A. and M. Bertini v Manly Municipal Council
[1989] NSWLEC 210
•06/23/1989
Land and Environment Court
of New South Wales
CITATION: A. and M. Bertini v. Manly Municipal Council [1989] NSWLEC 210 PARTIES: APPLICANT
RESPONDENT
A. and M. Bertini
Manly Municipal CouncilFILE NUMBER(S): 10435 of 1988 CORAM: Hemmings J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act
Local Government Act 1919CASES CITED: North Sydney Municipal Council v. Lycenko & Associates Pty Ltd, 15thNovember, 1988 (unreported).;
Gozier v. Tate (1946) 64WN(NSW)1;
Nash v. Stielow [1950] VLR39;
Glamorgan County Council v. Carter [1963] 1WLR1;
Vambaca v. Baulkham Hills Shire Council (1979) 39LGRA309;
Randwick Municipal Council v. Manousaki, Court ;
of Appeal, 26thSeptember, 1988DATES OF HEARING: 16/05/89 DATE OF JUDGMENT:
06/23/1989LEGAL REPRESENTATIVES:
APPLICANT
B.L Doyle
RESPONDENT
M.J Astill
JUDGMENT:
HIS HONOUR: The applicants are the registered proprietors of premises known as 3Cove Avenue, Manly, and acquired those premises by contract dated 29thMarch, 1985. They made application to the Manly Municipal Council ("the Council") to use the existing premises on the land for the purpose of a dwelling house. Until about April, 1988 the said premises had been used for the purpose of a boarding house for at least twenty-five years, and the Council gave notice of the determination of the application by notice dated 19thAugust, 1988 by refusing the application for the following reasons:|CF2.|PSI
"1. Non compliance with the Manly draft LEP policy of maintaining and increasing the number of boarding and lodging houses in view of the long term needs of aged pensioners and invalid pensioners.
2. The application has substantial detrimental social effects on the locality involving the loss of boarding house beds when considered in relation to the heads of consideration contained in Section 90 of the Environmental Planning and Assessment Act, 1979.
3. The critical lack of comparable accommodation in the Municipality."|CF1.|PSO
The applicants appealed to this Court pursuant to s.97 of the Environmental Planning and Assessment Act, 1979 ("the E.P.&A.Act") against such decision, and the appeal has been referred, by consent, to a Judge of this Court to determine issues of mixed fact and law which are said to be determinative of the said appeal.
Those questions of law concern the application of State Environmental Planning Policy No.10 ("SEPP10") - Retention of Low-Cost Rental Accommodation (Amendment No.4). That Policy aims to amend the original Policy so as to specify matters to be taken into consideration by the Council in determining development applications, and the relevant provisions are:|CF2.|PSI
"6(1) This Policy applies to -
a) boarding-houses (including buildings which are vacant but the last significant use of which was as a boarding-house); and
b) other buildings used for residential purposes (including buildings which are vacant but which have been used and are suitable for use for residential purposes).
6(2) This Policy does not apply to a building -
a) which comprises a single dwelling; or
b) which contains only 2 dwellings and no other rental accommodation.
7(1) A person shall not, in respect of a building referred to in clause 6(1)(a) -
c) change the use of the building to another use.
7. The Principal Policy, as amended by this Policy, applies to development the subject of a development application made but not determined before the date on which this Policy took effect in the same way as it applies to development the subject of a development application made after that date."|CF1.|PSO
The Court at this stage is not asked to determine the merits of the development application, and the issues are:|CF2.|PSI
"1. What is the date at which clause 6 of State Environmental Planning Policy No.10 (Amendment No.4) is to be applied.
2. Whether at such date the appeal site was a boarding house within the meaning of Clause 6(1)(a) of SEPP10 (Amendment No.4).
3. If the answer to (2) is negative, whether at such date the said building was within the expression 'other buildings used for residential purposes' (Clause 6(1)(b)).
4. If the answer to (2) or (3) is affirmative, whether at such date the said building erected on the appeal site was a building which comprises a single dwelling within the meaning of the exception contained in Clause 6(2)(a) of SEPP10 (Amendment No.4).
5. If SEPP10 (Amendment No.4) does not apply to the premises, whether it is relevant for the consent authority to consider any matters in determining the said development application other than matters arising from its being in the Foreshore Scenic Protection Area."|CF1.|PSO
It is common ground that the subject premises was initially erected as a single dwelling, and that at the time of the purchase of the premises by the applicants in 1985 and for a considerable period before that the said building was used for the purpose of a boarding house. The applicants obtained vacant possession of the premises in about April 1988 and, on 13thMay 1988, surrendered a boarding licence which had been issued by the Council pursuant to Ordinance42 under the Local Government Act 1919 (as amended).
