Agostino v Penrith City Council

[2022] NSWLEC 1258

Land and Environment Court

New South Wales

Medium Neutral Citation:

Agostino v Penrith City Council [2022] NSWLEC 1258

Hearing dates:

22-23 March 2022

Date of orders:

23 May 2022

Decision date:

23 May 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The development application DA21/0432 is determined by the grant of consent for alterations and additions to the existing fruit and vegetable store at 312 Third Avenue, Llandilo (the land) subject to the conditions in Annexure A, except for the enlargement, expansion and intensification of the use of the fruit and vegetable store into the existing metal farm shed on the land.

Catchwords:

APPEAL – development application concerning alterations and additions to fruit and vegetable store – existing use rights – extent of land used for existing use when derived from a development consent – meaning of relevant date – construction of a development consent

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 4.65, 4.66, 4.67, 8.7

Environmental Planning and Assessment Model Provisions 1980, s 4

Environmental Planning and Assessment Regulation 2000, cll 39, 41, 42, 43

Local Government Act 1919

Penrith Local Environmental Plan 2010, cl 1.8

Penrith Interim Development Order (IDO) No.93

Penrith Local Environmental Plan No 201 (Rural Lands) (Amendment No 1)

Penrith Local Environmental Plan No 201 (Rural Lands) (Amendment No 8)

Penrith Local Environmental Plan No 201 (Rural Lands), cll 9, 41

Cases Cited:

Agostino v Penrith City Council (2010) 172 LGERA 380; [2010] NSWCA 20

Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147 Brinara Pty Ltd v Gosford City Council (2010) 177 LGERA 296; [2010] NSWLEC 230

Butler Street Community Network Incorporated v Northern Region Joint Regional Planning Panel (2017) 226 LGERA 213; [2017] NSWLEC 51

Lemworth Pty Ltd v Liverpool City Council (2001) 53 NSWLR 371; [2001] NSWCA 389

Minister for Planning v Rose Bay Marina Pty Ltd (2003) 126 LGERA 181; [2003] NSWCA 119

Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council [2017] NSWLEC 56

Scully v Leichhardt Council (1994) 85 LGERA 109

Steedman v Baulkham Hills Shire Council (No 1) (1991) 87 LGERA 26

Category:

Principal judgment

Parties:

Antonio Agostino (Applicant)
Penrith City Council (Respondent)

Representation:

Counsel:
A Hemmings; T Poisel (Applicant)
T To (Respondent)

Solicitors:
GP Legal (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2021/307424

Publication restriction:

No

Judgment

1. COMMISSIONER: The Agostino family have been operating a fruit and vegetable store at the front of their property at 312 Third Avenue, Llandilo, for over 30 years. Mr Agostino seeks development consent for alterations and additions to the store, and for the use of an existing shed for the storage of fruit and vegetable pending sale in the store. He lodged a development application with Penrith City Council (the Council) on 22 June 2021, which was refused on 14 October 2021. These proceedings are an appeal against that decision, lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. Following a number of amendments made in the course of the appeal proceedings, the proposed development is for:

• Alterations and additions to the existing fruit and vegetable store, including:

1. The construction of a 26.2m² extension to the front of the existing store.

2. The Construction of a 24.1m² bull nosed verandah on the western elevation at the front of the store extension.

3. Internal alterations to the rear of the store to provide an additional 27.5m² storage/expanded loading dock; and

• The enlargement, expansion and intensification of the existing use of the fruit and vegetable store into the existing shed located to the south east of the loading dock.

3. Development for the purpose of a fruit and vegetable store is prohibited in the zone in which the site is located. As such, Mr Agostino relies on an existing use arising from a number of consents that apply to the site. The Council’s position is that the existing use does not apply to the whole of the site, and that it specifically does not extend to the use of the existing shed. As such, the Council says that there is no power to grant development consent for the enlargement, expansion or intensification of the existing use into the existing shed. The Council nevertheless acknowledges that there is power to grant consent for the alterations and additions to the vegetable store, as the areas in which those alterations and additions are sought are within the land on which the existing use is carried out.

4. Mr Agostino’s position is instead that the land on which the existing use is carried out is the whole of the site, and that there is therefore power to grant the development consent. He also submits that if the land on which the existing use is carried out is found to be any less than the whole of the site, it is an area that includes the access driveway and the existing shed.

5. For the reasons that are set out below, I have determined that the land to which the existing use for the fruit and vegetable store applies is constrained to defined areas and does not extend to the whole site or to the existing shed. Similarly, the existing use was not carried out in the existing shed at the relevant date, and there is therefore no power to grant development consent for the enlargement, expansion or intensification of the existing use into the existing shed.

The site and its planning history

6. The subject site is legally described as Lot 2 in Deposited Plan 221473, and is known as 312 Third Avenue, Llandilo. It has frontage of 81.7m to Third Avenue, and a total area of 2.023 hectares.

7. The site is occupied by a brick dwelling house, a metal storage shed that is the existing shed the subject of this development application, the fruit and vegetable store, a large outdoor covered loading/unloading area behind the store, an at-grade car parking area which extends along the frontage of the site, open areas used for agriculture, and a number of other structures and sheds that do not form part of the development application. An aerial photograph of the site is at Figure 1.

The changing planning controls

8. The Council’s records indicate that fruit and vegetables have been sold from the site since the 1980s. At that time, the site was zoned rural 1(a1) under the Penrith Interim Development Order (IDO) No.93 and development for the purpose of a fruit and vegetable store was a prohibited use in the zone.

9. On 12 July 1991, the Penrith Local Environmental Plan No 201 (Rural Lands) (LEP 201) came into force. The site was zoned 1(a) Rural “A” Zone – General, in which development for the purposes of a fruit and vegetable store was similarly prohibited.

