Armstrong v Ashfield Municipal Council - [2001] NSWLEC 277

No judgment structure available for this case.

Reported Decision: 119 LGERA 384
APPEAL PARTLY DISMISSED

Land and Environment Court

of New South Wales

CITATION: Armstrong and Anor v Ashfield Municipal Council [2001] NSWLEC 277

PARTIES:
APPLICANTS:
Leonard Armstrong
Christina Armstrong
RESPONDENT:
Ashfield Municipal Council

FILE NUMBER(S): 40184 of 2001

CORAM: Talbot J

KEY ISSUES: Existing Use Rights :- inference to be drawn from historical records - effect of consent to continuation of use under cl 34 of the County of Cumberland Planning Scheme Ordinance - categorisation of use.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 106, s 106(b)(i), s 109B
Local Government Act 1919 s 341, s 342 AS
Ashfield Local Environment Plan 1985
County of Cumberland Planning Scheme Ordinance cl 24, cl 34, cl 34(1), cl 34(2)
Ordinance No. 105 Town and Country Planning - General Interim Development

CASES CITED: North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd and Others (1989) 67 LGRA 344;
Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305;
Shire of Perth v O'Keefe and Another (1964) 110 CLR 529;
South Sydney City Council v M. & D. Cooper (Bignold J, NSWLEC, 28 May 1997, unreported);
Woollahra Municipal Council v Banool Developments Pty Limited (1973) 129 CLR 138;
Woollahra Municipal Council v Hinton (1967) 13 LGRA 417

DATES OF HEARING: 29/10/2001, 20/11/2001 (final written submissions)

DATE OF JUDGMENT:
12/07/2001

LEGAL REPRESENTATIVES:

APPLICANTS:
Mr DP Wilson (Barrister)
SOLICITORS:
Wilshire Webb
RESPONDENT:
Mr MG Craig QC
SOLICITORS:
Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND Matter No. 40184 of 2001
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 7 December 2001

Leonard Armstrong
Christina Armstrong

v

Ashfield Municipal Council

Respondent

REASONS FOR JUDGMENT

1. The applicants are the proprietors of land known as lot 1 DP 908000, 6 Kensington Road, Summer Hill (“the premises”). Erected on the land is a building currently divided into four flats. Under the Ashfield Local Environment Plan 1985 (“the LEP”), gazetted on 20 December 1985, the land is in Zone No. 2 (a) (Residential Zone). The use of the land for the purposes of a residential flat building has been at all times prohibited in the Residential 2(a) zone.

3. These class 4 proceedings were commenced on 5 October 2001.

5. On 9 October 2001 the Registrar made an order that the class 4 proceedings be listed for hearing at the same time as the class 1 appeal (No 10133 of 2001). On 29 October 2001 the further hearing of the class 1 proceedings was stood over to judgment in this matter.

The history upon which the applicants rely

6. The council admits that a dwelling house was erected on the premises in 1886. At that time there was no relevant legislation which had the effect of forbidding the erection of a dwelling house.

7. Ordinance No. 105 Town and Country Planning – General Interim Development (“Ordinance 105”) was proclaimed on 9 November 1945 pursuant to Pt XIIA of the Local Government Act, 1919 (“the LG Act”): Division 7.

8. The County of Cumberland Planning Scheme Ordinance (“the Planning Scheme Ordinance”) commenced on 27 June 1951.

11.

No. 4

No. 6

13. The recommendation was confirmed in the Works Committee’s Report (“the Report”) dated 7 October 1953 with a further recommendation that the town planners report be adopted and approval be granted.

14. The Report was read and adopted at the meeting of the council held on 13 October 1953.

Replying to your letter of the 23rd ultimo, I wish to advise that the Council offers no objection to the continued use of premises Nos. 4 and 6 Kensington Road, Summer Hill as flatettes.

