Land and Environment Court New South Wales

• Medium Neutral Citation: Broholm v City of Ryde Council [2014] NSWLEC 1221
• Hearing dates: 24 and 25 June 2014
• Decision date: 28 October 2014
• Jurisdiction: Class 1
• Before: Dixon C

Decision

Substitute for the amended Order made by City of Ryde Council on 10 April 2014 the following Orders:

(1)The applicant, Michael Broholm, as the person by whom the premises are being used, must cease using the premises at Lot 1 DP 580766 known as 974-978 Victoria Road, West Ryde as a Vehicle Body Repair Workshop.

(2)In particular ,the applicant must:

(i) cease using the premises for any activity involving the restoration of chassis through the cutting and welding of metals and the subsequent painting of vehicles.

(ii) cease using the area outside the workshop for the storing of repair vehicles and vehicle parts.

(3)Suspend the operation of Orders (1) and (2) until and including 28 January 2015.

(4)The Exhibits are returned apart from Exhibits A, B, E.

• Catchwords: APPEAL - against an Order issued to the occupier of premises under Section 121B item 1 of the Environmental Planning and Assessment Act 1979 - directing that the occupier cease using premises for a prohibited use - vehicle body repair workshop - applicant claims existing use rights - burden of proof
• Legislation Cited: Environmental Planning and Assessment Act 1979; Factories and Shops Act 1912-1950; Ryde Local Environmental Plan 2010; County of Cumberland Planning Scheme
• Cases Cited: Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400 at [45] and [57]; Exceland Property Group Pty Limited v Marrickville Council [2003] NSWLEC 208; Foodbarn Pty Ltd v Solicitor-General (NSW) (1975) 2LGRA 157; MM & SW Enterprises Pty Ltd v Strathfield Council [2010] NSWLEC 8; (2010) 172 LGERA 125; Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493 at 499-500; RCM Constructions Pty Limited & Maycot Pty Limited v Ryde City Council [2004] NSWLEC 266; Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 312; Scott v Wollongong CC (unreported NSW L&E Ct, Cripps CJ 1 September 1989, No 40090 of 1989); Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-535
• Category: Principal judgment
• Parties: Mr M Broholm (Applicant); City of Ryde Council (Respondent)
• Representation: Applicant in person; Mr A Gough (Respondent); Storey and Gough Lawyers (Respondent)
• File Number(s): 10129 of 2014

Judgment

1 The applicant, Michael Broholm, is the occupier of a single storey workshop located at the rear of a property at 974-978 Victoria Road, West Ryde (the premises). He uses the premises for the repair of motor vehicles and the storage of vehicles and related vehicle parts. The repair activities include the cutting and welding of metal and subsequent painting.

2 The Council has characterized the applicant's use of the premises as a "Vehicle Body Repair Workshop" which is defined under the relevant Ryde Local Environmental Plan 2010 (LEP) as "...a building or place used for the repair of vehicles or agricultural machinery, involving body building, panel building, panel beating, spray painting or chassis restoration".

3 The premises are located within the B4 Mixed Use Zone under the LEP. Development for the purposes of a "Vehicle Body Repair Workshop" is prohibited. So, on 12 February 2014 the Council served an Order on the applicant under s121B item 1 of the Environmental Planning and Assessment Act 1979 (the Act) directing the applicant to "cease use of the premises as a Vehicle Body Repair Workshop" within 30 days.

4 The Order specifies the use is unacceptable because:

(a) Vehicle Body Repair Workshop is a prohibited use.

(b) The use has the potential to cause the emission of noise to the local residential area caused by repairs of heavy machinery and traffic generation of vehicles entering and leaving the site.

5 In response, the applicant has lodged an appeal against the Order pursuant to s 121ZK the Act.

6 For the sake of completeness, I note that the Order was subsequently amended by the Registrar of the Court (with the consent of the applicant) on 10 April 2014 to refer to the applicant's name as occupier rather than the owner of the land.

7 A copy of the amended Order dated 10 April 2014 the subject of these proceedings is annexed to this judgment (Annexure A).

8 The applicant, who is self-represented, asks the Court to withdraw (or revoke) the Order pursuant to s 121ZK(4)(a) of the Act on the basis that:

• The use being conducted is an 'existing use' pursuant to s 106 of the Act;
• The applicant has not been afforded procedural fairness; and
• The order incorrectly describes (or categorizes) the development.

