Brian Dunne v Hurstville City Council [1998] Nswlec 84 (7 May 1998)

[1998] NSWLEC 84

Land and Environment Court

of New South Wales

CITATION:	BRIAN DUNNE v. HURSTVILLE CITY COUNCIL [1998] NSWLEC 84 (7 May 1998) [1998] NSWLEC 35
PARTIES:	BRIAN DUNNE v. HURSTVILLE CITY COUNCIL [1998] NSWLEC 84 (7 May 1998)
FILE NUMBER(S):	10681 of 1997
CORAM:	Pearlman J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 ss 99(4A), 102
CASES CITED:	Coalcliff Community Association Inc v Minister of Urban Affairs and Planning (1997) 95 LGERA 114 at 129; Valhalla Cinemas Pty Ltd v Leichhardt Municipal Council (1986) 60 LGRA 240 at 246
DATES OF HEARING:	23 February 1998
DATE OF JUDGMENT:	05/07/1998
LEGAL REPRESENTATIVES:	Mr D R Parry, Barrister Ms L D McCusker, Solicitor

JUDGMENT:

These class 1 proceedings are an appeal from the deemed refusal of Hurstville City Council (“the council”) to grant a modification of a development consent pursuant to s 102 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”).

The development the subject of the development consent was for a muscular therapy clinic. The subject premises are located at 325-327 Belmore Road, Riverwood (“the premises”). The applicant, Mr Brian Dunne, in partnership with Ms Qui Zhen Xui, carries on a business on the premises under the name “Health Body Services”.

Development consent No 294/94 was granted by the council on 22 July 1994 subject to conditions, including condition 10 as follows:

“10. This consent is valid only for a period of twelve (12) months from the date of Council’s letter of consent. Further notification is required prior to the expiry of twelve (12) months from the date of this notice for any extension of time of this approval.”

The application sought to modify the development consent by deleting condition 10.

Condition 10 was the basis for two extensions of the operation of the development consent. On 10 May 1995, the council extended that operation until 22 July 1996. Similarly, a further 12 months extension was again sought by the applicant and granted by the council, resulting in an extension of the operation of the development consent until 22 July 1997.

Condition 10 was relied upon by the applicant a further time in a letter dated 19 June 1997, where the applicant applied for another twelve months extension. The council suspended its decision, and sought additional information regarding the applicant’s use of the premises, pending “further consideration”. The letter from the council seeking that information was dated 31 July 1997, which was after the expiry date of the current term.

The applicant’s solicitors responded to the council’s request for additional information in a letter dated 25 August 1997. No letter of reply was received from the council, and on 4 September 1997, the applicant applied to modify the development consent seeking the deletion of condition 10. The reason for the modification was stated on the application form:

“This deletion does not substantially alter the development and provides the applicant greater certainty in the operation of the business, the subject matter of the consent.”

The council did not determine the modification application and the applicant has appealed.

Issues

Six issues were raised by the council in its amended statement of issues. When the proceedings came on for hearing, only three of those issues were pressed. They were as follows:

(1) Whether the development to which the consent as modified relates is substantially the same development;

(2) Whether the development consent has lapsed pursuant to s 99(4A) of the EP&A Act; and

(3) Whether the s 102 application made on 4 September 1997 was made after the development consent had already lapsed pursuant to condition 10.

I deal with each of these issues in turn.

Substantially the same development

Section 102(1)(a) of the EP&A Act provides that the consent authority, (or the Court on appeal) may modify a development consent where “it is satisfied that the development to which the consent as modified relates is substantially the same development”.

In my opinion, the Court could without difficulty be satisfied of that requirement, because all that the modification application requires is the deletion of condition 10. The effect of such a modification will simply remove the need for the applicant to reapply annually for extension of the operation of the development consent. The modification sought is simply neutral so far as concerns the development the subject of the development consent. The modification has no effect on the nature of development the subject of the development consent nor the subject of the consent as modified.

The council has attempted to prove that the development presently carried on at the premises is not a muscular therapy clinic, but is in reality a brothel. This fact, even if established, is irrelevant. Section 102(1)(a) is not predicated on whether the development the subject of the consent remains the same development at the time the application for modification is made. That subsection is concerned solely with the effect of the modification, that is, it requires a comparison between the development as originally approved and the form of the development after modification ( Coalcliff Community Association Inc v Minister of Urban Affairs and Planning (1997) 95 LGERA 114 at 129).

Accordingly, I am satisfied that the development to which the consent as modified relates is substantially the same development.

I turn, however, to another aspect of the case raised by the council.

Ms McCusker submitted that if, at the time the application for modification was made, the premises were in fact used as a brothel, then the purpose of the modification application was a sham. She expressly disavowed any claim that the actual modification application itself was a sham, but argued, as I understood her, that the Court should take into account the use of the premises as a brothel in the exercise of its discretion under s 102.

The Court is required, under s 102(3A), “to take into consideration such of the matters referred to in section 90 as are of relevance to the development the subject of the application”. Ms McCusker in effect asked the Court to take into consideration that the use of the premises as a brothel (if that is the fact) amounts to a breach of the EP&A Act because the use of the premises is not the use approved by the development consent. Although she did not frame the council’s case in this way, I assume that she was asking the Court to take into consideration the breach as a circumstance of the case under s 90(1)(q), or in the public interest under s 90(1)(r). But the breach of the law (if it is established) is not relevant, either as a circumstance of the case or in the public interest, to the modification of the development consent. That follows from s 102(4) as explained in the following passage in the judgment of Cripps J in Valhalla Cinemas Pty Ltd v Leichhardt Municipal Council (1986) 60 LGRA 240 at 246:

“Section 102(4) provides that a modification of a development consent is not to be construed as the granting of development consent but a reference in the Environmental Planning and Assessment Act (or any other Act) to a development consent shall be a reference to the development consent as modified. It follows, therefore, that the development consent if modified would not be in breach of any consent in force under the Act if the land was used in accordance with the modified consent.”

