BYT Nominees Pty Limited v North Sydney Council (No 2)

[2008] NSWLEC 228

Land and Environment Court

of New South Wales

CITATION:

BYT Nominees Pty Limited v North Sydney Council (No 2) [2008] NSWLEC 228

PARTIES:

APPLICANT:
BYT Nominees Pty Limited

RESPONDENT:
North Sydney Council

FILE NUMBER(S):

11338 of 2007

CORAM:

Lloyd J

KEY ISSUES:

Development Application :- residential flat building -meaning of "established apartment building" - not permissible form of development for which consent may be sought - no exisitng use rights - planning objectives

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Local Government Act 1919
North Sydney Local Environmental Plan 2001

CASES CITED:

BYT Nominees Pty Limited v North Sydney Council [2008] NSWLEC 164
Dosan Pty Limited v Rockdale City Council (2001) 117 LGERA 363

DATES OF HEARING:

29 July 2008

 
DATE OF JUDGMENT: 

29 July 2008

LEGAL REPRESENTATIVES:

APPLICANT:
Mr I J Hemmings (barrister)
SOLICITORS:
Hones La Hood

RESPONDENT:
J A Ayling SC and A M Pickles (barrister)
SOLICITORS:
Mallesons Stephen Jaques

JUDGMENT:

- 5 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Tuesday, 29 July 2008

LEC No. 11338 of 2007

BYT NOMINEES PTY LIMITED V NORTH SYDNEY COUNCIL (No 2) [2008] NSWLEC 228

EX TEMPORE JUDGMENT

1 HIS HONOUR: The applicant, BYT Nominees Pty Limited, has made a development application for development described as follows:

Dissolve Strata Plan SP 13526. Demolish existing residential flat building. Construct a new residential flat building.

2 The applicant has now appealed against the deemed refusal of the application. The council contends that the application should be refused on the ground that the development proposal is prohibited and on further grounds related to merit considerations. The question for determination before me is whether the development proposal is prohibited.

3 The basic facts may be briefly described. The subject property known as No. 2 Premier Street, North Sydney, is comprised in Strata Plan 13526 and consists of a two-storey building containing four strata subdivided dwellings commonly known as a residential flat building. The building was lawfully erected pursuant to a building approval granted under the Local Government Act 1919 on 17 January 1939.

4 The property is now subject to the controls in North Sydney Local Environmental Plan 2001 which commenced on 1 June 2001 and under which it is zoned Residential A2. The relevant zoning table lists development which may be carried out in the zone. Development that is not listed is prohibited.

5 The list of permissible development includes “apartment building revision” and “established apartment buildings”. The following relevant definitions apply:

apartment building means a single residential building containing three or more dwellings but does not include attached dwellings.
apartment building revision means:
(a) the carrying out of alterations for the purpose of an apartment building, or
(b) the creation of a new apartment building within the envelope of an apartment building
that lawfully existed on the appointed day.
established apartment building means an apartment building lawfully in existence on the appointed day.

6 The appointed day is the day on which North Sydney Local Environmental Plan 2001 commenced, namely 1 June 2001.

7 It is immediately apparent that the existing building falls within the definition of an “established apartment building” and is thus a lawful permitted use.

8 Under the previous environmental planning instrument, North Sydney Local Environmental Plan 1989, the property was zoned Residential 2(B) in which zone residential flat buildings were prohibited.

9 In BYT Nominees Pty Limited v North Sydney Council [2008] NSWLEC 164, which concerned the subject property, Preston J held that upon the coming into force of the North Sydney Local Environmental Plan 2001, which had the effect of making permissible the previously prohibited use, then that use no longer qualified as an existing use right. In so holding, his Honour followed Dosan Pty Ltd v Rockdale City Council (2001) 117 LGERA 363 at 396 [171]. Preston J accordingly held that no existing use right applied to the subject property.

10 It follows that in order for the proposed development to be permissible, it must come within one or more of the listed categories of permissible development under the zoning table. The only two categories that could possibly apply are “apartment buildings revision” and “established apartment buildings”.

11 Mr I J Hemmings, appearing for the applicant, submits that the fact that the nominate purpose refers to “established” does not change the fact that it is a permissible form of development for which consent may be sought and, once the definition is met, then development for that purpose may be carried out with consent in the zone.

12 Mr Hemmings also relies upon cl 6(c) of the instrument which states that a reference to a building or place used for a purpose includes a reference to a building or place intended to be used for the purpose.

13 Mr Hemmings further relies upon textual indicators in other provisions of the instrument which apply to specific kinds of development and which control the scope of such development.

14 It follows, in Mr Hemmings’ submission, that the development application is properly characterised as for the permissible form of development being an “established apartment building”.

15 I am unable to agree with the submission. It is not disputed that the building which presently exists is properly characterised as an “established apartment building”. Accordingly, its continued use for that purpose is permissible. As already noted, the development control table permits only the uses nominated and all other uses are prohibited.

16 It is immediately apparent that the proposal would not satisfy the definition of “established apartment building” since it is intended to demolish the existing building. The proposed development comes within the definition of “apartment building” which is a prohibited development. I note that it is not contended that the proposed development is an apartment building revision as defined.

17 Mr Hemmings alternatively submits that the applicant can rely upon the existing use provisions of Pt 4 Div 10 of the Environmental Planning and Assessment Act 1979 where the relevant prohibited use is “apartment building”. That is, as I understand the submission, the development may be characterised either as an established apartment building which is permissible or as an apartment building which is prohibited.

18 Mr Hemmings contends that the effect of prohibiting the use now known as an apartment building and previously known as a residential flat building gives rise to the existing use right. Again I am unable to agree. The present use is a permissible use. The proposed use as an apartment building is prohibited. The submission is contrary to the findings of Preston J in BYT Nominees Pty Nominees v North Sydney Council, to which I have referred.

19 It also seems that there are contextual indicators which are against the applicant’s submissions. Clause 14(2) of the planning instrument states:

Consent must not be granted to the carrying out of any development that, in the opinion of the consent authority, is inconsistent with the specific aims of this plan, the objectives of the zone or the objectives of controls.

20 The first objective listed in the objectives of the Residential A2 zone is to “maintain lower scale residential neighbourhoods of mainly detached and duplex housing”. The proposed development is contrary to this objective.

21 It also seems to me that the reason that “established apartment buildings” were made permissible in the zone, when the planning instrument was made in 2001, was to avoid a prospective applicant saying that the land had existing use rights and could therefore be redeveloped for another prohibited use which could be done at the time the instrument was made. That, I think, is the purpose of the instrument.

22 It follows that the proposed development is prohibited. The exhibits may be returned.

I hereby certify that the preceding 22 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Associate

Dated: