Botany Bay City Council v Baladi
[2003] NSWLEC 444
•12/17/2003
>
Land and Environment Court
of New South Wales
CITATION: Botany Bay City Council v Baladi and Ors. [2003] NSWLEC 444 PARTIES: APPLICANT:
RESPONDENTS:
Botany Bay City Council
Baladi and Ors.FILE NUMBER(S): 41029 of 2003 CORAM: Bignold J KEY ISSUES: Existing Use Rights :- Change of existing use - Use prohibited by Local Environmental Plan
LEGISLATION CITED: Environmental Planning and Assessment Act, s 106
Environmental Planning and Assessment Regulation 2000, cl.45
Botany Local Environmental Plan 1995CASES CITED: DATES OF HEARING: 17/12/2003 EX TEMPORE
JUDGMENT DATE :
12/17/2003LEGAL REPRESENTATIVES: RESPONDENTS
APPLICANT:
Mr T O’Connor, Solicitor
SOLICITORS
Houston Dearn O’Connor
Mr A Galasso, Barrister
SOLICITORS
Dan Simpson and Associates
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
BIGNOLD J
17 December 2003
41029 of 2003
JUDGMENTBOTANY BAY CITY COUNCIL v BALADI AND ORS
1. HIS HONOUR: The Court has before it two related proceedings: a class 4 proceeding in which the Council claims declaratory and injunctive relief in respect of the premises known as 4 Chalmers Crescent Mascot and an amended cross application claiming further declaratory relief. The relief claimed by the Council in the originating process is that the development of the premises for the purposes of a printery is prohibited by cl 10 of the Botany Local Environmental Plan 1995 based upon the relevant zoning controls imposed by that LEP.
2. The relief claimed in the amended cross application is that the subject premises relevantly enjoy an existing use entitlement pursuant to the provisions of the Environmental Planning and Assessment Act, Div 10, Pt IV.
3. If a case is made out for the Council’s declaration and a case is made out for the Cross Applicant’s declaration, there is no inconsistency between the positions respectively so declared. Indeed, there is perfect consistency inasmuch as the Council’s declaration declares the position in relation to the use of the premises as a printery as being prohibited by the Local Environmental Plan and the Cross Applicant’s claim to declaration if granted will give it the benefit of an existing use entitlement which it will then employ in advancing its case in the related class 1 proceedings being an appeal against the Council’s refusal of a development application to use the said premises for the purposes of a printery.
4. The principle reasons advanced by the Council in refusing development consent to the said development application were to the effect that the applicant for the development consent had not satisfied the Council that any relevant existing use entitlement inhered in the premises.
5. By consent I have heard today’s matters concurrently. Evidence has been led in the Council’s case and the Cross Applicant’s case which clearly establish the relevant zoning of the subject land under the Local Environmental Plan 1995, that zoning being Industrial Special Airport Related being zone 4C(1).
6. The evidence of both planners who have sworn affidavits in the case, that is, on behalf of the Council, the affidavit of Michelle Anne Ford and on behalf of the Cross Applicant, the affidavit of David Crane indicates that and satisfies me that the 1995 LEP prohibits the use of the premises for the purposes of a printery hence the Council’s claim to declaration in par 1 of the originating process not opposed by the Cross Applicant and Respondent to those proceedings has been made good and should be granted.
7. The position with the Cross Applicant’s claim to declaratory relief requires a little more consideration. It is supported by a number of affidavits read in the case without objection, including the affidavit of Mr Crane, the town planner. In addition to his affidavit there is the affidavit of Mr John Ingster sworn on 15 December 2003, the affidavit of Dennis Lacy sworn 21 October 2003, the affidavit of Janina Ingster sworn 23 October 2003 and the affidavit of John Evatt sworn 28 October 2003. There is also a statutory declaration sworn by Joseph Ingster on 1 July 2003, he being the father of John and Janina Ingster, whose affidavits have been read. Joseph was a director of the company, J&I Ingster Pty Limited, and owner of the premises from 1960 until the sale to the Respondents to the class 4 proceedings which was completed in March 2003. He has passed away since swearing the statutory declaration.
8. The affidavit evidence relied upon by the Cross Applicant is evidence of persons who were familiar with the use to which the subject premises were put from early in 1960 throughout the ownership of the company, J&I Ingster Pty Limited until its sale to the present Respondents in March this year. From a young age both children of the deceased Mr Ingster attended and/or worked at the subject premises whilst their father operated the business and latterly Mr John Ingster (the son) carried on the business. The affidavits of the two children of Mr Ingster, deceased, are corroborated by the affidavit of Dennis Lacy who worked as an employee of J&I Ingster at the premises from September 1975 until the end of October 2002 and are further corroborated by the affidavit of the owner and operator of a business located at 3 Chalmers Street, Mascot directly opposite the subject premises, who gives evidence of his knowledge and observations of the use of the subject premises from the time that he acquired his premises and operated his business, that is, from 1988 to 2003.
9. In addition, the planning evidence both of Mr Crane and Ms Ford traces the planning history of the subject premises back to the origins of the existing factory building which was approved by the Council in 1960 as a new factory building. That approval was granted in the letter of the Council dated 14 January 1960 which in turn operated as both an approval for the erection of a building under of the Local Government Act 1919, Pt 11 and approval under the relevant town planning requirements of the Local Government Act, Pt 12A.
10. The approval permitted the erection of the new factory building and the application which gave rise to the two approvals had stated that the purpose of the use of the building once built would be as a textile factory.
