Brinara Pty Ltd v Gosford City Council

[2010] NSWLEC 230

Reported Decision: 177 LGERA 296
[2011] ALMD 774

Land and Environment Court

of New South Wales

CITATION:	Brinara Pty Ltd v Gosford City Council [2010] NSWLEC 230
PARTIES:	APPLICANT Brinara Pty Ltd RESPONDENT Gosford City Council
FILE NUMBER(S):	10583 of 2010
CORAM:	Craig J
KEY ISSUES:	APPEAL :- s 56A appeal - appeal against decision of Commissioners on question of law - extension of existing use - cl 42 of the Environmental Planning and Assessment Regulation 2000 - principles applicable to the identification of land on which existing use was carried out - whole area used for that purpose to be determined - significance of land identified in development consent for present existing use - appeal upheld
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Interim Development Order No. 122 Gosford Interpretation Act 1987, s 3(1) Land and Environment Court Act 1979
CASES CITED:	Ashfield Municipal Council v Armstrong [2003] NSWCA 353 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2009) 74 NSWLR 481 Brinara Pty Ltd v Gosford City Council [2010] NSWLEC 25 Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 Leichhardt Council v Roads and Traffic Authority of NSW [2006] NSWCA 353; (2006) 149 LGERA 439 Lemworth Pty Ltd v Liverpool City Council [2001] NSWCA 389; (2001) 53 NSWLR 371 Mona Vale Pty Ltd v Pittwater Council [2003] NSWLEC 74; (2003) 124 LGERA 449 Parramatta City Council v Brickworks Limited (1972) 128 CLR 1 Salvation Army v Newcastle City Council [2000] NSWLEC 36; (2000) 107 LGERA 40 Scully v Leichhardt Council (1994) 85 LGERA 109 Steedman v Baulkham Hills Shire Council [No1] (1991) 87 LGERA 26 Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; (2007) 156 LGERA 150 Walker Corporation v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1
DATES OF HEARING:	4 November 2010
DATE OF JUDGMENT:	12 November 2010
LEGAL REPRESENTATIVES:	APPLICANT M J Astill (Solicitor) SOLICITORS Blake Dawson RESPONDENT S M Berveling (Barrister) SOLICITORS P J Donnellan & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

CRAIG J

12 November 2010

10583 of 2010 BRINARA PTY LTD v GOSFORD CITY COUNCIL

JUDGMENT

1 HIS HONOUR: For decades, the significance of “existing use” provisions in planning instruments or legislation, as they impact upon permissible development, has been the subject of much litigated controversy. No less is that so in the present case.

2 On 22 July 2010, two Commissioners of this Court refused a development application pertaining to land at Erina Heights on the Central Coast of New South Wales. In substance, they determined that the proposed development could not be sanctioned by the provisions of cl 42 of the Environmental Planning and Assessment Regulation 2000 (the Regulation), being one of the “existing use” provisions contained in that Regulation. They also determined that, subject to appropriate conditions, the development proposed was otherwise acceptable in its form and impact.

3 Brinara Pty Ltd (Brinara) appeals from the decision of the Commissioners pursuant to s 56A of the Land and Environment Court Act 1979 (the Court Act). It says that the decision of the Commissioners to refuse its application involved error on a question of law which, in substance, involved erroneous determination of the ambit of permissible development in accordance with cl 42 of the Regulation.

4 For its part, the Council contends that Brinara’s appeal should be dismissed. As I understand its submission, it denies that the decision of the Commissioners was a decision on a question of law and further says that if there was such a decision, no error has been demonstrated. Thus, the issues in the appeal become:

(i) was there a decision on a question of law, and
(ii) if there was such a decision, was it determined erroneously.

5 Before turning to consider each of these issues, it is necessary to identify the facts upon which arguments in the appeal proceeded. None of the facts found by the Commissioners and recorded in their judgment are in controversy for the purpose of this appeal.

