Sale of nursery plants illegal

Press, Volume CXVI, Issue 34127, 13 April 1976, Page 13

Sale of nursery plants illegal

t The retail sale of pursery plants to the public in a rural zone *here consent had not been granted for conditional use. was illegal according to a reserved judgment given by Mr justice Casey in the Supreme Court.

His Honour dismissed an appeal by Gardenway Nurseries. Ltd, against a conviction in the Christchurch Magistrate’s Court on December 18, 1975, on a charge of using land in a manner not in conformity with the operative district scheme of the Waimairi County Council, contrary to the Town and Country Planning Act, 1953.

The appeal was heard on March 22 when Mr J. R. Woodward appeared for Gardenway Nurseries, Ltd, and Mr J. E. Ryan for the Waimairi County Council. Giving his decision, his Honour said that Gardenway Nurseries. Ltd, conducted a nursery garden business at the intersection of Preston and Marshlands Roads in land zoned as rural under th" operative district vcheme. The evidence before the 'Magistrate, which was not disputed, was that there was • combined general store and dwelling on that corner Jor many years; latterly it was a dairy-milk bar type of business.

• When Gardenway Nurseries, Ltd, took over the site about 1972 the business conducted through the shop was changed to the sale of garden plants. Next to it was a i) area of land which had been levelled and the surface Sealed and used as a nur-

[Sery. There was also a parking area for the shop. Expert evidence showed that a hard fill was accepted practice for nursery land, otherwise plants growing in pots or containers were liable to send their roots down into the soil and be damaged when they were removed. Plants in pots Evidence showed that Gardenway Nurseries, Ltd, used the nursery land to grow plants in pots, some of which were supplied to its own retail outlet or to other trade members, but the public was also invited to enter. The plants were attractively set out for their convenience.

It was quite obvious that the plants were exposed for sale to the public. The procedure was for the purchaser to select a plant and to take it into the shop where the retail sale was completed. Section 36 of the act made it an offence to use any land not in conformity with the scheme in force for the time being. The ordinance applicable from the Code of Ordinances included “farming ol a ■ kind” as a predominant use in a rural zone. Mr Woodward had contended that the operations carried out on the nursery land fell within that definition.

Mr Ryan submitted that while the growing and cultivation of nursery plants and their disposal to retail outlets or to other “trade” buyers could fairly be regarded as “farming,” the further process of retail sale on the premises to ultimate consumers could not. In doing so Gardenway Nurseries, Ltd, was putting the

land to a use normally per-1 mitted in commercial zones only. His Honour said that the Magistrate had recorded in his reserved decision: “An application to the Waimairi County Council was made for a specified departure from the district scheme in connection with the defendant company’s intended use of the parking area. “When dealing with that application, the local authority directed attention in passing to the use of the land on the nursery site. A decision was given but the Christchurch Regional Planning Authority appealed to the Town and Country Planning Appeal Board. “In its decision, the board again considered the use of the land in the area referred to as the ‘nursery’. It came to the view that the display of plants and shrubs in the nursery area, together with the invitation to the public to view the plants as displayed, was essentially a commercial use of the land and a non-conforming use for the purpose of the district scheme. This view was incorporated in its decision. "The decision of the board was made available to me ■luring the hearing. It was of an interim nature but so far as is known, no appeal has jeen lodged although opportunity was given for that to be done,” his Honour said concluding the quotation from the Magistrate.

Bound by findings

The Magistrate felt himself bound by that finding of the Town and County Planning Appeal Board that the display of plants for sale to the public in the nursery garden area was a commercial and non-conforming use of land zoned rural and his only concern was to decide whether such activities on the land on the date mentioned in the charge had been proved.

The Magistrate was clearly mistaken in considering himself bound bv the Board’s decision in that'way. It was for the Court hearing a P ro - secu tion to decide itself whether the activity complained of and proved amounted to a nonconforming use. Mr Ryan could not support the Magistrate's reasoning but submitted that the Board’s finding ought to be accepted as persuasive. “I certainly agree that such a finding should be looked at with respect but bearing in mind, however, that the Board’s concern is with town planning principles and its approach might not necessarily be the same as for a prosecution,” his Honour said. No definition The Code of Ordinances gave no definition of farm-

ing. Mr Ryan conceded that Gardenway Nurseries, Ltd, use of the land on which to grow nursery plants in containers amounted to farming and he thought that the concession was properly made. He bore in mind that dictionary definitions of farming land involved some idea of cultivation or exploitation of the land itself to grow the crops or stock, whereas in this instance the land was sealed and used only as an area on which the containers were placed. His Honour said that he agreed that a nursery garden in which plants were raised or propagated on a commercial scale was within the definition of “farming of any kind” and was a predominant use in a rural zone. It was also accepted that farming necessarily involved the commercial disposal of the produce. Mr Ryan had submitted that involvement went only so far as “wholesale” disposal and, in its ordinary meaning, “farming” did not include the retail sale to the ultimate consumer of the product.

Mr Ryan was hard put to it to draw any sort of line or to fit in exceptions with some kinds of farming, e.g. stud stock, fruitgrowing or

poultry, the producer could sell indiscriminately to the consumer on his property or to merchants or stock agents. The fact that controls had been found necessary to regulate such retail sales indicated that they could be an integral part of farming as normal methods of commercial disposal of the produce. It depended on the sort of farming being carried on.

“In this case the evidence of a witness from the Ministry of Agriculture was that out of 80 to 90 registered nurseries in the Canterbury area, only about three would not sell retail. The rest were a mixture of wholesale and retail like the appellant,” said his Honour.

“In view of my finding that ‘farming of any kind’ as a predominant use in Ordinance 2,2,1, (a) must be interpreted as excluding the sale of farm produce from the property in which it was gro /n, it follows that the use of this land made by the appellant does not conform with the predominant use in a rural zone. “Consent has not been granted for conditional use; accordingly the appeal must be dismissed, with costs of $25 to the council,” his Honour said.