Randwick City Council v Hanna Mekler & Anor

CASES CITED: Shoalhaven City Council v FB & FA McMahon Pty Ltd and Anoher [2009] NSWLEC 122

APPLICANT Mr P Clay SOLICITORS Shaw Reynolds Bowen & Gerathy

FIRST RESPONDENT LEGAL REPRESENTATIVES: Mr M Campbell SOLICITORS Lang Gellert & Co

SECOND RESPONDENT SOLICITORS Lindsay Taylor Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

08/40816 Randwick City Council v Hanna Mekler & Anor

HER HONOUR : Introduction 1 This is a class 4 application filed 25 August 2008 by Randwick City Council. By consent, Randwick City Council ("the council") seeks declaratory and injunctive relief in relation to the carrying out of development by the first and second respondent without development consent, on premises being the whole of land described as lot B in DP409928 contained in Folio Identifier B/409928 at 8-10 Perouse Road, Randwick ("the premises"). The carrying out of this development absent any development consent is a breach of the Environmental Planning and Assessment Act 1979 ("EPAA"). The breach is said to be the use of the premises both currently and previously as a car wash and taxi depot. 2 Both parties have reached an agreement as to declaratory and injunctive orders they seek from the Court. Because the Court should not make declaratory orders without being satisfied that those orders are appropriate (Shoalhaven City Council v FB & FA McMahon Pty Limited [2009] NSWLEC 112), the parties have tendered evidence before the Court for it to be so satisfied. Having considered the evidence, I am content that the proposed declaratory and injunctive orders are appropriate. I state my reasons briefly. Factual Background 3 The background by way of planning history and use of the premises is set out in paragraphs 6, 7 and 9-26 of the amended points of claim filed on 24 July 2009. They are admitted by the first respondent. They state that: 6. In or about 1929 the use of the premises as a service station began.

7. The County of Cumberland's Planning Scheme was made and became effective on 27 June 1951 and applied to the premises. …

The Randwick Planning Scheme Ordinance ("RPSO") was made and became effective from 28 April 1978 and applied to the premises. The premises were zoned Business Special "B2" under the provisions of RPSO.

Randwick Local Environmental Plan 71 ("RLEP71") was made and became effective from 11 May 1990 and applied to the premises. The premises were zoned 3(A2) (Business General Zone) pursuant to RLEP71.

Randwick Local Environmental Plan 1998 ("RLEP") was made and became effective from 26 June 1988. This is the environmental and planning instrument that currently applies to the premises.

The premises are zoned 3B (Local Business Zone) under the provisions of RLEP98.

The use of the premises as a service station was not permissible without consent pursuant to the County of Cumberland Planning Scheme, the RPSO, RLEP71 and RLEP98 in so far as they applied to the premises.

Consents 13A. On or about 22 May 1950 an Application to construct a workshop was made (BA/347/1950).

13B. On or about 29 June 1950 the applicant granted approval to BA/347/1950.

13C. On or about 4 July 1958 an Application to construct a service station was made (BA/607/1958).

13D. On or about 5 August 1958 the applicant granted approval to BA/607/1958.

On or about 15 November 1976 an Application for Approval to erect a steel framed carport on the northern and western side boundaries was made (BA/1327/76).

On 10 March 1977 the applicant granted consent to BA/1327/76 subject to certain conditions.

On or about 4 May 1977 C Mekler and H Mekler made a development application (DA/133/87) pursuant to the EPAA to the applicant for the installation of an underground LPG Tank of 75KL.

On 18 February 1988 the applicant granted consent to DA/133/87 subject to certain conditions.

On or about 13 July 1987 C Mekler and H Mekler made a building application (BA/419/87) for the installation of an LPG tank.

On 9 April the applicant granted consent to BA/419/87.

On or about 28 May 1991 C Mekler and H Mekler made a development application (DA/204/91) pursuant to the EPAA to the application to replace and extend a canopy over petrol pumps at the service station.

On 5 July 1991 the applicant granted consent to DA/204/91 subject to certain conditions.

On 11 July 1991 an application was made for building approval to erect a new awning (BA/678/91).

On 2 August 1991 the applicant granted consent to BA/678/91.

On or about 11 January 1996 C Mekler made a local approval application (LA/7/96) pursuant to the Local Government Act 1993 to the applicant to keep a caravan on the premises for use by staff for the period 15 January 1996 to 15 January 1997.

On 12 February 1996 the applicant granted consent to LA/7/96 for the period 15 January 1996 to 15 January 1997.

Other than the consents referred to in paragraphs 15, 17, 19, 21, 23, 25 hereof, no consents have been granted by the applicant under any statute or instrument for any use, development or other activity at the premises.

4 These facts demonstrate that while consent was granted to construct and operate a service station on the premises, and in particular, that consent was granted, inter alia, to the first respondent to install an underground LPG tank and to erect a new awning, no consent to use the premises as either a taxi depot or car wash has ever been given. This was confirmed by both parties.