10. On 20 March 1992, LEP 201 was amended by LEP 201 (Amendment No 1) to include cl 41, a site specific clause which made a fruit and vegetable store with a maximum floor area of 150m² permissible with development consent on the site. On its insertion, cl 41 specified the following:

41 Development of certain land at Llandilo

(1) This clause applies to land situated adjacent to Third Avenue, Llandilo, being Lot 2, DP 221473, shown edged heavy black on the map marked "Penrith local Environmental Plan No. 201 (Rural Lands) (Amendment No. 1)"

(2) For the purposes of this clause:

floor area means the whole of the area used for the display, sale and storage of goods and merchandise, whether or not any part of the floor area is external to any building;

fruit and vegetable store means a building or place used primarily for selling, or exposing or offering for sale, by retail fruit and vegetables and, as an ancillary purpose only, for selling, or exposing or offering for sale, by retail bread, milk, cigarettes, confectionary, soft drinks, fruit juice, flowers and potted plants only.

(3) Notwithstanding any other provision of this plan, a person may, with the consent of the council, carry out development on land to which this clause applies for the purposes of a fruit and vegetable store with a maximum floor area of 150 sqm.

(4) The Council shall not grant consent to the carrying out of development as referred to in subclause (3) unless arrangements satisfactory to the council have

11. On 19 December 1997, cl 41(2) of LEP 201 was amended by LEP 201 (Amendment No. 8) to replace the definitions of “floor area” and “fruit and vegetable store” with the following:

floor area means the whole of the area used for the display and storage of goods and merchandise within a fruit and vegetable store, but does not include an area used for the bulk storage of produce (whether in a cool room or otherwise) pending display or sale;

fruit and vegetable store means a building or place used primarily for selling or exposing for sale by retail, fruit and vegetables and, as an ancillary use only, the selling or exposing or offering for sale by retail of bread, milk, cigarettes, confectionary, soft drinks, fruit juice, flowers, potted plants, pasta, eggs and honey only.

12. On 3 March 2010, the Court of Appeal, by majority, found in Agostino v Penrith City Council (2010) 172 LGERA 380; [2010] NSWCA 20 that the limit on floor area in cl 41(3) resulted in a prohibition on fruit and vegetable stores with a floor area greater than 150m².

13. On 22 September 2010, the Penrith Local Environmental Plan 2010 (PLEP 2010) commenced. Whilst the PLEP 2010 did not repeal LEP 201, the PLEP 2010 applies to the site and LEP 201 ceases to apply to the site pursuant to cl 1.8(2) of the PLEP 2010. The site is zoned RU4 Primary Production small lots pursuant to the PLEP 2010, and development for the purposes of shops are prohibited in the RU4 zone.

The relevant development consents

14. The site has the benefit of three development consents:

• The consent for a farm shed, granted on 24 June 1992 (the farm shed consent);

• The consent for the fruit and vegetable store, granted on 10 July 1992 (the 1992 store consent) and modified on 20 September 2001 (the modified store consent); and

• The consent for a covered loading area, granted on 26 August 1999 (the loading consent).

15. Both the farm shed consent, and the 1992 store consent, were granted prior to the amendment of cl 41 by LEP 201 (Amendment No 8), such that the definition of floor area and fruit and vegetable store at the time of the grant of consent was that contained in cl 41 at the time of its introduction (at [10]).

16. The loading consent was granted following the amendment of cl 41 by LEP 201 (Amendment No 8).

17. The modification of the 1992 store consent was also approved following the amendment of cl 41.

The farm shed consent

18. The farm shed consent was granted by the Council on 24 June 1992 and is known as development consent 28/201/92. The development is described as a “farm shed” and condition 2 of the farm shed consent provides as follows:

“The use of the proposed shed is restricted to the parking of farm vehicles and equipment and for storage of produce grown on the property.”

19. The address in the notice of determination of the farm shed consent is “312 Third Avenue Llandilo”, and the description of the land is “Lot 2 DP 221473, Third Avenue, Llandilo”, being the whole of the site.

20. On 29 June 1992, Building Permit BA033145 for a shed was approved by the Council to construct the shed (farm shed building permit), under the Local Government Act 1919.

21. The shed shown on the approved plans for the farm shed building permit has a floor area of 228.5m², and the plans show only the shed itself, as well as a plan that shows its position relative to what is referred to as “existing shop” and “existing house”. The plans do not show the whole of the site or provide any information with respect to access to the shed.

22. The existing shed was constructed as a result of the grant of the farm shed consent.

The 1992 store consent

23. On 10 July 1992, the 1992 store consent was granted for the use of an existing building and its extension for the purpose of the fruit and vegetable store. The development was known as development consent 168/92 and was described in the following way:

“Occupation of an existing building and proposed extension for the sale of fruit and vegetables together with ancillary goods in accordance with the plan dated 14 April 1992 submitted to Council on 29 April 1992”

24. Condition 23 of the 1992 store consent reflected the restriction on floor area in cl 41 of the LEP 201 and required the following:

“23 The maximum floor area of the proposed development is to be 150m². In this regard floor area is defined as follows:

‘the whole of the area used for the display, sale and storage of goods and merchandise, whether or not any part of the area is external to any building’.”

25. By condition 16, the consent required all materials and goods associated with the use to be stored within the building, as follows:

“All materials and goods associated with the use are to be contained within the building at all times. In this regard all goods for sale or display are to be contained within the building.”

26. The 1992 store consent is described as applying to the site, which is stated as Lot 2 DP 221473 (No 312) Third Avenue, Llandilo.

27. The plans the subject of the 1992 store consent depict an existing building that is to undergo an extension, as well as an area for landscaping and car parking on the site’s frontage. Part of a gravel driveway is also depicted, which says “gravel driveway to farm” and the existing dwelling is also shown on the plan. The extract of the plan depicting the site plan is at Figure 2. I note that one of the conditions required the removal of some car parking spaces for the purpose of additional landscaping.

28. The development application for the 1992 store consent was accompanied by a Statement of Environmental Effects dated October 1990 (SEE), which had been prepared for the purpose of an earlier development application for a general store on the site. In a letter dated 22 June 1992, the applicant for development consent asked that the SEE be considered in support of the development application for the fruit and vegetable store, but that anywhere the words “general store” were used they were to be substituted for “fruit and vegetable store”.