From May to December, 1988 the applicants apparently redecorated the building, including repainting and the provision of electrical and plumbing repairs and the installation of floor coverings, curtains, blinds, light fittings and household appliances. The said works did not entail any structural alterations.
On or about 26thDecember, 1988 a son of the applicants commenced to reside in the said building with his wife and two young children. On or about 16thJanuary, 1989 the applicants also commenced the use of the premises as a dwelling house. The subject premises is situate within a Residential2(c) Zone pursuant to the provisions of the Manly Planning Scheme Ordinance, 1968. Dwelling houses are a permissible use thereunder in such zone.
On 7thSeptember, 1988 the Manly Local Environmental Plan 1988 was published in the N.S.W. Government Gazette and, pursuant to the provisions thereof, dwelling houses are a use permitted without consent unless the land is within a Foreshore Scenic Protection Area. The subject premises is within such an area and therefore development consent is required for its use as a dwelling house.
At the time of its determination of the matter, the Council considered that the provisions of SEPP10 had no relevance to the application. It apparently accepted the applicants' contention that at the date of notification of AmendmentNo.4, i.e. 24thJanuary, 1989, the subject building was neither a boarding house nor such a building which was vacant. The applicants claim, in any event, that they are entitled to the exception in cl.6(2)(a) because the building "comprises a single dwelling".
The applicants submit:
1. No application is made to change the use of the building to another use. The application is for consent to use the building as a dwelling house.
2. The building ceased to be used as a boarding house in March, 1988.
3. At the relevant date it was not a boarding house and comprised a single dwelling house.
4. At all times the building comprised a single dwelling, notwithstanding that it was used for a period of time as a boarding house.
5. It is a "windfall" that the subject premises was used for the purpose of a dwelling at the date of notification of AmendmentNo.4. However, it is claimed that this is sufficient to take it out of the operation of that Instrument."|CF1.|PSO
The Council submits:
1. If the subject building is used as a single dwelling, such use is unlawful and the applicants cannot benefit by their own illegal acts.
2. At the date of notification the building was vacant.
3. Alternatively, at the date of notification the building was still used as a boarding house, but with a "caretaker" use.
It is common ground that:
a) the present use of the premises for the purpose of a dwelling is unlawful; and
b) the subject building is not a building used for residential purposes within the meaning of cl.6(1)(b).
c) the relevant policy is SEPP10 as amended by Amendment No.4, and that at the date of notification there was an extant appeal against the Council's refusal of the development application. In such circumstances there is no issue that the said development application had not been "determined" within the meaning of s.7 of AmendmentNo.4.
d) AmendmentNo.4 was intended by the legislature to overcome the consequences of the decision of the Court of Appeal in North Sydney Municipal Council v. Lycenko & Associates Pty Ltd, 15thNovember, 1988 (unreported).
The intention of the draftsman can be determined by reference to all of the provisions of the Policy, and Inote that a boarding house includes a vacant building, if previously used as a boarding house. In my opinion, the Policy refers to a boarding house as a building which has been used for that purpose, and not merely its fabric. It is intended that a building, regardless of the purpose for which it was erected or is now used, but which was used as a boarding house at the appointed day or even vacant at the appointed day and the last significant use was as a boarding house, is a "boarding house" within the meaning of cl.6(1).
The subject building was not used as a boarding house at the appointed day, however, was it "vacant"? "Vacant" is a common word in the English language and not otherwise defined. Iassume, therefore, that the draftsman intended it to have its ordinary meaning. Applying that meaning as Iunderstand it, the subject building was not vacant at the appointed day, but occupied by the applicants and the family of one of their sons.
However, the Council submits that in these proceedings such occupation is irrelevant because the use of the building as a boarding house was changed to that of a dwelling house without the necessary consent pursuant to the Manly Planning Scheme. It submits that it is a basic assumption of planning law that an illegal user must be ignored; see Gozier v. Tate (1946) 64WN(NSW)1, Nash v. Stielow [1950] VLR39, and Glamorgan County Council v. Carter [1963] 1WLR1.
At the date of notification of AmendmentNo.4, the last significant use of the subject building was as a boarding house. Such building was probably erected as a dwelling house, but for most of its life was a boarding house. At the date of notification it was again used as a single dwelling, but in contravention of the Environmental Planning Instrument. Is the Court entitled to ignore such actual use? A similar submission was considered in Vambaca v. Baulkham Hills Shire Council (1979) 39LGRA309, with respect to the relevance of an unlawful use of land said to be in contravention of the provisions of the Local Government Act 1919 with respect to use of land at date of imposition of interim development control. The High Court expressly rejected the approach of the Court of Appeal that for the purposes of that legislation the use of land should only be the last lawful user.
