Bowers v Northern Beaches Council & Grigull Custodian Pty Ltd

[2022] NSWCA 253

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Bowers v Northern Beaches Council & Grigull Custodian Pty Ltd [2022] NSWCA 253

Hearing dates:

4 November 2022

Date of orders:

8 December 2022

Decision date:

08 December 2022

Before:

Kirk JA at [1];
Basten AJA at [2];
Preston CJ of LEC at [9]

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) The appellant is to pay the respondents’ costs of the appeal in this Court.

Catchwords:

JUDICIAL REVIEW – development consent – use of caretaker’s residence in industrial building – residential accommodation prohibited in industrial zone – whether ancillary and subservient to dominant industrial use – alleged past and threatened future illegal use – whether fraud to apply for consent in such circumstances – whether bad faith to consent in such circumstances – whether decision that use is ancillary is perverse.

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 68

Environmental Planning and Assessment Act 1979 (NSW), ss 4.2, 4.3, 4.12, 4.15, 4.16

Evidence Act 1995 (NSW), s 53

Land and Environment Court Act 1979 (NSW), s 58

Supreme Court Act 1970 (NSW), s 75A

Uniform Civil Procedure Rules 2005 (NSW), r 21.2

Warringah Local Environmental Plan 2011

Cases Cited:

Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404

Browne v Dunn (1893) 6 R 67

Coffs Harbour City Council v Noubia Pty Ltd [2022] NSWCA 32

Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270; [1972] HCA 33

Falamaki v Wollongong City Council (2001) 113 LGERA 207; [2001] NSWCA 55

Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134; [1999] FCA 773

Foodbarn Pty Limited & Ors v Solicitor-General (1975) 32 LGRA 157

Fordham v Environment Protection Authority [2018] NSWCA 167

Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22

House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44

Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147

In re The Will of FB Gilbert (1946) 46 SR (NSW) 318

Jeray v Blue Mountains City Council & 2 Ors [2010] NSWCA 281

Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99

Jones v Dunkel (1959) 101 CLR 298

Kouflidis v Salisbury City Council (1982) 29 SASR 321

Kur-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300; [2021] NSWCA 177

Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Muswellbrook Shire Council v Hunter Valley Energy Pty Ltd (2019) 238 LGERA 295

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Payne v Parker [1976] 1 NSWLR 191

Ross v Lane Cove Council [2017] NSWCA 299

White Industries (Qld) Pty Ltd v Flower &Hart (a firm) (1998) 156 ALR 169; [1998] FCA 806

Winn v Director-General of National Parks and Wildlife and Ors (2001) 130 LGERA 508; [2001] NSWCA 17

Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422

Category:

Principal judgment

Parties:

Mr James Bowers (Appellant)
Northern Beaches Council (First Respondent)
Grigull Custodian Pty Ltd (Second Respondent)

Representation:

Counsel:
Appellant in person
Ms L Sims (First Respondent)
Mr M Fozzard (Second Respondent)

Solicitors:
Appellant in person
Wilshire Webb (First Respondent)
D.G. Briggs & Associates (Second Respondent)

File Number(s):

2022/66164

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Land and Environment Court of NSW

Jurisdiction:

Class 4

Citation:

[2022] NSWLEC 8

Date of Decision:

09 February 2022

Before:

Robson J

File Number(s):

2021/90937

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Bowers appealed to the Court under s 58 of the Land and Environment Court Act 1979 (NSW) against the dismissal of judicial review proceedings he brought in the Land and Environment Court challenging the decision of the Northern Beaches Council (the Council) to grant development consent for a caretaker’s residence within an industrial building on land owned by Grigull Custodian Pty Ltd (Grigull). Mr Bowers advanced six grounds of appeal, three grounds challenging the primary judge’s interlocutory rulings on procedure and evidence, and three grounds challenging the primary judge’s final decision.

Held, per Preston CJ of LEC, Kirk JA at [1] and Basten AJA at [2] agreeing, dismissing the appeal with costs:

In relation to Ground 1

(1) The primary judge did not err in not ordering an inspection of the caretaker’s residence as Mr Bowers did not make a formal application at the hearing for such an order to be made. The power of the primary judge under s 53(1) of the Evidence Act 1995 (NSW) was not engaged. An inspection would not in any event have assisted in resolving any ground of judicial review of the Council’s decision: [38], [39], [41].

In relation to Grounds 2 and 3

(2) Mr Bowers did not articulate or demonstrate any error made by the primary judge in allowing Grigull to raise late objections to the affidavits read by Mr Bowers and in upholding some of these objections. The bare assertion that the primary judge erred in some respect is insufficient: [46], [47], [48].

In relation to Ground 4

(3) The primary judge did not err in his application of the rules in Jones v Dunkel (1959) 101 CLR 298 and Browne v Dunn (1893) 6 R 67. In regard to the rule in Jones v Dunkel, Mr Bowers did not explain what inference from the evidence should have been more readily drawn by the Council and Grigull failing to call the Council officer and Mr Grigull as witnesses. In regard to the rule in Browne v Dunn, Mr Bowers did not articulate or demonstrate how or why that rule had been infringed: [51], [52], [55], [58].

In relation to Ground 5

(4) The primary judge did not err in finding that Mr Bowers had not established that Grigull had committed a fraud on the Council in applying for development consent. Past illegal use neither precludes the grant of development consent for future legal use nor is a relevant factor in determining whether to grant development consent. Any intention of Grigull to use the premises otherwise than in accordance with the development consent once granted did not preclude Grigull from applying for development consent to use the premises for a permissible purpose or the Council from granting development consent for that purpose: [62]-[66], [70]-[72].

Kouflidis v Salisbury City Council (1982) 29 SASR 321; Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99; Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270; [1972] HCA 33; House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44; Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147, considered.

(5) The primary judge did not err in finding that Mr Bowers had not established bad faith in the Council’s decision to grant development consent. Mr Bowers’ bad faith claim fails for the same reasons that his fraud claim fails: [62], [76].

In relation to Ground 6

(6) The primary judge did not err in not finding that the Council’s decision on ancillary use was perverse. The Council’s decision that the use of the caretaker’s residence would be ancillary and subservient to the dominant use of the building for industrial purposes was reasonably open to the Council on the material before it: [98], [102] (Preston CJ of LEC); [7] (Basten AJA).

JUDGMENT

1. KIRK JA: I agree with Preston CJ of LEC.

2. BASTEN AJA: I agree with the orders proposed by Preston CJ of LEC. I also agree with his reasons and add the following further observations relating to the jurisdiction of this Court.

Challenge to interlocutory orders

3. The appeal is brought under s 58 of the Land and Environment Court Act 1979 (NSW) from a decision of the Land and Environment Court in the exercise of its Class 4 jurisdiction. Two issues arise as to the constraints on such an appeal. The first is the requirement in s 58(3) that an appeal from an interlocutory order or decision requires leave of this Court. No issue was raised by the respondents as to the assumption on the part of the appellant that he had an appeal as of right with respect to all grounds because he was challenging the final orders of the Court. Nevertheless, as explained by Preston CJ of LEC, grounds 1, 2 and 3 challenged interlocutory rulings made in the course of the hearing in the Land and Environment Court. There is a question as to whether s 58(3) applies to rulings made in the course of a trial, or only to preliminary rulings.

4. In any event, appeals against interlocutory rulings may, if upheld, be sufficient to vitiate the final judgment. If they are said to have that effect, and the appeal is brought from the final decision, it may well be that no leave is required. Some interlocutory decisions will vitiate the final judgment because they deprive the unsuccessful party of a real chance of a different outcome. In other cases, it will not be possible to assess their effect until the appeal has been heard. That may be so with evidence wrongly excluded or wrongly admitted. In some cases, such as a complaint of apprehended bias, a failure to make an interlocutory appeal may constitute a waiver of the right to object. Thus, in Michael Wilson & Partners Ltd v Nicholls,^[1] Gummow ACJ, Hayne, Crennan and Bell JJ stated:

“78   In general, any interlocutory order which affects the final result can be challenged in an appeal against final judgment. As the majority noted in Gerlach v Clifton Bricks Pty Ltd,^[2] there may be some limits to that general rule but it was not necessary in that case, and is not now necessary, to decide what those limits might be. The majority in Gerlach noted, however, that there are some kinds of interlocutory decision made otherwise than at trial that may present other issues. In particular, ‘[t]here are circumstances in which an interlocutory decision must be treated as concluding an issue between the parties’….

