Marrickville Municipal Council v The John Gallagher Panel Beating Co Limited [1989] NSWLEC 159

Land and Environment Court of New South Wales

CITATION : Marrickville Municipal Council v The John Gallagher Panel Beating Co Limited [1989] NSWLEC 159 APPLICANT Marrickville Municipal Council PARTIES : RESPONDENT The John Gallagher Panel Beating Co Limited

FILE NUMBER(S) : 40176 of 1988 CORAM: Stein J KEY ISSUES: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: DATE OF JUDGMENT: 02/16/1989

APPLICANT Mr. Brian Phillips Mrs. Gill LEGAL REPRESENTATIVES: RESPONDENT Mr. John Gallagher

JUDGMENT:

HIS HONOUR: On 6 September 1972 the Council granted development consent to Mr. John Gallagher to use premises at 115 Denison Street, Camperdown, for the purpose of arc and oxy welding and motor body repairs and re-painting subject to several conditions. Relevantly these include:-

"b) The provision of hard standing for the offstreet parking of four vehicles, each space to be 18' x 8' and marked on the pavement.

c) All loading and unloading to take place within the curtilage of the premises.

d) No vehicle awaiting or undergoing repair to be stored on the street.

f) The provision of a loading dock 10' x 25' within the premises for the receipt of goods.

g) The hours of operation being restricted to 7.30 a.m. to 5.30 p.m. Monday to Friday and from 7.30 a.m. to 12 noon Saturday; no work on Sunday.

h) All plant and equipment used in connection with the operations to be stored within the premises at all times."

In 1975 the respondent company took over the operation of the business from Mr. Gallagher. Whilst the evidence is somewhat vague it appears that the surrounding area has a residential zoning and is substantially residential in nature. The premises occupy a corner site and front three streets - Denison Street, Salisbury Road and Denison Lane. There are two entrances - one in Denison Street near the corner of Salisbury Road, and the other in Salisbury Road not far from Denison Lane.

The Council now seeks a declaration that the use by the respondent of the subject premises for the purposes of arc and oxy welding and motor body repairs and re-painting without complying with certain conditions of consent is unlawful. It also seeks consequent orders restraining the respondent from operating the business otherwise than in accordance with the consent and conditions.

Before coming to the evidence it is necessary to interpret some of the consent conditions in order to determine their ambit and scope. Taking conditions (c) and (f) together, do they mean that the area of the loading dock cannot be used for other than loading and unloading of goods? For example, can any part of the loading dock be used for repairs of vehicles, or for the parking of vehicles in for repair or in the process of repair, or for the parking of vehicles of employees or clients? In my view it is the intent of the conditions to reserve a loading dock for the purpose of loading and unloading of goods, and not for any other purpose, in particular for repair work or parking of vehicles.

Does condition (d) cover vehicles parked on the street for the purpose of the respondent quoting for business? In my opinion, depending on the particular factual circumstances, the condition is intended to extend to "quoting" on vehicles parked outside the premises in the adjacent streets. Read as a whole the consent and conditions evince a clear intention to confine all of the permitted uses to within the premises. In my opinion "quoting" for business is part of the respondent's business activities.

With these remarks it is convenient to turn to the evidence. The evidence essentially comprised observations by Mr. Brian Phillips, a Council Town Planner, observations of Mrs. Gill, a near neighbour residing with her husband at 125 Denison Street, together with denials and explanations by Mr. John Gallagher, the director of the respondent. Additionally, both parties tendered large numbers of photographs.

I find the following facts:-

1. Between 12 April and 10 August 1988 (and on a continuing basis), motor vehicles undergoing repair or awaiting repair have been habitually parked or "stored" in the streets adjacent to the premises. This is a frequent and probably almost daily occurrence. I reject the respondent's evidence that such occurrences are isolated and for only "10 minutes" or "a few minutes". I believe the periods of storage of motor vehicles on street are much longer in duration. I am also satisfied that there have been not infrequent occasions when minor repairs have been carried out in the street.