29. The SEE describes the land use of the site as including both residential purposes, horticulture and the sale of fruit and vegetables. At page 2, it is described in the following way:

“Two existing dwellings are located on the subject land although only one is being used for residential purposes. The subject property in the past has been utilised for horticultural purposes with a number of farm sheds also being located on-site. Growing of some vegetables is still being undertaken on-site, however this usage of the land is no longer economically viable to provide a sufficient income for the Agostino family.

Originally produce grown on the subject site was sold from the site within a roadside stall. However the viability of such an enterprise has diminished with the roadside stall being converted into what may be considered to be similar to a general store in recent years which specialises in the selling of fruit and vegetables. A significant portion of the vegetables sold at the store are produced by local farmers. Hence selling of fruit and vegetables has resulted over the last ten (10) years from the subject site.”

30. In dealing with the land to which the application relates to, the SEE states that:

“Only a small proportion of the site is to be occupied by the [fruit and vegetable store], ancillary parking and driveway facilities. A significant proportion of the subject land can be utilised for horticulture and residential purposes.”

31. On 25 September 1992, Building Permit BA33937 was issued in respect of the single storey store on the site (store building permit). The store building permit relates to the development the subject of the 1992 store consent. It depicts the store as extended by the store building permit, with an additional area for a toilet, and also depicts the car parking as amended by the condition described above concerning the removal of spaces for landscaping.

32. The location of the store, the carparking and the landscaping on the site is largely consistent with what was approved in the 1992 store consent, other than a front addition with a metal roof, that is intended to be removed by Mr Agostino.

The loading consent

33. Following the amendment of cl 41 by the LEP 201 (Amendment No 8), the loading consent was granted on 26 August 1999, for the construction of a colourbond roof over the unloading area at the rear of the store. The loading consent described the consent as being for “colourbond roof over unloading area” and although there is no purpose of the use specified in the development application or the consent, the Council agrees that it was for a purpose associated with the fruit and vegetable store. The loading consent included a condition that prevented the storage, display, processing or sale of goods in the covered area.

34. The loading consent is described as applying to the site, which is stated as “L2 DP221473”.

35. The plans the subject of the loading consent show the loading area, the proposed colourbond roof over the loading area, and the route of access for those using that area, which is by the existing driveway. This is shown at Figure 3.

36. The location of the large outdoor covered loading/unloading area behind the store is largely consistent with what was approved in the loading consent.

The modification of the 1992 store consent

37. On 18 September 2001 an application was made to modify the 1992 store consent. The description of what was proposed was as follows:

“To bring the 1992 [development consent] up to date with the 1999 LEP passed by Penrith City Council (as per letter)”.

38. If there were documents in support of the modification application (including a letter referred to above), they are not in evidence before the Court. As such, I have no detail on what aspects of the development consent were sought to be brought up to date with the amendment to cl 41.

39. On 20 September 2001, the application was granted and the 1992 store consent was modified to amend condition 23 with the following:

“23. The maximum floor area of the fruit and vegetable store is to be 150m². In this regard floor area is defined as follows:

“the whole of the area used for the display and storage of goods and merchandise within a fruit and vegetable store, but does not include an area used for the bulk storage of produce (whether in a cool room or otherwise) pending display or sale”.”

40. There was no other change to the 1992 store consent brought about by the grant of the modification application, and no other modification applications were made before the fruit and vegetable store use became prohibited.

The existing use provisions

41. The term existing use is defined in s 4.65 of the EPA Act, as follows:

In this Division, existing use means—

(a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for this Division, have the effect of prohibiting that use, and

(b) the use of a building, work or land—

(i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and

(ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.

42. Once the “building, work or land” is identified as benefiting from an existing use, the provisions governing the existing use are set out in ss 4.66-4.67, as follows:

4.66 Continuance of and limitations on existing use (cf previous s 107)

(1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use.

(2) Nothing in subsection (1) authorises—

(a) any alteration or extension to or rebuilding of a building or work, or

(b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or

(c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or

(d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 4.17(1)(b), or

(e) the continuance of the use therein mentioned where that use is abandoned.

(3) Without limiting the generality of subsection (2)(e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.

(4) During the period commencing on 25 March 2020 and ending on 25 March 2022, the reference to 12 months in subsection (3) is taken to be a reference to 3 years.

4.67 Regulations respecting existing use (cf previous s 108)

(1) The regulations may make provision for or with respect to existing use and, in particular, for or with respect to—

(a) the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and

(b) the change of an existing use to another use, and

(c) the enlargement or expansion or intensification of an existing use.

(d) (Repealed)

(2) The provisions (in this section referred to as the incorporated provisions) of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument.

(3) An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force.

(4) Any right or authority granted by the incorporated provisions or any provisions of an environmental planning instrument extending, expanding or supplementing the incorporated provisions do not apply to or in respect of an existing use which commenced pursuant to a consent of the Minister under section 4.33 to a development application for consent to carry out prohibited development.

43. The provisions referred to in s 4.67 of the EPA Act are contained in Pt 5 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000), which allow reliance on an existing use for certain development in specified circumstances:

41 Certain development allowed

(1) An existing use may, subject to this Division:

(a) be enlarged, expanded or intensified, or

(b) be altered or extended, or

(c) be rebuilt, or

(d) be changed to another use, but only if that other use is a use that may be carried out with or without development consent under the Act, or

(e) if it is a commercial use-be changed to another commercial use (including a commercial use that would otherwise be prohibited under the Act), or

(f) if it is a light industrial use-be changed to another light industrial use or a commercial use (including a light industrial use or commercial use that would otherwise be prohibited under the Act).

...

44. Mr Agostino relies upon cll 42 and 43 of the EPA Regulation 2000 for the permissibility of the development. Those clauses provide as follows:

42 Development consent required for enlargement, expansion and intensification of existing uses

(1) Development consent is required for any enlargement, expansion or intensification of an existing use.