79   In most cases, a judge's refusal of an application that the judge not try, or continue to try, a case on account of reasonable apprehension of bias will constitute a final determination by the judge that the facts and circumstances relied on by the applicant do not establish the relevant apprehension. In such a case, it may be that an applicant who does not seek to challenge the refusal by seeking leave to appeal should be held to have given up the point.”

1. (2011) 244 CLR 427; [2011] HCA 48 (original footnotes omitted)

2. (2002) 209 CLR 478; [2002] HCA 22 at [8].

5. Where there is doubt, upon a challenge to final orders, the better course is to grant leave. A different approach would tend to encourage interlocutory appeals as matters arise, with the undesirable effect of interrupting the orderly and expeditious determination of the real issues in dispute.

Ground 6: perverse decision

6. Ground 6 alleged that the Council’s decision to grant consent to the proposed development was “perverse” because it was not reasonably open to the Council to conclude that the proposal involved a use which was ancillary to the dominant use of the land for industrial purposes.

7. That issue had been raised prior to the decision of the Council, by way of objections to the development application. It was expressly addressed by the Council officer who prepared the Assessment Report recommending that consent be granted with the imposition of conditions directed to controlling the use of the premises in accordance with the proposal. The Assessment Report gave careful consideration to the nature of the objections raised, identified the relevant legal and planning principles in terms which revealed no relevant legal error, and formulated conditions which reflected those principles. The Council, on the basis of the Assessment Report which was before it, adopted the recommendations of the officer. These circumstances, which are explained in detail below, provided no basis for the proposition that the decision of the Council was manifestly unreasonable or perverse.

8. Although s 58 of the Land and Environment Court Act does not in terms limit appeals to questions of law, as a practical matter, where the Class 4 jurisdiction of the Court is limited to judicial review of administrative decisions, there will usually be little scope for challenges to factual findings. A challenge asserting that a decision of a Council is manifestly unreasonable, in the sense that the decision was not reasonably open, identifies an error of law. It is, nevertheless, important to note that neither the jurisdiction of the Land and Environment Court, nor the appellate jurisdiction of this Court, permits a review of the merits of the decision.

9. PRESTON CJ of LEC: Mr Bowers appeals against the decision of the primary judge of the Land and Environment Court to dismiss judicial review proceedings Mr Bowers had brought challenging the decision of the Northern Beaches Council (the Council) to grant development consent for a caretaker’s residence within an industrial building on land at 5 Chard Road, Brookvale (the premises) owned by Grigull Custodian Pty Ltd (Grigull). The appeal, made under s 58 of the Land and Environment Court Act 1979 (NSW) (the Court Act), is not limited to questions of law and extends to review of the findings of fact in the court below: Fordham v Environment Protection Authority [2018] NSWCA 167 at [7].

The grounds of appeal against the dismissal of judicial review proceedings

10. Mr Bowers raised six grounds of appeal in his notice of appeal. The first three grounds concern procedural and evidentiary rulings by the primary judge. Mr Bowers contended that the primary judge erred in law in not taking a view of the premises; in allowing late objections by Grigull to affidavits read by Mr Bowers; and in upholding some of these objections.

11. These procedural and evidentiary rulings are interlocutory in nature, although made during the course of the trial. An appeal does not lie against an interlocutory order or decision except by leave of this Court: s 58(3)(a) of the Court Act. The grant of leave to appeal is in the discretion of this Court.

12. Ordinarily it is appropriate to grant leave to appeal only where there is an issue of principle, a question of general public importance or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Ross v Lane Cove Council [2017] NSWCA 299 at [2]-[3] and Coffs Harbour City Council v Noubia Pty Ltd [2022] NSWCA 32 at [67]. Where the interlocutory decision is on a matter of practice and procedure, this Court is especially reluctant to interfere: In re The Will of FB Gilbert (1946) 46 SR (NSW) 318 at 323 and Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274 at [45].

13. Leave to appeal against an interlocutory decision or order may not, however, be required where a final decision is under appeal and the challenge to the interlocutory decision is a ground for challenging the final decision: Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 at [6]-[8]; Muswellbrook Shire Council v Hunter Valley Energy Pty Ltd (2019) 238 LGERA 295; [2019] NSWCA 216 at [53], [63]. In the present appeal, the challenge to the procedural and evidentiary rulings of the primary judge does not coincide with the three grounds of appeal against the final decision of the primary judge dismissing the judicial review proceedings. These are the fourth, fifth and sixth grounds of appeal.

14. The fourth ground of appeal challenged the primary judge’s findings on the two bases on which Mr Bowers had contended that the Council’s decision was invalid as involving a misapplication of “the rules in Jones v Dunkel and Browne v Dunn.” The fifth ground contended that the primary judge erred in law in not finding fraud by Grigull and bad faith by the Council. The sixth ground contended that the Council’s decision “on ancillary use” was perverse. The decision to which Mr Bowers was referring was the Council’s decision that the use of a caretaker’s residence is ancillary and subservient to the dominant use of the premises for industrial purposes.

15. These three grounds of appeal against the primary judge’s final decision do not depend on the correctness or incorrectness of the primary judge’s interlocutory rulings on procedure and evidence. In these circumstances, leave to appeal against the interlocutory rulings is arguably required.

16. Mr Bowers did not seek leave to appeal against the procedural and evidentiary rulings that were the subject of the first three grounds of appeal. However, no issue was taken by either of the respondents, the Councill or Grigull, to the competency of the appeal on these three grounds. The Court did not therefore hear argument as to whether leave was required or whether leave should be granted for the three grounds.

17. The Court heard full argument on all six grounds of appeal, including the three grounds for which leave to appeal may be required. For the reasons I give below, Mr Bowers has not established any of the six grounds of appeal, either the three grounds challenging the interlocutory rulings on procedure and evidence or the three grounds challenging the final decision. In this circumstance, it is not necessary to resolve the issue of whether leave to appeal is required as the three grounds of appeal for which leave may be required are without merit.

18. As Mr Bowers has not established any ground of appeal, the summons should be dismissed. The usual rule is that costs follow the event, so that Mr Bowers should be ordered to pay the costs of the respondents of the appeal. Both respondents should be entitled to an award of costs, as Mr Bowers’ claims justified substantive responses from both the Council and Grigull.

Other claims sought to be raised on the appeal

19. In his written submissions on the appeal to this Court, Mr Bowers sought to raise other concerns about the Council’s conduct at the hearing in the court below. Mr Bowers contended that the Council’s failure to lead evidence from the Council officer who made the decision, under delegation, to grant the development consent constituted the tort of misfeasance in public office. Mr Bowers further contended that the Council’s failure to bring proceedings, either civil or criminal proceedings, against Grigull for its breach of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) also constituted the tort of misfeasance in public office. The breach of the EPA Act concerned the allegedly illegal use of a unit in the industrial building as a dwelling, being the same unit for which Grigull sought development consent to use as a caretaker’s residence.

20. Mr Bowers did not seek leave to amend his notice of appeal to raise these concerns as grounds of appeal. The arguments that the Council had committed the tort of misfeasance in public office were not raised in the court below as grounds of review of the Council’s decision and hence the primary judge did not address them. No appeal under s 58 of the Court Act lies against a decision that has not been made: Jeray v Blue Mountains City Council & 2 Ors [2010] NSWCA 281 at [5], [6].

21. In any event, the arguments could not have founded invalidity of the Council’s decision to grant development consent. The conduct of the Council that Mr Bowers alleges constituted the tort of misfeasance in public office occurred after the grant of development consent and the hearing of the proceedings challenging the Council’s decision to grant development consent. It could not, therefore, constitute a ground of invalidity of the Council’s decision to grant the development consent. In these circumstances, it is unnecessary to address Mr Bowers’ arguments that the Council committed the tort of misfeasance in public office.

