it not being nominated in other classifications; it is development other than development in the other classifications. Hence, the land use table for a zone may classify as prohibited development, development for a purpose other than a purpose nominated as being able to be carried out without consent or with consent.
Whereas it is correct that, when one is endeavouring to characterise a use of land, one first looks for a purpose that the instrument expressly nominates, the ultimate focus of the inquiry must be on whether the development is within a nominate or innominate purpose, the terms of which are specified in the instrument. There will be many instances where the list of nominated purposes is not exhaustive, hence resort is had to the catch-all innominate categories of uses. So all those purposes not specifically identified are then grouped within the innominate category. The significance of whether a purpose of use is expressly specified or not in a land use table is that if the relevant use is not properly characterised as one of the nominate uses, it will fall within the innominate category. This innominate category may be permissible without consent, permissible with consent, or prohibited. Yet, contrary to the First Respondent's submission, the innominate category is not restricted to the defined purpose of use in the planning instrument. It extends to "any other development". Thus, here, both the relevant defined uses and the undefined use of junkyard are within the innominate category.
The First Respondent's submission does not alter the interpretation of the use of Lot 40 whether or not junk yard has been subsumed into the term "waste or resource management facility" as defined in the PLEP - be they the same use or different, they are a prohibited innominate use.
I note that the Court's approach in determining the matter is analogous to the approach adopted by Talbot J in Warringah Council v Ulrich. In that decision, Talbot J was ultimately not satisfied that the use of land in issue was for the nominate prohibited purpose of junkyard (at [53]).
However, importantly, Talbot J determined that the relevant use of land was for an innominate purpose that was permissible with consent (at [54]). In so finding, Talbot J did not embark on the exercise of considering whether the innominate use fell within a particular defined purpose of use under the applicable local environmental plan (at [54]). Rather, it was sufficient to describe the use as being "for storage and display purposes" (at [54]) or "for the storage of goods outside the dwelling house" (at [57]).
For this reason, the Court has decided to make a declaration that Lot 40 has been used and continues to be used for a prohibited purpose in breach of s 76B of the EPA Act. Although this declaration varies from that which Penrith Council specifically sought from the Court - in that it does not particularise the use as one or other of the defined uses which would be prohibited - it makes no difference to the outcome. Penrith Council has succeeded in establishing that the current use of Lot 40 is prohibited under the PLEP 2010.
Counsel for the First Respondent sought to press upon the Court the proposition that, if the Court were to decide that the use of Lot 40 was for an innominate prohibited purpose other than that which was asserted by Penrith Council, then the First Respondent would have been denied procedural fairness. The First Respondent was said to have come to court to face the accusation that his usage of the land was that of one or other of three named alternative uses claimed to be prohibited in both the E3 and E2 Zones, including junk yard. He ought, it was submitted, not now have to face an alternative case - even if the prohibited use was simply within the innominate "catch-all" category of uses.
In my view, the Penrith Council's primary case was that the use being carried out on Lot 40 was prohibited, and it then sought to define that use by reference to identifiable terms found in the PLEP 2010, or, in the case of "junk yard", the Model Provision - being just three of the uses allegedly prohibited. The Court rejects the First Respondent's response to this case. It is entirely unsound for it to be suggested that an alternative case had to be met, as there could never have been any doubt that the designation of the purpose of the relevant use such as junk yard, was simply a means of confirming that such activity so described was embraced within the innominate category of use in the E2 and E3 zones.
In seeking its declaration that the use of Lot 40 was prohibited, the burden of satisfying that onus rests with the Applicant, Penrith Council. Once that burden has been successfully discharged - that is, the Court is satisfied that the identified use of the land is prohibited under the E2 and E3 Zones under the PLEP because there is no matching category of use which is permitted or permitted with consent - then the particularisation of the precise prohibited use becomes secondary to the primary finding that the use is prohibited. In a subsequent step, greater particularisation of the prohibited use has some utility only for the purpose that it facilitates the formulation of appropriate orders, but that particularisation is not necessary.
