Bierman and Bierman Concrete Products Ltd v Minister of the Environment 1988 Civil Jur. No. 263
| Jurisdiction | Bermuda |
| Judgment Date | 17 November 1993 |
| Docket Number | CML Jurisdiction 1988 No. 263 |
| Date | 17 November 1993 |
| Court | Supreme Court (Bermuda) |
In the Supreme Court of Bermuda
Wade, J
CML Jurisdiction 1988 No. 263
and
and
Mr. Mark Diel & Mr. Mark Ray for the First & Second Plaintiffs
Mr. Phillip Holder for the Defendant
Burdle v Secretary of State for the EnvironmentUNK [1972] 3 All ER 240
Doncaster MBC v Hazel Lane Quarry [1985] JPL 194
Glamorgan County Council v CarterUNK [1962] 3 All ER 868
PYX Granite Co v Ministry of Housing & Local GovernmentELR [1960] AC 260
Enticott and Fullite Ltd v Secretary of State for the Environment [1981] JPL 759
Planning — Quarry — Application for declarations — Planning units — Established use rights
Wade. J.
The first and second Plaintiffs are the freehold owners of all the land known as the industrial site, and Bierman's, the Quarry. Rocky Heights of Lolly's Well Road, Smith's Parish.
The Defendant is the Minister of the Environment.
By originating summons dated the 21st September, 1988 in action 263 of 1988, the Plaintiffs seek—
‘a declaration that the Plaintiffs or either of them (or their predecessors in title) were on 3rd August, 1965 and/or on 27th June, 1974, and are at the date hereof. the proprietors for planning purposes of an established right to use the said land and premises described in the said schedule hereto for either of the following purposes:-
A. general industrial purposes, or
B. the installation and operation of a stone crusher, the installation and operation of a concrete block-making plant, the storage of concrete block. the operation of a quarry drill rental business, the repair, servicing and maintenance of commercial vehicles and industrial machinery, the sale of imported bagged cement and the manufacture and storage of miscellaneous pre-cast concrete products together with administrative office premises.’
The schedule describes the land as:
‘… all the land and premises … situate and known as lot “D” and “J”, industrial site Bier-man's Rocky Heights Quarry, off Lolly's Well Road, Smith's Parish …’
By originating summons dated 30th April, 1992 filed in action 177 of 1992, the Plaintiffs seek—
‘A declaration that the Plaintiffs or either of them (or their predecessors in title) were on the 3rd August, 1965 and/or on 27th June 1974, and are at the date hereof, the proprietors for planning purposes of an established right to use the said land described in the said Schedule hereto for general industrial purposes to include the storage of material for processing at the Second Plaintiff's adjacent industrial site and to include the storage of related equipment.’
The schedule describes the land as:
‘… all the land known as the Quarry, Rocky Heights off Lolly's Well Road …’
Actions 1988 No. 263 and 1992 No. 177 were consolidated on the 28th day of May, 1992.
In argument, Mr. Holder, Counsel for the Minister denied that the Plaintiff's are entitled to either of the declarations.
The Plaintiffs' originating summonses raise two major questions or issues. First, whether the operations going on in the quarry are unrelated to the processing that goes on in the industrial site? In other words, what constitutes the appropriate planning unit?
Second, whether Bierman's, because of the long history of industrial and storage usages at Rocky Heights, has earned themselves the right to continue those same activities safe from the threat of enforcement action?
These questions raise complex questions of law which are being considered for the first time by the Supreme Court.
The core documents this Court must consider in deciding this case are:
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1. Agreed plan divided into 4 sections:
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(i) Pink land—industrial area
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(ii) Blue land—area formerly leased by Bienan's Concrete Products Ltd. from the Corrado.
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(iii) Green land—quarry area, owned by the Corrado and leased by Bierman's.
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(iv) Yellow land—owned by Mr. Bier-man personally.
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2. Evidence—contained in 8 affidavits; and (2A) Statement of agreed facts.
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3. Black and white photographs of the various operations that were being conducted at Bierman's Industrial site—taken in May 1962 and February 1965.
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4. Photographs of the site taken December 1989.
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5. Photographs of the site taken 16th January, 1990.
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6. Jones Waddington Ltd. report dated 6th August, 1993.
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7. Cattermole's reports.
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8. Summary of all the uses prepared by Cattermole as a quick reference to all the various uses. Pink site—Lots D & J industrial site and yellow land—quarry site.
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9. Planning terms glossary—prepared by David Cattermole.
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10. Correspondence interparties 1988—1993.
