'  	

BROWN & ANOR.	v.	IDOFILL PTY.LTD. & ORS.

Supreme Court of the Northern Territory of Australia MUIRHEAD A.J.
13, 14, 15, 16, 17, 22 July;	26 August 1987

Town and Country Plannino - Existing use - service station - new town plan - land zoned residential - whether land has been used for purpose for which it was used  immediately prior to plan, i.e. as a service  station  whether abandonment of use of land as service station - Planning Act 1979 ss.67, 68, 70.

Injunction - Discretion to grant - injunction to restrain defendant from carrying on business of service station on land zoned 'residential'.

Cases considered:

Attorney General v. BP (Australia) Ltd. (1964-65) NSWR 2055 Attorney General v. Greenfield (1962} SR (NSW) 393
City of Nunawading v. Harrington (1985) VR 641 Shire of Perth v. O'Keefe 110 CLR 529

Cases referred to:

Associated Minerals Consolidated Ltd. & Anor v. Wyong Shire Council (1974) 48 ALJR 464
Drummoyne Municipal Council v. Cavallaro (1982) 46 LGRA 416
Norman v. Gosford Shire Council (1974} 132 CLR 83
Pacific Seven Pty.Ltd. v. City of Sandringham & Ors (1982) VR 157
Rockdale Municipal Council v. Clark (1981-82} 47 LGRA 159

Counsel for Plaintiffs Solicitors for Plaintiffs

Counsel for Defendants Solicitors for Defendants

P.B.Bracher Ward Keller

ildren Q.C. P.J.B.Tiffin Robert Kimber

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
IN DARWIN
No. 614 of 1986	BETWEEN:
ALAN JAMES BROWN and DAWN IRENE BROWN

AND:

IDOFILL PTY.LTD.

AND:

NANCY JEAN O'HARA

AND:

TAINUI PTY.LTD.

MUIRHEAD A.J.

REASONS FOR JUDGMENT
(Delivered Wednesday, 26th August 1987)

This is	an	unusual	case.	The	plaintiffs conduct a Service Station at Ross Smith Avenue, Darwin.

They seek an injunction to restrain the defendants from carrying on or further developing a service station  on a nearby site. What is unusual is that as private persons they utilize the provisions of the Planning Act to achieve this result. Section 63 of that Act,  which is administered by the Northern Territory Planning Authority, prohibits use or development of land otherwise than in accordance with a planning instrument which applies to the land. Naturally enough  the Planning Authority is empowered to secure  the observance of the statutory provisions of the Act. But Section 65 enables a private person, with the leave of this Court, to take proceedings to enforce compliance with the provisions in his own name.  This Court  upon an ex parte hearing granted such leave some time ago, and thus it is that the plaintiffs seek an order,  by way of injunction, to prevent the defendants  carrying on the service station "otherwise than in accordance with the Planning Instrument applying to the said land contrary to the provisions of Section 63 of  the Planning Act". The plaintiffs originally  claimed damages but this aspect has been abandoned.  Clearly, the plaintiffs seek to avoid trade competition to which they have recently been subject. I do not say this critically. They are entitled to use the Act to their own advantage.

The first defendant, Idofill Pty.Ltd., carried on the service station  in  question  until 31st March 1986, the third defendant, Tainui Pty.Ltd., carries it on at the present time. The second defendant, Mrs O'Hara, is the registered proprietor of the land in question - she now leases it to the third defendant who, it is alleged, unlawfully uses the land with her knowledge, consent, cooperation and encouragement. All defendants were represented by the same counsel. The person who has operated  the defendant companies to date and now effectively carries on the service station as a Director under the business name "Go-Lo" is Michael Sanderson. He operates the service station and prices his fuels in a manner designed to maximize sales.

The service station operates on Lot 3764, Town of Darwin. In earlier days this was  constituted by 3 lots which were consolidated in 1963. An early lessee, one Lyness, was granted a lease, the land to be used for "service station purposes". This was before the days of a town plan. When the lots were consolidated Lyness was granted a perpetual lease for "business (service station and motor showrooms) and
residential purposes".	In 1966 a Darwin Town	Planning

Scheme was promulgated and lot	3764 was gazetted as	a

"service station site".	In June 1969 Mrs O'Hara became

registered proprietor of the leasehold (later converted to freehold in 1980). I find that since late 1969, and until recently, Mrs O'Hara used most of the site as a bus depot, where buses used in her business were stored, fuelled and repaired. But it is common ground that for some years since the early 70's a service station business operated on the site being operated inter alia by the witness Michelle Keenan and one David Richards who also operated a small repair business under the name of "Perfect Tune", a business which has changed hands over the past decade or so.

It is common ground that on the 19th January 1979 the Darwin Town Plan came into force and in August of that year the present Planning Act commenced. The town plan superseded the 1966 plan and lot 3764 was zoned R3, which permits a wide range of residential use, but certainly not the carrying on of a service station. In that plan "service station" is defined as follows:

"service station" means a building or place used for the fuelling of motor vehicles involving the sale by retail of petrol, oils and other petroleum products, whether or not the building or place is also used for any one or more of the following purposes:

the sale by	retail of	spare parts	and accessories for motor vehicles;

the	washing	and vehicles;

greasing	of	motor

the installation of accessories in motor vehicles; and

the repairing and servicing of motor vehicles involving the use of hand tools (top overhaul of motors, body building, panel beating, spray painting and suspension and transmission of chasses restoration excepted).