The critically relevant words under item 4 (prohibited category) of the relevant land use tables are: "any other development not specified in item 2 or 3". Once it is established on the evidence that the usage of the land can't be matched to any item 2 (permitted) uses or item 3 (permitted with consent) uses, Penrith Council has established its case that the use is "[a]ny other development not specified in item 2 or 3". That is the threshold it must pass, not some extended exercise of proving amongst the myriad of unspecified prohibited uses, that it is a particular innominate use - a rose by any other name. So although Penrith Council sought to categorise the prohibited usage at the outset, by seeking to align it with one or more of a range of defined uses: (junkyard or junk yard; storage premises; or waste or resource management facility), it was strictly unnecessary for it to do so. It would have been enough to identify the carrying on of activity or a land use that did not fall within items 2 or 3 of the applicable land use tables.
Counsel for the First Respondent also submitted that the onus resting with Penrith Council needed to extend beyond evidence that the current use of Lot 40 was in breach of the current PLEP 2010 provisions. More specifically, it had to complete an exhaustive historical search to determine that no prior consents had been granted allowing the use now complained of by Penrith Council. There might, it was inferred, be existing use rights which make lawful the current allegedly unlawful use. Despite evidence placed before the Court that significant historical searches had been carried out extending over many years which did not reveal any prior consents, counsel for the First Respondent nevertheless submitted that the onus was not satisfied unless the searches extended back to the first applicable planning control.
With respect to the First Respondent's reliance on Jones v Sutherland Shire Council, in support of the claim that Penrith Council has not discharged an obligation to thoroughly search for an historical development consent, I am of the view that this decision is of limited assistance in these proceedings. As Hutley JA observed (on the appeal), "[t]he issue before the Court was a narrow one, namely, whether the council had given its approval for the use of the property as a used car yard prior to 27th June, 1951 … [Waddell J] held that the plaintiffs having proved an existing use on 27 June 1951, the burden of showing that it was a use without the appropriate consent lay upon the council": Jones v Sutherland Shire Council [1979] NSWLR 206 at 211.
I am of the opinion that once Penrith Council has demonstrated on the balance of probabilities that the purpose to which Lot 40 is and has been put is a prohibited use, the onus then shifts to the First Respondent to prove its case that, for instance, the property enjoys existing use rights for the land uses that are being carried out on the land. This is even more the case in circumstances where the Council has carried out extensive searches of its consent registers, albeit not as far back as the commencement of planning controls in the district, although the Court was assured the searches were as extensive as the records would allow. Given the nature of the orders that might be made in proceedings such as these, it is improbable that the First Respondent would not produce evidence of prior consents of which he is aware. If the realities are such that the First Respondent is unaware of any prior consents, but had an informal understanding of such consents, then the Court would expect to hear some description of what those consents might have been. In this case not the slightest inkling of earlier consents were mooted by the First Respondent. The Court must proceed on the basis that no such consents have existed.
The Court rejects the First Respondent's argument. These Class 4 civil enforcement proceedings are not in the nature of a criminal prosecution with its higher burden of proof. In the current proceedings, the onus rests firstly with the Applicant, Penrith Council to demonstrate that the current land use of the subject land is prohibited under the PLEP on the balance of probabilities. At that point, the onus moves to the First Respondent who must satisfy the Court that there is a plausible basis for the Court not to make the orders sought. One possible basis for not making orders, might be compelling evidence which is sufficient to satisfy the Court that use of the land falls within an item 2 (permitted without consent) category, such as home occupation; or an item 3 (permitted with consent) category, such as agriculture or dwelling house. Indeed, in this latter regard, evidence was placed before the court that established that development consent had been granted for a farm shed/garage of a specified size.