The Site and its development to date

6 The land that is the subject of Brinara’s development application is known as 373 – 375 Central Coast Highway, Erina Heights. It is comprised of two allotments of land, being Lot 11 in Deposited Plan 847114 and Lot 5 in Deposited Plan 862212 (the Site).

7 The statutory controls upon development of that Site are relevantly the provisions of the Interim Development Order No. 122 Gosford (the IDO), incorrectly referred to in the judgment as the Gosford Planning Scheme Ordinance. In accordance with the provisions of the IDO, for some years past, the land has been located within the 7(c2) Conservation and Scenic Protection (Rural Small Landholdings) zone. Development upon land so zoned for the purpose of shops or commercial premises is prohibited.

8 The Site is located on the northern side of the Central Coast Highway. It would appear from the description contained in the judgment that the land is at about the same level as the Highway for some distance and then falls steeply to the north.

9 For a number of years the Site was apparently occupied by a building or buildings used for commercial purposes. The judgment below is no more precise in its description of the former development or its use. Relevantly, it is accepted that development in that form was undertaken lawfully and was being carried out on the Site when the current zoning was imposed, prohibiting development for commercial purposes.

10 On 31 March 2005, the Council granted development consent for redevelopment of the Site. In terms, the land to which the consent related was the whole of the Site, and the approved purpose of development described as “COMMERICAL PREMISE” (sic). As the Commissioners observed, the effect of the development consent was to allow the “former somewhat haphazard (but nonetheless commercial) development” to be replaced by the construction of a modern commercial retail building. The new development was required to be undertaken in accordance with plans identified in condition 6 of the conditions attaching to the consent which required the location of the building to be in a central position upon the land with its southern and longer face approximately parallel to the Central Coast Highway. One of the plans identified in condition 6 was a concept landscaping plan. That plan is reproduced at [29] of the Commissioners’ judgment. Condition 10 required that landscaping be carried out and maintained upon the unbuilt portion of the Site.

11 The commercial building approved by that consent and subsequently erected is a single storey building standing on a slab, the level of which approximates the level of the Highway. Between the Highway boundary and the southern frontage of the building is an area of the Site, also at-grade, accommodating some 87 car parking spaces. By reason of the fall of the land to the north, the single storey structure is supported upon a series of concrete columns apparently founded on pads beneath the ground surface. Thus, there is a significant undercroft or void area beneath the ground floor slab in which the structural columns can readily be observed. Within this void area is a further or intermediate slab which, while not shown on the approved architectural drawings, was shown on structural engineering drawings that were the subject of a construction certificate. This intermediate concrete slab is described by a consulting engineer as a “bracing diaphragm” for the building. For the purposes of determining the matter before them, the Commissioners considered that this slab should be taken as being an approved structure.

12 To the immediate north of the area beneath the floor and structural slab, the ground level has been filled for some distance. This fill is retained by a wall that is described in the judgment as running “from west to east for approximately 60 percent of that part of the Site back to the western boundary”. The wall appears to have been constructed in approximately the location indicated for it on construction certificate drawings although the form of the wall there depicted does not appear to accord with that which has been constructed. However, that circumstance was not seen to be material by the Commissioners in considering the issue relevant to consideration in this appeal.

13 The legal foundation for the consent granted in 2005 is neither identified in the judgment of the Commissioners nor was it articulated on the hearing of the appeal before me. However, on the basis that the present zoning applicable to the Site also applied in 2005, I assume that it was founded upon cl 44 of the Regulation in the form which the Regulation then took. That clause allowed the rebuilding of a building or work used for an existing use and required that the rebuilding be carried out “only on the land on which the building or work was erected or carried out immediately before the relevant date.”

Proposed development

14 The proceedings before the Commissioners was an appeal to the Court pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act) following refusal by the Council of a development application by Brinara to extend the use of the existing building on the Site for commercial purposes. Brinara seeks consent to use the area beneath the floor slab supporting the present commercial building by installing a commercial storage facility comprising several hundred storage lockers of varying sizes. These storage lockers are to be installed both on the bracing diaphragm slab and also in the area beneath that slab, effectively enclosing the area that is presently exposed within the existing building footprint. Behind that area, but within that section of the Site that has been filled in accordance with the construction certificate drawings, it is proposed to provide both car parking and manoeuvring areas for vehicles seeking access to the storage facilities.