22. At the hearing of the appeal in this Court, Mr Bowers did make an oral application to amend his notice of appeal to add a seventh ground concerning the Council’s conduct in inadequately producing all documents that might be relevant to Mr Bowers’ case. Mr Bowers did not seek for the court below to order that the Council and Grigull give discovery to Mr Bowers, under r 21.2 of the Uniform Civil Procedure Rules 2005 (NSW). Mr Bowers submitted he did not have to apply for an order for discovery because at least the Council and possibly also Grigull were under a duty to provide Mr Bowers with all the documents of relevance to his case. The Council did file and serve, and tender at the hearing in the court below, a bundle of documents from the Council’s file, including the development application, supporting documents, the submissions of the public objecting to the proposed development, including from Mr Bowers, and the Council’s determination of the development application. Mr Bowers contended that this production of documents was inadequate, although he did not specify why or how it was inadequate.

19. This Court refused Mr Bowers’ oral application to amend the notice of appeal to add this seventh ground. The proposed ground had no prospect of success.

20. First, there was no legal duty obliging the respondents to take the steps proposed by Mr Bowers, absent the issue by him of an appropriate process, such as a notice to produce or a subpoena seeking documents, or an order of the Court requiring their production.

21. Secondly, there is the temporal dissonance. Mr Bowers’ proceedings in the court below sought judicial review of the Council’s decision to grant development consent to use a unit in the industrial building as a caretaker’s residence. The alleged conduct of the Council and Grigull in failing to produce all documents of relevance to the claims made by Mr Bowers in those proceedings could not found a ground of invalidity of the Council’s decision to grant development consent that was the subject of challenge in the proceedings. The conduct post-dates by around a year the Council’s decision.

22. Thirdly, the ground was not raised in the court below. The summons commencing the judicial review proceedings did not raise the ground and Mr Bowers did not apply to amend the summons to raise the ground. Mr Bowers did not otherwise raise the ground in his case in the court below. The primary judge accordingly did not decide the ground. Again, no appeal can be brought against a decision that has not been made.

23. Fourthly, Mr Bowers did not establish in what respects the Council’s and Grigull’s production of documents were inadequate. The Council did produce and tender a bundle of documents containing the relevant documents from the Council’s file. Mr Bowers did not identify any documents that were omitted from that bundle of documents. He did not identify any other documents that ought to have been produced but were not produced. The ground therefore remained unexplained.

Other procedural applications made on appeal

28. Mr Bowers also made a number of applications during the conduct of the hearing of the appeal to adduce further evidence. Mr Bowers sought to read two affidavits, one of a person giving evidence as to what had occurred on the week before the hearing of the appeal, and another of a person annexing documents from the Council file. Mr Bowers also sought an order for production of documents with a view to tendering any documents produced. I will deal with each of these applications shortly, but the answer to all of them is that Mr Bowers required leave to adduce the evidence: s 75A(8) of the Supreme Court Act 1970 (NSW). Mr Bowers did not establish any ground for this Court receiving any of the evidence.

29. The first affidavit Mr Bowers sought to read was the affidavit of Mr Twigg, sworn 3 November 2022. Mr Twigg, a licenced commercial agent, attended the premises on 1 November 2022, a few days before the hearing of the appeal in this Court. He observed a two-storey commercial building. On the ground floor, there were two businesses, a joinery business in unit 1 and a spray-painting business in unit 2. He attempted to access the upstairs units by the side door, however found it to be locked with no intercom system. He was able to access the second level by walking up a ramp. This was a parking area but he was unable to access any upstairs units as they were all locked. He spoke to a man in unit 1, at the joinery business, asking him: “Do you know if Gerd Grigull is in?”. The man replied: “He lives upstairs, he is generally not there during the day.” Mr Twigg said he reattended the premises on 2 and 3 November 2022 and again was unable to access the upstairs units.

30. The Council and Grigull opposed leave being granted to read the affidavit on the appeal on the basis that it was not relevant to any issue of fact in the proceedings. I agree.

31. The evidence of Mr Twigg does not establish any fact of relevance to Mr Bowers’ grounds of challenge to the Council’s decision to grant development consent to use one of the upstairs units as a caretaker’s residence or to Mr Bowers’ grounds of appeal against the primary judge’s decision to dismiss Mr Bowers’ challenges. The use of the upstairs unit by Mr Grigull on 1, 2 or 3 November 2022, nearly two years after the Council granted development consent to use the unit as a caretaker’s residence on 22 January 2021, has no relevance to either of Mr Bowers’ grounds of challenge, either the fraud and bad faith ground or the ancillary use ground. In these circumstances, there is no utility in giving leave to adduce evidence that is not relevant.

32. The second affidavit Mr Bowers sought to read was the affidavit of Mr Webber, the solicitor for the Council, which had been filed but not read in the court below. Mr Bowers’ purpose in reading the affidavit was to prove the authenticity of documents annexed to the affidavit, including the development application and the notice of determination of the development application by the grant of consent. This Court refused Mr Bowers leave to read this affidavit as there was no utility in doing so. The documents annexed to Mr Webber’s affidavit that Mr Bowers wished to rely on were already in evidence, being part of the bundle of documents that the Council had tendered in the court below (Exhibit 1). No issue was raised in the court below or in this Court as to the authenticity of these documents.

33. Mr Bowers also sought at the hearing of the appeal an order under s 68 of the Civil Procedure Act 2005 (NSW) for the Council and Grigull to produce certain documents to the court. Mr Bowers’ intention in seeking this order for production was to find evidence that might establish fraud on the part of Grigull and bad faith on the part of the Council. This Court refused Mr Bowers’ application. Apart from not establishing any ground as to why leave should be granted to tender any documents that might be produced, there are two other reasons.

34. First, this is an appeal against the primary judge’s decision to dismiss Mr Bowers’ judicial review proceedings. The time for Mr Bowers to have sought an order for production of documents was in the court below when Mr Bowers was proving his case, not on an appeal to this Court. Mr Bowers did not advance any reason why he did not seek or could not have sought an order for production of documents in the court below.

35. Secondly, the documents Mr Bowers sought could only have established facts that are legally irrelevant to the fraud and bad faith ground of challenge to the Council’s decision. As I have explained, whether or not Grigull has in the past used or will in the future use the unit as a caretaker’s residence illegally cannot invalidate the Council’s decision to grant development consent to use the unit as a caretaker’s residence. Grigull could make an application seeking development consent, and the Council had power to grant development consent, to use the unit as a caretaker’s residence, regardless of any past or future illegal use of the unit.

Ground 1: not taking a view

36. As noted, Mr Bowers sought in the proceedings judicial review of the decision of the Council to grant development consent to use a unit in the industrial building as a caretaker’s residence. According to Mr Bowers, he applied for the primary judge to order a view of the premises, but the primary judge refused to do so. Mr Bowers argued that the primary judge’s refusal of his application to hold a view was in error. He said that a view of the industrial building and the unit in that building that was being used illegally for residential accommodation would have assisted the judge to understand Mr Bowers’ grounds of review that Grigull was committing a fraud on the Council by illegally using the unit and that use as a caretaker’s residence was not ancillary and subservient to the dominant use of the building for industrial purposes. Mr Bowers noted that the premises at Brookvale were only a 30 minutes drive from the Land and Environment Court. The hearing was listed for 2 days and ended at lunch time on the first day, so that there would have been ample time for the primary judge to have held a view. Mr Bowers submitted that the primary judge should have held a view on his own motion, irrespective of Mr Bowers’ application.

37. Grigull responded to Mr Bowers’ argument. Grigull noted that, although shortly before the hearing Mr Bowers had sent an email to the court advising that he would be requesting at the hearing a view of the site, in fact Mr Bowers did not make a formal application at the hearing that the court undertake a view. Mr Bowers did mention to the primary judge at the start of the hearing: “Yesterday I raised a request that there be a short view of the premises to aid the case” (T 1/02/22, p 2). However, Mr Bowers made no formal application that the primary judge order an inspection be held, whether under s 53(1) of the Evidence Act 1995 (NSW) (the Evidence Act) or otherwise. Mr Bowers did not press for an order that an inspection be held when the primary judge responded, “No, I won’t be attending the premises, Mr Bowers.” Mr Bowers let the matter rest.

38. In any event, Grigull submitted that a view of the premises would not have assisted the primary judge in resolving any matter in issue. None of the factors in s 53(3) of the Evidence Act would have suggested that an inspection of the premises would have assisted the primary judge in resolving the issues of law or fact raised by Mr Bowers’ grounds of judicial review or in understanding the evidence.

39. I reject ground 1. Although Mr Bowers foreshadowed that he would make an application for an order that an inspection of the premises be held, he did not make a formal application at the hearing. At most, Mr Bowers mentioned that he had raised a request that there be a short view of the premises to aid the primary judge in resolving the case, but he did not make the application or press his request when the primary judge indicated he would not be attending the premises. Mr Bowers did not explain how “a short view of the premises” would “aid the case”.

40. The primary judge did have power under s 53(1) of the Evidence Act to order that an inspection be held, but only “on application” by one of the parties. Although Mr Bowers foreshadowed in his email that he might make an application for an order that an inspection be held, he did not make this application at the hearing. The power of the primary judge under s 53(1) of the Evidence Act was not engaged. The primary judge did not err in not ordering an inspection of the premises on his own motion.

41. In any event, as Grigull submitted, an inspection of the premises at the time of the hearing, 9 February 2022, could not have assisted in resolving the grounds of review of the Council’s decision to grant development consent made a year earlier on 22 January 2021. Mr Bowers’ proceedings sought judicial review, not merits review, of the Council’s decision. The validity or invalidity of the Council’s decision depended on the law and facts that existed at the time of the Council’s decision. An inspection of the premises a year after the Council’s decision had been made could not have assisted the primary judge in deciding whether the Council did or did not err in the ways challenged in the grounds of review.

Grounds 2 and 3: rulings on objections to evidence

42. Grounds 2 and 3 concern the primary judge allowing Grigull to raise late objections to the affidavits read by Mr Bowers and in upholding some of these objections. Mr Bowers did not address these grounds of appeal, other than in passing, in his submissions to this Court. His written submissions attached his written submissions in the court below. The latter submissions noted that, according to the case management directions that had been made, objections to his affidavits were due on 1 December 2021. Mr Bowers had filed two affidavits, one dated 28 May 2021 and the second dated 4 January 2022. According to Mr Bowers, both respondents did not file and serve their objections to his affidavits by the due date, but instead by a later date. Mr Bowers submitted that his affidavits therefore should have been allowed to “go into evidence without objection”.

43. The transcript of the hearing established that Mr Bowers did raise with the primary judge his primary concern that “the objections to affidavits were supposed to be served two months ago” (T 2/02/22, p 4). The primary judge acknowledged Mr Bowers’ concern but proceeded nevertheless to rule on the objections. In relation to Mr Bowers’ affidavit of 28 May 2021, the primary judge rejected the second and third sentences of paragraph 2 (T 2/02/22, pp 5 and 6), the third and fourth sentences of paragraph 3 (T 2/02/22, p 7) and paragraph 4 (T 2/02/22, p 8). The primary judge did, however, rule that he would read the third sentence of paragraph 3 and paragraph 4 as a submission by Mr Bowers.

44. In relation to Mr Bowers’ affidavit of 4 January 2022, in which he offered an opinion that “the total area that can be passively surveilled from the caretaker’s flat is 57.65 sqm which is 2.85% of the total site area (2022 sqm)”, an opinion he formed by calculation from the approved plan, the primary judge received that evidence as an “aid memoire” and a submission, but not as evidence as Mr Bowers was not an expert (T 2/02/22, pp 10-11).

45. Mr Bowers did not explain why the primary judge erred in upholding the objections and not allowing the sentences and paragraphs of Mr Bowers’ affidavits or in receiving them as an aid memoire or submissions rather than as evidence. Mr Bowers submitted orally that the rejected sentences and paragraphs were plainly relevant to his fraud ground, although why this was so was not articulated. As I will explain when I deal with ground 5, Mr Bowers’ fraud ground was that Grigull committed a fraud on the Council by applying for development consent to use the unit in the industrial buildings as a caretaker’s residence in circumstances where it had already commenced illegally using the unit as residential accommodation and intended to continue to use the unit illegally as residential accommodation even if development consent were to be granted for use of the unit as a caretaker’s residence.

46. Mr Bowers did not explain how the rejected sentences and paragraphs of his affidavit of 28 May 2021 assisted in establishing either of these facts. The rejected sentences in paragraph 2 concerned where Mr Grigull’s ex de facto wife lived (at a different location to the premises at Brookvale) and Mr Grigull’s allegedly incorrect statement of his residential address on ASIC forms (again at a different location than the premises at Brookvale). These statements could have no relevance to the circumstances relied on for the fraud ground. The third sentence of paragraph 3 asserted what Grigull’s intention was when it allegedly used the unit in the past and what its intention is in relation to the future use of the unit. Evidently, Mr Bowers cannot express an opinion about Grigull’s intentions in the past or in the future. The fourth sentence of paragraph 3 was a “note in passing” that Mr Bowers’ brother had defamed him to the Council. The fourth paragraph asserted a conclusion that the premises had never had “a caretaker live-in or live-out to date”. Mr Bowers is not in a position to express that conclusion. Accordingly, no error has been shown in the primary judge’s rejection of these sentences and paragraphs.

47. It is incumbent on an appellant to articulate and demonstrate the error the appellant alleges the primary judge made. The bare assertion that the primary judge erred in some respect is insufficient. Ground 3 can therefore be rejected.

48. Mr Bowers also did not explain why the primary judge erred in allowing Grigull to maintain the objections to Mr Bowers’ affidavits, notwithstanding that the objections were filed and served after the date by which the objections had been directed to be filed and served. Mr Bowers’ argument seemed to be simply that the respondents were precluded from raising any objection to his affidavits by reason of their objections having been filed and served late. That assertion is insufficient. The primary judge had a discretion to consider any objections raised by the respondents to Mr Bowers’ evidence which he read at the hearing, regardless of whether notice that they would be raising those objections at that hearing was served later than had been directed. Mr Bowers has not articulated or demonstrated any error in the primary judge’s exercise of discretion to allow the respondents to raise objections to Mr Bowers’ affidavit. I reject ground 2.

Ground 4: application of Jones v Dunkel and Browne v Dunn

49. Mr Bowers submitted that the primary judge erred in his application of “the rule” in Jones v Dunkel (1959) 101 CLR 298 and Browne v Dunn (1893) 6 R 67. In his written submissions to this Court, Mr Bowers did not explain how the primary judge had erred, merely asserting that: “both Respondents (1 - The Council and 2 - The Landowner) are Browne v Dunn and Jones v Dunkel’d”.

50. Mr Bowers attached to his submissions in this Court his written submissions in the court below. In those submissions, Mr Bowers likewise asserted that: “Both Respondents are Jones v Dunkel’d and Browne v Dunn’d”, but he did not elaborate on what this meant. In oral argument in the court below, Mr Bowers did assert that because the Council did not call the Council officer who had made the decision to grant the development consent to give evidence and Grigull did not call Mr Grigull to give evidence, the primary judge should assume that their evidence would not have assisted their cases (T 2/02/22, p 17 and p 45) and indeed would have assisted Mr Bowers’ case (T 2/02/22, p 18).

51. Mr Bowers referred in his written submissions to this Court to the judgment of Glass JA in Payne v Parker [1976] 1 NSWLR 191 as containing a useful discussion of the rule in Jones v Dunkel (the precise passages were not identified but presumably they are the passages at 200-202). But how this discussion should be applied to the facts of the present case was not explained. Mr Bowers did not explain in his written submissions how the principle in Browne v Dunn was relevant in the present case.

52. These bare assertions do not articulate or demonstrate how the primary judge erred in applying the principles in either Jones v Dunkel or Browne v Dunn. Presumably, the principle in Jones v Dunkel to which Mr Bowers was referring was that articulated by Windeyer J at 321 that “when a party, who is capable of testifying, fails to give evidence… [u]nless a party’s positive failure to give evidence be explained, it may lead rationally to an inference that his evidence would not help his case.” Mr Bowers did not explain in what respect the evidence of the Council officer (in the case of the Council) or the evidence of Mr Grigull (in the case of Grigull) would have helped their respective cases. In any event, the lengthy reasons of the Council officer who prepared the Assessment Report on the application were in evidence.

53. Mr Bowers bore the onus of establishing that the Council’s decision to grant development consent was vitiated by the errors he alleged in the grounds of review. Insofar as establishing those grounds depended on evidence, Mr Bowers bore the onus of leading or tendering that evidence. The absence of a witness, who might have been called by the respondents, cannot make up for any deficiency in the evidence led or tendered by Mr Bowers: Jones v Dunkel at 321.

54. The first ground of challenge, that the decision to grant development consent was vitiated by the fraud of Grigull in applying for development consent for the use of a caretaker’s residence that had already been illegally commenced or in intending to use the unit approved as a caretaker’s residence illegally for residential accommodation, and by the bad faith of the Council in granting development consent in these circumstances, needed to be established by evidence adduced by Mr Bowers. The failure of the Council to call the Council officer or Grigull to call Mr Grigull could not be used to make up for any deficiency in the evidence adduced or tendered by Mr Bowers.

49. Nevertheless, it may be accepted that insofar as Mr Bowers did adduce evidence to establish fraud or bad faith, if that evidence might have been contradicted by the evidence of the Council officer or Mr Grigull, Mr Bowers’ evidence might be more readily accepted if the Council and Grigull failed to call those witnesses to give that evidence. Thus, for instance, if an inference was open from facts proven by direct evidence, and the question was whether it should be drawn, the circumstance that the respondents disputing the inference might have proven to the contrary, had they chosen to adduce evidence from the Council officer or Mr Grigull, could be taken into account as a circumstance in favour of drawing the inference: Jones v Dunkel at 321. But Mr Bowers did not articulate or demonstrate what inference from the evidence he had adduced should be more readily drawn by reason of the respondents’ failure to call the Council officer or Mr Grigull to give evidence to contradict that inference. To assert, as Mr Bowers did, that their evidence would not have assisted the Council’s or Mr Grigull’s cases is uninformative – in what respects would their evidence not have assisted their respective cases?

50. Equally, the second ground of challenge to the decision to grant the development consent, that the use of the caretaker’s residence was not ancillary and subservient to the dominant industrial use of the premises, needed to be established by evidence adduced by Mr Bowers. Mr Bowers did not articulate or demonstrate what inference from the evidence he adduced should be more readily drawn by the Council and Grigull failing to call the Council officer or Mr Grigull to contradict that inference. Again, the bare assertion that their evidence would not have assisted the Council’s and Grigull’s cases is uninformative – in what respects would their evidence not have assisted their respective cases?

51. Mr Bowers’ reliance on the rule in Browne v Dunn is even more mysterious. The rule is one of procedural fairness. One articulation of the principle is that it requires “a party or a witness to be put on notice that a statement made by the witness may be used against the party or witness or to be put on notice that an adverse inference may be drawn against the witness or an adverse comment made about the witness in order that the witness may respond to that issue and give an explanation”: see White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169 at [216]; [1998] FCA 806 and Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134; [1999] FCA 773 at [51].

52. Mr Bowers did not articulate or demonstrate how or why the rule in Browne v Dunn was said to have been infringed by either the Council or Grigull – what was the statement made about Mr Bowers or the adverse inference to be drawn against Mr Bowers of which notice needed to be given to Mr Bowers in order that he could respond to that issue and give an explanation? Mr Bowers did not answer this question.

53. In these circumstances, I reject ground 4.

Ground 5: fraud and bad faith

60. Ground 5 of the appeal corresponds with the first ground of challenge to the Council’s decision to grant development consent. The ground had two components: a fraud component and a bad faith component.

61. The fraud component of the ground was that Grigull committed a fraud on the Council in applying for development consent for the use of a unit in the industrial building as a caretaker’s residence in circumstances where the unit was already being used illegally for residential accommodation and Mr Grigull had no intention of using the unit as a caretaker’s residence but instead intended to continue to use it for residential accommodation. The bad faith component of the ground was that the Council’s decision to grant development consent for the use of the caretaker’s residence, in these circumstances, was in bad faith.

62. The primary judge found that Mr Bowers had not established either component of this ground of challenge: at [46]. I agree.

63. Starting with the fraud component, neither the circumstance that the unit of the industrial building had been used illegally for residential accommodation nor the circumstance that the user intended to continue using the unit illegally for residential accommodation even if development consent were to be granted to use it as a caretaker’s residence, if those circumstances were to be proven, precluded Grigull from applying for, or the Council granting, development consent to use the unit as a caretaker’s residence. It is well settled that past illegal use neither precludes the grant of development consent for future legal use nor is a relevant factor by itself in determining whether to grant development consent: see, for example, Kouflidis v Salisbury City Council (1982) 29 SASR 321 at 323–324 and Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 at [19]–[33]. A development application seeks development consent for, and the development consent authorises, the carrying out of development in the future, and does not retrospectively approve development that has been carried out in the past: Kur-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300; [2021] NSWCA 177 at [39].

64. In the present case, Grigull applied for development consent to use the unit in the industrial building as a caretaker’s residence in the future, not to approve retrospectively any use of the unit, whether as a caretaker’s residence or for residential accommodation, that had occurred in the past. That was a proper development application to make under s 4.12(1) of the EPA Act. The Council, as the consent authority, had power under s 4.16(1) of the EPA Act to grant development consent for the proposed use as a caretaker’s residence, providing it was ancillary and subservient to the dominant use of the building for industrial purposes, which was permissible in the IN1 General Industrial Zone.

65. As I have just noted, the mere fact that the applicant, Grigull, might have used the unit in the industrial building in breach of either s 4.2 or s 4.3 of the EPA Act in the past is neither a bar to the power of the Council as consent authority to grant development consent to the development application to use the unit for a permissible purpose nor a relevant factor by itself in determining whether to exercise that power.

66. In this circumstance, Grigull cannot commit a fraud on the Council by doing what it was lawfully able to do, namely to apply for development consent to use the unit in the industrial building for a permissible purpose in the future. It matters not whether Grigull, as the applicant, disclosed to the Council in its application for development consent its past illegal use, as that fact was not relevant in the Council determining the development application.

67. As a matter of fact, however, Grigull did disclose in the Statement of Environmental Effects that accompanied the development application that:

“Council has instructed that the existing use of part of the premises as a caretaker’s residence is unauthorised and should be formalised via the granting of development consent.” (p 5)

68. As this Statement of Environmental Effects noted, the Council was aware of the unauthorised use of the building. In the Council’s Development Application Assessment Report on Grigull’s development application, the Council officer noted in the section on “Detailed Site Description”:

“A portion of the first floor of the building is also currently being occupied for the purposes of a caretaker’s dwelling. No approval has been granted for this use. This use is currently being investigated by Council’s Compliance department. The subject Development Application seeks to regularise this use.” (p 3)

69. In the section discussing “Notification & Submissions Received” under the heading “Current Unauthorised Use”, the Assessment Report noted one of the matters raised in the submissions:

“Concern was raised that a caretaker’s residence is currently being used without consent. A site visit confirmed that an unauthorised caretaker’s residence currently exists on site. This matter has been referred to Council’s Compliance department for further investigation and action.” (p 10)

70. There was, therefore, no fraud committed on the Council by a failure to disclose the past illegal use. Grigull expressly notified the Council of the past illegal use and the Council was aware of this illegal use, confirmed by a site visit by the Council.

71. As to Mr Bowers’ allegation of future illegal use, again any intention of the applicant for development consent to use premises otherwise than in accordance with a development consent once granted is not a relevant factor in the consent authority determining whether or not to grant development consent. A development consent is concerned with the use, not the user. As Stephen J observed in Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 at 293; [1972] HCA 33:

“First, although a consent will no doubt result from an application by an individual it is essentially impersonal in the sense that it does not concern itself with and is not limited to the applicant but is a consent to the world at large in relation to the land which is its subject. Once granted, it makes lawful, in a town planning context, what would otherwise be unlawful but does so by reference to the acts done and not to the identity of the actor…”.

72. In the present case, the development consent granted by the Council authorised the use of the unit in the industrial building as a caretaker’s residence, not any particular person, including the holder of the development consent, to use the unit for that purpose. The development consent operated in rem, not in personam: House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at [23]. A development consent authorises any person, not merely the applicant for the development consent, to use the land in accordance with the terms of the development consent: Winn v Director-General of National Parks and Wildlife and Ors (2001) 130 LGERA 508; [2001] NSWCA 17 at [4]; and Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 at [50].

73. The development consent in the present case authorises any person, not just Grigull, to use the unit as a caretaker’s residence, provided such use is in accordance with the development consent, including the conditions of consent. Hence, any intention of Grigull to use the unit in the industrial building not in accordance with any development consent that might be granted (even if this were to be established) precluded neither Grigull from applying for development consent to use the unit for a permissible purpose nor the Council as consent authority from granting consent to a development application to use the unit for a permissible purpose. Any such intention to use the unit illegally is not in itself a relevant factor in determining whether or not to grant development consent to that development application.

74. In this circumstance, Grigull cannot commit a fraud on the Council by applying for development consent to use the unit for a permissible purpose, irrespective of whether it intended to use the unit in accordance with the development consent once granted for the approved purpose. Again, it matters not whether Grigull, as the applicant, disclosed its intention to use the unit in accordance with the development consent once granted, as that fact was not relevant to the determination of the development application.

75. As a matter of fact, however, Mr Bowers has not proven that Grigull, at the time it made its development application seeking development consent to use the unit as a caretaker’s residence, did intend to use the unit otherwise than in accordance with any development consent that the Council might grant for the use of the unit as a caretaker’s residence. Mr Bowers made bare assertions but failed to prove those assertions by admissible evidence.

76. As to the bad faith component of the ground, Mr Bowers’ claim that the Council acted in bad faith in granting development consent fails for the same reasons as his claim that Grigull committed a fraud on the Council fails. The Council had power to grant development consent to the development application for use of the unit in the industrial building as a caretaker’s residence, regardless of any past illegal use or intention of future illegal use. In this circumstance, the Council cannot have acted in bad faith in acting within power to grant development consent to the use of the unit as a caretaker’s residence.

77. For these reasons, I reject ground 5.

Ground 6: ancillary use

78. The sixth ground of appeal is that the proposed use of the unit in the industrial building as a caretaker’s residence is prohibited. Mr Bowers’ argument was as follows. The land on which the industrial building is erected is zoned IN1 General Industrial under the applicable Warringah Local Environmental Plan 2011. In that zone, all forms of residential accommodation are prohibited. A caretaker’s residence is a form of residential accommodation. Hence, its use as a caretaker’s residence is prohibited. A development application cannot be made, and development consent cannot be granted, for a use that is prohibited. Accordingly, the grant of development consent to use the unit as a caretaker’s residence was invalid.

79. The Council and Grigull responded that the use of the unit as a caretaker’s residence was ancillary and subservient to the use of the building as a whole for industrial purposes. Although the nature of the use of the unit might be as a caretaker’s residence, the purpose of the use is industrial. Use for industrial purposes is permissible with consent on land zoned IN1. Grigull cited in its submissions in the court below, and the primary judge referenced in his judgment (at [50] and [54]), the well-known observation of Glass JA in Foodbarn Pty Limited & Ors v Solicitor-General (1975) 32 LGRA 157 at 161:

“It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used.”

80. Mr Bowers in turn responded that just because the use of the unit in the industrial building might be said to be ancillary to the use of other parts of the building, that did not preclude it from being an independent use. He cited the statement of Meagher JA in Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404 at 409-410:

“Notwithstanding the principles laid down in Foodbarn, it does not follow that a use which can be said to be ancillary to another use is thereby automatically precluded from being an independent use of the land. It is [a] question of fact and degree in all of the circumstances of the case whether such a result ensues or not… But when one use of the land is by reason of its nature and extent capable of being an independent use it is not deprived of that quality because it is ‘ancillary to’, or related to, or interdependent with, another use.”

81. Hence, the question for the Council as consent authority was, having regard to the nature and extent of the use of the unit as a caretaker’s residence, whether that use would be ancillary and subservient to the dominant use of the building for industrial purposes and not an independent use.

82. The Council determined that the use of the unit as a caretaker’s residence was ancillary and subservient to the dominant use of the building for industrial purposes. Mr Bowers challenged the Council’s decision as being perverse. He contended in effect that no reasonable person in the position of the Council and on the material before the Council could have determined that the use was an ancillary use. Deciding Mr Bowers’ challenge that the Council’s decision was perverse required consideration of the material that was before the Council.

83. The first set of material was the development application seeking development consent to use the unit as a caretaker’s residence and the accompanying documents. The Statement of Environmental Effects accompanying the development application for the caretaker’s residence, in the section on the “Proposal”, explained:

“The application seeks consent for alterations and change of use to part of the first floor to as [sic] a caretaker’s residence. The proposed one-bedroom residence totals 69sqm in gross floor area and is purposed to house the owner or a caretaker for the operation of the industrial uses on-site. The use is considered ancillary to existing legal uses on site which defined in the WLEP as light industries and storage premises.

Ancillary use refers to any use located on the same site as a primary use, where the ancillary use is small in scale and incidental to the primary use and serves a supportive function to the primary use. The proposed role of a full-time caretaker fulfils this criteria [sic]. Further, Planning Circular PS 13-001 asserts:

An ancillary use is a use that is subordinate or subservient to the dominant purpose. The integral relationship between the various components means it is appropriate to characterise the entire development as being for the dominant purpose of general industry, including the caretaker’s residence, the built form of which could be considered to be a different, residential use of land. However, since the residence exists to serve the dominant purpose, it is properly characterised as an ancillary use and is therefore development for the purposes of general industry.

The site is currently utilised by three industrial tenancies while a fourth tenancy will be sought once additional floor area is constructed per DA2017/0760.

The caretaker’s role is to enhance security, particularly outside of business hours, manage common spaces including parking spaces, waste management and managing the needs of machinery related to the cabinet making/carpentry trade workshop which occasionally operate beyond business hours.

The proposed residence fulfils the criteria of an ancillary use due to the following:

-    The residence exists to serve the dominant purpose of the uses within the building which are permissible and currently operating from site.

-    The caretaker’s residence is subservient to industrial uses and it takes up less than 6% of the total gross floor area (69sqm of 1335sqm).

-    The residence is not being leased on the open market, and is to be occupied by those directly related to managing the uses on site.

-    The residence is not being strata subdivided and sold independently to the market.

-    Access to the residence is via a shared entry, stair and passageway. The residence and industrial tenancies are interlinked physically as well as by association through the caretaker function.” (pp 5-6)

84. In the section on “Planning Controls”, the Statement reiterated:

“The proposed residence is considered an ancillary use to industry rather than a residential use.” (p 7)

“The proposal complies with the objectives of the [IN1] zone due to the following factors:

-    The proposed caretaker serves the existing and expanding industrial uses on site. The caretaker’s role is to enhance security, particularly outside of business hours, manage common spaces including parking areas, waste management and managing machinery which operate beyond business hours.

-    The proposed [sic] does not diminish the primary use of the property, which is to facilitate employment generating local business. The scale of the residence consists of less than 6% of total GFA vis the conversion of surplus storage area. The existing businesses are able to continue functioning as per current operations.

-    The residence is setback considerable [sic] from property boundaries and thus it is unlikely to reduce the operating capability or capacity of the adjacent businesses.

-    The character of the area will not be affected considering the residence is not visible from the street or a public place.” (pp 7-8).

85. The section discussing the matter for consideration under s 4.15(1)(c) of the EPA Act of the suitability of the site of development was to a similar effect (p 9).

86. Grigull submitted an Operational Plan of Management in support of the development application. The Operational Plan of Management stated as one of its aims and objectives the delineation of the role of the caretaker and the use of the caretaker’s residence. The role of the caretaker was stated to be “to manage the various uses undertaken upon the property by separate businesses and maintain the property” (p 2). The caretaker “provides on-going support for tenants during business hours for security and after hours” (p 5). The caretaker’s duties were specified to include waste management; coordinate and accept deliveries and pick-ups; attend to building maintenance and repairs; and monitor security cameras and conduct regular security checks of the building and each tenancy as appropriate (p 5). The caretaker was also stated to have responsibility for logging and attending to resolving any complaints received (p 2). The role of the caretaker’s residence was stated to be to provide accommodation for a full-time caretaker to undertake these roles and responsibilities (p 2). The Operational Plan of Management limited the use of the caretaker’s residence:

“The caretaker’s residence is to be occupied only by person(s) engaged as a caretaker of the property and their immediate family. The residence is not to be used or occupied as a dwelling independent of the light industrial/warehouse units.” (p 3)

87. The second set of material was the public submissions on the development application. In response to the public notification and exhibition of the development application, a planning consultancy, Plan Matters, made two submissions on behalf of Mr Bowers objecting to the proposed development, one on 21 July 2020 and the second on 17 December 2020. The submissions contended that, amongst other points, the proposed caretaker’s residence fails the ancillary use test and, as a form of residential accommodation, is prohibited in the IN1 zone. A firm of solicitors, Bartier Perry Lawyers, also made two submissions on behalf of Mr Bowers, one dated 27 July 2020 and the second dated 19 December 2020, contending that the proposed development was prohibited in the IN1 zone as it was not ancillary to the dominant use of the building for industrial purposes.

88. The third set of material was the Council officer’s assessment of the issue of ancillary use in the Development Application Assessment Report. The Assessment Report noted that the proposed development included “internal alterations and the use of a portion of an existing internal building as a one-bedroom caretaker’s residence with a floor area of 69sqm. A 35 sqm open rooftop terrace is proposed above this caretaker’s residence.” (p 1). The Assessment Report noted that amongst the matters raised by public submissions on the development application were: “whether the proposed caretaker’s use is properly ancillary to the dominant purpose(s) and therefore permissible within the IN1 General Industrial Zone”; “inadequate information to demonstrate ancillary use”; “the proposal does not meet IN1 General Industrial Zone objectives”; “precedent”; “current unauthorised use”; “inadequate and misleading Operational Plan of Management”; and “the application should be refused due to recent case law refusing a single ‘caretaker’s unit’ within a IN1 zone”. The Assessment Report commented on each of these submissions, cross-referring in a number of instances to the discussion in the Zone IN1 General Industrial section of the Report. That section stated:

“Zone IN1 General Industrial

The site is zoned IN1 General Industrial Zone under the Warringah Local Environmental Plan 2011.

The proposal seeks consent for the use of a single ‘caretaker’s residence’. A ‘caretaker’s residence’ is not expressly defined within the Warringah Local Environmental Plan 2011.

The Department of Planning Circular PS-13001 ‘How to characterise development’ issued 21 February 2013, provides explanatory information for Councils that LEP’s (including a Standard Instrument LEP) may regard a ‘caretaker’s residence’ that is an integral part of a general industrial building, as an ‘ancillary use’ and therefore permissible within the IN1 General Industrial Zone.

This treatment of ancillary use is noted in Mollica v Marrickville Municipal Council ((1969) 19 LGRA 24) which states that a prohibited use can only occur where that use remains ancillary to the approved use. This is further recognised in Foodbarn Pty Ltd & Ors v Solicitor General ((1975) 32 LGRA 157) which notes that the secondary or ancillary purpose must not serve an independent purpose which does not subserve the dominant purpose for which the land is being used.

The Department of Planning Circular PS-13001 ‘How to characterise development’ echoes this stating:

‘The integral relationship between the various components means it is appropriate to characterise the entire development as being for the dominant purpose of general industry, including the caretaker’s residence, the built form of which could be considered to be a different, residential use of land. However, since the residence exists to serve the dominant purpose, it is properly characterised as an ancillary use and is therefore development for purposes of general industry.’

The proposed development is supported by an Operational Plan of Management. This document sets out the ongoing role of the caretaker and by implication, the relationship between the use of the caretaker’s residence and the other dominant industrial use upon the property. Specifically this [Operational] Plan of Management outlines the purpose of the caretaker being amongst other things – security, supervision of materials and general duties to facilitate the industrial use of the land. This document also confirms that the caretaker’s residence is not an independent/separate use of the land. If approved, this document is to be conditioned as part of any consent. Additionally, if approved, a condition of consent is recommended that a positive covenant be imposed on title to ensure that the caretaker occupying the unit is employed in an appropriate capacity for the site and the unit is not to be sold, leased or used or occupied as a dwelling which is independent from the predominant use of the premises.

Furthermore, it is considered that the proposed caretaker’s residence would be appropriately integrated into the building, both in appearance and functionality, and would be of a size and scale which is appropriately proportionate and subordinate to the wider industrial use. The unit would share common entrances with the other industrial uses of the site and would allow for ongoing passive surveillance. Furthermore, the proposed unit would not be readily visible from the street or surrounding properties and would not result in a change in character of the industrial building.

On the basis of the above, Council considers that the works proposed under the current application for the facilitation of a ‘caretaker’s residence’ are ancillary or subservient to the primary industrial land use and, subject to recommended conditions, would not form an independent land use. As such, the proposal is considered to be permissible under the Warringah LEP 2011.

This permissibility of a caretaker’s residence within the IN1 General Industrial Zone is further reinforced under Part 5A Commercial and Industrial (New Buildings and Additions) Code of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. This State Policy permits the development of caretaker’s residence within the IN1 General Industrial Zone subject to the caretaker’s flat:

-…Being ancillary to the industrial development.

-…Complying with the relevant requirements contained in Volume 1 of the Building Code of Australia that are applicable to a Class 4 building.

-…Not have a floor area not [sic] exceeding 100m².

-…The development must not include more than one caretaker’s flat per lot.

The proposed caretaker’s residence subject of this application would adhere to these requirements set out by this State Policy (subject to recommended conditions of consent).” (pp 15-16)

89. The Assessment Report recommended the grant of development consent to the proposed caretaker’s residence subject to conditions. A number of the conditions were intended to ensure that the use of the caretaker’s residence would be ancillary and subservient to the dominant use of the building for industrial purposes. Condition 1 required the development to be carried out in compliance with the specified plans and documents, including the Operational Plan of Management. Condition 2 limited the occupancy of the caretaker’s residence:

“2. Occupancy of Caretaker’s Residence

This consent relates to the occupation of the area on the Upper Floor Level adjacent the access ramp (western side) as shown on Plan number DA103, Revision E5, dated 5.10.2020 for the purposes of a caretaker’s residence, comprising 1 bedroom, dining room, kitchen, bathroom and roof terrace (as showed on DA101, Revision D).

The caretaker’s residence is restricted under this consent in terms of its occupation, such that it can only be occupied by persons working on the site and who are permanently involved in the daily role of caretaker of the premises. The caretaker’s residence is not [to] be sold, leased, used or occupied as a ‘dwelling’ which is independent of the industrial use of the property. The size, area and intensity of the caretaker’s residence is not to be enlarged beyond that shown on the approved plans.

Any variation to the approved occupancy of this tenancy is beyond the scope of the approval and requires an application to Council of a new development application seeking such approval.”

90. Condition 19 required the creation of a positive covenant restricting the occupation of the caretaker’s residence:

“19 Positive Covenant – Occupation of Caretaker’s Residence

A positive covenant shall be created on the title of the land requiring the proprietor of the land to restrict the occupancy of caretaker’s residence to a person working on the property and performing the role of daily caretaker of the premises and is not [to] be sold, leased or used or occupied as a ‘dwelling’ which is independent of the industrial use of the property.

The terms of the Positive covenant are to be prepared by a Legal Practitioner at the applicant’s expense and endorsed by Northern Beaches Council prior to lodgement with NSW Land Registry Services. Northern Beaches Council shall be nominated as only party able to release, vary or modify such covenant.”

91. Condition 23 required a register of occupation of the caretaker’s residence:

“23. Register of Occupation of the Caretaker’s Residence

The owner of the premises is to keep and maintain a register of the occupation of the caretaker’s residence at all times and for the life of this consent. The register is to be up to date at all times and is to record the details of the occupant of the caretaker’s residence. By completing the details in the register and allowing that individual to occupy the residence, the owner is certifying that the occupant meets all the requirements concerning the restricted use of the residence under the consent.