9 On hearing an appeal, the Court may:

(a) Revoke the order, or

(b) Modify the order, or

(c) Substitute for the order any other order that the person who gave the order could have made, or

(d) Find that the order is sufficiently complied with, or

(e) Make such order with respect to compliance with the order as the Court thinks fit, or

(f) Make any other order with respect to the order as the Court thinks fit.

Evidence

10 The hearing of this case commenced onsite with an inspection of the premises and the locality. At the view I observed that the premises is located on the southern side of Victoria Road and enjoys a rear frontage to Maxim Lane. It contains a single storey shed structure of corrugated iron construction erected at the property addressing Maxim Lane. The workshop has vehicular access from Maxim Lane into a car park that services the commercial tenants in the buildings fronting Victoria Road.

11 The workshop is opposite a block of flats and the locality around Maxim Lane is generally residential. During the inspection I observed vehicles parked, in varying states of repair, in the workshop and around the workshop yard. The shed and yard also contained vehicle car parts.

12 The applicant insists that the activities he carries out on the premises relate to his privately owned cars. He is a car enthusiast who enjoys 'doing up cars' as a hobby and sometimes invites his mates to join him at the premises for that purpose. His use of the site is summarised in his affidavit dated 27 May 2014 (Exhibit C) and his statement of facts and contentions, filed with the Court on 16 April 2014 (Exhibit E).

13 The Council relies on the evidence of its Environmental Protection and Development Control Officer Pooja Simon. His statement dated 2 June 2014 is (Exhibit I). It also relies on the evidence of its Client Manager, Glenn Ford, and his statement of evidence dated 10 June 2014 is (Exhibit 2).

14 The parties have filed written submissions and I will deal with the contentions raised in the order addressed in those submissions.

Contention 1 - Existing Use

15 The applicant submits that his use of the premises since August 1998 is permitted by virtue of "existing use", as defined in s 106 of the Act (at [4.2] (Exhibit D)).

16 In support of that submission the applicant asserts that the premises was occupied "...from at least 1953 to until not long before August 1998 by 'Ryde Welding and Engineering' (Ryde Welding) who conducted full-scale welding, cutting, grinding, painting and fabrication of metals for the construction of steel and wrought iron gates". He maintains that his private use of the site involves exactly the same processes as that conducted Ryde Welding namely: - the cutting, welding and painting of steel (at [7] Exhibit C and Annexures B, C, D, E, and F ).

17 The applicant also relies on verbal assurances from the Council officers who inspected the site in or around September 2001 and April 2008 and told him that they were satisfied that he has existing use rights to establish existing use rights to support his use of the premises, and, internal correspondence by Council following that visit which records "have been on site and have spoken to the occupier and have spoken to Ken and it appears that the property has existing use rights".

18 Despite his submissions, the applicant has not provided any relevant documentary or oral evidence to support the legal commencement of the Ryde Welding use on the premises such as to establish existing use rights.

19 Furthermore, the applicant's criticism of the Council's efforts in investigating his existing use rights claim is misplaced. As is his assertion that the Council's "...failure to carry out an internal inspection of the building situated on the site at any time during the last 6 years, before issuing the order" is relevant. The applicant's submission that "Given the Respondent has no historical records relating to the site (including any use by RWAE whilst that business was operated from and conducted at the site) other than to note in 1982 that a "factory" is situated at the site, the Council is not in a position to validly argue against my existing use rights" is just wrong at law (at [4.9] Exhibit D).

20 The applicant's assertion that he has discharged his legal onus of establishing exiting use rights and the nature of those rights on the balance of probabilities as per Pain J in Exceland Property Group Pty Limited v Marrickville Council [2003] NSWLEC 208 at [29] is unsustainable on the evidence.

21 The Council quite properly submits the applicant has not demonstrated an existing use with a "lawful origin" or that the use was lawful on any basis immediately before the commencement of the relevant planning instrument that prohibited the use.

22 The onus of demonstrating existing use rights and the nature of those rights is borne by the applicant on the balance of probabilities. The case on that issue is summarised in the decision of Exceland Property Group Pty Limited v Marrickville Council [2003] NSWLEC 208 per Pain J at [29]:

Section 106 of the EP&A Act defines "existing use" as follows: In this Division, existing use means:

(a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4A of Part 3 or Division 4 of this Part, have the effect of prohibiting that use,

(b) the use of a building, work or land:

(i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and

(ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.

23 To satisfy this definition, the use of the subject site must be a prohibited use and must have a lawful origin: RCM Constructions Pty Limited & Maycot Pty Limited v Ryde City Council [2004] NSWLEC 266 at [20].