(2) The enlargement, expansion or intensification:

(a) must be for the existing use and for no other use, and

(b) must be carried out only on the land on which the existing use was carried out immediately before the relevant date.

43 Development consent required for alteration or extension of buildings and works

(1) Development consent is required for any alteration or extension of a building or work used for an existing use.

(2) The alteration or extension:

(a) must be for the existing use of the building or work and for no other use, and

(b) must be erected or carried out only on the land on which the building or work was erected or carried out immediately before the relevant date.

...

45. As indicated by the above provisions, the benefit conferred by the existing use is determined by reference to the “relevant date”, which is defined in cl 39 of the EPA Regulation 2000:

39 Definitions

In this Part -

relevant date means:

(a) in relation to an existing use referred to in section 106 (a) of the Act-the date on which an environmental planning instrument having the effect of prohibiting the existing use first comes into force, or

(b) in relation to an existing use referred to in section 106 (b) of the Act-the date when the building, work or land being used for the existing use was first erected, carried out or so used.

The issues between the parties concerning the existing use

46. Both parties agree that, on commencement of the PLEP 2010 on 22 September 2010, the use as approved by the modified store consent and the loading consent, became an existing use for the purpose of a fruit and vegetable store, within the meaning of s 4.65(b) of the EPA Act. However, there is a dispute between the parties as to the extent of the land that benefits from the existing use arising from these two consents. Further, there is a dispute between the parties in relation to the use permitted by the farm shed consent.

47. The question concerns the extent of the “building, work or land” for which development consent was granted for the fruit and vegetable store, for the purpose of defining the “existing use” in accordance with s 4.65(b) of the EPA Act. Further, Mr Agostino relies upon the power to grant development consent pursuant to cll 42 and 43 of the EPA Regulation 2000. The power to grant development consent for the enlargement, expansion or intensification of an existing use, pursuant to cl 42, is constrained such that the enlargement, expansion or intensification “must be carried out only on the land on which the existing use was carried out immediately before the relevant date”. Similarly, the power to grant development consent for the alteration or extension of a building or work used for an existing use, pursuant to cl 43, is constrained such that the alteration or extension “must be erected or carried out only on the land on which the building or work was erected or carried out immediately before the relevant date”.

48. Mr Agostino’s position is that the unit of land on which the existing use was carried out is the whole of the site, but that if it is any less than that, it is an area that includes the access driveway and the existing shed. The Council’s position is instead that the unit of land is less than the whole of the site, and does not include the existing shed, as the consent for the existing shed was granted for some purpose other than a fruit and vegetable store. The parties disagree as to whether the use approved in the farm shed consent was for the purpose of a fruit and vegetable store, or for some other purpose.

49. I first deal with the question of whether the existing use for the purpose of a fruit and vegetable store was carried out on the whole of the site. The dispositive paragraphs on this question are at [68] to [78]. I then deal with the question of whether the land on which the existing use was carried out includes the existing shed. My reasons for concluding that it does not are set out at [94] to [100].

Does the existing use extend to the whole of the site?

50. The land to which the existing use relates depends on the facts of the case. This was considered by Pearlman CJ of LEC in Scully v Leichhardt Council (1994) 85 LGERA 109, in which her Honour stated (at 111):

“The facts and circumstances which establish the particular existing use will set the parameters for the “land” which is referred to in cl 41(2) [now cl 43(2)]. Those facts and circumstances might show that the “land” in the particular case is in fact the footprint of a particular building; or it might show that it is the whole of the deposited plan allotment upon which the building is erected; or it might show that it is an area larger than the footprint but smaller than the allotment.”

51. Where the existing use arises from a development consent, the “land to which that consent is expressed to relate will usually determine the unit of land upon which the existing use is carried out” (Brinara Pty Ltd v Gosford City Council (2010) 177 LGERA 296; [2010] NSWLEC 230 at [47]).

The applicant’s position that the existing use relates to the whole of the site

52. Mr Agostino points out that the task of identifying the land that benefits from the existing use is not intended to descend into a detailed investigation and complicated disputes of fact, consistent with what was stated by Meagher JA in Steedman v Baulkham Hills Shire Council (No 1) (1991) 87 LGERA 26 at 27 as follows:

“It is also clear enough, on the authority of these cases, that the land subject to the determination should be capable of identification as far as possible in a way which avoids detailed investigation and complicated disputes of fact; that land can be used for a lawful purpose without there being an actual physical use of it; that if the land is rightly regarded as a unit and it is found that part of its area was physically used for the purpose in question it follows that the land was used for that purpose”.

53. In light of these principles, Mr Agostino submits that the facts of the case demonstrate that the use approved in the 1992 store consent applies to the whole of the site for the following reasons.

54. Firstly, each of the three consents expressly describes the land to which the consent relates as the whole of the site, by giving its address and legal description. Mr Agostino submits that, consistent with the decision in Brinara Pty Ltd v Gosford City Council, the land to which the consent is expressed to relate determines the unit of land on which the existing use is carried out.

55. Secondly, Mr Agostino submits that both the approved plans and the conditions for the 1992 store consent establish that the unit of land approved for use for the purpose of a fruit and vegetable store extended beyond the 150m² footprint of the building. The approved plans include a car park at the front of the site, a concrete driveway to the car park with entry and exit points, and three landscaped areas. Further, the conditions of consent required the provision of a garbage storage area, the intensive landscaping of particular areas, various steps to be taken with respect to the car parking area, and the provision of a new septic disposal system on part of the site.

56. Thirdly, Mr Agostino submits that the loading consent similarly applies to the whole site in circumstances where it contemplates use of part of the site for loading and unloading fruit and vegetables and ancillary goods for the store, and also therefore relies upon access for the delivery trucks from the front of the site, through the car park and around a long driveway.

57. Further, Mr Agostino similarly says that the farm shed consent applies to the whole of the site, and submits that it was granted for the purpose of the storage of produce for the purpose of the fruit and vegetable store.

