Council clarifies Berrima Diesel proceedings

20 December, 2012

Wingecarribee Shire Council feels compelled to comment on the issues surrounding the Order recently issued by Council on the owners of the Berrima Diesel business, and the subsequent Court action that has resulted from this order. Council feels that comment is necessary to clear up some of the misunderstandings that have grown through the social and traditional media reporting of the matter.

In 1963, the first relevant planning regulations (Interim Development Order No.1) were passed by the then-Wingecarribee Shire Council that prohibited development of Motor Vehicle Repair Stations on the land upon which the Berrima Diesel business was later established. This prohibition has been maintained in the intervening years, and continues today in the present Wingecarribee Local Environmental Plan 2010.

According to information obtained by Council, the land in question was first used for the purposes of Commercial Motor Vehicle Repairs some time after 1970. The use has further been intensified since that time as the business has expanded.

It is therefore apparent to Council that the use of the land in question for a Motor Vehicle Repair Station has never been permissible and Berrima Diesel have been operating without the consent that other members of the public are required to obtain.

In 1990, and in response to an application in relation to a Motor Vehicle Repair Licence to be issued by the Motor Vehicle Repair Industry Council, Council’s then-Chief Town Planner issued a letter that purported to “confirm” that the use of the premises at that time was permissible and that there was no objection to such use continuing.

To summarise, the concept of existing use rights states that if you are using a premises for permissible purposes and a change in the law makes the use prohibited, you are free to continue using the premises for this purpose until and unless you abandon the use in the meantime. At no time has Council denied the existence of this letter, nor has Council stated that it has been lost. A copy of this letter remains on Council’s files and it was included in the information provided by Council to the Land and Environment Court.

Clearly, the letter contained an error in Council’s Chief Town Planner’s understanding of the circumstances existing at that time. The Interim Development Order passed in 1963 rendered the use prohibited at that time, and Berrima Diesel was not established until many years after that. As such, there were no rights to operate whether on an “existing use rights” basis or otherwise. However, an error or misunderstanding by Council cannot render the prohibited use legal. Council cannot, by a slip of the pen, change the permissibility of use of land.

As such, when Council became aware of this error, it had no choice but to act consistently, as it would in dealing with any other prohibited development by issuing an Order giving Berrima Diesel a reasonable time to relocate its operations. In particular, as it became apparent that, since the letter was issued in 1990, the business has expanded significantly and multiple buildings of great scale have been erected on the land, all without Council consent.

Once the Order was issued, and Berrima Diesel appealed the Order, the matter became one for the Courts to determine. Council have, in close consultation with Berrima Diesel, negotiated a three year period for Berrima Diesel to relocate their premises and, in the meantime, have pointed out to Berrima Diesel the avenues available to it including its ability to submit a planning proposal to seek a spot-rezoning of the land to legitimise the future use following public consultation and assessment. However, a neighbour has objected to this course of action and has joined the proceedings, objecting to the terms of this proposed settlement.

As such, the matter is now one for resolution by the Courts. Council continues to maintain the appropriateness of a three year period for relocation of the business. However, Council cannot comment further as it must represent all ratepayers equally without favour (including the neighbour objector, who has an equal right to be heard by the Courts).