Clause 84(1) of the Darwin Town Plan provided that a person should not be held to contravene the scheme "by reason only that he continues to use any land --- after the date of commencement of this  scheme
for its existing use".	"Existing use" in relation to a

building, work or land means	its use "for the	purpose

for	which	it	was	used	immediately	before	the

commencement of this scheme". Clause 86 provided  that "a person is conclusively presumed to have abandoned a use of land if he discontinues the use for  a continuous period of not less than 12 months".

This plan was not repealed by the Planning Act which came into force on  3rd August  1979. Sections 67, 68 and 69 of this Act serve to protect existing uses or development. Section 67(2)(b) defines the existing use of any land, building or work for the purposes of the Act in the following terms "the existing use of any land, building or work is the use of the land, building or work, as the case may be, for

the purpose for	which it was	used immediately	before the date of commencement of the planning instrument".

The land has now been zoned R3 (residential). The primary question is whether its existing use, in part as a service station, contravenes Section 63 of the Planning Act which provides that land shall not be used or developed otherwise than in accordance with the planning instrument i.e. the Darwin Town Plan 1978. As in the plan, the Planning Act (Section 70) provides for abandonment of existing uses in the following terms.

"A person is conclusively presumed to have abandoned a use of a building, work or land if he discontinues the use for a continuous period of not less than 12 months or such longer period as the Authority may determine under section 71."

Section 68	provides as follows:

"(1) Subject to sub-section (2), a person shall not be held to contravene the provisions of a planning instrument by reason only that he continues to use any land, existing building or existing work after the date of commencement of the planning instrument for its existing use.

{2) Sub-section {1) does not apply to permit the use of any land, existing building or existing work to which a former planning instrument applied for a purpose which was not authorized -
by or under this Act;	or

{b) by or under the former planning instrument".

The central question here is whether the land has been used for the purpose for which it was used immediately prior to the plan, that is to say, for the purpose of a service station. This is basically a question of fact although it is necessary to consider some authorities in reaching a decision.

At hearing Mr Mildren Q.C. for the defendants accepted the onus of satisfying the Court that what I loosely call pre-existing user had continued throughout and that there had been no abandonment of its use as a service station. The plaintiffs' case is simply that the use of the land over recent years has been as a bus depot, that the previous service station activity ceased and that the bowsers retained in situ were used for the fuelling of Mrs O'Hara's buses, with some fuel sales to employees, past employees and persons who have had some association with the repair business or with past ventures. It has not, the plaintiffs argue, been used for the sale by retail of petrol and other petroleum products. I say at the outset that it is doubtful whether use of the premises as a bus depot by Mrs O'Hara's companies, was itself lawful user. But that question of legality does not intrude upon my reasons. I turn to consider factual matters and my findings relating thereto. I have heard and considered

the testimony of many witnesses spanning events and practices over many years and I do not propose to deal with the evidence in detail. Nor is it possible  to deal with dates or periods with any degree of exactitude. The following sets out my broad findings. When I refer to the  activities  of  the  defendant, Mrs O'Hara, I embrace those of her companies, through which she has operated in a position of control. There is no dispute as to this.

As I have said Mrs O'Hara purchased the entire site in about 1969 including a workshop and service station - originally with Shell bowsers. Not long after Mobil bowsers were installed, a canopy structure was erected over the bowsers, and a high standing Mobil sign was erected. But from her point of view the prime value of the site was as a bus depot, equipped as it was with workshop and fuel outlets and it was upon this project she concentrated her business efforts successfully. She built up a fleet of about 18 buses and over a long period until recent times they tended to be diesel fuelled. Mrs O'Hara acquired contracts with the education authorities, used some buses on charter work and she developed a large business. The premises in question were the  main depot. The general layout of the site and the improvements is illustrated in Exhibit DlO, a plan

prepared in 1970 and which includes (outlined in red) some proposed additions which were never completed. It suffices to say the service station site and bowsers were and are situate on the south western corner adjacent to the junction of Ross Smith Avenue and Philip Street. Early in 1973 Mrs O'Hara ceased to operate the service station site which she leased to the witness Michelle Keenan who actively carried it on as a service station in the full sense of the word under the style of 'Ross Smith Service Station'. Miss Keenan described her activities as follows (p.139): "Service Station, car repairs, fuel sales, car washing, anything associated with battery charges, call outs, towing. Whatever we could do, we did". She  occupied the office situate adjacent to the bowsers and she utilized a nearby workshop and lube bay. She  operated a cash register, a drink machine and an ice machine,