In this case, the use of the premises would not be in breach of the development consent if the premises were to be used in accordance with the development consent as modified. The modification which is sought has no effect of the nature of the development which is the subject of the application for modification.

It is for these reasons that I have refrained from determining, on the evidence which was adduced, whether or not the premises are being used as a brothel.

That is not to say that the council is without a remedy if in fact the premises are being used as a brothel in breach of the EP&A Act. Section 123 enables the council to bring proceedings in the Court for an order to remedy or restrain a breach of the EP&A Act. An appeal by an applicant against the council’s deemed refusal of an application under s 102 to modify a development consent is not a proceeding to remedy or restrain a breach of the EP&A Act.

Has the consent lapsed under s 99(4A)?

Section 99 of the EP&A Act deals with the lapsing of development consents. Subsection 99(1) provides for a period of five years (or two years, depending on certain criteria) after which a consent will lapse. Subsection (2) provides that those periods may be varied by a consent authority.

The effect of condition 10 of the development consent is that the council varied the period after which the development consent would lapse to a period of 12 months. Thus, the last current development consent held by the applicant operated for a period of 12 months from 22 July 1996.

Section 99(4A) is in the following terms:

“(4A) Development consent for development other than that referred to in subsection (4) does not lapse if the use of any land, building or work the subject of that consent is actually commenced before the date on which the consent would otherwise lapse under this section.”

The reference to subs (4) may be ignored, because the development is not one which is referred to in that subsection.

The council’s case is that the use of the subject premises as a muscular therapy clinic did not actually commence before the date on which the development consent would otherwise lapse (that is, before 22 July 1997) because, in Ms McCusker’s submission, the premises have actually been used as a brothel.

The difficulty with this submission is that the preponderance of evidence which, if accepted, may suggest that the premises have been used as a brothel does not relate to the period of 12 months from 22 July 1996. The relevant evidence is as follows:

· the evidence of Mr Trevillian, an inquiry agent, who visited the premises on 27 November 1997, and spoke to the receptionist, who described the services provided on the premises;

· the evidence of the applicant, Mr Dunne, given orally during the hearing, and which describes the current use of the premises.

An advertisement relating to the premises published in the Daily Telegraph on 23 January 1997 was also tendered. The advertisement was placed in the “Adult” section of the newspaper. It advertised “[A] relaxing full body massage by Attractive Asian/Aust Ladies” and went on to set out some prices, the opening hours, and two addresses, one of which is the premises. Although the advertisement was published during the relevant one-year period, it does not of itself establish that the premises were, on that date, being used as a brothel instead of a muscular therapy clinic.

There is no evidence which could satisfy the Court that use of the premises as a muscular therapy clinic did not actually commence before the development consent would have lapsed on 22 July 1997, and accordingly, I am unable to find that the development consent lapsed under s 99(4A) of the EP&A Act.

Lapse before the s 102 application was made

It was the council’s case that the development consent had lapsed prior to the applicant making his s 102 application, and that, accordingly, the Court has no jurisdiction to entertain it.

Ms McCusker, for the council, submitted that the development consent had lapsed because it had not been renewed by the council pursuant to condition 10 before its expiry. The development consent had been extended to 22 July 1997. Although the applicant applied to extend the development consent before that date, the council had not determined to extend it. The development consent had accordingly lapsed by the time the s 102 application was made on 4 September 1997.

I reject this argument. It cannot be sustained, in my opinion, on either a literal or a purposive interpretation of condition 10.

Condition 10 requires “further notification prior to the expiry of twelve(12) months … for any extension of time of this approval”. Read literally, these words indicate that the extension of time of the development consent is predicated only upon notification from the applicant prior to the expiry of the relevant 12 month period. In this case, the applicant gave that notification on 19 June 1997, before the 12 month period had expired. Upon this interpretation, the development consent was therefore on foot for a further 12 month period after 22 July 1997, and accordingly was on foot when the s 102 application was made on 4 September 1997.

In my opinion, however, a better approach to the interpretation of condition 10 is to adopt a purposive approach. Obviously, the purpose of condition 10 was to enable the council to assess the use of the premises after each interval of 12 months in order to determine, as a matter of merit in the circumstances which then pertained, whether the period in which development consent was to operate should continue. To set that assessment in motion, the applicant is required to notify the council before the expiry of the current consent. A failure by the applicant to make that notification would mean that the assessment process did not operate, and the development consent would lapse upon expiry of the current period. But if the notification is made, the council is required to make a determination, which means that the development consent will continue to operate because the assessment process has been triggered by the applicant’s notification. The effect of this interpretation of condition 10 is that the development consent did not lapse on 22 July 1997, and, there not yet having been a determination by council, it remains in operation and was accordingly on foot when the s 102 application was made on 4 September 1997.

Orders

No matters of merit were raised by the council, and the only issues in these proceedings were the matters which I have dealt with. Accordingly, the applicant must succeed in its appeal, and the modification which it seeks must be granted.

My formal orders are:

1. The appeal is upheld.

2. Development consent No 294/94 in respect of premises at 327A Belmore Road Riverwood is modified by the deletion of condition 10.

3. The exhibits may be returned.

I make no order as to costs.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 7 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE M L PEARLMAN AM.