24 Pepper J in MM & SW Enterprises Pty Ltd v Strathfield Council [2010] NSWLEC 8 states:

79. To establish an existing use right, the applicant must establish on the facts that the use was lawful and was not a prohibited use in existence immediately prior to the commencement of the relevant planning instrument that prohibited the use (s 106 of the EPAA).

80. The term "lawful" in ss 106 and 107 means not prohibited by planning law (Sydney City Council v Ke-Su Investments Pty Ltd (No 2) (1983) 51 LGRA 186 at 203-204).

81. In circumstances where premises are subject to a development consent, the terms of the consent become the "lawful purpose" from which an existing use can arise pursuant to s 106(b) (i) of the EPAA (Botany Bay City Council v Workmate Abrasives Pty Ltd (2004) 138 LGERA 120 at [12]-[14] and House of Peace Pty Ltd v Bankstown City Council [20001 NSWCA 44; (2000) 48 NSWLR 498 at /36J-1371).

82. Only the "lawful purpose", that is, the terms and conditions stipulated in the development consent, can be relied upon by the applicant to secure existing use rights. Any other "use" - such as an unlawful use or an actual use that is different from the consenting use - is not a lawful use, and cannot be relied upon to gain existing use rights (Fatsel Pty Ltd v ACR Trading Pty Ltd [No 3] (1987) 64 LGRA 177 at 190).

25 I reiterate the applicant in this case has not provided any evidence which demonstrates that the operations undertaken by Ryde Welding and Engineering was lawfully commenced on the premises.

26 At the time that the applicant asserts the existing use commenced in 1953, the premises were zoned 'Living Area' under the County of Cumberland Planning Scheme. (County Scheme). The operations undertaken by Ryde Welding were consistent with the definition of "Industry" provided at cl.3 of the County Scheme, being "any manufacturing process within the meaning of the Factories and Shops Act 1912-1950". The term "manufacturing process" was defined by the Factories Act as:

Any handicraft or process in or incidental to the making, assembling, altering, repairing, renovating, preparing, ornamenting, finishing, cleaning, washing or adapting of any goods or any articles of any part of an article for trade or sale or gain or ancillary to any business.

27 The table to cl.26 of the County Scheme identifies "industries, other than local light industries" as prohibited development. The Country Scheme identifies local light industries as a permissible use with development consent.

28 'Local Light industry' was defined as any light industry which:

(a) Is carried out in a building whether on one or more floors or in one or more buildings with a total floor space not exceeding 5,000 square feet.

(b) Does not require the provision of any essential service mains of a greater capacity than that required for the normal development of a living area zone.

(c) Does not, by the carriage of goods or materials, create traffic upon public roads in the neighbourhood likely to create congestion or danger or requiring roads of a higher standard than would be necessary for the normal development of a living area zone.

29 In turn, "light industry" is defined as:

...an industry, not being an offensive industry or hazardous industry, in which the processes carried on, the transportation involved or the machinery or materials used do not interfere with the amenity of the neighbourhood by reason of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit, oil, or otherwise.

30 At its highest, the Council submits that the activities of Ryde Welding might be characterized as a 'local light industry' and, as such, that development, between 1953 to 1979, could have been undertaken with the consent of the responsible authority. However, based on the historical search of the planning instruments for the site by the Council's Client Manger, Glenn Ford, the Council holds no records of any relevant development consents for the premises (at [2] in (Exhibit 2)).

31 Similarly, the environmental planning instruments applying to the land following the County Scheme namely; the Ryde Planning Scheme Ordinance and the Ryde Local Environmental Plan 2010 did not permit the activities of Ryde Welding to be conducted without the need for development consent.

32 In the ultimate, the Council submits that the applicant has not demonstrated on the balance of probabilities that the current use of the premises is an 'existing use' as defined by s.106 of the Act. The applicant has not demonstrated the use "was not a prohibited use in existence immediately prior to the commencement of the relevant planning instrument that proscribed the use": MM & SW Enterprises Pty Ltd v Strathfield Council [2010] NSWLEC 8 at [79]

Finding

33 Based on the evidence, I find that the applicant on balance has not discharged the onus of proving existing use rights for his use of the premises.

34 I accept the Council's submissions on this issue and find that the use is prohibited under the current planning regime and must cease.

Contention 2 - Procedural Fairness

35 The applicant contends that a denial of procedural fairness has occurred due to:

• the Council's failure to investigate whether the premises enjoys existing use rights
• the Council's conduct in preventing the applicant from producing evidence which confirms the premises enjoys existing use rights.