employing a	mechanic for She	increased	gallonage setback caused by the 1974

servicing and	oil	changes.
threefold	and	despite		the cyclone, she was kept	busy

serving in her estimate 'probably more' than 40 or 50 persons a day. In mid-1975 she purchased a taxi and by agreement  surrendered  the  oral  lease   back   to Mrs O'Hara. One Brian Richards then took over and started a small repair business 'Perfect Tune' which has survived under changing ownership to the present time. Then in about the middle of 1976 the petrol

selling business was returned to Mrs O'Hara (O'Hara's Road Lines, later being conducted under the style of O'Hara's Bus Lines until about December 1985). The man who has clearly been the working mainstay of the O'Hara business interests on-site was the witness James Ockerby. He was first employed as a mechanic/diesel fitter in 1972. I regard him as an honest witness, but he was very vague as to the sequence of events over the last 16 years or so and perhaps understandably so. Clearly, much of the workload of managing and servicing a growing fleet of buses fell to him - including management of the many drivers who were employed. He had administrative tasks to perform in addition to work consistent with his trade. He retains Mrs O'Hara's absolute confidence and when she left Darwin in 1981 to live in Townsville he appears to have been the man who, with her authority, was very much in charge - he was the Manager of her business.

He told me that he "more or less'' took over the 'petrol sales' from Richards and it is clear that fuels have been dispensed from the bowsers, without interruption until the present time. But I am quite satisfied that the character of what could previously be described as a conventional service station completely altered.

When asked as to her intention relating to the sale of petrol on the site from about this period Mrs O'Hara stated:

"I always wanted to see the bowsers sell petrol, and sell a considerable amount of petrol. The facility was there; I'd spent extra money on it to put the canopy up, and I wanted to see the service station side promoted, but Mr Ockerby was a very busy man. I couldn't really expect him to do more than he did." (at p.6 0}

Cross-examined on this issue (p.78) her evidence was as follows:

"Mr Bracher: Am I wrong? You tell me again what your intention was? --- I said that I was always anxious that the petrol side should be developed better, because I had spent money on it.

You didn't expect Jim Ockerby to do that, because he had so much on his plate? I expected him to sell some petrol as and when necessary, but I didn't expect him to sit at the bowsers and try and get fuel customers.

His Honour: You didn't sales?	No.	He	was work.

expect him to too busy	on

foster other

Mr Bracher: Indeed, do you agree with me that the little office beside the petrol bowsers was in fact not even occupied by your firm for the longest time? --- No, there was no reason for it to be occupied. We didn't have anybody permanently sellinq fuel.

You'd had no employees who had the task of selling    fuel?	That's correct. Exclusively; exclusively had the task of selling fuel.

Did you have a cash register to record fuel sales? --- No.

In the little house - the little office just beside the bowsers was in fact occupied for many years by David Cheetham, wasn't it?
Yes, he was allowed to use that office while no-one else was using it." (My emphasis}.

The witness David Cheetham purchased the 'Perfect Tune' repair business from Richards in about October 1978 and he and his wife carried it on until about September 1985 - a critical period from the point of view of this litigation. I found him and his wife Erica to be convincing witnesses and as they occupied the office, which previously had been used for the bowser attendant, they had good opportunity to observe

what	occurred	over	the	years. dispassionate witnesses.

They	were	clearly

It is common ground that at no stage after 1978 was any person specifically employed on petrol sales. Mr Ockerby as Manager of the bus business, had, as I have already commented, diverse duties. He had responsibility for 18 buses, their schedules and their drivers. His primary task, as Mrs O'Hara observe9 (at p.83}, was "to keep the buses on the road, to keep the whole business going". He was, she said, responsible for "mechanical repairs and organizing the drivers and organizing any other jobs. He had the whole of the operation under his physical control".

I am satisfied that from the time Richards left no effort was made to operate what can  be described as a conventional service station. The high standing Mobil sign was removed at some stage and nothing was done to attract the custom of the  public. In fact to the contrary, I am satisfied that the public were to Mr Ockerby's knowledge, and in my view,  with his tacit, if not express approval, discouraged. The small office adjacent to the bowsers was occupied by David Cheetham and his wife. It was never contemplated that they should utilize the bowsers for use by the general public (p.364). The electric switch to operate the bowsers and the keys to the padlocks of the bowser hoses were generally kept in Mr Ockerby's office, adjacent to the main workshop where the buses were attended to, separated from and to the north of the bowser area. The air hose sited near the bowsers blew out and was not repaired by Ockerby. When asked in examination in chief whether it operated until 1985 he replied "Possibly it did.  It blew out one time     and I switched it off and never repaired it. What date I wouldn't have a clue" (p.201).

I find from the evidence of David Cheetham that the bowsers were locked "the majority of the time". His wife agreed  "they were  usually  locked". Mr and Mrs Cheetham's work was occasionally interrupted

by members of the public enquiring for fuel.  I  find Mr and Mrs Cheetham answered such enquiries by stating they could not supply petrol, that the bowsers were for the use of buses (p.340) (as indeed they were) and they were unable to supply fuel to the public (p.359). But beyond this I find that of his own volition, and with Ockerby's knowledge, Cheetham had two metal signs made up (Exhibit Pll) prominently displaying the words ''Bus use only". These I find were fixed to the uprights supporting the canopy over the bowsers, in a prominent

position obvious	to persons concourse from either end.

driving into	the The message to the

bowser public

was unmistakable	and

I	reject	any

suggestion

that

others assumed them to

apply only to

one or other	of

the concourses. Cheetham put them up to prevent interruption from members of the public in about 1982 and they there remained for some years - probably about three. It is probable I find that David Cheetham spoke to Ockerby on the subject before he erected the signs and no objection was made. In fact I find that their erection suited Ockerby's own purposes. If he had any aspirations to retail fuel to the general public (which I find he had not) he would have realized that the signs were destructive of such purpose.