The Court said:|CF2.|PSI
"We are unable to agree that unlawful user of land can be regarded as 'non-user', so as to enable the Court to disregard actual user. We can see no basis for treating the actual use prior to the coming into operation of Interim Development Order No.118 as if it had not occurred at all."|CF1.|PSO
However, Vambaca's decision (supra) dealt with the construction of exceptional planning legislation which introduced interim control over development, pending the determination and prescription of the provisions of a proposed planning scheme. Existing planning controls were suspended and a change of use of affected land was thereafter regulated in order to preserve the status quo. During such period of interim control, all existing uses at the date of notification, even if unlawful, could continue. The effect of such legislation to recognise unlawful use was inconsistent with long recognised planning principles, and was ultimately eliminated by the E.P.&A.Act, s.106, and in particular by ActNo.228 of 1985 (see s.109A). Ican discern no similar legislative intention as that considered in Vambaca's case (supra) to recognise the illegal use of premises for the purposes of SEPP10. The construction contended by the applicants would, in my opinion, defeat the purpose of the Policy and the aims and objectives of the
E.P.&A.Act (s.5).
The applicants submit, nevertheless, that the building is within the exception conferred in cl.6(2)(a). The Policy thereby does not apply to a building which "comprises" a single "dwelling". Iam unclear whether the applicants submit, with respect to the exception in cl.6(2)(a), that it is necessary to look to the nature of the structure of the building, or to its use in order to determine whether it "comprises" a single dwelling.
The word "comprises" is not defined and unfortunately is a word not normally used in planning legislation. In provisions regulating development it is more common to refer to the "use" or the "erection" of a building. For the exception to have any work to do, such building must otherwise be a "boarding house" within the meaning of the Policy, but it is difficult to comprehend how a building used as a boarding house can be said also to "comprise" a single dwelling.
The meaning of ordinary words is a question of fact which can be determined with the assistance of dictionaries, and by finding the legislative intention from a reading of the provisions of the instrument as a whole. The aims and objectives are specified in cl.3, and are mainly achieved by regulating the change of the use of the building to another use (cl.7(1)(c). In the Shorter Oxford Dictionary "comprises" means, inter alia:|CF2.|PSI
"To take in (mentally), comprehend.
To include, embrace; to comprehend compendiously.
To contain, consist of, to extend to, cover."|CF1.|PSO
In the Macquarie Dictionary it means:|CF2.|PSI
"To comprehend; include; contain.
To consist of; be composed of."|CF1.|PSO
In the principal Policy, "dwelling" is defined as:|CF2.|PSI
"... a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile."|CF1.|PSO
For similar reasons to those already given, Iam also of the opinion that this building cannot "comprise" a single dwelling if for that purpose it is necessary to rely upon the use which is unlawful. However, the exception in cl.6(2)(a) would also apply to a building which was previously used at date of notification as a boarding house, but which can still come within the purview of the definition of a "single dwelling". Iam persuaded that the draftsman of the Policy only intended to regulate the use of a building erected and so used as a boarding house, and to exclude from such control a building which consists of a single dwelling but which may have been for some time used as a boarding house. Iam satisfied as a matter of fact that the subject building, even disregarding the unlawful occupation or use as a separate domicile, is nevertheless so constructed or adapted as to be capable of being used for that purpose. In such circumstances it |CF2.|PSI"comprises a single dwelling"|CF1.|PSO within the meaning of
cl.6(2)(a), and the provisions of SEPP10 have no application to such building.
The use of the subject building for the purpose of a dwelling is prohibited without the prior approval of the Council pursuant to the Manly Local Environmental Plan 1988. For that purpose a development application must be made in accordance with the provisions of s.77. That application must be considered by the consent authority in accordance with the provisions of s.90. In the determination of the development application the consent authority is not restricted to a consideration only of matters arising from the fact that the land is within a Foreshore Scenic Protection Area. S.90 imposes a duty to take into consideration all matters specified therein as are of relevance to the development the subject of the application. The selection of such matters and weight to be given to the provisions of the scheme which otherwise permits dwelling houses in the subject zone without development consent or any other provision are matters solely for the consent authority; see Randwick Municipal Council v. Manousaki, Court
of Appeal, 26thSeptember, 1988 (unreported).
The answers to the referred questions are:
1. 24th January, 1989.
2. Yes.
3. Not applicable.
4. Yes, for the above reasons.
5. Yes, for the above reasons.
The orders of the Court are:
1. The application be returned to the Registrar for determination by an Assessor in accordance with this judgment.
2. Costs are reserved.
3. Exhibits may be released.
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