The hearing below

15 Prior to the matter being heard by the Commissioners, the Council had sought the determination of what it described as a preliminary question of law. That question was whether cl 41(1)(e) of the Regulation applied to Brinara’s development application. By reference to that provision, the Council argued that the use proposed was not another commercial use, with the result that cl 41 would not have sanctioned the grant of development consent. That question was argued before Pain J who determined that cl 41(1)(e) did not apply to Brinara’s development application, as it involved development for a commercial use and therefore no change from the present commercial use was proposed (Brinara PtyLtd v Gosford City Council [2010] NSWLEC 25. Her Honour’s determination does not appear to impinge upon the determination of the present question and it does not seem to have been so considered by the Commissioners.

16 They were concerned with the provisions of cl 42 of the Regulation. That clause provides as follows:

“ 42 Development consent required for enlargement, expansion and intensification of existing uses
(1) Development consent is required for any enlargement, expansion or intensification of an existing use.
(2) The enlargement, expansion or intensification;
(a) must be for the existing use and for no other use, and
(b) must be carried out only on the land on which the existing use was carried out immediately before the relevant date.”

17 Based upon the determination of Pain J at [18] of her judgment, it was not contested before the Commissioners that the proposed enlargement, expansion or intensification proposed was other than for the existing use, her Honour having categorised both as being use for commercial premises. Thus, the issue for determination by the Commissioners was whether the development proposed by Brinara was to be carried out on the land on which the existing use was carried out immediately before the relevant date.

18 A reading of the judgment would suggest that no attention was given at the hearing before the Commissioners to consideration of the expression “the relevant date”, as that expression is used in cl 42(2). It was not suggested otherwise in the hearing before me. The expression “relevant date” is defined in cl 39 of the Regulation in the following terms:

“39 Definitions
In this Part:
relevant date means:
(a) in relation to an existing use referred to in section 106(a) of the Act – the date on which an environmental planning instrument having the effect of prohibiting the existing use first comes into force, or
(b) in relation to an existing use referred to in section 106(b) of the Act – the date when the building, work or land being used for the existing use was first erected, carried out or so used.”

19 On its face, this would appear to require an enquiry as to the use of the land at the time at which the current 7(b) zoning was imposed, assuming it was the imposition of that zoning which first had the effect of prohibiting commercial use upon the Site.

20 The fact that the Commissioners did not address the question in this way is exemplified by what appears at [26] of the judgment which is as follows:

“[26] The relevant question that arises for our determination is in fact what is the dimension on the site of the approved use arising from the present development consent”.

Although reference is made in [27] to the words used in cl 42(2)(b), the exercise then undertaken by them is to consider the building erected pursuant to the 2005 development consent, its components, its present use and the use made of the curtilage of that building.

21 There seems little doubt that the Commissioners were diverted from addressing the terms of the clause by the manner in which the parties approached the arguments before them. So much appears from [33] of the judgment where they wrote:

"33 The competing propositions that are put to us, as we have earlier noted, is that the applicant says that the whole of the site has the benefit of a commercial use, whilst the Council puts the proposition that that use is confined to the car park and the upper commercial floor pan area.”

It was to those competing propositions that the Commissioners then addressed themselves.

22 The failure to address the existing use at the relevant date does, itself, involve an error of law. However, having regard to the manner in which the matter was argued, I will proceed upon the assumption, common to both the parties and the Commissioners, that the use of the Site authorised by the 2005 development consent was the appropriate focus of consideration for the purpose of considering cl 42(2)(b) of the Regulation.

The decision of the Commissioners

23 Having identified the competing factual propositions advanced by the parties, succinctly summarised in [33], they identified three cases considered “relevant to our determination in this regard.” They had earlier identified at [5] the issue for their determination as being “whether a proper consideration of the statutory regime restricts the present permitted use to merely the car park area and the existing used floor pan area … or whether … a less constrained position applies”. The statutory regime to which reference was there made was the EPA Act and the Regulation.