Items 1 to 6, and 8 to 10 were received without objection and their contents are undisputed. Item 7 was placed before the Court by agreement but the contents are disputed.
Before reviewing the arguments raised in each of the issues of this matter, I shall deal in narrative form with the important events and facts, none of which are in dispute, leading up to the issue of the Originating Summonses. The Defendant called no evidence and sought to cross examine only Mr. Cattermole, the Plaintiffs' expert.
The evidence shows that the premises are in a predominantly residential area and is now surrounded by several residences. There has been ongoing friction between Bierman's and the residents, although Bierman's were at this location first, and existed for many, many years before any resident was close enough to cause the present friction.
The Plaintiffs maintain that the affidavit and expert evidence support their claim that, i) there are two planning units; ii) by 1965 the pink land site had settled down to a number of industrial uses, predominantly block making; and iii) by 1965 the yellow land (guarry site) had established the use for storage of rip rock and aggregate on the entire quarry floor.,
The affidavit evidence of Mr. Sylvan Roy Lindo sworn on 13th April 1989, deals with, inter alia, the commencement of the use of the pink land for predominantly industrial purposes. Mr. Lindo said he is presently employed with the second Plaintiff as a driller/blaster. He first started working with the first Plaintiff's father Mr. Herbert Bierman (‘Herbie’) the former proprietor of the second Plaintiff in about 1935. Mr. Lindo said that between 1940–1941, Herbie started operating a lime kiln on the Rocky Heights property. At this time Herbie was also cutting rocks at Rocky Heights (paragraph 3). Before 1945 Herbie purchased a small crusher which he started using in or about 1947 (paragraph 4).
In 1945 Herbie purchased a hand operated block plant. In 1947 he purchased a larger electricity operated block plant from Elbow Beach (paragraph 5).
In 1945 the main products made were powdered lime, primarily used for white-washing Bermuda roofs and ceilings, crushed stones used for block-making, concrete, and or road construction and screenings (paragraph 6).
Mr. Lindo said that at all times, all the machinery was located on the pink portion of the plan (paragraph 9).
In 1950 a garage was built—it is still in existence—for vehicle maintenance and repair.
Mr. Lindo said that in 1946–1947 he was responsible for blasting at the back of the Rocky Heights site, for removing stones and to level the area which was to be used as an industrial site. The removal of stones was secondary to the levelling off of the land for the industrial site (paragraph 13).
In 1946 the block-making process began on a small scale: In the late 1950's the demand for blocks increased and a decision was taken to concentrate on block making (paragraph 17).
Mr. Lindo at paragraph 18 of his affidavit summarises the duration of the operation of the various processes carried on at Rocky Heights by the second plaintiff or it's predecessor:
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‘1. Saw mill (1955–1960)
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2. Block-making and storage (1945 until the present and continuing)
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3. Road construction—tool storage (1953–1961)
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4. Stonecrusher (1947 until the present and continuing)
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5. Repair of vehicles—garage (1950 until the present and continuing)
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6. Lime kiln (1943–1960)
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7. Asphalt plant (1952–1961 approx.)
In his affidavit sworn on the 16th December, 1988 Mr. Aubrey Clarence Hollis said that he has worked in the construction trade for 42 years. He began as a carpenter in 1946 and in 1953 he began his own general contracting business to build houses. By 1956 he had established a limited liability company which he sold, then he formed ‘Aubrey & Hollis Building and Engineering Contractor’ (‘Hollis’).
During the years 1953 to 1971 the second Plaintiff supplied Hollis with all their building materials, whilst Hollis supplied the second Plaintiff with hard rocks excavated from their construction sites. The second Plaintiff would take the good hard rock back to its crusher at its industrial plant at Rocky Heights where it could be crushed to make concrete blocks (paragraph 4).
During the period of 18 years (1953–1971) Hollis saw a number of other contractors who were also delivering hard rock by truck to Rocky Heights industrial site for crushing (paragraph 6).
Paragraphs 8 and 9 of this witness' evidence corroborates the testimony of other witnesses. For example, Mr. Hollis said that during the Second World War he often visited Herbie at the industrial site which he had begun to use to burn lime. The first thing on the' property was the lime kiln, then the stone crusher. He remembers being taken to the site, on his father's horsedrawn carriage, to see the kiln and to get lime to do the roofs of his father's house.
Mr. Hollis confirms that in the 1950's Herbie began to make concrete blocks, and that it was around 1956 that he got his first block making plant and a stepping stone machine from Denmark. He said that at one point or another...
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