James Ockerby managed Mrs O'Hara's	business, he worked on the premises from 1972 until recently	and

he was well aware of all activities on-site. After Richards discontinued selling fuel Ockerby, to use  his own words, "more or less''  took over petrol sales.  He was a busy man and I find his activities were centred
on	the	organization	of	the	bus	programme,	their
servicing and repair. He made no effort at all to promote petrol sales to the public. He was, as I have mentioned, aware of the signs erected by Cheetham. In examination, in chief he was asked about these signs (p.194):

"Mr Mildren: Did he say anything to you as to why he put the signs		up? --- Yes, he said because people kept	coming and annoying	him when he was working on the vehicles;	people came annoying him, wanting petrol, you see.

All right, well why did you then continue to permit the signs to remain? --- Well, I just didn't want to upset him; that's Dave Cheetham.

His Honour: But it must've had an effect on people who were  strangers?  Yes, undoubtedly it did.

Mr Mildren: Why were you willing to suffer that effect, so far as the petrol side of the business was concerned? --- Well, it wasn't a major part of our business. As a matter of fact it was only just to sell the people petrol, it was just a - something there, you know.

His Honour: Did you find it interrupted ycu in the other work you had around the place?
--- At times, if - depends if - you know, if I had - how many employees I had. If I had someone spare, employing someone spare it was all right, but ---

You	didn't	regard	it	as regarded it as	important from

I	mean,	you the point		of

view of fuelling buses. important from the point to the public? --- No."

Did	you regard	it of view of	selling

Later he stated that he was "not really interested" in the sale of petrol --- "I had quite a few buses and that was taking up most of my time". The small margin of a "couple of cents" he added to the wholesale price was designed "basically only to recover costs", he did not display oils for sale {p.200). He was cross- examined as to the nature of petrol sales (p.223):

"His Honour: Mr Ockerby, I get the impression from your evidence, that you weren't really looking to make money out of the petrol retailing? --- No, no, I wasn't.

Mr Bracher: In fact, well you would agree, I think you've already - the thrust of your evidence already in identifying the people in the book, is that the people you sold petrol to consisted of people who worked for you?
--- Yes.

People who worked for you from time to time, whether or not they were working for you at that precise moment? --- Yes.
Dave Cheetham? --- Yes.

And one	or	two	close	friends,

either	of

family	of	yourself,	or drivers? --- Yes, yes.

one	of

your	bus

That's---?  --- And of	course, as I say	the

And in addition to that, well really was there anyone else? --- The odd one that came wanting petrol.

Yes, the odd one? odd one.

Yes, there may be	the

They were, I think you'd agree with me, that they were very odd indeed because they were few and far between? --- Yes, right yes.

I think you've said that sometimes you'd get one in a month, sometimes not one for several months? --- Yes.

That's the thrust of it? --- Say, another time, you might get four or five a month, depending you know, how things went."

Mr Ockerby kept a record of petrol and diesel purchases and sales for the purpose of Mrs O'Hara's business and these records were regularly available for her. A considerable time was spent at the hearing upon analysis of these sales which named persons or bus numbers {Exhibits D3, D4, D5 and D6). I have not overlooked this evidence. They show {and this is  not in dispute) some continuing sales throughout the period to persons other than those in charge of buses.  But the fact that most sales were recorded in this basic manner {i.e the Petrol and Diesel books} speaks for itself. It was a domestic record for Mrs O'Hara's information. In view of the oral evidence I have heard from persons on site, including Mr Ockerby, I am not prepared to draw inferences of more substantial sales or even significant sales to 'outsiders'. The evidence as to sales contained in Exhibits P26 & P27, and the evidence of the plaintiff Mr Brown (pp.280-281) as to the volume of sales over more recent times relates to a different period - but making allowance for this (and

Sanderson's entrepreneurial skills) it indicates the volume of sales which may be achieved by those operating a service station (in the ordinary understanding of those terms) in the general area. I draw no final conclusion from this but the contrast in volume, even making allowance for a host of uncertain factors, is marked. From the totality of the evidence relating to the operation of the bowsers, I find as follows:

After Richards left sales of fuel to members of the general public from this site were virtually discontinued.

The bowsers were used principally for the refuelling of buses.

The site lost the appearance of a "service station". The little office, which in a normal service station operation would be used by a bowser attendant was turned to other use. Oils were not displayed, the air

hose	adjacent repaired.

to	the	bowser,	was	not

Mrs O'Hara's buses were fuelled regularly but save when that operation was in progress	the

bowsers were generally locked, the keys and the electrical control switch being situate in Ockerby's office. They were locked on Saturdays (p.230) and were seldom in use after 4pm on weekdays (p.228).