The register is to be made available to Council officers upon request at all times.”

92. The Council took all of this material into account when, on 22 January 2021, it determined to grant development consent subject to conditions, as recommended in the Assessment Report. In particular, this determination to grant conditional consent involved deciding that the use of the unit as a caretaker’s residence would be ancillary and subservient to the dominant use of the building for industrial purposes.

93. At the hearing of the appeal in this Court, Mr Bowers submitted that the Council’s decision that the use of the caretaker’s residence would be ancillary was “perverse”. The critical factor, in Mr Bowers’ submission, was “the near total absence of any passive surveillance opportunity” from the caretaker’s residence. Mr Bowers referred to his affidavit of 4 January 2022 where he estimated that “the total area that can be passively surveilled from the caretaker’s flat is 57.65 sqm which is 2.85% of the total site area (2022 sqm)”.

94. When asked by this Court whether there were any other indicators as to why the caretaker’s residence should not be considered to be ancillary, Mr Bowers only referred to condition 2 of the development consent. That condition restricted the occupation of the caretaker’s residence to “persons working on the site and who are permanently involved in the daily role of caretaker of the premises”. As I understood his argument, the reason for Mr Bowers referring to this condition was that he contended that Mr Grigull had never acted as a caretaker in the past and had no intention of acting as a caretaker in the future, as Mr Grigull left the premises early in the morning to do other work for his steel fabrication business and returned in the early evening each day. In these circumstances, Mr Bowers submitted that Mr Grigull had not complied and would not comply with condition 2 of the development consent. Mr Bowers did not rely on any other indicators other than these two matters.

95. Not only did Mr Bowers not advance any persuasive argument as to why the caretaker’s residence could not be considered ancillary and subservient to the dominant industrial use of the building, he also failed to rebut the arguments and reasons advanced by Grigull in its Statement of Environmental Effects and Operational Plan of Management accompanying the development application, and by the Council in the Development Application Assessment Report, as to why the caretaker’s residence would be ancillary and subservient to the dominant industrial use of the building. Mr Bowers also did not explain why conditions 2, 19 and 23 of the development consent would not ensure that the development, if carried out in accordance with the consent, would be ancillary and subservient to the dominant industrial use of the building.

96. As I have noted, Mr Bowers framed this ground of judicial review of the Council’s decision to grant development consent in terms of the Council’s decision on ancillary use being perverse. The primary judge rejected Mr Bowers’ argument that the Council’s decision was perverse (at [49]), finding that “it was open to Council to determine that the proposal constituted development which was ancillary to the industrial use” (at [53]). The primary judge’s reasons included:

“I find that it was clear from the development application (and the material accompanying it) that the nature of the use of the caretaker’s residence is, and was meant to be, as a residence for a caretaker and, while noting that the nature of the use needs to be distinguished from the purpose of the use (Chamwell at [34]), I accept the submission of Council that, in making the determination, Council was satisfied that the purpose of the use of the premises is for industrial use and that the proposed use of the caretaker’s residence is ancillary to the dominant industrial use and as such is not an independent use: Foodbarn at 161. In reaching this conclusion, Council had before it the Operational Plan of Management (which sets out the role of the caretaker) and, as Council submits, sufficient information by implication of the operational relationship between the caretaker’s residence and the rest of the premises, and the conditions of consent, to understand clearly that the residence is integrated into the building in both appearance and functionality. In particular, this is clearly confirmed by the size (apparently, as submitted by Grigull Custodian, less than 6% of the total gross floor area) and the location (whereby it has no separate or independent access, such that it is not physically separate to, and is wholly within and accessed through, the industrial complex) of the caretaker’s residence” (at [54).

97. The primary judge concluded:

“In summary, I find that Council was satisfied, and was entitled to be so satisfied in all the circumstances, that characterisation of the development as a caretaker’s residence is ancillary to industrial development, and that the proposal was therefore permissible” (at [56]).

98. I find that Mr Bowers has not established that the primary judge erred in not finding that the Council’s decision on ancillary use was perverse. As the primary judge found, the Council’s decision that the use of the caretaker’s residence would be ancillary and subservient to the dominant use of the building for industrial purposes was reasonably open to the Council having regard to all the material before it, including the matters raised in the Statement of Environmental Effects and the Operational Plan of Management accompanying the development application, the Council’s Development Application Assessment Report, and the recommended conditions of consent, as well as the nature, extent and other features of the use of the unit in the building itself. Grigull’s Statement of Environmental Effects and Operational Plan of Management, and the Council’s Development Application Assessment Report, provided reasons for the characterisation of the use of the caretaker’s residence as being ancillary and subservient to the dominant use of the building for industrial purposes. The conditions of consent would ensure that this use of the caretaker’s residence would be ancillary and subservient to the dominant use of the building for industrial purposes.

99. The two matters relied upon by Mr Bowers do not establish to the contrary. The limited degree of passive surveillance estimated by Mr Bowers, said to be 2.85%, is not to the point. This referred to the degree of passive surveillance that was available from inside the caretaker’s residence looking out through the windows of the residence. But this was not the mode of surveillance proposed. The Operational Plan of Management proposed the use of CCTV cameras for surveillance: “CCTV cameras will operate 24 hours, 7 days and will be strategically installed, operated and maintained through the property. The caretaker is expected to monitor security cameras and the carpark when tenancies are not occupied” (p 5). In addition, the caretaker would be required “to conduct regular security checks of the property and each tenancy as appropriate” (p 5). Condition 1 of the development consent requires the development to be carried out in compliance with the Operational Plan of Management. Accordingly, even if the degree of passive surveillance available from the inside of the caretaker’s residence looking out through the windows of the residence were to be as restricted as Mr Bowers claimed, this is not an indicator that the use of the caretaker’s residence would not be ancillary and subservient to the use of the building for industrial purposes.

100. The second matter relied upon by Mr Bowers is in fact a contra indicator that the use of the caretaker’s residence would be an ancillary use. Condition 2 restricts the occupation of the caretaker’s residence only to “persons working on the site and who are permanently involved in the daily role of caretaker of the premises”. Grigull, or any other person carrying out the development, would be required by law to carry out the development in accordance with the consent, including this condition of consent: s 4.2(1)(b) of the EPA Act. Compliance with the consent, including condition 2, will ensure that the use of the caretaker’s residence will be ancillary and subservient to the dominant use of the building for industrial purposes.

101. Mr Bowers’ argument that Grigull has not complied and will not comply with the condition, as he is not a person who is “working on the site” or “permanently involved in the daily role of caretaker of the premises”, is not to the point. Such non-compliance might be relevant as to whether there will be a breach of the EPA Act, but it is not relevant to the characterisation of the use of the caretaker’s residence as being ancillary and subservient to the dominant use of the building for industrial purposes.

98. For these reasons, I reject ground 6.

Conclusion and costs

103. Mr Bowers has not established any of the six grounds of his appeal. His appeal should be dismissed.

104. The usual order for costs on an appeal to this Court is that costs follow the event. The event is the outcome of the appeal. This means Mr Bowers should pay the costs of the successful parties. In the circumstances of this appeal, Mr Bowers should pay the costs of both the Council and Grigull. Mr Bowers’ grounds of appeal, and his submissions and applications at the hearing of the appeal, involved substantive challenges to the conduct of both the Council and Grigull and justified substantive responses from both respondents. Grigull was entitled to uphold the validity of the development consent and defend the claim of fraud. The Council was entitled to defend the ground of bad faith and the allegations made in submissions that it committed the tort of misfeasance in public office. The Council was justified in not simply making a submitting appearance in the face of these claims impugning its conduct. This situation is different to that considered in Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [46]; Muswellbrook Shire Council v Hunter Valley Energy Pty Ltd at [67], [93].

105. Although in the court below Mr Bowers sought to be relieved of having to pay the respondents’ costs on the basis that his proceedings were brought in the public interest, Mr Bowers did not make that application in this Court. Mr Bowers did not otherwise advance a basis as to why the usual costs order should not be made.

106. I propose the Court order:

1. The appeal is dismissed.

2. The appellant is to pay the respondents’ costs of the appeal in this Court.

**********

Endnotes

Decision last updated: 08 December 2022