24 The three cases to which the Commissioners referred as being relevant to the determination of the essential issue identified at [33] of the judgment were Salvation Army v Newcastle City Council [2000] NSWLEC 36; (2000) 107 LGERA 40; Lemworth Pty Ltd v Liverpool City Council [2001] NSWCA 389; (2001) 53 NSWLR 371 and Ashfield Municipal Council v Armstrong [2003] NSWCA 353. Having considered the decision of the Court of Appeal in Ashfield Municipal Council v Armstrong, the Commissioners indicated that they were not “satisfied that that is the position in this case”. They continued at [36]:

“36 We are satisfied that the modern statutory planning framework, within which development consents are given and are constrained or confined are those that gave rise to the decisions of the Court of Appeal in Lemworth and the decision of this Court in Salvation Army. Each of those held, as we understand them, that a consent that was given in confined or defined terms, confined the use of the land to which the consent applied to the space, volume or area that was defined in that development consent. We are satisfied that, contra to the position advanced concerning Armstrong, we are constrained in these circumstances by the terms of the development consent that exists over the land and that the commercial use that is envisaged by that development consent is confined to the parking area and the floor pan at the upper level, and that anything else is merely ancillary to or supportive of but not permitted to be used for commercial purposes.”

25 The conclusion on the issue is expressed in [38] in the following terms:

“38 As a consequence, we are satisfied that, on the statutory basis, we are unable to grant the development consent based on the non-satisfaction of the provisions of cl 42 of the Regulation in that we cannot be satisfied that the enlargement, expansion or intensification of the use is only being carried out on the land for which the existing use is permitted.”

26 It is the determination reflected in these paragraphs of the judgment that, in essence, found Brinara’s appeal. It contends that the interpretation of the EPA Act and cl 42 of the Regulation and the application of those facts found by the Commissioners, founds a decision on a question of law and error on that question is demonstrated.

A question of law is involved

27 Although the Council, in its submissions, does not separately identify the issues in the manner I have earlier indicated them to be, I think it is implicit in its submissions that it has done so. In order to address an appeal instituted under s 56A of the Court Act, it is necessary to determine that there has been a decision by a Commissioner or Commissioners on a question of law. It is only after the identification of such a question in the decision of the Commissioners that one turns to a consideration of error.

28 The different statutory formulations of a right to appeal in which that right is predicated upon the existence of “a question of law” has been the subject of consideration in a number of decisions of the Court of Appeal in recent years. In Walker Corporation v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1, Basten JA (Beazley and Young JJA agreeing) considered the scope of an appeal under s 57 of the Court Act. That section contains provisions relevantly similar to those found in s 56A(1). His Honour said:

“[20] As has been explained in a number of recent decisions, jurisdiction of the kind presently in question falls into one of three categories, namely an appeal where:
“(a) identification of a question of law is a precondition to engaging the Court’s jurisdiction but is not a limitation on that jurisdiction, once engaged;
(b) the question of law is not a mere precondition to ground an appeal but is the sole subject matter of the appeal, and
(c) it is the decision of the Tribunal on a question of law which is the subject matter of the appeal.”
[21] In common with many such provisions in this State, the present case falls into the last category [case citation omitted] … ”.

29 Further elucidation of the scope of the appeal afforded by s 56A is to be found in the judgments of the Court of Appeal in B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2009) 74 NSWLR 481. In that case Allsop P wrote:

“[70] It is to be noted, as Basten JA did in Roads and Traffic Authority of New South Wales v Peak [2007] NSWCA 66 at [139], that the language of the Land and Environment Court Act , s57(1) is like that of the Government and Related Employees Appeal Tribunal Act 1980 (NSW) (“the GREAT Act” ), s54 such that it was the underlying decision from whose decision the appeal lies, and not the appeal itself, which must be “on a question of law” : see Metropolitan Water Sewerage and Drainage Board v Histon [1982] 2 NSWLR 720 at 725 (Samuels JA).”

