Citation: Liverpool City Council v Maller Holdings Pty Ltd trading as Sydney Horse Transport [2014] NSWCCA 299
Court: Court of Criminal Appeal, NSW
Date: 11 December 2014
Judge(s): Macfarlan JA (principal judgment); Fullerton J and Bellew J (agreeing)
Background
The respondent company operated a horse transport business from a property at Warwick Farm, near the Sydney racecourse of that name. Development consents dating from the 1960s had authorised the use of the property for "stables" under the environmental planning instruments in force at the time.
The appellant, Liverpool City Council, prosecuted the respondent in the Land and Environment Court, alleging that during a two-year period from June 2010 to June 2012 the respondent used the property in a manner prohibited by the then-current Liverpool Local Environmental Plan 2008 (Liverpool LEP). The charge was that the property was being used to conduct a horse transport business, a use not authorised by the Liverpool LEP.
The primary judge, Pain J, found that the historic consents for "stables" were sufficient to protect the respondent from prosecution and dismissed the charge. Before making final orders, however, her Honour agreed to state three questions of law for the Court of Criminal Appeal's determination under section 5AE of the Criminal Appeal Act 1912 (NSW).
Legal Issues
- Whether the primary judge erred in finding that the prosecution failed simply because part of the actual use was authorised by the historic "stables" consents.
- Whether the historic consents for "stables" were capable, under section 109B of the Environmental Planning and Assessment Act 1979 (NSW), of covering the respondent's use of the property during the charge period, given the primary judge's own finding that the use amounted to a horse transport business.
- Whether the aspect of the business involving bringing and taking horses to and from the property was permissible under the historic consents, on the basis that sections 76B and 109B of the EPA Act operate concurrently.
Decision
Macfarlan JA (with Fullerton and Bellew JJ agreeing) answered Questions 1 and 2 "Yes" and answered Question 3 "Does not arise."
The Court held that determining whether a use is prohibited by a current planning instrument and whether it is authorised by a historic consent both require the same single inquiry: what, in ordinary terminology, is the appropriate designation of the purpose being served by the actual use of the premises. This is not two separate tasks performed in sequence. The primary judge had already found that the use of the property was for the purpose of a horse transport business. The question was then simply whether "stables" and "horse transport business" were in substance the same purpose. On the primary judge's own factual findings, the answer to that question could only have been no.
The Court rejected the proposition that authorisation of part of an actual use is sufficient to defeat a prosecution. Where a use is unauthorised in substance (here, as a horse transport business), the fact that some component activities may coincide with an authorised use (stabling) does not excuse the whole. There remains an unauthorised use.
On Question 3, the Court found the question did not arise. Whether a particular component of the use was independently authorised as stabling would depend on whether that component served an independent purpose of stabling or was instead subsumed within the overarching horse transport business. That would have been a question of fact for the primary judge, but it became irrelevant once the correct legal framework was applied.
Orders Made
- Questions 1 and 2 answered "Yes" (with the words "stables buildings" in Question 2 amended by agreement to read "property").
- Question 3 answered "Does not arise."
- The proceedings remitted to the Land and Environment Court to be resolved in accordance with those answers.
Key Takeaways
- The Court of Criminal Appeal confirmed that determining whether a use is prohibited by a current planning instrument and whether it is authorised by a historic consent are a single inquiry, not two separate analyses: the court must identify the true purpose of the actual use in ordinary terminology and compare it to both the current instrument and the historic consent.
- A finding that the actual use of land constitutes a "horse transport business" is not in substance the same as a consent authorising use as "stables," even if stabling activities occur as part of the business.
- Partial authorisation of an actual use by a historic consent is insufficient to defeat a prosecution. Where the overall use is prohibited, the existence of an authorised component does not excuse the unauthorised use as a whole.
- Where component activities that might constitute stabling are subsumed within a broader, unauthorised purpose, those activities take their character from the dominant purpose and are not protected by a historic consent for stabling. Whether activities are independent or subsumed is a question of fact.
- Under section 109B of the EPA Act, pre-existing consents can authorise development that would otherwise be prohibited by a current environmental planning instrument, but the protection is limited to uses that are in substance the same as those described in the historic consent.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5AE
- Environmental Planning and Assessment Act 1979 (NSW), ss 4, 76A, 76B, 76C, 109B
- Local Government Act 1919 (NSW)
- Liverpool Local Environmental Plan 2008
Cases:
- Shire of Perth v O'Keefe [1964] HCA 37; 110 CLR 529 (applied)
- Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107; 180 LGERA 343
- Bardsley-Smith v Penrith City Council [2013] NSWCA 200; 195 LGERA 34
- Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404
- Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147; 201 LGERA 116
- Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400
- Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157
- Ku-ring-gai Municipal Council v Geoffrey Twibill & Associates (1979) 39 LGRA 154
- North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1998) 16 NSWLR 50
- Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305