No steps were taken to advertise retail sale of petrol to the public, in fact the public was discouraged. The signs erected by Cheetham, with Ockerby's knowledge and in my view with his approval, indicated clearly that the bowsers were for bus use only.

Supply of fuel to limited vehicles (other than the buses) took place. This fell into a restricted sphere of drivers:-

bus drivers, mechanics or persons associated with the depot or other business activities conducted on the site. On occasion casual employed drivers were paid in fuel;

persons who had so worked or had in the past been associated in work with the earlier service station;

a few customers of Cheetham whose cars were taken for repair and required fuel;

acquaintances of Mr Ockerby and perhaps of some other depot employees; and

possibly a few members of the public who had run out of fuel, but this, if it occurred, was rare. (See Exhibit P25}.

The bowsers were an important adjunct to the bus depot and it was for this purpose the bowsers were retained and fuelled, not for the purpose of retail sales to the general public.

I find that the fuel supplier, Mobil, during the relevant period classified the site as industrial premises, as opposed to a service station, and supplied fuel at the industrial rate, higher than the service station rate (p.318). I have not dealt in  these reasons with all the evidence relating to use prior to occupation of the site by the first, and later by the third defendant.

There is no doubt on the evidence that the third defendant is now carrying on a service station on land zoned R3, which permits use for the purpose of

only attached dwellings and flats. The question is whether since January 1979 has the land been used for the purpose for which it was used  before that  date. Mr Mildren Q.C. submits that as at 19th January 1979 the relevant purposes were:

To store and service buses, and generally carry on the business of a bus operation.

To sell fuel for motor vehicles.

That latter purpose, he submits, may be	described	in	ordinary	language service station".

"fairly as	a

To repair and maintain motor vehicles.

There is	no doubt	that as	at	19th January

1979 the	first	and	third	uses		were Mr Mildren over-simplifies (2).	The use

current.	But contemplated

by the plan must be considered within the definition of "service station" as a "building or place used for the fuelling of motor vehicles, involving the sale by retail of petrol, oils and other petroleum products
"

It must be remembered I am considering planning legislation, a purpose of which is to ensure orderly development for the general convenience and benefit of the public and the words "service station" and "sale by retail" have work to do. It is but an exercise in common sense, without ignoring the words of the plan, to examine common usage or understanding of a
service station.	It	is a	place to	which the	public

have access	for the	purpose in	one way	or other	of

'servicing' vehicles.	It contemplates the provision of

relevant	service

to	the

public.	The	Macquarie

Dictionary defines	the words	as "commercial	premises

selling	petrol,

oil	etc.

for	motor	vehicles,

and

sometimes offering	mechanical repairs".	The	Concise

Oxford	Dictionary	refers	to	"place	where	service

{especially of petrol etc.)	is available".	Neither	a

station owner in the outback, nor the owner of industrial premises, who sells fuel to employees or friends or persons in need can be said to conduct a service station, albeit such supply may assume regularity. In my view the words themselves and the statutory definition do contemplate retail sales to the

general	public. Council v. Cavallaro Reynolds J.A.@ 419:

See (1982)

Drummoyne	Municipal
46	LGRA	416	per

"It seems to me, reading those consents, that the only consent which	was given was to	the

use of the subject site for the purposes of a service station. The expression "service station" is, I believe, well known and understood in the community, and there is no evidence or real suggestion that its meaning has altered very materially between the years 1956 and 1969 or, indeed, until now. To my mind the words mean a place or building used principally for the sale by retail of petrol, oils and other petroleum products, and a use may nevertheless still answer that description when it covers other services in respect of motor vehicles which are regarded as ancillary to that principal use.

Traditionally, service stations have in fact offered other services to the public and these services are regarded as reasonably incidental to the conduct of that business".

This, as I have found, was not the situation here after Richards relinquished his business well before 1st January 1979.

I am mindful of the care with which the matter must be considered. A use purpose may survive although there may be changes in the methods or volume of use. Kitto J. dealt with the position in Shire of Perth v. O'Keefe 110 CLR 529@ 534:

"Once depart from the broad categories that are found in the prohibitory by-laws, it is said, and there is no limit to the minuteness of detail that may enter into the description of a purpose so as to form an essential part of it. But at the outset it is necessary to observe that the "existing use" by-laws take two steps which should be kept distinct from one another. First it is required that a purpose be identified as the end for which it can be seen that the premises are being used at the date of gazettal of the by-laws. Then

the provision			is	made	that	the		land		may continue to	be used		for that		purpose:		not that the		precise	manner		of	use		for	that purpose	may		alone		continue	but		that		use generally for that purpose may continue.		The application of			the		by-law in		a	particular case	has			therefore		not		to	be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date. This question being answered, it remains only to inquire, when a use that is being made  of  the  premises  at a later date is challenged as not being authorized by by-law 372, whether that use is really and substantially a use for the designated purpose. That will often be a question of of fact and degree: cf. Marshall v. Nottingham Corporation (1)  [1960] 1 W.L.R.  707 at p.717; and for that reason border-line cases will inevitably arise in which opinions will differ".