30 In that same case, Basten JA when referring to the need to identify a “question of law” upon which the appeal is brought by reference to s 199 of the Administrative Decisions Tribunal Act 1997, indicated (at [125]):

“It is not necessary that the answer to the question of law constitutes the ultimate decision of the Tribunal, so long as it is a question material to the decision”.
In the present case, the legal principles enunciated in decided cases determining the proper application of the provisions of cl 42(2) of the Regulation or like provisions in Pt 5 of that Regulation were material, indeed fundamental, to the determination in the present case.

31 As my earlier reference to paragraphs [33] and [36] of the judgment below indicates, the decision of the Commissioners turned upon the proper interpretation of cl 42 of the Regulation and its application to the facts that they found. Their position is reflected in [38] where they concluded by expressing satisfaction “that, on the statutory basis, we are unable to grant the development consent based on the non-satisfaction of the provisions of cl 42 of the Regulation”.

32 That last expressed conclusion seems to me to involve a conclusion that, in substance, says, based on the facts as we have found them, the provisions of cl 42 are not engaged. Such a formulation is to my mind a formulation of a question of law or, at the very least, a mixed question of fact and law. That is sufficient to engage the provisions of s 56A(1) of the Court Act. Such a formulation is consistent with the judgment of Mason J (as his honour then was) in Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 where he wrote (at 10):

“Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law.”

33 Further, it is noteworthy that in the two decisions of the Court of Appeal cited by the Commissioners, each involved an appeal from this Court on a question of law. In Lemworth Pty Ltd v Liverpool City Council the question, as framed, was whether cl 42 of the Regulation would permit development consent to be granted for the enlargement, expansion and/or intensification of the existing use of first floor premises at a nominated address so as to include the ground floor of those premises. In Ashfield Municipal Council v Armstrong the question of law considered by the Court of Appeal was whether the existing use of the building on land in question for the purposes of residential flat building authorised the grant of consent for the extension of that building for the same purpose, involving its extensive renovation and, importantly for that case, the excavation of the land so as to provide for basement car parking. The relevant statutory provisions for the purpose of that case involved both s 107(2)(b) of the EPA Act and cl 42(2)(b) of the Regulation.

34 In neither of those two cases was it suggested that the questions posed did not involve a question of law. I see no difference in substance between the formulation of questions there identified and a question arising in the present appeal which is, in effect, whether clause 42 of the Regulation permits development consent to be granted for the enlargement, expansion or intensification of the existing use of the land in accordance with the development proposed by Brinara’s development application.

35 In light of the authorities to which I have made reference, I am satisfied that the underlying decision, being the decision of the Commissioners, is a decision on a question of law. That question, namely the proper interpretation and application of cl 42 of the Regulation to the proposed development, was clearly material to the decision that they made. So much is apparent from the paragraphs of the judgment below to which I have made reference in [23] and [25].

36 A subsidiary but important element in the determination by the Commissioners involved interpretation of the 2005 development consent. Indeed, the premise upon which the matter appears to have been argued and resolved was that the “existing use” within the meaning of cl 42 of the Regulation was that reflected by the 2005 development consent. That consent was an “instrument” within the meaning of the Interpretation Act 1987 (s 3(1)). The interpretation of an instrument involves a question of law.

Error of law

37 Having identified both ss 107 and 108 together with cl 42 of the Regulation as being necessary to inform their determination, the Commissioners proceeded to identify the “relevant” question by seeking to determine “the dimension on the Site of the approved use arising from the present development consent” (at [26]). They then turned to the plans approved by the 2005 development consent, making reference to the approved plan showing the car parking and commercial footprint, as well as the plan indicating vegetation to the rear of structures erected in accordance with that consent. It was in that context that the concept landscaping plan, to which I have earlier referred, was both identified and reproduced in the judgment.