58. Mr Agostino therefore submits that the circumstances of the case can clearly be distinguished from the circumstances in Lemworth Pty Ltd v Liverpool City Council (2001) 53 NSWLR 371; [2001] NSWCA 389, in which the majority of the Court of Appeal found that the unit of land to which the existing use applied was constrained to the first floor area, in respect of which the consent was granted.

59. He instead relies upon the decision of Preston CJ of LEC in Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council [2017] NSWLEC 56, in which his Honour found that the actual and physical use of parts of the waterway constituted a use of the whole of those areas for the purpose of the existing use. In the same way, Mr Agostino submits that, in the circumstances of the case, the use of parts of the site for the purpose of the fruit and vegetable store constitutes a use of the whole of the site.

The Council’s position that the land used for the existing use does not extend to the whole of the site

60. The Council says that prior to the grant of the 1992 store consent, there was no lawful use of the site for the purposes of a fruit and vegetable store, and that the 1992 store consent is the primary source of any lawful permission for use for that purpose. The Council accepts that the loading consent was also for the purpose of the fruit and vegetable store.

61. The Council submits that the fact that the legal description of the site and its address is used in the description of the site for which the 1992 store consent was granted is not sufficient to establish that the consent is for, and applies to, the whole of the site. It makes the same submission with respect to the loading consent. In support of this position, the Council relies on the decision of the Court of Appeal in Minister for Planning v Rose Bay Marina Pty Ltd   (2003) 126 LGERA 181; [2003] NSWCA 119, in which Hodgson JA made it clear that a determination that there is an existing use of land does not of itself determine the extent of the land on which the existing use was carried out (see [25]).

62. The Council points out that the ‘relevant date’ is a central part of considering the extent of the land used for the existing use in cll 42(2)(b) and 43(2)(b) of the EPA Regulation 2000, which, in relation to an existing use that is derived from a development consent pursuant to s 4.65(b) of the EPA Act , is “the date when the building, work or land being used for the existing use was first erected, carried out or so used”. The Council submits that this means that the relevant date is when the use first commenced lawfully.

63. In that context, the Council says that to determine the extent of the land to which the existing use relates, it is necessary to construe the 1992 store consent. The 1992 store consent, read as a whole, is for the “occupation of an existing building and proposed extension… in accordance with plan dated 14 April 1992”. The plan shows the existing building and the proposed extension, as well as an area to be used for carparking and landscaping. Therefore, the use for the purpose of the fruit and vegetable store extended to the car parking in front of the store building. The Council also points out that condition 23 of the 1992 store consent, imposed a limit on the extent of the site that could be used for the sale of fruit and vegetables, and that condition 16 prevented anything from being stored other than within the store. Accordingly, the Council submits that nothing in the 1992 store consent supports a conclusion that the use could lawfully be carried out on the whole of the site, such as in the dwelling or the remainder of the site which then was a farm.

64. The Council submits that the modification to the 1992 store consent did not change the extent of the land approved for the use, even though it changed the definition of floor area, which was limited by condition 23 to 150m², to exclude areas used “for the bulk storage of produce (whether in a cool room or otherwise) pending display or sale”. The Council says that the modified store consent therefore did not change the approved extent of the land that could be lawfully used for the purpose of the fruit and vegetable store.

65. On the grant of the loading consent, the Council agrees that the area to be used for unloading was for the purpose of the fruit and vegetable store. The Council says that this can be inferred by the imposition of condition 7001, which recognises the use for the store, and constrains the unloading area so that it cannot be used for the storage, display, process or sale of goods. As such, by the grant of the loading consent, the extent of the area to be used for the existing use for the fruit and vegetable store is extended to the shaded area on the approved plan in the loading consent. The Council submits that the loading consent shows the area of land of the existing use does not extend to the area occupied by the existing shed, or any other area on the site.

66. The Council also submits that the farm shed consent, which was granted prior to the 1992 store consent, is not for the purpose of the fruit and vegetable store, and could therefore not be an existing use under s 4.65(b) of the EPA Act.

67. Accordingly, the Council submits that neither the 1992 store consent nor the loading consent have ever authorised the use of the whole of the site for the purpose of a fruit and vegetable store, and neither of those consents authorised the use of the existing shed for the purpose of a fruit and vegetable store.

The land used for the existing use is not the whole of the site

68. The question before the Court concerns the extent of the “building, work or land” that falls within the definition of the “existing use” for purpose of the fruit and vegetable store. Similarly, in exercising the power to grant development consent pursuant to cll 42 or 43 of the EPA Regulation, the Court must determine what is the unit of land “on which the existing use was carried out immediately before the relevant date” or “on which the building or work was erected or carried out immediately before the relevant date”.

69. As set out above, the definition of relevant date is contained in cl 39 of the EPA Regulation 2000, and for an existing use that arises from the grant of consent in accordance with s 4.65(b) of the EPA Act, it is “the date when the building, work or land being used for the existing use was first erected, carried out or so used”. Consistent with the Council’s position, this means that it is the date that it was lawfully “first erected, carried out or so used”, that is to say, in accordance with the consent. If the “building, work or land being used” could only have been “erected, carried out or so used” with development consent, then the reference to the same in the definition of “relevant date” must be a reference to the “building, work or land being used” being “erected, carried out or so used” in accordance with that development consent. A second or subsequent “relevant date” might then arise for modifications to a consent or later development consents that extend the building, work or land being used for the existing use to a new area of land.

70. The existing use “immediately before the relevant date” is therefore defined by the terms of the consent, including the approved plans and any conditions of consent. It is not informed by what might have actually occurred on the site after the use commenced. Nor is it informed by the manner in which an unlawful use operated before the development consent was granted.

