Auburn Council v Nehme, E.
[1998] NSWLEC 14
•04/15/1998
Land and Environment Court
of New South Wales
CITATION: Auburn Council v Nehme, E. [1998] NSWLEC 14 PARTIES: Auburn Council v Nehme, E. FILE NUMBER(S): 40241 of 1997 CORAM: Bignold J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s109B CASES CITED: South Sydney City Council v M & D Cooper (unreported, 28 May 1997, 40020/97;
Manicaland Pty Ltd v Strathfield Council ;
see Eaton & Sons Pty Limited v Warringah Council 129 CLR 270 at 292-294;
Drummoyne Municipal Council v Cavallaro (1982) 46 LGRA 416;
Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 South Sydney City Council v CooperDATES OF HEARING: 19 March 1998 DATE OF JUDGMENT:
04/15/1998LEGAL REPRESENTATIVES: N/A
Williams Hussain
JUDGMENT:
JUDGMENT
Bignold J :
By its class 4 application filed on 29 September 1997, the Council seeks declaratory and injunctive relief in respect of the Respondent’s use of the premises known as 44 Kibo Road, Regents Park (the subject premises) for the purposes of a squash court and ancillary recreational activities.
In particular the Council seeks a declaration that the use of the subject premises for the aforesaid purposes has been abandoned. This is a reference to the “abandonment” of an “existing use” referred to in s107(2)(d) of the Environmental Planning and Assessment Act 1979 (EP&A Act). The Council’s claim for the declaration is founded upon s.107(3) of the EP&A Act which provides as follows:
- “Without limiting the generality of subsection (2)(d), a use shall 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.”
Throughout the hearing the Council maintained the position that (i) the relevant use of the subject premises for squash court purposes had been sanctioned by a development consent granted at some time in the 1950’s, at a time when relevant town planning controls operated by virtue of the provisions of the County of Cumberland Scheme Ordinance which came into force on 27th June 1951 and (ii) the approved use continued until 1990 when it ceased following hail storm damage to the roof of the squash court building and (iii) during the life of the squash court use of the subject premises, the Auburn Planning Scheme Ordinance had come into force on 18 September 1970 and (iv) that in terms of that Ordinance (which replaced the County of Cumberland Ordinance) the subject premises were included in Zone 2(a) “Residential” in which zone development for the purposes of commercial squash courts was absolutely prohibited.
Although the evidence adduced by Council is somewhat sketchy it tends to establish that the use of the squash courts ceased sometime in 1990 and was not revived until 1996 when the Respondent who had recently acquired the subject premises, carried out extensive renovations to the squash court building (approximately $100,000) and recommenced the commercial use of the squash courts, notwithstanding the Council’s refusal of the Respondent’s development application to recommence that use.
The Respondent who was not legally represented was not able to refute the Council’s evidence, although he was able to provide some evidence which tended to suggest that the cessation of the use of the squash courts by his predecessor in title had not been accompanied by any intention to abandon the use.
However, on balance I think the Council’s case has established an abandonment of the existing use for the purposes of the squash courts within the meaning of ss 107(2)(d) and (3) of the EP&A Act.
Accordingly, if the case fell to be decided by reference to s107 of the EP&A Act, which was the foundation for the Council’s case, the Council would have successfully established that the Respondent, in recommencing the abandoned existing use for squash court purposes, had done so in breach of the EP&A Act (vide s76(3) of the EP&A Act) and that the only question (not seriously in dispute) was concerned with the exercise of discretion by the Court to grant or withhold the injunctive relief claimed.
However the Council’s case, as I have summarised above, entirely overlooked the provisions of s109B of the EP&A Act, which in the course of argument I drew to Council’s attention and inquired as to how, if at all, that section impacted upon the case. In this context, I also drew to Council’s attention my decision in South Sydney City Council v M & D Cooper (unreported, 28 May 1997, 40020/97) in which s109B had been expounded and applied with decisive effect.
It was in these circumstances that I granted Council leave to make additional submissions on the question of the application to the facts of this case of s109B of the EP&A Act. On 9 April 1998, Council made further written submissions on the reserved question and I have been considerably assisted by them and for completeness I annex a copy to this judgment.
Since the Respondent is not legally represented, and owing to the legal technicalities involved in the argument, I have not received and do not expect to receive, any submissions from the Respondent and proceed at once, to judgment.
As will be seen, from paragraph 2 of the Council’s written submissions, the question of the application of s109B of the EP&A Act is dependent upon the facts noted as “assumed facts” in the submission. I adopt those facts as my findings in the present case, noting that they are entirely consistent with the facts as represented by the Council throughout the hearing and are fully supported by the somewhat fragmented documentary evidence tendered in the Council’s case. That evidence did not include a copy of the relevant development consent but the grant of the relevant consent sanctioning the squash court use was not put in issue by the Council and may be inferred to be the fact pursuant to the presumption of regularity: see Manicaland Pty Ltd v Strathfield Council (unreported 12 December 1997)
It is necessary to set out the terms in full of s109B which was introduced into the EP&A Act in 1992 by the Environmental Planning and Assessment (Miscellaneous Amendments) Act 1992 (No. 90):
- “Saving of effect of existing consents
109B. (1) Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force.
(2) This section:
(a) applies to consents lawfully granted before or after the commencement of this Act; and
(b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent; and
(c) has effect despite anything to the contrary in section 107 or 109.
(3) This section is taken to have commenced on the commencement of this Act.”
It is to be noted that s109B of the EP&A Act is deemed to have commenced at the commencement of the EP&A Act : see s109B(3) .
In Council’s written submissions, it is argued that s 109B only applies to a development the subject of a consent which has been granted and is in force, where the approved development has not yet been carried out. That argument was claimed to be supported by:
(a) the heading to the section;
(b) the supposition that the section was designed to fill a lacuna in the EP&A Act, namely that development the subject of a consent which had not been acted upon did not qualify as an existing use for the purpose of ss107 and 109 of the EP&A Act, and
(c) without adopting the Council’s construction, the “abandonment” provisions expressly contained in ss107 and 109 would have no effect in respect of existing uses which derived their legitimacy (“for a lawful purpose”) from prior development consents.
In my opinion the Council’s principal argument, asserting that s109B of the EP&A Act only applies in a case where an approved development has not yet been carried out, must be rejected as it attempts to put a significant gloss on the language of the section, without any justification for so doing.
An attempted justification may be found in the harmonisation of ss107, 109 and 109B of the EP&A Act. However this attempt falls foul of the express terms of s109B(2)(c) and for this reason alone cannot be accepted.
It is true that the task of interpreting s109B must recognise the legislative context and history of the section, but if there is any contrariety between s109B and other sections within Division 2 of Part 4 of the EP&A Act, the former must prevail by force of s109B(2)(c).
In any event I do not see any contrariety or conflict between the sections and in particular any conflict between ss107 and 109B. The Council’s argument overlooks the plain fact that s107 is predicated upon an “existing use” as defined in s106 and emphasises use whereas s109B refers to a “development consent”. It has long been settled that there is a vital distinction between “uses” that exist in fact and uses which are only in prospect by virtue of the grant of a development consent (see Eaton & Sons Pty Limited v Warringah Council 129 CLR 270 at 292-294 per Stephen J.).
Another vital difference between the two sections is that s107 preserves “the continuance of an existing use” whereas s109B authorises the carrying out of “development” (a term much wider, but encompassing “use”: see definition of development in s 4 of the EP&A Act).
The same comments can be made in respect of the relationship between ss109 and 109B. In this respect the heading to s109 (Existing Consent) is perhaps misleading and the term is nowhere to be found in the section.
For the foregoing reasons I must reject the Council’s argument that s109B does not apply to the facts of the present case on the suggested ground that the section only applied to development consents which had not been implemented. The obvious flaw in this argument is that unless the development consent sanctioning the squash court use had relevantly come into effect by virtue of the development being carried out prior to the commencement of s109B, it would not qualify as a development consent that “is in force” within the meaning of the section..
This brings me to consider the second limb to the Council’s argument, namely that s109B did not apply to the relevant development consent because it was not “in force” within the meaning of s109B(1).
This submission was founded upon the proposition that the relevant development consent ceased to be in force by virtue of the abandonment of the use within the meaning of s107(2)(d).
In my opinion this argument is flawed and must be rejected since for the reasons already given, s109B clearly operates in relation to a development consent independently of the effects of s107 and in any event is expressly declared to have effect “despite anything to the contrary in s 107 or 109”: vide s109B(2)(c) of the EP&A Act.
Although an “existing use” may depend upon a development consent for its “lawfulness” (Drummoyne Municipal Council v Cavallaro (1982) 46 LGRA 416) a development consent is not an indispensable element of an existing use: Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404 where the use predated the introduction of planning controls.
Moreover, s107 in terms, says nothing about “development consents” and the Council’s argument is conceptually misconceived to the extent that it either deliberately or unwittingly elides into a single concept, the two distinct concepts of “existing use” provided for in s107 and existing consents provided for in s109B.
Additionally, as s109B(2)(b) makes abundantly clear, a development consent which has relevantly come into force (by dint of being acted upon by the development having been carried out) will only cease to be in force in accordance with the lapsing, revocation or modification provisions contained in the EP&A Act. Those provisions are contained in ss99 and 103 of the EP&A Act which are entirely separate from, and unaffected by, s107. (For completeness it may also be noted that it is possible for a development consent to be surrendered pursuant to ss91(3)(b) and 91(7) of the EP&A Act).
Ultimately the Council’s overall argument would seek to radically limit the apparently wide and beneficial scope and purpose of s109B by importing into the section the express strictures or limitations on the existing-use entitlements conferred by ss107 and 109. However no such strictures are expressed in s109B and there is simply no justification for the attempted importation. Moreover the section expressly negatives the operation of the strictures imposed on “existing use” entitlements conferred by ss107 and 109.
It may be accepted that s109B confers entitlements far more extensive than those pertaining to “existing uses” under ss107 and 109. However this result is clearly intended by s109B and cannot be avoided by an attempt to subordinate that section to the existing sections (ss107 and 109), which attempt flies in the face of the express provisions of s109B(2)(c).
For all the foregoing reasons I must reject the Council’s submission that s109B does not apply in the present case. Conformably to my decision in South Sydney City Council v Cooper, I hold that s109B applies in the present case to the development consent granted in the 1950s to the establishment and use of the squash courts on the subject premises, and so applies as to not prohibit the carrying out of the approved development in accordance with that consent.
It follows from these conclusions that the Council’s application must fail and I make the following orders:
1. Application be dismissed.
2. Exhibits be returned.
3. Question of costs be reserved.
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I HEREBY CERTIFY THAT THIS AND THE PRECEDING 9 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF HIS HONOUR MR JUSTICE N R BIGNOLD.
Associate
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