In City of Nunawading v. Harrington 1985 V.R. 641 the Victorian Full Court had cause to consider whether the permitted non-conforming use as a bakery, continued over a period when actual baking ceased, but ovens and equipment were left intact and maintained, fuel and flour being stored and the bakery staff making regular use of the premises. The Court (at p.644) laid down certain tests with reference to the authorities which I will not now repeat. Some of those authorities were cited to me in this case. Their Honour concluded "In our opinion, it follows that use of the subject land "as a bakery" is not necessary for it to be used for "the purposes of a bakery", also that "use for the

same purpose" is not the same as "the same use". The use to which land may be put and the activity on it may change, increase or decrease, so long as the same purpose  is  served"   {at   p.645).   {See   also Norman v. Gosford Shire Council {1974) 132 CLR 83 per Mason J.@ 86.

It is no discourtesy to counsel that I have not referred in detail to the many authorities cited to me. It is true as Mr Mildren Q.C. submitted that neither intensification nor winding down of a use, standing alone, necessarily amount to a change of purpose. {Rockdale Municipal Council v. Clark (1981-1982) 47 LGRA 159). Such matters may fall for consideration in the ultimate decision as to use purpose, but as Marks J. observed in Pacific Seven Pty.Ltd. v. City of Sandringham & Ors. 1982 V.R. 157 @ 161, one should in the town planning context have regard "to the 'real and substantial' purpose of the use of the land in question".

I am satisfied that after Richards ceased to operate the service station on site (prior to 1979) that site was used for the purpose of refuelling buses and this was incidental to the primary actual use (not authorized use) of the land as a bus depot. Another portion of the land was independently operated by David

Cheetham for motor vehicle repairs, but that does not colour the use by the second defendant of the bowser section. It had ceased to be used as a 'service station' not only in the commonly accepted use of that term, but within the planning definition I have referred to. The continuing sale of petrol to limited persons as I have described above did not perpetuate the previous use for the purposes of a service station. As I have endeavoured to emphasize, the whole character of the use changed, not only the modus operandi, not

only the volume	of sales, only the	staffing.	But conclusion I am confident

not only	the display, even if	I am	wrong in
that the signs placed

not this there

with Ockerby's knowledge and, as I have found, with his approval, constituted a notice to the public that the bowsers were not available for the retail sale of fuel. From this stage onwards putting the defendants' case at its highest, the previous use was abandoned. Further, private sales were basically incidental to the use of the land as a bus depot. This abandonment continued until December 1985 when the first defendant commenced to operate the service station and I find therefore that subsequent use and the present use is unlawful.

The question remains whether I should grant the injunction sought against the second and third defendants. The third defendant occupies the present

service station under an oral weekly or monthly agreement. I have found such user unlawful. The plaintiffs occupy and carry on a service station in the nearby vicinity. They have in fact agreed to sell that business to another and during the hearing I raised the question as to their right to seek an injunction. But no objection has been raised by the defendants. The plaintiffs agreed with the purchaser to continue prosecution of this action for the latter's benefit. The parties are anxious to decide the matter on the merits, rather than face the technical difficulties of joining new plaintiff or possibly litigating the issue again. This is, I think, a sensible course and, as invited, I will proceed as if the plaintiffs continued to operate the service station - knowing as I do that the diminution in sales they allege will be suffered by the purchasers should the third defendant's operation of the subject service station continue.

I accept Mr Mildren have a discretion,	not only grant	an	injunction	but	as commencement of its operation.

's submission that as to whether	or not
to	its	terms	or

I
to the

In Attorney-General v. Greenfield (1962) S.R. NSW 393, Myers J. refused to grant an injunction to restrain building operations commenced with Council

consent, having held that the consents and approvals pursuant to which the defendant built were invalid. In those circumstances he considered it would be oppressive to enjoin the defendant. With this view the Full Court agreed stressing that the effect of such an order would "involve the demolition of a whole block of buildings" which I stress were erected with Council consent.

In Attorney-General v. BP(Australia) Limited (1964-1965) NSWR 2055, Jacobs J. refused to grant an injunction preventing the defendant from erecting a service station on a site. The defendant was there caught between apparent consents of the local authority and a conflicting ministerial prohibition. He there commented (at pp.2063-2064):

"But what has really developed in the present case is an utter divergence of view between the responsible authority, the Cumberland County Council whose concurrence was necessary, and the Minister or those advising him. Now, such differences of view are no doubt inevitable and it is no doubt in order that they may be resolved that provision is made for consultation in certain events between the authorities and that provision is made in certain events for an overriding power in the Minister. But when such a conflict develops between what I can only describe as the agencies of Government, I do not think that, generally speaking, it would be proper for this Court to intervene when the result of the conflict is a very considerable damage loss and hardship to a person or corporate body, which as a private

citizen has carried out all the obligations of law imposed on it.

The defendant in this case, as I see it, complied quite correctly and indeed quite punctiliously with the requirements of the law as they existed."