71. I accept the Council’s position that the first development consent that authorised the use for the purpose of the fruit and vegetable store was the 1992 store consent. The mere fact that the whole of the deposited plan allotment is referred to in the determination of the 1992 store consent is not sufficient to establish that the whole site is the land to which the existing use applies in accordance with s 4.65(b) of the EPA Act, or on which the existing use was carried out in accordance with cll 42 and 43 of the EPA Regulation 2000. Instead, I accept the Council’s position that to determine the extent of the land to which the existing use applies and “on which the existing use was carried out immediately before the relevant date”, it is necessary to construe the consents that apply to the site, including by having regard to the approved plans and the conditions of consent. As set out by Pearlman CJ of LEC in Scully v Leichhardt Council, the land on which the existing use was carried out on the relevant date can be an area less than the deposited plan allotment upon which the building is erected.

68. As pointed out by the Council, the 1992 store consent is for the “occupation of an existing building and proposed extension for the sale of fruit and vegetables… in accordance with plan dated 14 April 1992”. I consider that the plan shows the area to be used for the purpose of the fruit and vegetable store is the existing building, the proposed extension, the area for car parking, the area for vehicle manoeuvring and the areas for landscaping. Conditions 16 and 23 constrained the areas that could be used for storage (condition 16) and the total floor space that could be used for the sale of goods and storage (condition 23). Therefore, I accept the Council’s submission that there is nothing in the 1992 store consent that extends the approved use beyond those areas, or that holds in reserve some other part of the site for the purpose of the store.

69. The evidence is instead that the dwelling house and the other areas of the site used for horticulture were separate and independent uses on the site. The dwelling is shown on the approved plan as “existing BV dwelling” and the buildings associated with the farm use are not shown, apart from the words on the driveway that state “gravel driveway to farm”. That these other areas of the site were used for separate and independent uses is supported by the SEE, which acknowledges the use of the site for the residential dwelling and for horticulture, and then goes on to state that only a small proportion of the site is proposed to be occupied by the fruit and vegetable store, ancillary parking and driveway facilities, and that a “significant proportion of the subject land can be utilised for horticulture and residential purposes.” Accordingly, even in the development application for the fruit and vegetable store it was clear that there was no intention to use other parts of the site for the purpose of the fruit and vegetable store, other than those proposed for the store building itself and the parking and driveway facilities.

70. I also accept the Council’s submission that the modification of the 1992 store consent did not change the extent of the land approved for the use. The change in the definition of floor area in condition 23 of the 1992 store consent did not actually cause any additional area on the site to be approved for use for the purpose of a fruit and vegetable store beyond that which was already approved.

71. The loading consent authorised the construction of the covered area for unloading for the purpose of the fruit and vegetable store. In doing so, it allowed an additional area of the site to be used for the purpose of a use that is now an existing use within the meaning of s 4.65(b) of the EPA Act. The “relevant date” with respect to that use is the date when the roof over the unloading area was constructed, and the area for the use for the purpose of the fruit and vegetable store is the unloading area shaded on the approved plan, as well as the driveway accessing that area from the front of the site denoted as “existing driveway”. The “existing dwelling” and “existing colourbond shed” are depicted on the approved plan, but there is nothing on the approved plan or in the development consent or the conditions that indicates that the consent allows the use of the existing shed or any other area on the site for the purpose of the fruit and vegetable store, or holds any other part of the site in reserve for the purpose of the fruit and vegetable store. Instead, there remained other independent uses of the site, including the area around which the driveway borders, which remained an independent use for horticulture.

72. I also accept the Council’s position that there is nothing in the farm shed consent that authorises use of the shed for the purpose of a fruit and vegetable store. This is considered in more detail further below. Nevertheless, even if the farm shed consent could be considered as being for the purpose of the fruit and vegetable store (contrary to my finding further below), the farm shed consent authorised only the construction and use of the shed itself. The plan approved by the farm shed building permit separately depicted the existing shop and the existing house, and there is nothing in the consent or the building permit that suggests that the shed consent authorises the use of the whole of the site for the purpose of a fruit and vegetable store.

73. As such, there is nothing in the 1992 store consent, the modified store consent, the loading consent or the farm shed consent that supports a conclusion that the use for the fruit and vegetable store could lawfully be carried out on the whole of the site, such as in the dwelling house or the other areas of the site used for horticulture.

74. I therefore conclude that, contrary to the position of Mr Agostino, the land “for which development consent was granted” pursuant to s 4.65(b), and, for the purpose of cll 42 or 43 of the EPA Regulation 2000, “on which the existing use was carried out immediately before the relevant date” or “on which the building or work was erected or carried out immediately before the relevant date” does not extend to the whole of the site.

Does the existing shed have consent for use for the purpose of the fruit and vegetable store?

79. As the development application concerns only those areas of land used for the existing use in the 1992 store consent and the loading consent, and the area of land in the farm shed consent, I am required to determine whether the area of land used for the existing use includes the existing shed. Having not accepted Mr Agostino’s position that the existing use for the purpose of the fruit and vegetable store extends to the whole of the site, I now consider the construction of the farm shed consent and whether it, or any of the later development consents, authorises the use of the existing shed for the purpose of a fruit and vegetable store such that it is an existing use for that purpose applying to that area of land.

80. In considering the farm shed consent, it is common ground that consent cannot be granted for a use that is prohibited in the zone, or for a use that is permissible without development consent (see Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147 at [31]).

81. The zoning table at the time of the grant of the farm shed consent was as follows (LEP 201 cl 9):

2 Without development consent

Agriculture (other than intensive livestock keeping establishments).

3 Only with development consent

Any purpose, other than a purpose included in Item 2 or 4 of the matter relating to this zone.

4 Prohibited

Boarding houses; caravan parks; commercial premises; extractive industries; industries (other than rural and home industries); junkyards; liquid fuel depots; motor showrooms; offensive or hazardous industries; residential flat buildings; rural exhibition grounds; shops (other than convenience stores, general stores and produce stores); transport terminals.

82. Further, as I earlier described, in Agostino v Penrith City Council the Court of Appeal determined that the exception to the general prohibition on fruit and vegetable stores created by cl 41 of the LEP 201 meant that any store which didn’t meet the description of having “a maximum floor area of 150m²” is prohibited (see Agostino v Penrith City Council at [44]).

