Bierman and Bierman's Concrete Products Ltd v Minister of the Environment 1993 Civil Appeal No. 21 Minister of the Environment v Bierman and Bierman Concrete Products Ltd 1993 Civil Appeal No. 27
| Jurisdiction | Bermuda |
| Judgment Date | 02 December 1994 |
| Date | 02 December 1994 |
| Docket Number | Civil Appeal No. 21 of 1993 |
| Court | Court of Appeal (Bermuda) |
In the Court of Appeal for Bermuda
In the Court of Appeal for Bermuda
Roberts P.
Huggins JA
Georges JA
Civil Appeal No. 21 of 1993
Civil Appeal No. 27 of 1993
Civil Appeal No. 21 of 1993
Civil Appeal No. 27 of 1993
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Mr Mark Diel & Mr Mark Ray for the First & Second Plaintiffs
Mr Phillip Holder for the Defendant
Burdle v Secretary for the EnvironentUNK [1972] 3 All ER 240
Glamorgan County Concil v CarterUNK [1962] 3 All ER 866
Development and Planning Act 1974
Planning — Existing use rights — Originating summons — Industrial site — Planning unit
Georges. J.A.
These proceedings were commenced by way of an Originating Summons No 263 Of 1988 in which the applicants Herbert Michael Paul Bierman (Mr Bierman) and Bierman's Concrete Products Limited (Bierman's) claimed against the respondent, the Minister of the Environment (the Minister) the following relief—
‘(i) 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, 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.
All that land and premises as the same are shown edged pink upon the plan annexed hereto situate and known as Lot “D” and “J”, industrial site, Bierman's Rocky Heights Quarry, off Lolly's Well Road, Smith's Parish FL 07 in the Islands of Bermuda together with the structures erected thereon.’
The originating summons was supported by affidavits from 6 deponents and a report by Mr David Cattermole, an expert. No affidavits were filed on behalf of the Minister.
In April 1992 a second originating summons, No 177 of 1992, was filed claiming a declaration in somewhat different terms. It read—
‘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 proprietor 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 Plaintiffs adjacent industrial site and to include the storage of related equipment.
All that land as the same is shown edged red upon the plan annexed hereto and known as The Quarry, Rocky Heights off Lolly's Well Road, Smith's Parish FL0 7 in the Island of Bermuda.’
This originating summons was supported by an affidavit from Mr Bierman. The two originating summons were consolidated, with action No 263 of 1988 being the main action.
The Schedule in No 263 of 1988 described only the land comprising the site known as ‘the industrial site’. The Schedule in No 177 of 1992 included both that site and the quarry site.
No affidavits were filed on behalf of the Minister in answer to those filed by Bierman's and it appeared when the consolidated actions came on for hearing that it was being contended on behalf of the Minister that the issue was entirely one of law. The planning legislation in Bermuda had no provisions which made possible a declaration of ‘existing use’ rights.
After the opening address, counsel for the Bierman's raised a preliminary objection. He contended that the Director of Planning had previously ruled that the land described in the schedule had existing use rights, That ruling was binding on the Minister and consequently the issue was res judicata. The trial judge overruled the objection on August 10, 1993. The hearing then continued and concluded with a judgment in favour of the Bierman's dated November 17, 1993.
The Bierman's filed an appeal dated August 23, 1993 against the ruling rejecting their preliminary objection and the Minister later filed an appeal against the grant of the declaration. In due course the appeals—No 21 of 1993 and No 27 of 1993—were consolidated and they were listed for hearing together.
The appeal against the ruling on the preliminary objection was heard first. We dismissed that appeal undertaking to give reasons later. On the main appeal we reserved judgment. The reasons for dismissing the first appeal and the judgment on the main appeal now follow.
The area of land, the subject matter of the litigation, can be divided into two parts. The segment to the North fringed with pink on the plan and hatched in red can conveniently be referred to as the industrial site. Mr Bierman owns the freehold of that segment. All the permanent structures are situated there. The rest of the area lying to the south west is a quarry. Part of this quarry fringed with blue is owned by Patricia Corrado and was formerly leased to Bierman's. The remainder of the area fringed with yellow is owned by Mr Bierman. It is hatched in red. Existing use rights are claimed in respect of the industrial site on which the permanent structures are situated and that portion of the quarry site which is owned by Mr Bierman.
The facts are largely not in dispute. The only witness cross-examined was Mr Cattermole, the expert called by Bierman's. An agreed statement of facts was tendered.
Mr Bierman's father started operating a Lime Kiln on the property in 1940–1941. He was also at that time cutting rock at the site. In or about 1947 he began using a small crusher which he had purchased earlier. By 1945 he was operating a hand operated block making plant on the site. In 1945 he purchased and began operating a large electrically driven block-making plant. The enterprise by 1947 was producing lime for roofs or ceiling white-washing and crushed stone for block making, concrete mixing or road construction. All production machinery was located on the pink portion, In 1950 a garage was built for vehicle maintenance and repair.
In the late 1950% Mr Bierman's father decided to concentrate on block making. Some of the rock needed for this came from outside contractors though much of it came from the adjacent quarry. There was other commercial activity between 1954–1960—compressor hire, road building and resurfacing and quarrying. By 1962–1964 the quarrying activity was treated as separate from the industrial activity. The Government treated the industrial site and the quarrying site as separate units for land tax purposes. The main business of Bierman's has been and still is the manufacture and sale of concrete products. Quarrying in the adjacent quarry has always been ancillary to that main business.
Bierman's was incorporated by The Bierman's Concrete Products Company Act No 142 of 1961. It took over the business carried on by Mr Bierman's father who became its principal shareholder. After his father's death Mr Bierman became the principal shareholder of Bierman's.
The developments which culminated in the filing of the first originating summons can conveniently be traced to an application by Bierman's in June 1984 for the extension for a further period up to 24 months of temporary approval granted in respect of a mobile concrete batch plant. The extension was approved only up to January 31, 1985. Bierman's appealed to the Minister. Among the grounds advanced was that—
‘The Board failed to properly take into account and give due regard to the fact that the existing industrial use rights of the overall ‘Rocky Heights Quarry’ area have been firmly and irrevocably established through decades of continuous, uninterrupted heavy industrial use.’
The appeal succeeded to the extent that the permission granted was extended for a year. The decision appears to have been based on considerations of national interest. In his reasons explaining the decision the Minister stated—
‘I wish to inform the applicant that in my opinion the property does not enjoy existing use rights for industrial purposes and that the quarrying and blockmaking operations were originally approved as a temporary and transitional use of its land associated with the preparations for residential purposes..,..,..’
This gave rise to a number of letters to The Minister written on behalf of B'ierman's asserting the existence of an existing rights use. The Minister and the Department adhered to their position.
In May 1988 Bierman's applied for permission to enclose the existing block plant and Ancillary Facilities. That application was supported by a letter among others from Mr Cattermole supporting the view that Bierman's did enjoy existing use rights. Once that was accepted the application would be seen in a different light.
It appears that the Department of Planning took no steps to hear and determine the application. It is against this background that the first originating summons was filed.
In tracing the history of the legislative control of land development activity a convenient starting point is 1943. In that year The Development of Land Act No 18 of 1943 was passed. It was an...
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