Botany Bay City Council v Workmate Abrasives Pty Ltd (No. 2)

[2003] NSWLEC 166

>

Land and Environment Court

of New South Wales

CITATION:

Botany Bay City Council v Workmate Abrasives Pty Ltd & Anor (No. 2) [2003] NSWLEC 166

PARTIES:

APPLICANT
Botany Bay City Council

FIRST RESPONDENT
Workmate Abrasives Pty Ltd ACN 060 998 629

SECOND RESPONDENT
Ivan Debelak and Serge Debelak

FILE NUMBER(S):

40678 of 2002

CORAM:

Cowdroy J

KEY ISSUES:

Existing Use Rights :- approval for use - multiple consents - change of planning instruments - whether use is of same genus as the approved use - extent of applicability of genus principle

LEGISLATION CITED:

Botany Local Environmental Plan 1995
Environment Planning and Assessment Act 1979, s 4, s 78A, s 106, s 107, s 108, s 109B
Environmental Planning Legislation Amendment Act 1995, s 2
Environmental Planning and Assessment Regulation 2000 cl 41, cl 42, cl 50, Sch 1 Pt 1
Land and Environment Court Rules 1996, Pt 15 r 9(b)
Local Government Act 1919, Pt XIIA, s 342U(4)
Miscellaneous Acts (Planning) Repeal Amendment Act 1979, Sch 3 cl 1(1), cl 2(1), cl 7(1), cl 7(4)

CASES CITED:

ACR Trading Pty Ltd and Another v Fat-Sel Pty Ltd and Another (1987) 11 NSWLR 67;
Ashfield Municipal Council v Armstrong (2002) 122 LGERA 105;
Auburn Council v Nehme (1999) 106 LGERA 19;
Botany Bay City Council v Workmate Abrasives Pty Ltd ACN 060 998 629 & Anor [2003] NSWLEC 85;
Dosan Pty Ltd v Rockdale City Council (2001) 117 LGERA 363;
House of Peace Pty Ltd and Another v Bankstown City Council (2000) 48 NSWLR 498;
Lederer & Ors v Sydney City Council (2001) 119 LGERA 350;
North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd and Others (1989) 16 NSWLR 50;
Penrith Waste Services Pty Ltd v Penrith City Council (1998) 101 LGERA 98;
R v City of Oakleigh; Ex parte New Gamble Brickworks Pty Ltd (1964) 9 LGRA 258;
Rosenblum and Another v The Council of the City of Brisbane (1957) 98 CLR 35;
Royal Agricultural of New South Wales v Sydney City Council (1987) 61 LGRA 305;
Shire of Perth v O'Keefe and Another (1964) 110 CLR 529;
Sutherland Shire Council v Loney and Others (1986) 59 LGRA 376;
Woollahra Municipal Council v TAJJ Investments Pty Ltd (1981-1983) 49 LGRA 123

DATES OF HEARING:

31/03/03
26/06/03

DATE OF JUDGMENT:

07/18/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr T.S. Hale SC

SOLICITORS
Houston Dearn O'Connor

FIRST RESPONDENT
Steven Klinger (Solicitor)

SECOND RESPONDENT
Mr J. A. Ayling SC

SOLICITORS
Giles Payne & Co

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40678 of 2002

Cowdroy J

18 July 2003

Botany Bay City Council

Applicant
v

Workmate Abrasives Pty Ltd ACN 060 998 629

First Respondent

Ivan Debelak and Serge Debelak

Second Respondents

Judgment No. 2

Introduction

1 By notice of motion filed 17 June 2003 the applicant (“the council”) seeks to set aside the orders made on 16 June 2003 in the judgment of Botany Bay City Council v Workmate Abrasives Pty Ltd ACN 060 998 629 & Anor [2003] NSWLEC 85 pursuant to Pt 15 r 9(b) of the Land and Environment Court Rules 1996.