Applicant’s submissions on the farm shed consent

83. Mr Agostino submits that, applying the principle of regularity such that the farm shed consent was granted for a purpose that was permissible with consent, the Court can infer that the proper characterisation of the use authorised by farm shed consent was the original fruit and vegetable store.

84. The applicant makes this submission on a number of grounds. Firstly, he points out that the store already existed on the site at the time of the grant of the farm shed consent, although it existed without development consent at that time.

85. Secondly, Mr Agostino says that the purpose of the use of the farm shed was, in fact, for the storage of produce grown on the site prior to its display and sale in the fruit and vegetable store. It was the only area with cool rooms suitable for the storage of produce pending their sale.

86. Thirdly, Mr Agostino submits that there was no prohibition on the use for the purpose of the fruit and vegetable store by the size of the farm shed (which exceeds 150m²) because the storage of produce grown on the site was distinct from the storage of “goods and merchandise” which was subject to the limit on floor area. The submission is that the Council distinguished between the storage of produce grown on the property and the storage of goods and merchandise not grown on the property, which can be discerned by the express terms used by the Council in the farm shed consent and the 1992 store consent. Whereas condition 2 of the farm shed consent permitted the “storage of produce grown on the property”, by contrast, condition 23 of the 1992 store consent limited the area used for “storage of goods and merchandise”. Mr Agostino submits that the inclusion of areas used for “storage of goods and merchandise” within the floor area maximum in cl 41 of the LEP 201 did not include areas used for the storage of produce grown on the site, and that this is reflected in the deliberate choice of words in condition 2 of the farm shed consent.

87. Fourthly, Mr Agostino points out that the grant of the farm shed consent could not be for the purpose of the agriculture use of the site as such development was permissible without development consent.

88. Mr Agostino accepts that the farm shed consent does not authorise the use of the existing shed for the purpose of storage of produce not grown on the site, and seeks consent for the “enlargement, expansion or intensification” of the fruit and vegetable store use so as to permit the storage of produce not grown on the site in the existing shed.

The Council’s submissions on the farm shed consent

89. The Council’s position is that the farm shed consent was not granted for the purpose of the fruit and vegetable store and is therefore not an existing use under s 4.65(b) of the EPA Act. Indeed, this was a position accepted by the applicant in its Statement of Facts and Contentions in Reply (see Ex 1 Tab 7 p 8, at [1(o)]). The Council points out that there is nothing in the consent or the conditions that indicates that the purpose of the use was for a fruit and vegetable store.

90. The Council submits that, contrary to the applicant’s position, the initial definition of “floor area” in the LEP 201 makes no distinction between storage of “goods and merchandise” and storage of produce, and such a distinction was only introduced upon the amendment to cl 41 by LEP 201 (Amendment No. 8) on 19 December 1997. The Council says that “goods and merchandise” must therefore include produce, or anything that was intended for sale at the fruit and vegetable store. The Council submits that the consent could therefore not have been a lawful consent for the purpose of a fruit and vegetable store, as the shed did not comply with the maximum floor space of 150m² as defined at the time of consent as being “the whole of the area used for the display, sale and storage of goods and merchandise”.

91. The Council says that the purpose of the farm shed consent could have been for any innominate permissible use, including “bulk store”, which at that time was defined by the Environmental Planning and Assessment Model Provisions 1980 in s 4 as follows:

bulk store means a building or place used for the bulk storage of goods, where the goods stored or to be stored are not required for use in a shop or commercial premises on the same parcel of land or on adjoining land in the same ownership.

92. Nevertheless, the Council says that it could have been any innominate permissible use, and that the onus is on the applicant to establish the purpose of the use for which the consent was granted.

93. The Council also submits that neither the 1992 store consent, nor the loading consent, grant consent for a use of the existing shed for the purpose of the fruit and vegetable store. Similarly, it submits that the modification of the 1992 store consent, although changing the definition of “floor space” to align with LEP 201 (Amendment No. 8), did not modify the 1992 store consent to include any other areas approved for the purpose of the fruit and vegetable store.

The existing shed does not have consent for use as a fruit and vegetable store

94. As distinct from legal proceedings for a declaration on the existence, scope and purpose of an existing use, the present proceedings require me only to make a finding as to whether the proposed development is permissible with development consent. As set out earlier, the permissibility of the proposed development relies on there being an existing use of a building or land for the purpose of the fruit and vegetable store and, by Mr Agostino’s reliance on cll 42 or 43 of the EPA Regulation 2000, is constrained to the land “on which the existing use was carried out immediately before the relevant date” or “on which the building or work was erected or carried out immediately before the relevant date” pursuant to those clauses. For it to be permissible to enlarge or expand the existing use of the fruit and vegetable store into the existing shed, the existing shed must be a building for which development consent was granted for that purpose and must form part of the land “on which the existing use was carried out immediately before the relevant date” in accordance with the consent (as per cl 42). Therefore, in construing the farm shed consent, I need not determine the precise use for which the farm shed was approved, I need only determine whether the use was for the purpose of a fruit and vegetable store. For the reasons that follow, I do not so find.

95. Firstly, there is nothing in the consent that suggests that the purpose of the use was the fruit and vegetable store. Instead, the consent is for the construction of a “farm shed” and its purpose is for storage. What can be stored in the farm shed is limited by a condition of consent, which is “the parking of farm vehicles and equipment and for storage of produce grown on the property”. There is nothing that links that storage to the fruit and vegetable store. Even if, in fact, the produce grown on the site was later moved to the fruit and vegetable store for sale, that does not mean that the farm shed consent was for the purpose of the fruit and vegetable store.

96. Secondly, the farm shed consent predates the consent for the use of a building and area of land for the purpose of a fruit and vegetable store. At the time the farm shed consent was granted, there was no development consent for a store for the sale of fruit and vegetables. Whilst a shop operated on the site without development consent, in the absence of consent for the same there was no lawful place from which fruit and vegetables could be sold. I cannot accept that the farm shed consent was for the purpose of a fruit and vegetable store when, at the time, there was no lawful place from which there could be the sale of fruit and vegetables.