[49]

The use of the land is not ancillary to a lawful use

Having placed before the Court evidence of three extant development consents relating to Lot 40, no suggestion was made to the Court that the current dwelling house on Lot 40 was not permitted, nor was it suggested that a valid consent was not obtained for both the farm shed and the garage. So the Court accepts that it is perfectly within contemplation that those legitimate uses might embrace ancillary activity which comes within the permitted umbrella of the primary use. So a dwelling house can be accepted to embrace home occupation or hobbyist activities; likewise a farm shed and garage can be accepted to embrace the repair or maintenance of machinery at the domestic scale. But who bears the onus in these circumstances? Counsel for the First Respondent submitted that the onus entirely lay with Penrith Council to prove to the Court that what were apparent current uses of Lot 40 were not either uses protected by existing use rights or uses which were ancillary to the legitimate uses of dwelling house, farm shed and garage. For instance, the First Respondent's evidence referred to his hobby of repairing engines and restoring old cars.
The Court accepts Penrith Council's submissions that there was no "credible explanation" apparent within the evidence of the First Respondent to rationalise the extent, scale or nature of the material capable of establishing a nexus of the relevant use to a plausible ancillary extension of any of the lawful uses of Lot 40. The Court has been conscious that a 2.5ha semi-rural block allows greater flexibility with respect to a plausible range of ancillary uses - the scale can be expected to be more extensive than that which might be expected on a more constrained site. However, the quantity and scale of material present on Lot 40 stretches credulity. What has been apparently stored on Lot 40 extends beyond reasonable limits of any lawful ancillary use.
In determining whether much of the relevant material is or is not "junk" for the purposes of characterising the relevant use, the subjective opinion of the owner or the land owner must give way to an objective consideration of what the material is. As the old maxim runs: what is rubbish to one is treasure to another. However, there must be a point at which the subjective perspective of the individual is beyond any acceptable community standard.
The Court found the First Respondent's oral evidence to be unconvincing. In the course of cross-examination, numerous photographs were placed before him and on many occasions Mr Konemann simply sought to highlight or identify some distant or irrelevant feature or item on an adjoining property, thereby looking over and beyond the very evident presence in the foreground and middle distance of a proliferation of material on Lot 40. His evidence was unconvincing and inconsistent, with explanations for the presence or storage of one or other item under discussion appearing, at times, implausible. Where his evidence corroborated Penrith Council's evidence, he did not seek to argue that what could be seen on his property at that point in time was not in fact there. In short, putting aside occasional confusion as to the angle or precise location of a view, the First Respondent did not seek to argue that the photographs, as a whole, were misleading. In this respect, the First Respondent effectively confirmed that the material depicted was present in the quantity and state that could be seen.
On the basis of the evidence before the Court, I have decided that the material deposited and kept on Lot 40 was in such quantity and in such poor and degraded condition that it could not fall within the reasonable parameters of what might be involved with a dwelling house use or a hobby. Similarly, applying the established tests of planning law to determine whether or not an activity or use of land is ancillary to an extant lawful use, which here on Lot 40 means "dwelling house", again I consider that the quantity and nature of the material is so excessive that it could not be considered to be ancillary to the dwelling house or the farm building use.
Penrith Council accepted that the First Respondent's keeping of goats was an activity ancillary to that of dwelling house in the context of Lot 40 being in the semi-rural setting of Mulgoa Valley. However, the Court considered the evidence of the First Respondent unconvincing when he purported to identify a multiplicity of items as being required for the purposes of fencing off, controlling, housing, feeding and watering the goats. In the context of the size of Lot 40, its location and the small number of goats involved, the Court was convinced that the frequent reference to various materials or objects needed for goats was significantly exaggerated.
The Court accepts that a reasonable quantity of material is required to fence, control, house, feed and water the goats and that the retaining of the goats is a legitimate ancillary activity in a semi-rural locale in the Mulgoa Valley. However, the Court has concluded that the First Respondent has used the presence of the goats as an excuse to "cloak" the retention of excessive quantities of material.

[53]

Orders

The Court orders that: 1. The First Respondent, Mr Grahame Konemann, immediately cease using the premises for the prohibited purpose identified in Declarations 1 and 2; 2. The Third Respondent have access to the Premises for the purposes of identifying and then removing such items of property which belong to him, with such access not to be hindered by the First Respondent; 3. The Applicant, Penrith Council, and the First Respondent are, within 14 days of this Order to prepare an agreed list of the categories of items to be removed, with as much particularity as is possible ("Agreed List"), from the Premises to an appropriate waste facility. The Agreed List is not to include items which are legitimately entitled to be retained by the First Respondent for the reasonable continuance of his hobby interests; 4. The First Respondent, by himself, servants, agents or contractors, to the extent that they are lawfully entitled to, with respect to the items identified in the Agreed List shall, within thirty days of the Agreed List being finalised: (a) cease storing such items; (b) remove such items from the Premises; and (c) cease importing onto the Premises items of a similar kind to those items to be removed; 5. The Applicant, Penrith Council, its employees, agents, contractors, be entitled to enter the Premises for the purposes of: (a) confirming that Order 4 has been complied with; and (b) carrying out the work identified in Order 4 if the order is not complied with within the time period specified; 6. If the Applicant, Penrith Council, carries out the work identified in Order 5: 1. the Applicant Penrith Council may dispose of the items removed from the land including by sale of any items of disposal to an appropriate waste facility; 2. the First Respondent is liable to pay the Applicant any expenses incurred by the Applicant in carrying out the work identified in Order 5; 3. the proceeds of any sale of any items removed by the Applicant may be applied towards the payment of the Applicant's costs of removal, and any remaining proceeds are to be provided to the First Respondent; 1. The First Respondent is to pay the costs of the Applicant (Penrith City Council) and the Third Respondent (Mr Stuart Konemann) as agreed or assessed unless, within fourteen days, a party applies for a different costs order by way of notice of motion; and 2. Grants liberty to restore on three days' notice to the other parties.

Penrith City Council v Konemann

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (56 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (54)

Cited By (2)