16. According to the applicants, although taking advantage of an application pursuant to cl 34 of the Planning Scheme Ordinance is a matter of discretion, the council records disclose that an application was made, that the council dealt with the application in accordance with cl 34 and that the council approved the application. Moreover, although the letter to the bank on 14 October 1953 was not in terms an approval, the minutes and other records of the council suggest that is what the council did.

18. The applicant relies on the Valuer-General’s entries to show that the building was being used as flats at least between 1949 and 1967.

19. On 17 July 1974 the council issued a notice requiring the owner/occupier of the premises to cease the use and occupation of the premises for the purpose of a “residential flat building” within the meaning of the Planning Scheme Ordinance within 60 days.

20.

“Residential Building”

Use of premises Nos. 4 and 6 Kensington Road as Flatettes Approved C/M. 13/10/53.

21. By letter dated 28 October 1974 the council confirmed that a check of its records disclosed that the “subject premises has been approved as residential flats” .

22. A report by the council’s health inspector in respect of a building application made in 1974 refers to the building on the site as being “used as 5 flatettes” . A report by the municipal engineer refers to “an existing two-storey building which contains five separate occupancies”. The engineer also reported that inspection of the premises revealed that there was only one bathroom and one laundry for the five separate occupancies.

23. Documents in the council’s file bearing dates in 1977 make reference to “Flat No. 6” , “Flat 5” and “Flat 6” .

24. An office memorandum in respect of a building application made in November 1977 refers to “ an existing two storey residential flat building consisting of four (4) flats”.

25. Again, in 1979 there is reference to “FLAT NO. 6” in a final notice issued under the Public Health Act 1902.

26. In a statutory declaration Gary William Price declares that he was a half owner of the property known as 6 Kensington Road, Summer Hill between 1981 and November 1988. Mr Price says that the house was divided into four residential flats at the time of purchase and was used in that way for the entire period until 1988. Mr Armstrong declares that the premises “has only ever been used as four (4) residential flats” since November 1988.

SUMMER HILL, 6 KENSINGTON ROAD.

28. It is the applicants’ case that the evidence shows a relevant continuous use for the purpose of a residential building consistent with the definition contained in the Planning Scheme Ordinance. Firstly, the use for the purpose of a residential building was permissible under the Ordinance. Secondly, the satisfaction of the criteria under cl 34 of the Planning Scheme Ordinance effectively confirmed that use. Thirdly, the consent to the continuation of the use in 1953 was not only confirmatory and declaratory, it was a valid consent granted pursuant to cl 34 which “of itself” permits the use.

The council’s response

29. The council, through Mr Craig QC, contends to the contrary, namely that the applicants must demonstrate the continuous use of the property as being for four flats. It is not sufficient to use an indeterminate expression such as a residential building or residential flat building. Even accepting that the use for the purpose of four residential flats has continued since the 1970’s, nevertheless the applicants must establish that the building was used for that purpose before 12 July 1946 when Ordinance 105 came into effect.

30. The council relies on the Valuer-General’s records which show that in 1943 the nature of the improvements were identified as a “House” and were identified as such once again in 1946.

31. According to the council, no clarification about the exact nature of the occupancy of the premises can be obtained from the searches made in the electoral roll. They merely show that in 1944 and 1946 persons with unrelated surnames were entered as residing at the premises. Mr Craig says the only inference to be properly drawn from this is that five unrelated persons were residing at the premises during those years. Furthermore, doubt is cast by the reference to two flats in the Valuer-General’s records in 1949 and 1952.

32. The council has produced, from its own records, a register of applications for licenses and permits in respect of “Boarding & Lodging” . Number 6 Kensington Road is recorded in the register for the periods 1 July 1962 to 30 June 1963 (7 lodgers), 1 July 1964 to 30 June 1965 and 1 July 1965 to 30 June 1966. There is a further inconclusive entry in the register as at 30 June 1962. Mr Craig contends that the entries in the boarding and lodging register alone spell the end of the applicant’s claim for continuity even assuming that the use for four flats in 1946 is established.