97. Thirdly, the floor area of the shed approved by the farm shed consent exceeded the floor area permissible for a fruit and vegetable store, under the definition of floor area that was in place at time of the grant of consent. The shed shown on the approved plans for the farm shed building permit, which approved the construction of the existing shed the subject of the farm shed consent, has a floor area of 228.5m². This exceeds the limit of 150m² on “the area used for the display, sale and storage of goods and merchandise, whether or not any part of the floor area is external to any building”. I do not accept the submission made on behalf of Mr Agostino that the use of the words “storage of goods and merchandise” within the definition of floor area excludes the storage of produce pending its sale at the store. Such an exclusion was introduced by LEP 201 (Amendment No. 8) but did not exist at the time the consent was granted. “Goods” can be broadly defined and includes agricultural goods, and “goods and merchandise” would include anything that was sold at the fruit and vegetable store. Consistent with the decision of the Court of Appeal in Agostino v Penrith City Council, the floor area of the size approved in the farm shed consent meant that its use for the purpose of a fruit and vegetable store was prohibited.

98. Fourthly, it would be contrary to the 1992 store consent for the existing shed to be used for storage for the purpose of the fruit and vegetable store. The 1992 store consent includes condition 16, which states that “All materials and goods associated with the use are to be contained within the building at all times. In this regard all goods for sale or display are to be contained within the building”.

99. Further, neither the 1992 store consent nor the loading consent authorised the use of the existing shed for the purpose of the fruit and vegetable store.

100. Therefore, I am not persuaded that the farm shed consent authorised the use of the existing shed for the purpose of a fruit and vegetable store.

The land on which the existing use was carried out at the relevant date

101. The use as approved by the modified store consent and the loading consent, is an existing use for the purpose of a fruit and vegetable store, within the meaning of s 4.65(b) of the EPA Act. The extent of that existing use is limited by the terms of those consents. It does not extend to the existing shed, which is outside the scope of those consents and was erected pursuant to the farm shed consent.

102. Similarly, the land “on which the existing use was carried out immediately before the relevant date” for the purpose of cl 42, and the land “on which the building or work was erected or carried out immediately before the relevant date” for the purpose of cl 43, is limited by the terms of the 1992 store consent and the loading consent, and does not extend to the existing shed.

103. The relevant date for the purpose of the 1992 store consent is the date on which the store extension, parking area and landscaping were complete. The land on which the existing use was carried out immediately before that date is the area that includes the building as extended, the area for car parking, the area for vehicle manoeuvring and the landscaped areas. The modification of the 1992 store consent did not change the extent of the land on which the existing use was carried out.

104. The relevant date for the purpose of the loading consent is the date on which the colourbond roof over the unloading area at the rear of the store was constructed or when the area was first used following the grant of consent. The land on which the existing use was carried out immediately before that date is therefore the area depicted in the plan for the loading area, and the access driveway to that area (see Figure 3 above at [35]).

105. The other parts of the site are being used for separate and independent uses. The fact that, in practice, some produce resulting from the horticultural use was sold in the fruit and vegetable store does not mean that those two uses did not retain their independence, in the same way that independence exists for horticultural uses located offsite that deliver their goods to a fruit and vegetable store for sale. The fact that the development consents concern only part of the site, and the site contains other separate and independent uses, means that the circumstances of this case are distinct from the circumstances considered by Preston CJ in Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council.

106. There is, therefore, power to grant development consent for the alterations and additions to the fruit and vegetable store, as the areas in which those alterations and additions are sought are within the land on which the existing use was carried out at the relevant date. This includes the extension to the front of the existing store, the construction of the bull nosed verandah on the western elevation, and the internal alterations to provide additional storage and expanded loading dock. However, there is no power to grant development consent for the enlargement, expansion or intensification of the existing use into the existing shed pursuant to cl 42 of the EPA Regulation 2000.

The outcome of the appeal

107. Pursuant to s 4.16(4) of the EPA Act, the Court has the power to grant consent to the development for which consent was sought, except for a specific part or aspect of that development. The Court also has power to impose conditions of consent, including conditions that modify details of the development the subject of the development application (s 4.17(1)(g) of the EPA Act).

108. There are no contentions raised by the Council with respect to the merits of the development application. Based on the Amended Statement of Environmental Effects dated 10 February 2022, I have considered the matters arising pursuant to s 4.15(1) of the EPA Act and I am satisfied that the appropriate outcome for the appeal is the grant of development consent for that part of the development application comprising the store extension, verandah and additional storage area.

109. That part of the development application that concerns the use of the existing shed for the fruit and vegetable store must be refused, as development for the purpose of the fruit and vegetable store is prohibited on the site and the existing shed falls outside of the land used for the existing use. Although the impact of using the existing shed for the storage of produce for the purpose of the fruit and vegetable store may be de minimis, its use for that purpose is not a matter about which there is any discretion for the determination of the development application. There is no power to grant development consent to that aspect of the development application pursuant to cll 42 or 43 of the EPA Regulation 2000.

110. Consistent with the decision in Butler Street Community Network Incorporated v Northern Region Joint Regional Planning Panel (2017) 226 LGERA 213; [2017] NSWLEC 51, the power that arises under s 4.16(4) of the EPA Act allows the Court to grant a valid consent in relation to only part of a development application, without any requirement for the applicant to amend the development application (see [34]-[46]).

111. The Court orders that:

1. The appeal is upheld.

2. The development application DA21/0432 is determined by the grant of consent for alterations and additions to the existing fruit and vegetable store at 312 Third Avenue, Llandilo (the land) subject to the conditions in Annexure A, except for the enlargement, expansion and intensification of the use of the fruit and vegetable store into the existing metal farm shed on the land.

J Gray

Commissioner of the Court

Annexure A (202829, pdf)

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Decision last updated: 23 May 2022