36 Section 121E of the Act provides that "A person who complies with section 121F- 121K is taken to have observed the rules of natural justice (the rules of procedural fairness). In that regard, the Council:

• did not need to consider criteria within a development control plan as no such plan had been adopted (s.121F);
• did not need to make arrangements for satisfactory alternative accommodation, as the order was not making or likely to make a resident homeless (s.121G);
• gave notice to the applicant of its intention to give the subject order including the terms of the proposed order and the period proposed to be specified as the period within which the order is to be complied with. The notice indicated that representations could be made with respect to the proposed notice (s.121H);
• received representations from the applicant and heard/considered those representations (s.121l and s.121J);
• after considering the representations determined to give the subject order in accordance with the proposed order (s.121K).

37 The Council submits that the rules of natural justice have therefore been observed. The conduct of the Council has not denied the applicant the opportunity of demonstrating his perceived rights, nor has the applicant sought to obtain a declaration from the Court to clarify the issues in dispute.

38 The Council relies on the affidavit evidence of Mr Simon to demonstrate its efforts in investigating the applicant's use of the site following a complaint from a resident alleging a car repair shop operating on the site (at [6] in (Exhibit 1)). Mr Simon states that he examined the register of development consent for the site on 11 December 2013 and, after satisfying himself that there was no development consent for the "vehicle body repair shop" as defined under LEP 2010, he attended the site on 16 January 2014 to inspect the premises. He records in his affidavit at [9] that he observed "derelict vehicles and body parts of vehicles stored outside the workshop". Based on that inspection he formed the opinion that the premises were being used for the purpose of repairing and restoring vehicles. He took photos of the premises at that time and they are before the Court (tab 3 of (Exhibit 1)).

39 As the vehicle repair/restoration work was being carried out in close proximity to several residential properties, Mr Simon formed the opinion that the subject use had the potential to adversely affect the amenity of these residential uses by virtue of noise and traffic. After a consideration of the nature of the complaint received by the resident opposite namely: "A car repair shop has been operating 7 days a week for the past few years. The employees arrive at about 10am til 6pm. Really bad language can be heard in the unit across the street from the sheds..." and the investigation by Mr Simon as outlined the Council caused a notice of proposed order to be served on the owner of the property on 16 January 2014 and a copy to be delivered to the applicant by Officer Justin Howe on 21 January 2014. The notice, as required by the Act, invited a response within a time frame.

40 The applicant responded by email on 24 January 2014 making representations with respect to the notice and they were considered by the Council.

41 On 28 January 2014 the owner's power of attorney contacted the Council by email and made representations about the applicant's private noncommercial use of the land. The Council considered those representations.

42 On 31 January 2014, Mr Simon met with the applicant at the Council Chambers (at Tab 7 of (Exhibit 1)). The notes of that meeting record the applicant's belief that the complaint about his use of the site was made by a resident with whom he had had a dispute recently and details of his use of the premises. The notice records the applicant informed the Council that his friends join him onsite to work on the vehicles until 6pm. The note also records discussions between the applicant and the Council officer about no evidence of any existing use rights for his use of the premises. It also records that the Council officer suggested that the applicant obtain legal advice about the illegal use. A tentative arrangement to meet again onsite to observe the use is recorded in the notes, along with a request that the applicant provide any further representations for review by his team leader before service of the notice as soon as possible to the Council.

43 As it happened, the further site meeting did not take place between Mr Simon and the applicant. Although the Council notes record a meeting date, a time was not arranged and the meeting did not happen.

44 On 3 February, the representation submitted by the applicant was reviewed by the Council Team Leader, Building Compliance, Sergio Pillion and he decided to pursue the order and advise the applicant that after review his use cannot be supported.

45 On 12 February 2014, the Order was served on the applicant and the owner, requiring cessation of the vehicle body repair workshop from the premises within 30 days.

46 On Saturday 15 February 2014 the applicant sent an email to the Council addressed to Mr Simon asking for the Order to be retracted. The email also raised a number of issues (generally to do with the matters discussed at their earlier meeting at the Council) and, ultimately advised that the applicant intended to take the matter to this Court.

47 On 5 March 2014 the Council received a letter from the owner of the premises solicitor, Fordham Lawyers. The letter advised that the owner supported its tenant's (the applicant's) formal opposition to the Council's order.

48 On 11 April the Order was modified by the Registrar with the agreement of the applicant to refer to the applicant.

Finding

49 The provisions of ss121F -121K of the Act satisfy the requirements of procedural fairness: s121E.

50 The evidence as outlined above establishes that the requirements of the section have been complied with in this case. Therefore, I find that the Council has afforded the applicant procedural fairness in this matter.