2 The council submits that the decision in Botany Bay City Council was based upon the finding that a letter sent by the council on 23 November 1984 to Naroba Pty Limited was a separate development consent. Naroba Pty Limited was carrying on business at 57-59 Baxter Road, Mascot (“the land”) at this time.

3 The applicant and respondents acknowledge that they do not consider such letter as a development consent and further acknowledge that the permission contained in such letter was never implemented.

4 The Court finds it necessary to reconsider the evidence and submissions now the status of the letter of the council dated 23 November 1984 has been clarified and will assume that the use referred to in such letter was not implemented.

5 The orders made in Botany Bay City Council have not been entered and on 26 June 2003 the Court revoked such orders and reversed the decision as a result of the matters now brought to the Court’s attention. The Court will now publish its amended judgment.

The proceedings

6 The council seeks a declaration that the land and factory building owned by the second respondent (“the respondents”) and occupied by the first respondent (“the tenant”) located on the land is being used for a purpose prohibited by cl 10 of the Botany Local Environmental Plan 1995 (“the LEP”). The alleged prohibited use is for the conversion of abrasive materials into belts, disks, sheets and rolls for warehouse distribution, and for offices associated with such use. The council seeks an order restraining the tenant from using the premises from such use and an order restraining the respondents from permitting such use.

7 The tenant submits to any order that the Court might make other than costs. In the event that an order is made restraining the current use of the land, the tenant requests a suspension of such order for a period of 6 months.

8 The respondents acknowledge that the land is being used for the purpose identified by council. The respondents also admit that pursuant to cl 10 of the LEP the subject land is zoned ‘No. 2(b) - Residential “B”’. Within such zone the uses of land for industrial purposes is prohibited. The respondents claim however have the benefit of existing use rights as defined in s 106 of the Environment Planning and Assessment Act 1979 (“the EP&A Act”) which relevantly provides:-

s 106 Definition of “existing use”
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 Division 4A of Part 3 or Division 4 of this Part, 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 …

The respondents allege that such existing use rights continue by virtue of s 107(1) of the EP&A act which states:-

s 107 Continuance of and limitations on existing use

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

Planning History of the Land

9 Between 1959 and 1984, five development applications have been made to the council pursuant to the prevailing planning laws affecting the land.

First Development Application and consent (“1959 Consent”)

10 On 29 January 1959 an application was made by WM.N. Barron Pty Limited to the council (then known as Botany Bay Municipal Council) seeking permission to use the land as a steel store to enable that company to conduct business as steel merchants. At that time the land was subject to the County of Cumberland Planning Scheme Ordinance (“the CCPSO”) and pursuant thereto the land was zoned “Industrial Area, Class “A”.

11 By letter dated 16 February 1959 the council granted consent to the application in respect of the following use:-

Brief Description of Application: Change of Use – Steel Store

Second Development Application and consent (“1966 Consent”)

12 Monosteel Holdings Pty Limited, tenant of the land, submitted a Town Planning Development Application dated 19 July 1965 to the council to use the land for the purpose of steel store, office and amenities, welding and fabrication of structural steel, and crane manufacturing. The owner of the land was recorded as Paynter & Dixon (Buildings) Pty Limited. Consent pursuant to the CCPSO was granted on 28 January 1966 for the following uses:-

(1) Steel Store; (2) Office;
(3) Welding and fabrication of structural steel.

Third Development Application and consent (“1974 Consent”)

13 On 5 September 1974 a tenant, Marr Bros. Pty Ltd (“Marr Bros”), made a Town Planning Development Application to council. The application described the “present use” of the land as follows:-

Existing Building used as office and workshop in connection with operation as mechanical and welding engineers and is a continuing use.

14 Marr Bros described the proposed use of the land as follows:-

The existing Factory Building is to be used for the manufacture, overhaul, reconditioning, repair and testing of Industrial Machinery and Contractor’s Equipment in connection with our operation as Machinery Merchants and Engineers.

15 The council granted consent pursuant to the CCPSO subject to conditions to Marr Bros on 24 September 1974 for the following use of the land:-

Manufacture and reconditioning of industrial machinery.

16 The consent contained numerous conditions, including “additional clauses” one of which provided as follows:-

The additional Clauses being:-
…
2 The applicant Company being informed that this approval shall be regarded as being otherwise in accordance with the information and particulars set out and described in the Development Application registered in Council’s records as Development Application No. 74-A-100 of the 5th September, 1974 and that any alteration, variation or extension to the use, for which approval has been given, would require further Town Planning Approval from Council.

Change in the planning laws

17 A change in the planning laws was effected on the 16 September 1977 by publication in the New South Wales Government Gazette No. 104 (“the Gazette”). The Gazette notified the suspension of the CCPSO and the making of the Interim Development Order No. 19 - Municipality of Botany (“IDO 19”). Pursuant to IDO 19 the zoning of the land was changed to zone “4 (a2) Industrial General (Restricted)”. As provided by cl 3 of IDO 19 and the table incorporated therein, the use being conducted by Marr Bros was not a prohibited use. Schedule 6 to IDO listed the “manufacture and repair of machinery and machinery parts” as a use which could be lawfully carried on with the consent of council.

18 The EP&A Act was assented to on 21 December 1979, as was the Miscellaneous Acts (Planning) Repeal Amendment Act 1979 (“the MAPRA Act”). Clause 2(1) of Sch 3 to the latter Act provides:-

cl 2(1) A former planning instrument, as in force immediately before the appointed day, shall, subject to this Act, have full force and effect according to its tenor and shall be deemed to be a deemed environmental planning instrument.

A “former planning instrument” is defined in Sch 3 cl 1(1) of such Act as meaning:-

A prescribed scheme or an interim development order or The Town and County Planning (General Interim Development) Ordinance.

Schedule 3 cl 7(1) of such Act relevantly provides:-

cl 7(1) Any consent, approval or permission granted in respect of an application made under a former planning instrument, and in force immediately before the appointed day, shall, subject to subclause (2), continue in full force and effect subject to -
(a) the operation of any provision of that instrument or any term or condition of that consent, approval or permission governing or relating to the currency, duration or continuing legal effect of that consent, approval or permission, and
(b) the operation of any condition (other than that referred to in paragraph (a)), restriction or limitation, subject to which that consent, approval or permission was granted.

Fourth Development Application (“the withdrawn application”)

19 On 24 August 1984 Itzick Fisher made a development application to use the land for the purpose of “light steel fabrication”. The “present use” of the land was then described in the application as:-

Manufacture, overhaul, reconditioning, repair and testing of industrial machinery and contractor’s equipment in connection with the operation of machinery merchants and engineers.

The proposed use was expressed as:-

Rolling steel, welding and light fabrication all being a service to the steel fabricating industry – most of the finishing is carried out elsewhere by the clients
This business has traded for the past 15 years and is still trading at No. 5 Bay Street, Botany under the name of “Weldon Rolls”.

20 This development application was withdrawn. An unsigned letter contained in council’s file dated 16 October 1984 indicates that council would have approved the use of “light steel fabrication” subject to conditions. However there is no evidence that such consent was ever issued by council in respect of Mr Fisher’s application.

Fifth Development Application (“the 1984 application”)

21 On 16 November 1984 Naroba Pty Ltd applied to council for permission to use the land for the purpose described as “storage and re-conditioning of motors, also light manufacture of extractors, which is a similar use to that of the former occupier of these premises”. The letter states that the owner of the land had provided a copy of the development application “approved by council in October as a guideline.”

22 On 23 November 1984 council responded, stating inter alia:-

I refer to your letter dated 16th November 1984 in which you advise of your intention to use the subject premises for the purposes of re-conditioning of motors and light manufacture of extractors.
At its meeting on 18th September, 1974 Council granted approval to Marr Bros. Pty Limited to use the premises for the “manufacture and reconditioning of the industrial machinery.” Council records indicate that this use has continued until recently.
Your proposed use would be appropriate in terms of this consent, a copy of which is enclosed for your information.

23 The parties agree that such letter is not to be construed as a consent, and that there is no evidence that the use referred to in the letter was ever implemented.

Subsequent History

24 No other planning approvals exist. The respondents purchased the land in 1986. Before the purchase was completed, the respondents inspected the land and observed a number of welding machines, saws and electric motors apparently being used within the factory building for the purpose of light steel fabrication.

25 The respondents’ company, Precision Engineering (Australia) Pty Ltd (“Precision”) thereafter utilised the land for a steel fabrication business until its manufacturing operations ceased in December 1988.

26 On 1 January 1989 the land was leased by Precision to Allgray Welding (Australasia) Pty Limited (“Allgray”) to operate a steel fabrication business. Such company continued to operate its business on the land until 31 May 2001.

27 On 30 June 1995 the LEP was gazetted. The LEP had no application to the land because it was designated in the map included in the LEP as “deferred” pursuant to cl 2(2) of the LEP. As a consequence the existing zoning of “4(a2) Industrial General (Restricted)” 4(a2)” under the provisions of IDO 19 continued to apply to the land.

28 On 19 May 1999 Botany Bay Local Environmental Plan 1995 Amendment No. 9 (“Amendment No. 9”) was gazetted having the effect of applying the provisions of the LEP to the land. Accordingly the land was re-zoned as ‘2(b) Residential “B”’. In such zone, industrial uses are prohibited.

29 Notice of the termination of the tenancy of the land was received in April 2001. Accordingly the respondents sought a new tenant and advertised the land for lease for industrial use. In the interim Lifttronic Pty Ltd, a company associated with the respondents, temporarily occupied the premises between June 2001 and until the end of November 2001 for the purpose of assembling lift components.

30 On 1 December 2001 the respondents leased the land to the tenant subject to development consent being granted for its proposed use. A development application was received by the council on the 21 May 2002 by the tenant (“DAO2/552”) seeking consent to use the land as:-

warehouse/distribution, offices, converting product – abrasives.


The council has not yet determined the application.

Respondents’ Submissions

31 The respondents submit that the relevant recent use the land was put to is steel fabrication. The current use which involves cutting, packaging and dispatching of abrasive material is the subject of class 1 proceedings in respect of a change of use application. Accordingly the respondents submit the Court should infer that activities of steel fabrication and the “manufacture and reconditioning of industrial machinery” as specified in the 1974 consent, as being of the same genus.

32 The respondents rely upon the observations of Kirby P in North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd and Others (1989) 16 NSWLR 50 at p 58-59 which require the Court to consider the concept of an existing use expansively, and to have regard to the genus of that use.

33 The respondents submit that the genus of the uses conducted on the land has been, and remains light industrial. In accordance with the principle referred to by Hutley JA in Woollahra Municipal Council v TAJJ Investments Pty Ltd (1981-1983) 49 LGRA 123 at p 126 there is no abandonment of the existing use rights, nor has there been any evidence of abandonment of the light industrial use. By comparison the Court has been referred to the observations of Lloyd J in Dosan Pty Ltd v Rockdale City Council (2001) 117 LGERA 363 at pp 379-382.

34 In support of its submission the respondents rely upon an agreement made between them and council during 1992. The agreement, as reflected in the written deed dated 18 January 1993, relates to the resolution of an issue concerning fire safety on the land. Clause D of the deed states:-

The subject premises are being used for steel fabrication being a usage of low fire hazard potential.

The respondents submit that council was accordingly aware that the land was being used for the purpose of steel fabrication in 1992. The council took no steps to restrain such use apparently because such use was consistent with the 1966 consent and had not been abandoned.

35 The respondents submit that whilst there is no direct evidence of the actual use of the premises in the period of 1974 until 1986, the Court is entitled to infer that the light industrial use continued throughout such period. The respondents rely upon the observations of Stein J (as he then was) in Sutherland Shire Council v Loney and Others (1986) 59 LGRA 376 at p 379 and at p 382 wherein His Honour assumed that in the absence of evidence to the contrary, the use in question had prevailed during the relevant period.

Council’s Submissions

36 The council submits that the grant of development consent for the “manufacture and reconditioning of industrial machinery” made on the 24 September 1974 had the effect of extinguishing the 1966 consent for the use of the steel store, office welding and fabrication of structural steel.

37 The council concedes that to the extent that the respondents can show that the land was being used for the “manufacture and reconditioning of industrial machinery” immediately before the commencement of IDO 19, such use could be lawfully continued because of the proviso to s 342U(4) of the Local Government Act 1919 (“LG Act”) which stated:-

Provided that nothing in any interim development order shall prevent the continuance of the use of any land or building for the purposes for which such land or building was lawfully used immediately before the coming into operation of the interim development order.

38 The council submits that when the LEP became operative in 1995, IDO 19 continued to apply to the land since the land was marked “deferred”. The enactment of Amendment No. 9 (on 19 May 1999) repealed IDO 19 and the land was thereupon zoned ‘2(b) Residential “B”’. The council submits that the 1974 consent was thereupon deprived of further effect, for the reason by Handley JA in Auburn Council v Nehme (1999) 106 LGERA 19 wherein His Honour stated at p 25:-

The use of land which is authorised by a valid consent is lawful while the planning instrument under which it was granted remains in force. In the absence of appropriate transitional provisions, the effect of a consent will not extend beyond the life of the planning instrument under which it was granted. The repeal of that planning instrument, and its replacement by another, will, without more, deprive that consent of further effect.
Where the new planning instrument absolutely prohibits the use previously authorised by a consent, that consent can have no direct operation on that prohibition. The irrelevance of that consent as a protection against that prohibition will not be affected by a transitional provision which continues that consent in force, or deems it to have been granted under the new planning instrument. The prohibition being absolute, the existence of a past consent is an irrelevance.

39 The council acknowledges however that s 107(1) of the EP&A Act would entitle the respondents to continue an existing use if such use is proved. It submits that the only lawful use that could now be relied upon by the respondents was that permitted by the 1974 consent for “manufacturing and reconditioning of industrial machinery”, which is a different use to steel fabrication. For this reason it is submitted that there is no lawful use which can be relied upon pursuant to s 107(1) of the EP&A Act.

Findings

Onus of Proof

40 The council bears the onus of proving that the current use of the land is prohibited. The respondents bear the onus of establishing that they are entitled to the benefit of existing use rights within s 106 and s 107 of the EP&A Act: see Penrith Waste Services Pty Ltd v Penrith City Council (1998) 101 LGERA 98 at p 105-106.

Whether the use relied upon is lawful

41 The first inquiry is to establish whether any of the consents have lapsed and cannot be relied upon.

(i) Has the 1966 consent survived?

42 The 1966 consent authorised the use of the land for the purpose of steel fabrication. Such use ceased following the grant of the 1974 consent for the use of the premises for the manufacture, overhaul and repair of industrial machinery. When IDO 19 came into operation on 16 September 1977 the use authorised by the 1966 consent was not being conducted. The proviso to s 342U(4) of the LG Act only preserved those uses “for which such land or building was lawfully used immediately before the coming into operation of the interim development order”: see Rosenblum and Another v The Council of the City of Brisbane (1957) 98 CLR 35 and R v City of Oakleigh; Ex parte New Gamble Brickworks Pty Ltd (1964) 9 LGRA 258 at p 264 to 265 for a discussion of the meaning of the purpose for which the land “was used”. Accordingly the 1966 consent was extinguished.

(ii) Can the 1974 consent be relied upon?

43 Schedule 1 of the MAPRA Act repealed Part XIIA of the LG Act which included s 342U(4). The 1974 consent however continued “in full force and effect” by virtue of Sch 3 cl 7(1) of the MAPRA Act. The Environmental Planning Legislation Amendment Act 1995 later amended the MAPRA Act to include Sch 3 cl 7(4) which provides:-

(4) A consent, approval or permission referred to in subclause (1) is taken to be a development consent within the meaning of the Environmental Planning and Assessment Act 1979.

Such amendment was deemed to have commenced on 1 September 1980 with the introduction of the EP&A Act: see Environmental Planning Legislation Amendment Act 1995 s 2.

44 The New South Wales Court of Appeal in Ashfield Municipal Council v Armstrong (2002) 122 LGERA 105 at p 112 applied Sch 3 cl 7(1) and cl 7(4) to find that the consent in issue, similarly granted pursuant to the CCPSO, constituted a “development consent for the purposes of the EP&A Act.” (c.f. Nehme at p 22 where Handley JA held that s 106 of the EP&A Act did not apply to consents granted before the commencement of such Act because such consents were not deemed to have been made under such Act).

45 Additionally the MAPRA Act Sch 3 cl 2(1) provided that a former planning instrument, in this instance IDO 19, is to have “full force and effect” under the new planning legislature and is to be a “deemed environmental planning instrument” within the meaning of the EP&A Act (see EP&A Act s 4). IDO 19 continued to apply to the land until 1999 when the LEP became operative to the land following the enactment of Amendment No. 9.

46 The propositions of Handley JA in Nehme (extracted at par 32 of this judgment) raise the question whether the 1974 consent becomes irrelevant following the repeal of IDO 19 and the prohibition of industrial activity by the LEP. The general propositions pronounced by Handley JA should be considered in context of the facts of that case which Lloyd J summarised in Lederer & Ors v Sydney City Council (2001) 119 LGERA 350 at p 372. Essentially in Nehme it was inferred that a consent was granted under the CCPSO to use the land as squash courts. The Auburn Planning Scheme Ordinance came into force in 1970 and prohibited such use. Accordingly the consent was found to have been deprived of further effect but the use was protected by the existing use provisions in the Auburn Planning Scheme Ordinance and later under similar provisions of the EP&A Act. Such protection was lost when the use was abandoned around 1990. Furthermore the land did not benefit from the protection of s 109B of the EP&A Act, which was introduced in 1992, because the consent was no longer in force and the use was no longer lawful at this time.

47 Different considerations apply to consents that are granted after the introduction of the EP&A Act, including those consents now incorporated within the EP&A Act by Sch 3 cl 7(4) of the MAPRA Act. Under the current regime, environmental planning instruments no longer grant consents. Instead they only specify the kind of development which requires consent or which is prohibited and those matters which the consent authority is to consider when determining an application for development consent. Lloyd J in Lederer at p 373 explained why Handley JA’s approach does not apply to consents granted under the EP&A Act as follows:-

Firstly, a consent granted under the EP&A Act is not granted pursuant to an environmental planning instrument, but pursuant to the Act itself. Section 80(1) of the Act provides the source of power for a consent authority to grant consent. It is not the function of the environmental planning instrument to provide the power to grant consent. The role of the environmental planning instrument (which may be an instrument made pursuant to Pt 3 or deemed environmental planning instrument such as Interim Development Order No. 21 - City of Sydney) is, firstly, under ss 76 to 76B to provide whether certain development, during the currency of the instrument, may be carried on without consent, only with consent, or neither with nor without consent; and secondly under s 79C to provide matters which the Council is to take into consideration when deciding whether or not to grant consent. That being the case, there is no reason why a consent granted under the Act should not be regarded as “in force”, simply because the repeal of an environmental planning instrument has changed the considerations which will govern the grant of future consents and, possibly, also the consequences which flow from having or not having an extant consent. If the latter instrument absolutely prohibits the use, it is true that the consent would provide no protection against s 76B which provides that if an environmental planning instrument stipulates that development is prohibited in an area, “a person must not carry out development on the land”, but this only touches on the lawfulness of the use, not the validity of the consent.

