The operator of an automobile repair facility as lost an appeal against an order issued to him by Ryde Council directing him to cease the use. The appeal was heard before Commissioner Dixon. Her judgement affirming the Council's order, Broholm v City of Ryde Council, (2014) NSWLEC 1201, which was handed down on 28 October 2014, can be reviewed at the following link:
http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=175070
The premises where the facility in question was operating was located in a single storey corrugated iron shed, across the street from a block of flats. The Council received a complaint from a member of the public that a car repair shop had been operating in the shed for a number of years. An officer of the Council attended the premises and, based upon his observation that a number of derelict vehicles and body parts were stored outside the shed, arrived at the conclusion that the shed was being used for the purpose of restoring and repairing vehicles. The officer further determined that the vehicle repair use had the potential to generate noise and traffic, and thus to impact adversely on the amenity of local residents. On the basis of these findings, and on the basis of provisions in the Council's Local Environmental Plan that declared that use of the land in the particular location (which was classified as being within a "B4 Mixed Use Zone") as a "vehicle body repair shop" was prohibited, the Council proceeded to issue the ""cease use" order.
The operator's appeal against the order was based on two primary grounds, both of which were rejected by Commissioner Dixon.
First, the operator argued that he had the benefit of "existing use rights" which authorised him to engage in the repair of vehicles notwithstanding that the use was prohibited under the Council's current local environmental plan. The operator's claim was that the premises had been operated during the period from 1953 - 1998 as a shop for the welding, cutting, grinding, painting and fabrication of metals for the construction of wrought iron gates, and that the prior use thus entitled him to carry out similar kinds of metalwork with respect to automobiles.
The Court followed a long line of precedent which holds that in order for "pre-existing use" rights to be valid, the claimed pre-existing use must have been lawful before it became prohibited. The Court found that the alleged pre-existing metalwork facility would have been classified as a "light industry" under the planning scheme ordinance that was in force at the time (1953) that the facility was claimed to have commenced operating. However, the previous planning scheme ordinance required that development consent be obtained for any "light industry" use. As there was no evidence that any such consent had ever been granted, the claim that the metalwork facility had been operating lawfully under the planning scheme ordinance could not be sustained. Consequently, the contentions advanced by the operator of the vehicle repair facility that he had the right to continue operating under the cloak of "existing use rights" did not succeed.
The operator's secondary argument, to the effect that he was a "car enthusiast who enjoyed "doing up" cars as a hobby and that he was operating the premises on a completely "non-commercial" basis was even weaker, and was rejected by the Court. Commissioner Dixon found that the work that the definition of (the prohibited use of) vehicle body repair did not require any commercial component. Thus, it was irrelevant whether the work that was being carried out in the shed, involving the cutting, welding and painting of car parts - was being done for financial gain or as a "hobby" as the operator claimed. In either case, the use in the particular land use zone was prohibited. (Further, it surely appears somewhat "incredible" that the alleged use was "non-commercial" in light of evidence that was brought forward in the proceeding that the shop had been operating for seven days a week.
An interesting aspect of this case is the fact that the Council was apparently aware of the use of the shed for the purposes of vehicle repair for many years before it proceeded to issue the closure order and that Council officers had apparently told the operator that they were "satisfied" that the use enjoyed the benefit of existing use rights. While of course a statement by a Council officer is not by itself sufficient to confer any rights under NSW planning law, such comments clearly have the potential to complicate an enforcement action. Similarly, longstanding tolerance by a council of an unauthorised use (as apparently can also cause problems for an eventual enforcement action to restrain that use. The obvious moral here is that Council officers must make careful assessments as to whether there is a factual or legal foundation for a claim of existing use rights before they carry out any discussions with a person who is engaged in a suspected prohibited use, and must exercise care and restrain when making any statements concerning the lawfulness of a use.
On the other side of the coin, the moral for persons who seek to continue land uses under the umbrella of existing use rights is that they must make a thorough investigation of the history surrounding the pre-existing use, and must make sure that there is sufficient proof to establish that the pre-existing use was being carried out lawfully before a change in zoning controls made the use unlawful (prohibited). As noted by Commissioner Dixon, the proponent of a claim of "existing use" rights has the burden of proof, and vindicating that burden of proof is almost always "easier said than done".
No comments:
Post a Comment