The injunctive remedy was considered by the Privy Council in Associated Minerals Consolidated Ltd. and Another v. Wyong Shire Council (1974) 48 ALJR 464, an appeal from a decision of Hope J. in the Supreme Court of New South Wales, where an injunction was granted against use of the land without Council consent. The appeal failed. No relevant principles of importance emerge. Their Lorships observed (@ p.470) "The injury to a public interest by denial of relief, its extent and degree of irremediality must be weighed against any loss which the defendant may have sustained by the plaintiff standing by while the defendant incurs expense or, if such is the case, misleading the defendant into supposing that its activities were or would be permitted."

Mr Mildren's submission on this aspect may be summarized:

The second defendant has carried on	the bus terminal	unlawfully	for	about		18

years	without	intervention	from	the authorities.

There was substantial delay between the time the first defendant commenced its service station activities on site (December 1985) and the commencement of the action (August 1986).

Leave to commence these proceedings was granted ex parte on 24th July  1986. That leave he submits should only have

been	granted defendant.

His	clients
practical	way complaint.

after	notice

are	prejudiced
by	lateness

to	the

in	a
of	the

( 5)	The after

second	defendant	was initial	discussions

prejudiced with	an

officer of the Planning Authority - by its lack of action - in that he was led to assume all would be well and that notice to the contrary was not received until the installation of new tanks was virtually completed.

{ 6)	The defendants' contumacious.

conduct	has	not	been

(7) The plaintiffs as competitors are motivated not to enforce a public right but by "selfish private motives".

It is	necessary	again	to	examine	factual issues relevant to these submissions.

It is true, as	Mr Mildren submits, that	for

years Mrs O'Hara had	been carrying on	the bus probably illegally, and it is also true that over

depot,
that

period no positive action was taken by the authorities in charge of planning legislation until Mr Michael Sanderson, a director and virtually the proprietor of the  defendant  companies  arrived  on   the   scene. Mr Sanderson gave evidence. I assess him to be an acute, hard working and efficient person, well experienced in the petrol retail trade. I regard  him as impetuous, a man impatient of bureaucracy and the limitations it may impose. Before he became associated with Mrs O'Hara's site, he was carrying on an outlet at Humpty Doo (near Darwin} which he closed, or the operation of which he suspended very shortly prior to trial. He approached Mrs O'Hara late in 1985. He negotiated an oral lease and events then moved quickly.

In early 1986 he commenced petrol retailing 24 hours per day, 7 days per week. He trades under the style of Go-Lo. The premises were brightened up and assumed the true role of a service station. This was done, to the best of my knowledge, with no reference to the Authority. I am satisfied that by reason of his prior business activities he was aware of the continuing use provision of the legislation and after his discussions with Mrs O'Hara it is probable he satisfied himself there had been no cessation of petrol resale activities. He has, in my view, an acute  business mind.

He quickly built	up the volume	of sales	to

substantial	quantities techniques and	modern procedures.	He		told me

by	introducing		fast	service administrative	and		accounting that with	his two	sites	he

would be the "largest independent supplier of fuel in the Northern Territory." Evidence as to the volumes of his sales appears in his answers to interrogatories (Exhibit P27). He initially expended monies to repaint sections of the service station, to rehabilitate them and to refit the bowser office and to instal items such as cool drinks, cigarette, and ice sale dispensers. He now sells not less than 200,000 litres per month.

In March 1986 Mrs O'Hara received a letter from the Northern Territory Planning Authority (Exhibit P18). The first three paragraphs read as follows:

"I refer to our recent correspondence concerning a complaint received about the commencement  of  a  service  station   on Lot 3764, Ross Smith Avenue, Town of Darwin.

Investigation of the complaint has shown that the use of the lot for the purpose of a service station did cease for a continuous period in excess of twelve months and therefore the existing use rights which did apply are deemed to have lapsed.

You are therefore advised that the current use as a service station should cease within seven days of the date of this letter. Failure to observe this advice will result in prosecution under the Planning Act."
On 1st April 1986 Mr Ockerby as agent for Mrs O'Hara wrote to Mr Sanderson as follows: "I hereby wish to advise you that in accordance with the letter received this day from the Northern Territory Planning Authority I must ask you to cease selling fuel from my service station on  Lot 3764,  Ross  Smith  Avenue,  Darwin". Mr Sanderson quickly prepared a letter to the Chairman of the Planning Authority which was signed by Ockerby and this was submitted dated 2nd April 1986, together with a memorandum from the witness Cheetham verifying that in the past "although volume was not great whilst I was in occupation of the site --- at no stage was the facility left idle". (Exhibit P19).