48 Nehme has a particular application to the planning regime prior to the EP&A Act, and to the specific facts of that case. Lederer explains why Handley JA’s finding at par 27 of His Honour’s judgment is to be confined. In these proceedings the 1974 consent is not only preserved by a transitional provision (MAPRA Act Sch 3 cl 7(1)) but is also deemed to be a consent under the EP&A Act (MAPRA Act Sch 3 cl 7(4)). Additionally the status or character of IDO 19 prior to 1979 becomes irrelevant as a result of the operation of Sch 3 cl 2(1) of the MAPRA Act since IDO 19 is now a deemed environmental planning instrument. That is IDO 19 is no longer a “planning instrument” in the Nehme sense but an environmental planning instrument under the EP&A Act. Accordingly the Court adopts the approach in Lederer and declares that the 1974 consent is not invalidated by the prohibition of industrial activity bestowed by the LEP.

(iv) Subsequent events

49 In 1986 the respondents observed that steel components were being fabricated on the premises and that electric motors were being used for some purpose associated therewith.

50 The respondents commenced their steel fabrication business on the land after its acquisition in 1986 and continued such operations until 1988 when a similar business was operated by Allgray until 31 May 2001. During the occupation of the land by Allgray, the LEP became applicable to the land by virtue of Amendment No. 9. Accordingly from 1999 the use of the land for an industrial purpose was prohibited.

51 Provided the respondents can establish that the use of the premises as at the date of application of the LEP to the land (19 May 1999) was one which was authorised by the 1974 consent they are entitled to the protection afforded by s 106 and s 107 of the EP&A Act. Accordingly the respondents must demonstrate that the business of steel fabrication is authorised.

Application of Genus Test

52 The genus test is an important consideration in approaching the determination of existing use rights. The term “genus” was explained by McHugh JA (as he then was) in Royal Agricultural of New South Wales v Sydney City Council (1987) 61 LGRA 305 at p 311 as follows:-

If the activities, processes or transactions are capable of being treated as all or the majority of the species of a genus, then that genus may properly be regarded as describing the purpose of the land.

53 The rationale for the genus test was explained by McHugh JA at p 310 as follows:-

Accordingly, a test has been devised which requires the purpose of the use of 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 that 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.

54 Kirby P (as he then was) in Boyts Radio at p 57-59 reviewed Royal Agricultural of New South Wales, Shire of Perth v O’Keefe and Another (1964) 110 CLR 529; Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1; Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138 and at p 59 formulated the following approach for determining issues relating to existing use rights:-

1. Defining the “existing use” depends upon a detailed examination of the facts of each case. Inevitably there will be borderline cases where the characterisation of the use which is protected will be controversial and upon which minds differ.
2. Nevertheless, the general approach to be taken is one of construing the “use” broadly. It is to be construed liberally such that confining the user to precise activity is not required. What is required is the determination of the appropriate genus which best describes the activities in question.
3. In determining that genus , attention should be focussed on the purpose for which the determination is being made. This is a town planning purpose. It therefore considers the use from the perspective of the impact of the use on the neighbourhood. This is because the regulation of the use within the neighbourhood is the general purpose for which planning law is provided.