2. The four marked car-parking spaces inside the premises are habitually used for other than off-street parking of clients' or employees' cars. Indeed, it appears that the spaces are invariably used for parking damaged vehicles (awaiting repair), for repairing vehicles or for storage of other items (see paragraph 13 of the affidavit of the Council Planner and paragraph 3(13) of the afffidavit of Mr. Gallagher sworn 24 October 1988). It appears probable that the spaces are rarely if ever used for the purpose intended by the consent. Employees' vehicles are usually parked in the surrounding streets and for the very most part cars are quoted on in the streets. In connection with the off-street car parking spaces, it should be noted that when the consent was granted in 1972 the business had 3 employees and it now has 8, four of whom drive to work. In addition to these matters it should also be noted that at times the respondent needs to keep two of the internal parking spaces free to allow internal access arrange ments concerning spray painting. The situation is graphically illustrated by the evidence of the Planner of his inspection on 10 August 1988, (which I accept). Two of the parking spaces were occupied by storage of a dinghy and a set of drying lights and the other 2 spaces were occupied by cars under repair. Also, the loading dock held a parked vehicle. Confirmation of the cavalier attitude of the respondent to the internal parking spaces is its failure to have them marked as required by the condition until after April 1988 following a visit by the Council Planner.

3. Vehicles are frequently parked in the loading dock. Sometimes vehicles are repaired or worked upon in the loading dock area. In any event, the loading dock is not infrequently blocked off and therefore unavailable for its stated purpose. It is fair to say that the loading dock area is not treated as such by the respondent but rather as an integral part of the premises and is often used for the parking of vehicles under repair but not presently being worked upon, or on occasions as a place of repair. It is not surprising in the circumstances that delivery vehicles do not always use the loading dock for unloading but unload on the street. I reject the evidence of Mr. Gallagher that he cannot control the drivers of delivery trucks who often will not use the dock. It seems to me that he should and could control them and in this respect it would seem essential to keep the dock free for its intended purpose.

4. On occasions the entrances to the premises, both in Denison Street and Salisbury Road adjacent to the loading dock, are blocked by vehicles associated with the business, or vehicles undergoing or awaiting repair.

5. Up until mid 1988 it appears that Denison Lane was habitually used by the respondent both for the parking of vehicles connected with the business and for washing vehicles down. This often resulted in the lane being obstructed and blocked to traffic with obvious inconvenience and also polluted water being washed down the gutters. Since July or August 1988 washing has taken place on adjacent premises and the erection of No Parking signs in the lane has reduced the almost daily infringements to isolated ones.

6. I am also satisfied that on occasions the business has operated outside the hours permitted by condition (g). In particular, I accept that activities associated with the business have occurred sometimes prior to 7.30 a.m. on weekdays and after 5.30 p.m. and up to 7.00 or 8.00 p.m. weekdays. I am also satisfied that on occasions operations have been continued outside hours on Saturdays (after 12 noon) and on isolated Sundays.

In summary the evidence convinces me that the respondent has on a continuing basis breached the consent and a number of conditions attached thereto, in particular (b), (c), (d), (f) and (g). Until comparatively recently Mr. Gallagher appeared to treat allegations of breaches by Council as unworthy of serious consideration nor indeed did he see fit to respond. The probable situation is that the premises are too small for the present size of the business which they cannot accommodate without frequent breaches of the consent. The number of employees has more than doubled since the consent was originally issued some 16 years ago. The consequence of the repeated breaches is one of nuisance, annoyance and inconvenience for neighbours and generally a lowering of the amenity of the local area. In this respect I reject the submission of Mr. Anderson for the respondent that the harm to the environment is negligible. In effect the respondent is endeavouring to use the adjacent streets as an extension of its business ope rations. This is contrary to both the spirit and clear intent of the consent. In my opinion the respondent should abide by the consent or move to alternative premises.

In the absence of any real emphasis being placed by the respondent on the exercise of the discretion by the Court, (other than may flow from that discussed above), it appears to me that since I am satisfied that the breaches have been largely proven, the declaration sought by the Council ought be made with the exception of the reference in the Application to condition (h), in respect of which there is no evidence of breach. I propose to make the injunctions sought in paras. 2 and 3 of the Application, again with the exclusion of reference to condition (h). Costs should follow the event of the Application and the exhibits may be returned.

I make the following declaration and orders:-

1. Declare that the use by the respondent of the premises at 115 Denison Lane, Camperdown for the purposes of arc and oxy welding and motor body repairs and re-painting without complying with conditions (b), (c), (d), (f) and (g) of Development Consent No. 5545 dated 6 September 1972 is unlawful.

2. Order that the respondent be restrained from using or suffering the said premises to be used for the purposes of arc and oxy welding and motor body repairs and re-painting unless and until conditions (b) and (f) of Development Consent No. 5545 have been complied with.

3. Order that the respondent be restrained from using or suffering the said premises to be used for the purposes of arc and oxy welding and motor body repairs and re-painting in breach of conditions (c), (d) and (g) of Development Consent No. 5545.

4. Respondent to pay applicant's costs of application.

5. Exhibits may be returned.

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