38 Apart from identifying the plan, the conditions of the 2005 development consent do not appear to have been considered. In particular, those conditions to which I have earlier referred requiring development in accordance with approved plans, indicating approval as part of the development application with a landscape plan, are not mentioned. Condition 25 of the consent made specific provision for the amendment of the landscape plan, requiring removal of Camphor Laurel trees and condition 48 required design of retaining walls by a practising civil/structural engineer if any such wall was greater than 1 metre in height.

39 There was acknowledgment by the Commissioners that any construction certificate issued following their consent became incorporated within it by dint of s 80(12) of the EPA Act. This was relevant to construction of the intermediate floor slab described as the “bracing diaphragm”. It was also relevant to the construction of the retaining wall located to the north of the building which retained soil beneath the northern face of the slab upon which the commercial premises stood.

40 I have earlier quoted from [36] of the judgment below. It seems to me, with respect, that the error of the Commissioners emerges from that paragraph. That error arises from the articulation of principle sought to be deduced from the three decisions to which reference was made. Perhaps the result in each of those cases distracted attention from distillation of the principles.

41 The principles involved in the proper application of cl 42(2) of the Regulation were usefully discussed by Stein JA in Lemworth Pty Ltd vLiverpool City Council. His Honour reviewed several prior decisions, including the decision of Pearlman J in Scully v Leichhardt Council (1994) 85 LGERA 109 where her Honour had rejected a submission that the “land” used in the equivalent provision of cl 42 of the Regulation was restricted to the footprint of the building being used for the existing use. His Honour also referred to the decision of Pearlman J in Salvation Army v Newcastle City Council where her Honour had cited the decision of Meagher JA in Steedman v Baulkham Hills Shire Council [No 1] (1991) 87 LGERA 26. In the latter case, Meagher JA had observed that the correct approach to the determination of existing use rights was properly informed “if the land is rightly regarded as a unit and it is found that part of its area was physically used for the purpose in question it follows that the land was used for that purpose”.

42 Stein JA next paid attention to the seminal decisions of the High Court in Parramatta City Council v Brickworks Limited (1972) 128 CLR 1 and Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270. Their continuing relevance to the question presently being considered was acknowledged. His Honour referred to the judgment of Gibbs J in Parramatta City Council v Brickworks where [at 23] it had been observed that an existing use of “land” referred to land which, from a practical point of view, should be regarded as one piece of land and not necessarily within one subdivision or title. Stein JA then continued:

“38 Eaton applied Parramatta City Council v Brickworks to the effect that physical use is not an indispensable element. The judgment of Walsh J is of some assistance. His Honour said (at 278):
‘For the practical working out of the provisions of the Ordinance it is important that the area of land which should be regarded as brought by an existing use within the operation of cl 30 should be capable as far as is possible of being identified in a way which avoids detailed investigations and complicated disputes of fact. It is clear, in my opinion, that it will not be possible in all cases to avoid the difficulty of resolving questions of fact and of degree or to avoid the necessity of drawing a line to mark off one area from another within land within the same ownership. It seems plain the physical use for a particular purpose of a small portion of a large holding would not warrant a finding that the whole area was used for that purpose’.
39 In concluding his reasons for judgment Walsh J said (at (279):
‘Finally, I think that the fact that in 1955 the appellant applied for an approval for the use of the whole of the land as one unit for a specified purpose and that the respondent granted that approval is a fact which, although not decisive, tends to support the conclusion that the allotment should be treated as one piece of land.’
40 In the subject appeal, the appellant applied for a development approval to use the first floor as a ‘unit’ for the purpose of a brothel. That is the application which the Council granted. Applying Walsh J’s observations in Eaton, referred to above, this is not decisive but it supports the conclusion that the ‘land’ is confined to the first floor.”