On or about 2nd April 1986, Mr Sanderson	and Mr Barry	Willing,	the	Chairman	of	the	Authority,

discussed the	situation.	Their conversation is	not	wholly in

evidence as	to	this accord.	Mr Sanderson

told me that after receiving his documents Mr Willing told him to continue to operate until further notice and he was given to understand that if he did not hear anything further within 2 weeks he could assume all would be well. He said Willing was "very specific on the two weeks", and not having heard within that time he assumed he could foster his venture. Mr Willing, on the other hand, stated he agreed not "to pursue the matter" until he received advice from the Department of Law. He told Sanderson he would endeavour to "try and advise him on the matter within a fortnight", but he denied suggesting "if he hadn't heard from you in a fortnight" that Sanderson ''could regard that as the end of the matter". I prefer the evidence of Mr Willing on this aspect. I further find that on or about 28th May 1986 the two men met coincidentally at the office of the Minister for Lands, that Mr Willing apologized for the delay in notification and informed him he could "give no further advice at that stage''. I find that nothing was said which could have given Sanderson the belief that after the expiration of 2 weeks, he could safely assume there would be no action taken against him. The fact was that Mr Willing was awaiting advice

from the Department of Law, this was long delayed and ultimately the plaintiffs decided to take action themselves. In about the middle of July 1986 Sanderson arranged for the installation of additional  tanks. This came to the notice of the Authority and by letter dated 15th July 1986 {Exhibit P21) the Crown Solicitors Office required Sanderson to cease the installation and advised that if he did not do so proceedings would be taken. At this stage the installation was virtually complete and the new tanks have been utilized to this day. Two days later the solicitor for the  plaintiffs in this action also wrote to Mr Sanderson advising of their intention to take proceedings to prohibit continuing use of the land as a service station (Exhibit P23). By letter dated 23rd July 1986

Mr Sanderson's	solicitor	responded	to

the

Crown

Solicitor's	letter	stressing	that

their

client

considered he was protected by the continuing use provision of the Planning Act. Leave to institute proceedings was granted ex parte a day or two  later. Mr Mildren argues that leave should not have been granted in this manner under Section 65 of the Planning Act. In view of the provision of Sub-section (2) which deals with the deposit of security in the interests of an intended defendant, it may be that the legislation assumes the right of a proposed defendant to be given notice. But the tanks were being installed and it is

not unlikely that the judge who made the order considered that the merits would be decided in due course. Certainly it was an appropriate matter for leave. Nothing in the nature of an interim injunction was then sought.

I accept Mr Mildren's submission that the plaintiffs were motivated by self-interest in taking this action, but the fact is that they suffered a significant loss of business as a result of the first and third defendants' activities, which I have held to be unlawful, and they were entitled to proceed to protect their legitimate interests. Planning legislation is for the benefit of the community and I accept Mr Brown's evidence that the prior activities constituted no competition to his business.

I also accept the evidence of		Mr L.A.O'Bryan and Mr W.A.Nicholls to the effect that being interested in the site as a fuel outlet they had a discussion with Mrs O'Hara at her home at		Nightcliff many years ago about 1979-1980,	I find	that she	then informed	them that the site was zoned R3 and could not be used for		a service station as opposed to	a bus depot.	These		men had discussed the matter between them.	Their		evidence varied a little, but they were impressive witnesses.		I do not find that Mrs O'Hara		then displayed plans of		a

flat development, but I am confident that flats were mentioned during the conversation.  Mrs O'Hara professed no memory of that conversation. This may be true, much time has passed, but on the probabilities I am satisfied that at all material times she was aware that service station activities were not permitted.

Whilst she was	carrying on a did	not	concern	her.	I

large bus business make	no	findings

this which

influence the exercise of my discretion as to the injunction sought from the evidence of Mrs Goodwright as to her conversation with Mr Sanderson (then her employer) in April 1986, as to his intention on the site. She appeared credible but she agreed  she detested him and in view of his sworn denial that such a conversation took place I am not prepared to make a finding against him on this issue.

I am satisfied that Mr Sanderson was at all times aware the site was zoned R3. I do not  accept that he was lulled into error to the extent of installing the new tanks by Mr Willing's failure to get in touch with him within 2 weeks of their meeting. A simple phone call or a letter would have cleared the matter up. It is probable I find that he knew he  was on delicate ground; he took the risk and it may  be that in the long run it has profited him.

But the present use is contrary to the Act and the Plans. The plea of continuing use purpose as a service station has failed on the facts and the plaintiffs are entitled to relief. There was  some delay on the part of the Department of Law, but the plaintiffs proceeded promptly and with energy. Damages are no longer claimed and the occupants of the nearby BP Station on land appropriately zoned are probably suffering continuing loss. On the other hand, I am reluctant to make an order of immediate effect without giving the third defendant the opportunity of transferring its business. It no doubt stores considerable fuel on site.

I declare  that  use  of  any  portion  of Lot 3764, Town of Darwin, for the purpose of a service station is unlawful and contrary to the provisions of Section 63 of the Planning Act and the Darwin Town Plan.

I direct an injunction issue to restrain the third defendant, by itself its servants or agents or otherwise howsoever from further carrying on the service station business it now conducts on the said land.

There is in my view no necessity to restrain the first defendant (now defunct) nor the second defendant as lessor, but I will hear counsel on this.

The claim for damages is dismissed.

I direct that proceedings to enforce the injunction   shall   be   stayed    until 30th November 1987.

The second and third defendants must pay the plaintiffs' costs of action to be taxed.