Evidence 5 An investigation report by Mr Warren Mallard from Lyonswood Investigations and Forensic Group dated 15 April 2009, was tendered by the council. This report detailed surveillance of activities taking place on the premises on 3 April 2009 between 1.00am to 5.30am and 7 April 2009 between 1.00pm and 5.30pm. The surveillance demonstrated that the premises were being used as a taxi depot and car wash. For example, the surveillance demonstrated the presence of a "wash and vacuum your car here" sign on the footpath outside the premises. 6 The report also indicated that car wash machines were connected up to power outlets attached to the premises, that a coin operated vacuum cleaner was adjacent to car wash facilities on the far left side of the premises and that there was a sign on the main building over a canopy which said "Jet car wash." 7 The surveillance report also showed that the premises were attended by a high percentage of taxis. Most of the taxi drivers present were observed to fuel up, tidy their vehicles and pack up personal items in bags prior to either leaving the cabs on the premises or handing the cabs over to other drivers. Observations were made during the surveillance period showing that a number of taxi drivers began to gather on the footpath of Soudan St adjacent to the driveway of the premises from approximately 2.00pm on 7 April 2009. The Court infers that this time was significant because it was prior to the traditional 3.00pm taxi changeover.

8 Many more examples were contained in the surveillance report of the premises clearly demonstrating that the premises were in fact used as a taxi depot and as a car wash. Accordingly, I find that there has been a breach of the EPAA.

Notification of Second Respondent of Proposed Consent Orders 9 In terms of notification of the proposed consent orders to the second respondent, United Petroleum Pty Limited, which has only entered a submitting appearance in these proceedings, I was informed by both parties that a copy of the proposed consent orders and declarations was served on the solicitor for the second respondent. After service of the proposed orders, there was a communication between a representative of the first respondent and the second respondent, wherein the second respondent was informed that the matter was in Court today for the purpose of making consent orders and that if they wished to be heard in relation to the making of the orders they should appear in some capacity.

10 The second respondent's name was called outside Court and there was no answer. I am satisfied that sufficient steps have been undertaken by the parties to inform the second respondent of today's hearing and to notify the second respondent of the proposed consent orders. Conclusion and Orders 11 In all the circumstances, I am satisfied that it is appropriate to grant the injunctive and declaratory relief sought. I therefore make the orders set out in the document entitled "Orders and Declarations" before me. 12 The orders of the Court are that: (1) the Court declares that the first or second respondent or either of them are or have previously used the premises for the provision of car wash services without having obtained development consent for that use under the EPAA;

(2) the Court declares that the premises have been used previously or are being used to provide changeover services and facilities to taxi vehicles and drivers without having obtained development consent for that use under the EPAA;

(3) the first and second respondents are restrained from using the premises other than use as a service station, such use to include: (a) the fuelling of motor vehicles involving the sale by retail of petrol, gas, oil and other petroleum products;

(c) the retail selling or the installing of spare parts and accessories for motor vehicles;

(e) the repairing and servicing of motor vehicles (other than body building, panel beating or spray painting); and

(f) the retail selling or hiring of small consumer goods;

(4) the first and second respondents are restrained from using or allowing the use of the premises as a taxi depot, or a taxi changeover base, including: rostering or facilitating change of custody of taxi vehicles; allowing taxis to be parked or to remain on the premises except for the purpose of refuelling and repair; having the care, custody or control of keys belonging to taxis (except when the taxis are left on the premises for repair); collecting money for or on behalf of taxi owners or drivers; washing, cleaning, tidying and checking taxi vehicles for or on behalf of taxi owners or drivers for the purpose of preparing them for changeover of drivers; permitting taxi drivers or taxi owners to use the premises to pick up or drop off taxi vehicles; allowing taxi drivers to remain on the premises or use the premises except for the purpose of refuelling their vehicles or to purchase goods from the shop; allowing taxi drivers or owners to congregate or meet at or on the premises, or enter the shop except for the purpose of paying for fuel or other retail items; allowing any other activities incidental or ancillary to the operation of a taxi depot;

(5) subject to order 6 hereof, the first and second respondents or any of them are restrained from operating or allowing the operation of a carwash or carwash activities to be conducted from the premises without having obtained development consent, except for car wash activities ancillary or incidental to the operation of the business of a service station;

(6) the first and second respondents or either of them are restrained from operating or allowing the operation of any car wash activities, and including but not limited to the operation of vacuum cleaners, water hoses and pressure cleaning equipment, between the hours of 9.00pm and 7.00am the following day;

(7) the first and second respondent or any of them are restrained between the hours of 7.00pm and 7.00am the following day, Monday to Saturday and 7.00pm to 9.00am the following day, on Sundays from permitting deliveries of LPG or any other gas products;

(8) the first and second respondent or any of them are restrained from allowing fuel deliveries to take place on the premises between the hours of 8.00pm to 7.00am the following day, Monday to Friday, with fuel deliveries not to take place before 8.00am and after 8.00pm on Saturdays and not to take place before 9.00am and after 8.00pm on Sundays;

(9) the first and second respondent or any of them are restrained between the hours of 7.00pm and 7.00am the following day from: (a) repairing motor vehicles other than providing driveway service;

(b) Permitting taxi vehicles to be parked upon the premises except for the normal business associated with the use of the premises as a service station; and

(c) permitting any offensive noise as defined in the Dictionary of the Protection of the Environment Operations Act 1997 to be emitted from the premises; and

(10) each party to bear their own costs in relation to the entire proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.