The 1953 consent – the effect of clause 34

33. As a matter of construction cl 34 of the Planning Scheme Ordinance enabled an owner to obtain a confirmation from the council that an existing use may continue. The consequence of granting an application made under cl 34 should not be construed as development consent. In terms, what the council granted, pursuant to cl 34, was “consent … to the continuation of the existing use of the building” . It nevertheless serves to confirm what the existing use was at the date of the consent, namely the use of the building for the purpose for which it was used immediately before the appointed day as set out in the definition of “Existing use” . The appointed day was 27 June 1951. Although not elegantly expressed the letter dated 14 October 1953 is consistent with an application received, considered and determined pursuant to cl 34. The application made by letter on 23 September 1953 referred to “the continued use… as flatettes” . A report by the town planner to the Works Committee recommended approval be given to the continued use as residential buildings. The Works Committee recommended that the town planners report be adopted and approval be granted. The council minutes record that the item relating to 6 Kensington Road “was read and adopted” . There is an obvious conflict between the adoption of the town planners report, referring to “residential buildings” , and approval to an application for the “continued use… as flatettes” . There is consistency between the application, the identification of the application in the Report to the council and the letter of approval. The preferred conclusion, in the Courts opinion, is that the existing use for which consent was granted pursuant to cl 34 is for flatettes which fall within the definition of a residential building found in cl 24 in Pt III – Building Restrictions and Use of Land in the Planning Scheme Ordinance.

“Residential building” means a building, other than a dwelling-house, designed for use for human habitation together with such outbuildings as are ordinarily used therewith, a residential flat building, a hostel, an hotel designed primarily for residential purposes and a residential club, but does not include any building mentioned, whether by inclusion or exclusion, in the definitions of “places of instruction” and “institution”.

35. The Court agrees with Mr Craig that, notwithstanding the definition in the Planning Scheme Ordinance, the description of the use in 1953 as a residential building lacks the level of particularity essential to provide an understanding of the specific use.

36. In the present context and even after having regard to the definition, which is of doubtful assistance, the word residential can only be given a generic meaning encompassing any building used for the purpose of human habitation. This contemplates a wide scope of uses ranging from a single dwelling house, a boarding house and a residential flat building to a hostel or residential hotel. In the Court’s view, greater particularity is required for present purposes ( Shire of Perth v O’Keefe and Another (1964) 110 CLR 529 at 535 and Woollahra Municipal Council v Banool Developments Pty Limited (1973) 129 CLR 138 at 145). It is not a case of confining the use to a precise activity but rather ensuring that the description is not so wide that the contemplated uses are incapable “of being treated as all or the majority of the species of a genus” ( Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 311).

37. The adoption of a residential building as the subject of the 1953 consent in the way the applicants claim would have the difficult consequence that, in accordance with the authorities, it may not properly be regarded as describing an existing use. Nevertheless, the consent provides evidence that the building was being used as a residential flat building configured as four flatettes at that date.

The use prior to 1946

38. The council does not concede that evidence taken from the electoral rolls shows that there were different occupancies of the building in the years up to and including 1949. Nor does it accept that it is sufficient to identify the use of the building simply as a residential building prior to Ordinance 105 having effect.

39. Whatever the use was prior to Ordinance 105 it is conceded that consent was not required for that use up to that time.

The use between 1946 and 1951

40. The only evidence in this period is that in 1946 the Valuer-General referred to the nature of the improvements as a house but that by 1949 the use was described as a house used as two flats. The latter description continued until 1952.

41. It is therefore open for the Court to accept that when the Planning Scheme Ordinance commenced the building had been divided into at least two flats. Although the Valuer-General has referred to two flats it is nevertheless reasonable for the Court to accept the correctness of the judgment made by the council when it dealt with the application for consent in 1953. Accordingly, the Court finds that when the Planning Scheme Ordinance commenced the building was being used for the residential purpose of four flatettes.

The use between 1951 and 1985

42. The documentary material provided to the Court from the council records together with the statements made by previous owners show that on the balance of probabilities the building has been used for a residential purpose during the whole of this 34 year period.

43. It is Mr Wilson’s contention, on behalf of the applicant, that even if the building was used for boarders and lodgers, which the applicant does not accept, that use is not inconsistent with the 1953 approval. In other words, the use for the purposes of boarding and lodging can be properly characterised as a residential use.

44. There is a clear record over this period of time that the number of flats was variously four, five or six. Here again, Mr Wilson says that this shows the building was continually used for the purpose of residential flats conformably with the 1953 consent and the uses prior to 1953.

45. On the other hand, Mr Craig contends that the evidence clearly shows disruption of a continued use for the purpose of four flats. An inference to be raised from the electoral roll records, according to Mr Craig, is that as five unrelated surnames appear there could have been five separate occupancies in 1944 and 1946. This suggests that the building was being used for a greater number of flats prior to the commencement of Ordinance 105 on 12 July 1946. Furthermore, the Valuer-General’s records show that the improvement was recognised only as a house between 1943 and 1946. Thereafter until 1952, the Valuer-General’s reference to only two flats denies the applicants’ proposition of a use as four flats.

46. Mr Craig submits that the record of applications for licenses to permit boarding and lodging either entitles the Court to draw the inference that there was a boarding house use for up to 7 lodgers from 1946 through to the 1960’s or, alternatively, the Court may assume that if there were in fact four residential flats in July 1946 this use was abandoned when the boarding house use commenced. Moreover, the description of the premises in the report by the Building Inspector in 1974 is not consistent with the description given by the owners since 1981.

The correct designation of the existing use

47. The definition of “Residential building” in cl 24 of the Planning Scheme Ordinance, set out in full earlier, is wide enough to include any building designed for use for human habitation other than a dwelling house. Specifically, it refers to a residential flat building, a hostel, an hotel designed primarily for residential purposes and a residential club with certain exclusions which are not relevant to the present inquiry.

48. It is submitted by the council that a characterisation more specific than “Residential building” is required. On the other hand, it is the applicant’s contention that the approach to be taken is not one of meticulous examination or cataloguing of the details of activities but instead asking what is, according to ordinary terminology, the appropriate designation of the purpose being served by “the use” of the premises at the material date ( O’Keefe at p 535 per Kitto J).

49. The approach by the applicant demands the literal application of terms used in cases such as O’Keefe in a different context. The use of the terms “broadly” or “liberally” (see North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd and Others (1989) 67 LGRA 344 ) need to be applied having regard to the circumstances in each case. The use of a broad term such as “Residential building” could lead to the inclusion of disparate uses in an existing use.

50. The Court is satisfied that a consent granted pursuant to cl 34 of the Planning Scheme Ordinance is not a development consent, notwithstanding the decision by Bignold J in South Sydney City Council v M. & D. Cooper (Bignold J, NSWLEC, 28 May 1997, unreported). His Honour does not refer specifically to the clearly distinguishing separate provision for an appeal against a decision of the responsible authority pursuant to cl 34(2) of the Planning Scheme Ordinance as distinct from an appeal against the determination of a development application pursuant to s 341 of the LG Act as it then was. Furthermore, Bignold J, in considering the effect of a consent granted pursuant to cl 34 of the Planning Scheme Ordinance, in the context of s 109B of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”), held that it may fairly be regarded as the equivalent to a “consent to use a building” within the meaning of Pt III of the Planning Scheme Ordinance. Section 109B does not deal with existing uses. Section 106(b)(i) refers to the use of a building “for which development consent was granted” .

51. In the Court’s opinion, the application of the definition of a residential building as it appears in the Planning Scheme Ordinance is not appropriate. The use, more particularly identified in 1953 was a residential flat building divided into four flatettes.

52. In Woollahra Municipal Council v Hinton (1967) 13 LGRA 417 Hardie J, after referring to O’Keefe , thought that although in one sense it is correct to say that the premises were being used for residential purposes that designation or classification is much too wide and general for the purpose of identifying an existing use.

53. The appropriate designation of purpose is a question of fact to be determined according to ordinary terminology ( O’Keefe at 535). Care must be taken not to descend below the level of purpose to the detail of activities carried on ( O’Keefe at 536).

54.

Royal Agricultural Society

…a test that has been devised which requires the purpose of the use of the land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. Thus the test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. But it is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land.

55. Put simply, the Court may have regard to the history of activity on the land and the use of the building over time to determine whether an overriding common purpose has been served. It is not appropriate then to seek to fit the overriding common purpose into a category or definition found in a planning instrument or even in general town planning parlance. Adopting that approach, the Court is able to find that the use of the premises, following its conversion from a house into flats, has been for the purpose of multiple occupancy residential accommodation. That use was permissible as an existing use under the Planning Scheme Ordinance. Its continuation was authorised by the 1953 consent. When the LEP came into effect the use of the building was prohibited as a residential flat building.

56. The occupation of the buildings as four flatettes and approval as an existing use in 1953 fits in the genus of use determined above as multiple occupancy residential accommodation. The Court is satisfied that use, as broadly defined, continued until 1985. Furthermore, on the balance of probabilities the Court is satisfied that the building was being used for the purpose of multiple occupancy residential accommodation when Ordinance 105 came into operation. The Valuer-General had adopted the description of two flats by 1949. However, more telling, is the electoral roll record which strongly infers that different family groups and individuals occupied the building concurrently from at least 1940 through to 1949. Although the Valuer-General continued to describe the improvement as a house in 1946 that fact alone does not preclude separate occupancies within the house at that time.

57. Giving primacy to the protection of the existing use in the broad sense the Court is satisfied, on the balance of probabilities, that the use of the building was for a lawful purpose immediately before the coming into force of the LEP.

(1) Declaration that the use of the building on land known as lot 1 DP 908000, 6 Kensington Road, Summer Hill for the purpose of multiple occupancy residential accommodation including a residential flat building is an existing use within the meaning of s 106 of the EP&A Act.

(3) The exhibits may be returned.

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Citations

Armstrong v Ashfield Municipal Council [2001] NSWLEC 277

Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

5

Shire of Perth v O'Keefe [1964] HCA 37

Woollahra Municipal Council v Banool Developments Pty Ltd [1973] HCA 65

CITATION:	Armstrong and Anor v Ashfield Municipal Council [2001] NSWLEC 277
PARTIES:	APPLICANTS: Leonard Armstrong Christina Armstrong RESPONDENT: Ashfield Municipal Council
FILE NUMBER(S):	40184 of 2001
CORAM:	Talbot J
KEY ISSUES:	Existing Use Rights :- inference to be drawn from historical records - effect of consent to continuation of use under cl 34 of the County of Cumberland Planning Scheme Ordinance - categorisation of use.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 106, s 106(b)(i), s 109B Local Government Act 1919 s 341, s 342 AS Ashfield Local Environment Plan 1985 County of Cumberland Planning Scheme Ordinance cl 24, cl 34, cl 34(1), cl 34(2) Ordinance No. 105 Town and Country Planning - General Interim Development
CASES CITED:	North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd and Others (1989) 67 LGRA 344; Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305; Shire of Perth v O'Keefe and Another (1964) 110 CLR 529; South Sydney City Council v M. & D. Cooper (Bignold J, NSWLEC, 28 May 1997, unreported); Woollahra Municipal Council v Banool Developments Pty Limited (1973) 129 CLR 138; Woollahra Municipal Council v Hinton (1967) 13 LGRA 417
DATES OF HEARING:	29/10/2001, 20/11/2001 (final written submissions)
DATE OF JUDGMENT:	12/07/2001
LEGAL REPRESENTATIVES:	APPLICANTS: Mr DP Wilson (Barrister) SOLICITORS: Wilshire Webb RESPONDENT: Mr MG Craig QC SOLICITORS: Pike Pike & Fenwick