55 In ACR Trading Pty Ltd and Another v Fat-Sel Pty Ltd and Another (1987) 11 NSWLR 67 Kirby P (as he then was) found at p 80 that the activity relied upon namely “the recovery process involved in the distillation of grease trap waste” could not be “described as the ‘manufacture of re-agent chemicals’”. That is, His Honour concluded that the two uses could not be said to be of the same genus. Such finding was considered by Mason P in House of Peace Pty Ltd and Another v Bankstown City Council (2000) 48 NSWLR 498 at p 507 wherein the President said:-

How then is the language of an historical consent to be construed? In ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 77 Kirby P (with whom Samuels JA and Hunt AJA agreed) referred to "what, objectively determined, it might be said the Council meant by the permission which it gave to the ... predecessor [in title]". I respectfully agree, but with this emphasis. The search is not for what the Council actually intended or what, if it had been interrogated about various possibilities, it would have said it intended. As an instrument having the characteristics referred to by Else-Mitchell J and Stephen J in the passages cited at par 23, it must speak according to its written terms, construed in context but having regard to its enduring function. Cases such as Auburn Municipal Council v Szabo (1971) 67 LGRA 427 expound the textual interpretative principles involved.

His Honour then considered Boyts Radio and Royal Agricultural of New South Wales and said at p 508:-

The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money in acting upon it and who is likely to wish to sell the land sooner or later.

56 It is established that environmental planning instruments and consents “are concerned with physical use, environmental impact and amenity”: see House of Peace at p 504. The 1966 application made in respect of steel fabrication and the 1974 application for manufacture and re-conditioning of industrial motors each recorded that the industries were unlikely to interfere with the amenity of the neighbourhood by virtue of noise, smoke, soot, steam, ash, dust, waste water, grit oil or obnoxious gases. Conditions were incorporated in the 1966 consent and the 1974 consent which required the proposed uses to be so conducted.

57 Accordingly the 1966 consent and the 1974 consent indicate the “impact of the use on the neighbourhood” (see Boyts Radio at p 59) and assist the Court in determining the genus. From the perspective of the relevant neighbourhood the Court infers that both uses are small scale industrial activities or processes which have similar environmental impacts on the neighbourhood.

58 Applying the established tests as propounded by McHugh JA in Royal Agricultural of New South Wales and by Kirby P in Boyts Radio, the Court is satisfied that the business of steel fabrication conducted by the respondents’ tenant, namely Allgray, at the date the LEP applied to the land was of the same genus as “manufacture and reconditioning of industrial machinery”. The Court has interpreted such uses of the land broadly but not to the extent that the genus test embraces different uses to which the land has been put. The Court accepts the respondents’ submission that such activities are “capable of being treated as all or the majority of the species of a genus”, namely “light industry”.

59 It follows that the use of the land in 1999 was lawful being authorised by the 1974 consent. As a result of such finding the land has the benefit of an existing use as defined under s 106 of the Act. Accordingly s 107 of the EP&A Act permits a continuance of such existing use.

Consequence of existing use

60 The application of the genus test has established that the use immediately before the LEP applied to the land, that is the business of steel fabrication, was “in accordance with a consent that has been granted and is in force”: see s109B of the EP&A Act and House of Peace at p 506. Accordingly no new development consent was needed by the respondents in 1999 by virtue of s 109B(1) of the EP&A Act which provides:-

s 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.

61 The respondents need a new development consent to use the land for the conversion of abrasive materials into belts, disks, sheets and rolls for warehouse distribution, and for offices associated with such use. Such use is an expansion or intensification of the existing use. The respondents are required by s 108 of the EP&A Act and cl 41 and cl 42 of the Environmental Planning and Assessment Regulation 2000 (“the EP&A Regulations”) to obtain a new development consent for the current use to be rendered lawful. An application may be made by the owner of the land, namely the respondents, or by the tenant with the owners’ consent: see EP&A Act s 78A, the EP&A Regulations cl 50(1)(a), Sch 1 Pt 1.

Court Orders

62 The Court therefore orders:-

1. The application be dismissed;

2. The applicant pay the costs of the first respondent and second respondents;

3. The exhibits be returned.