11. The relevant planning provisions governing the use of the premises are traced in the affidavits of the two planners and involve serially the provisions of the Cumberland Planning Scheme Ordinance, Interim Development Order 19 Botany, Local Environmental Plan 32 Botany. In terms of each of those successive planning controls the use of the premises for the relevant industrial purposes was for permissible use subject to the grant of consent. We know in the present case that the relevant consent was granted in 1960.
12. The position changed with the coming into force on 30 June 1995 of the Botany Local Environmental Plan 1995 in terms of which as I have earlier indicated the relevant zoning was changed to Industrial Special Airport Related 4C(1). Under that zoning the relevant land use controls relevantly prohibited textile factory use.
13. The evidence establishes to the satisfaction relevantly required, that the use being made of the premises at the commencement of the 1995 Botany Local Environmental Plan relevantly constituted an existing use within the meaning of the Environmental Planning and Assessment Act, s 106. The appropriate classification of the purpose of that existing use incontestably involves a factory use for the manufacture of textiles.
14. The Cross Application claims a declaration that the appropriate characterisation of the relevant existing use is for the purpose, “Textile manufacturing and flexographic printing on textiles.”
15. The evidence indicates that the printing aspect of the business is very long established and indeed the bulk of the eye witness evidence emphasises the printing aspect of the use made of the premises. Nonetheless, I am satisfied that the evidence does support the finding which I make that the existing use of the premises may relevantly be regarded as described in the amended cross application, namely, for the purpose of textile manufacturing and flexographic printing on textiles.
16. Accordingly, I am satisfied on the evidence that the declaration claimed in the amended cross application should also be made. That declaration, it is commonly agreed, vindicates the advancement of the current development application made by the Respondents to the class 4 proceedings as being authorised pursuant to the existing use entitlements conferred by the Environmental Planning and Assessment Regulation 2000 in terms of Part 5 of that regulation noting that cl 45 of the regulation requires development consent for any change of an existing use to another use.
17. The parties are agreed that in the event of the Court making the declaration as claimed by the Council and the declaration as claimed by the Cross Applicants in their amended cross application the appropriate order should, by consent be made that there be no order for costs in the proceedings. Accordingly, for the foregoing reasons I make the declaration claimed in par 1 of Council’s originating process. Secondly, I make the declaration claimed in par 1 of the amended cross application as further amended in Court today. Thirdly, by consent I order that there be no order as to costs in the proceedings.
HIS HONOUR: Is there a need to, gentlemen, to return the exhibits or should the exhibits in the class 4 proceedings stay with Court papers?
O’CONNOR: Your Honour, I think we would like a plan 1959, we want that returned. The other exhibits I have no problems with them.
HIS HONOUR: Mr Galasso, can the exhibits except for the plan be retained or should they be returned?
GALASSO: No, they can be retained, your Honour, I don’t think there’s any - the only original document is the statutory declaration of Mr Ingster elder but I don’t think that will be required in consequences of your Honour’s declaration.
HIS HONOUR: The statutory declaration?
GALASSO: I don’t think I need that, your Honour.
18. The exhibits other than exhibits 1 and B shall remain with the Court papers. Consequent upon the outcomes just announced in the class 4 proceedings the parties to the class 1 proceedings have handed up consent orders contemplating orders upholding the appeal, granting development consent subject to a number of conditions as set forth in the short minutes that have been prepared by the parties. The Council has tendered exhibit A, the relevant documents in those proceedings, and the applicant has tendered the relevant plans together with a statement of evidence of David Crane.
HIS HONOUR: Should the plans, Mr Galasso, that you have tendered as exhibit 2 be returned? I notice that they had the Council’s stamp on them.
GALASSO: I think we have copies of them but it is probably appropriate if they stay on the Court class 1 file as a record of the consent.
HIS HONOUR: It might as well because condition number 1 does refer to two of those plans.
GALASSO: Yes, I think it should probably stay.
HIS HONOUR: Do you agree, Mr O’Connor?
O’CONNOR: Yes, your Honour.
HIS HONOUR: The Council documents I shall return with the, yes, thank you, Mr O’Connor.
19. As I say the granting of the two declarations in the class 4 proceedings provides the foundation for the grant of development consent to the use of the subject premises as a printing factory pursuant to the enabling provisions contained in Part 5 of the Environmental Planning and Assessment Regulation in particular clause 45 so far as the change of use is concerned. Mr O’Connor on behalf of the Council has informed the Court that given the zoning of the subject premises and the nature of the existing development both on the development site and on the surrounding areas no public advertisement of the development application was required and no objections have been received to the application. Mr Crane’s statement of evidence contains planning opinion in support of the grant of consent and in these circumstances I consider it entirely appropriate that I adopt the outcome proffered by the parties and by consent, therefore, I make the orders set forth in the short minutes prepared by the parties signed by their legal representatives which I too shall sign and place with the Court papers. Order that the exhibits in the class 1 proceedings be returned and that there be no order as to costs in the proceedings.
O’CONNOR: I know I produced the disk to the Court. I don’t know whether that then led to the actual conditions forming an exhibit. I know the Court must have the conditions there in front of it.
HIS HONOUR: Do the short minutes reflect the contents of the disk, Mr O’Connor, so far as the subsequent pages are concerned?
O’CONNOR: It’s all right, your Honour, I didn’t see that that was attached, that’s fine.
HIS HONOUR: That’s the text of what the disk will show when it goes into the machine?
O’CONNOR: It should, your Honour, otherwise my secretary is to blame.
HIS HONOUR: Thank you, Mr O’Connor. I think the exhibits in the class - I don’t think there’s any need for me to - other than exhibit 2. Exhibit 2 to remain with the Court papers but in other respects the exhibits in the class 1 proceedings may be returned. Thank you, gentlemen.
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