51 The Order cannot be put aside on the ground of denial of procedural fairness.

Contention 3 - Categorisation of Development

52 The applicant contends that the Order should set be aside as it incorrectly categorises the development as a "Vehicle Body Repair Workshop", as defined in LEP 2010.

53 He believes that his non-commercial use of the premises for vehicle repair on his own privately owned vehicles distinguishes his use from that defined as a "Vehicle Body Repair Workshop" under the LEP.

54 The applicant submits that the definition in the LEP "...is very generic and could apply to anyone who does any sort of work in their home garage" and its application to his use of the premises is inaccurate.

55 The Council submits that the fact that the applicant uses the premises for the repairing of privately owned vehicles, including the cutting and welding of metal and subsequent painting does not remove it from the definition in the circumstances of this case (at [7] Exhibit C).

56 The fact that the applicant also stores a number of vehicles on the premises (within the shed and surrounding the shed) and stores related parts which are purchased from various places across Australia and on-sold to various people supports the characterisation as a "Vehicle Body Repair Workshop" (at [34] in Exhibit C), Annexure H and at pp12 and 20 (Exhibit 1)).

57 The Council submits that an assessment of the categorisation of a use involves the following:

• Asking what, according to ordinary terminology, is the most appropriate designation of the purpose being served by the use of the premises at the material time: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-535
• Undertaking the assessment in a commonsense and practical way, and, involves questions of fact and degree: Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400 at [45] and [57].
• The characterisation of the purpose of the use of land should be done at a level of generality that is necessary and sufficient to cover the individual activities, transactions or process carried on, not in terms of the detailed activities, transactions or processes: Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 312.
• In determining whether land is used for a particular purpose, an enquiry into how that purpose can be achieved is necessary: Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493 at 499-500.
• The development category must be reasonably open to the consent authority when making the determination: Scott v Wollongong CC (unreported NSW L&E Ct, Cripps CJ 1 September 1989, No 40090 of 1989).

58 When assessing the applicant's use of the premises in a commonsense and practical way, the use is correctly categorised as a 'Vehicle Body Repair Workshop'. The purpose of the development is to "repair vehicles" and the activities undertaken involve the restoration of chassis through the cutting and welding of metals and the subsequent painting of vehicles. This development category is reasonably open to the Court and is the most appropriate characterization for the use.

59 The development is not consistent with other development categories proscribed by LEP 2010, nor has any been put forward by the applicant.

60 The applicant contends that the activities being conducted on the premises fall outside the definition of 'Vehicle Body Repair Workshop' as all vehicles are privately owned by the applicant, and the restoration work is conducted for the applicant's benefit. There is nothing in the definition of 'Vehicle Body Repair Workshop' which requires the activities to be conducted for commercial gain or for the benefit of others.

61 The applicant's activities are not ancillary to a permitted use occurring upon 974-978 Victoria Road, West Ryde and, the use is a different, independent and separate use to other lawful development on this land: see Foodbarn Pty Ltd v Solicitor-General (NSW) (1975) 32LGRA 157 at 161. There is no evidence that the applicant resides or conducts other lawful activities upon this land.

Finding

62 After a consideration of the evidence as discussed, I am satisfied that the use of the premises carried out by the applicant falls within the definition of a 'Vehicle Body Repair Workshop' under the LEP which is a prohibited use on the premises.

63 The purpose of the development is to "repair vehicles" and the activities undertaken involve the restoration of chassis through the cutting and welding of metals and the subsequent painting of vehicles.

Conclusion

64 For the reasons stated, I have decided to substitute for the amended Order made by the City of Ryde Council on 10 April 2014 the following Orders:

(1) The applicant, Michael Broholm, as the person by whom the premises are being used, must cease using the premises at Lot 1 DP 580766 known as 974-978 Victoria Road, West Ryde as a Vehicle Body Repair Workshop .

(2) In particular ,the applicant must:

(i) cease using the premises for any activity involving the restoration of chassis through the cutting and welding of metals and the subsequent painting of vehicles.

(ii) cease using the area outside the workshop for the storing of repair vehicles and vehicle parts.

(3) Suspend the operation of Orders (1) and (2) until and including 28 January 2015.

The Exhibits are returned apart from Exhibits A, B, E.

Susan Dixon

Commissioner of the Court

Amendments

29 October 2014 - Date on Order (3) changed to 2015 + minor amendments to paras 17, 18 and 19
Amended paragraphs: Order (3) + paras 17, 18 and 19

Decision last updated: 29 October 2014