43 In Lemworth, Stein JA then applied the observations of Stephen J in Eaton where his Honour said (at 291):

“Where a claimed existing use is of a kind which involves active physical use nice questions of fact and degree may arise when the claimant’s land contains some areas of apparently unused land. In many instances commercial and industrial sites will no doubt contain small areas of unused land. Only by first ascertaining the characteristics of the particular purpose of use claimed and comparing that with the evidence concerning the relevant land, regard being had to the absolute and relative sizes, locations and, perhaps, pattern of distribution of unused land, will it be possible to conclude whether all the land should be viewed as one whole, used for the claimed use or, on the contrary, as distinct portions, some of which have not shared in the claimed use.”

44 It seems to me that upon this analysis of authority by Stein JA, his Honour was indicating that when identifying “the land on which the existing use was carried out”, both a quantative and qualitative assessment is required. This dual assessment will involve the necessity to identify those areas of the land which, in some way, attract or are necessary to the existing use, albeit that they are not at a moment in time actively occupied for that use. Consideration of land identified as being held in reserve for the existing use, including land that is land without which the current use could not be enjoyed, must necessarily be undertaken.

45 So much is supported by the judgment of Hodgson JA in Lemworth where his Honour stated that such land would include those areas “physically and lawfully used … ”. His Honour continued (at [74]):

“The question would be whether any more of the property (described by its street address) was so used at that time. It will be relevant to consider whether some other part of the property was held in reserve for that use, what use or uses if any were being made of other parts of the property, and also the physical set up of the property and title boundaries. The ultimate question would be that contemplated by the decisions in Parramatta City Council v Brickworks and Eaton , namely to this effect: is there some area of land including the first floor of the premises but extending beyond it that can fairly be regarded as a whole area used for the relevant purpose at the relevant time?”

46 That statement of principle is apt to be applied to the present case. It is a principle that is not reflected in the enquiry upon which the Commissioners embarked. So much is manifest by what appears at [36] of their judgment, a paragraph which I have earlier recited.

47 Where the lawful existing use is founded in a development consent, the land to which that consent is expressed to relate will usually determine the unit of land upon which the existing use is carried out (Eaton at 279; Lemworth at [40]). The decision of Pearlman J in Salvation Army does not identify any different principle.

48 In the present case, the only rational explanation for the lawful grant of the 2005 development consent was that the Site, comprising lots 5 and 11, was then being used for an “existing use” within the meaning of s 106 of the EPA Act. Indeed, the facts found by the Commissioners indicate that use to have been for commercial purposes. In the absence of any subsequent lawful use of part or parts of the land for a purpose other than a commercial purpose following implementation of the 2005 consent, the consideration of the terms of that consent, including its conditions, was fundamental to but not necessarily conclusive of the determination which the Commissioners were required to make (cf Mona Vale Pty Ltd v Pittwater Council [2003] NSWLEC 74; (2003) 124 LGERA 449 at [21].

49 It will be remembered that at [36] the Commissioners determined, upon their analysis of the cases to which they referred, that they were constrained “by the terms of the development consent that exists over the land” to confine the commercial use of that land “to the parking area and the floor pan at the upper level”. This had the result, according to their reasoning, “that anything else is merely ancillary to or supportive of but not permitted to be used for commercial purposes.” Confining their consideration in that way neither accorded with principle nor with the terms of cl 42(2)(b) of the Regulation. Such limited consideration fails to give effect to the statement of principle articulated by Hodgson JA in Lemworth and to which I have referred at [45].

50 The decision to exclude from consideration, for the purpose of applying cl 42(2) of the Regulation, anything that was “merely ancillary to or supportive of but not permitted to be used for commercial purposes” involved an erroneous application of principle. One of the elements of development that was sanctioned by the 2005 development consent was the erection and use of a building for commercial purposes. Another element was the construction of an at-grade car park which was in a town planning sense, ancillary to the use of the building and land for a commercial purpose. Focus upon the building that the Commissioners found to be part of the land used for the existing use necessarily involved consideration of the ground beneath the building into which its structural columns were installed. No foundation into the ground necessarily meant no building.

51 That area of support for the building fell into two parts. It comprised the land located vertically beneath the ground floor slab and into which structural columns were installed. It also extended to that area that had been filled north of the ground floor slab and which was retained by a wall. So much is apparent from the structural engineer’s letter, recited at [20] of the Commissioners’ judgment where, after describing the intermediate slab as a bracing diaphragm, the author of the letter wrote:

“The structure provides lateral restraint against the action from wind and earthquake loads and horizontal loading from the basement level retaining walls.”

52 This evidence, as a structural engineer’s statement, was uncontroversial. It therefore demonstrates that the two areas beneath the floor slab or “pan” were integral to the very building that formed part of the area determined by the Commissioners as involving “the land” on which the existing use was carried out. In the absence of any finding that this area was used differently from the area above the slab or “pan”, it was as much an area that was “ancillary” to the use of the land for commercial purposes as was the car park. Both are elements of the commercial use without which there would have been no consent for that use. The areas beneath the building to which I have referred are clearly the areas “that can fairly be regarded as a whole area used for the relevant purpose at the relevant time” (Lemworth at [74]).

53 As I understood the submissions of the Council, it contended that the decision of the Commissioners not to include these areas beneath the floor slab as part of the unit of land to be considered for the purposes of applying cl 42(2) involves no more than a perverse finding of fact and, as such, is not susceptible to appellate review under s 56A of the Court Act: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. For my part, I do not consider that it does involve a finding of fact but rather involves an erroneous application of principle. However, even if it is to be regarded as a finding of fact that is perverse, it must be remembered that such a finding does not dictate the dismissal of an appeal founded upon that finding. As Spigelman CJ observed (Beazley, Bryson and Baston JJA, Campbell J agreeing) in Leichhardt Council v Roads and Traffic Authority of NSW [2006] NSWCA 353; (2006) 149 LGERA 439 at [82]:

“ … Azzopardi is not authority for the proposition that in an appeal limited to questions of law, this Court must dismiss an appeal, in which a question of law has been raised, on the basis of facts which are palpably perverse. Nor should such precedent be created.”

54 It is unnecessary for present purposes to determine finally whether the unit of land relevant to be considered for the purpose of applying cl 42(2)(b) extends to the whole of lots 5 and 11. My inclination is to believe that it does. However, it is sufficient for present purposes to conclude that the Commissioners did err in law in the application of the provisions of cl 42 when determining that unit of land. On the facts found by them, there was only one conclusion open to be drawn, and that is that the unit of land included the land located vertically beneath the existing floor slab as well as the land immediately to its north and retained by a retaining wall erected on the alignment approved in the construction drawings. They had already found that access ramps leading to this latter area and providing access to the proposed storage unit were part of the land used for commercial purposes. Thus, there remains no controversy as to the unit of land upon which the existing use was carried out.

55 For these reasons I intend to uphold the appeal.

Disposal of the appeal

56 As I have earlier recorded, the Commissioners proceeded to consider the merits of Brinara’s present development application against the possibility that they were wrong in their application of cl 42 of the Regulation. In essence, their decision on the merits indicates that the grant of development consent would be appropriate, albeit that some modification, capable of being achieved by condition would be required. They also considered that some aspects of the development should be the subject of deferred commencement conditions.

57 Although likely changes and conditions are discussed in some detail, no conclusion is reached as to the totality of conditions appropriate to be imposed. Moreover, no draft of conditions considered appropriate to be imposed are attached to the judgment.

58 This circumstance means that I am unable to accede to Brinara’s submission that I should not only uphold the appeal, but grant development consent. Determination of matters that may be controversial, even if they pertain to conditions, does not fall within the function that I am able to perform when determining an appeal pursuant to s 56A(1) of the Court Act (Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; (2007) 156 LGERA 150. It will be necessary that I remit the matter to the Commissioners for this purpose.

Orders

59 For the reasons that I have indicated, I make the following orders:

1. Appeal allowed.
2. Decision of the Commissioners in proceedings 10873 of 2009 is set aside.
3. Remit the application to the Commissioners for determination in accordance with this judgment.
4. Costs may be argued.
5. Exhibits may be returned.
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