Calleja v Botany Bay City Council

[2005] NSWCA 337

Reported Decision: 142 LGERA 104

Court of Appeal

CITATION:	Calleja v Botany Bay City Council [2005] NSWCA 337
HEARING DATE(S):	7 September 2005
JUDGMENT DATE:	10 October 2005
JUDGMENT OF:	Tobias JA at 1; Basten JA at 39; Young CJ in Eq at 46
DECISION:	(1) Appeal allowed; (2) The orders made by Talbot J on 1 December 2004 be set aside; (3) Declare that the use of the land described in the Schedule to the Amended Application Class 4 dated 8 September 2004 for the purpose of a building containing two dwellings was, as at 1 December 2004, an "existing use" within the meaning of s 106(a) of the Environmental Planning and Assessment Act 1979 (as amended); (4) The respondent to pay the appellants' costs of the proceedings in the Land and Environment Court and of the appeal but to have with respect to the latter a certificate under the Suitors' Fund Act 1951, if otherwise qualified.

CATCHWORDS:	ENVIRONMENT AND PLANNING - Existing use rights - Whether use of land was an "existing use" within meaning of s 106(a) Environmental Planning and Assessment Act 1979 - Characterisation of use of land - Level of particularity with which use to be identified - Whether use prohibited under Local Environment Plan - Construction of definition of "dwelling house" in LEP - Single structure containing two domiciles with shared common internal walls - Whether land being used for purpose of one or more "dwelling houses" as defined - Whether definition of "dwelling house" confined to detached housing - Whether definition of "building" in s 4 Environmental Planning and Assessment Act applicable
LEGISLATION CITED:	Botany Local Environmental Plan 1995 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Model Provisions 1980 Local Government Act 1919 Local Government Act Model Provisions 1962 Suitors' Fund Act 1951
CASES CITED:	Botany Municipal Council v Feneck (1987) 61 LGRA 299 Hilderbrandt v Stephen [1964] NSWR 740
PARTIES:	W Calleja and T Calleja Botany Bay city Council
FILE NUMBER(S):	CA 41202/04
COUNSEL:	A: P Tomasetti R: T S Hale SC / J Kildea
SOLICITORS:	A: Storey & Gough, Parramatta R: Houston Dearn O'Connor, Burwood

LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	L&E 40820/04
LOWER COURT JUDICIAL OFFICER:	Talbot J

CA 41202/04
L&E 40820/04

TOBIAS JA
BASTEN JA
YOUNG CJ in EQ

Monday 10 October 2005

CALLEJA & ANOR v BOTANY BAY CITY COUNCIL

Judgment

1 TOBIAS JA: The issue in the present appeal concerns a short question of construction of the definition of "dwelling house" incorporated into Botany Local Environmental Plan 1995 (the LEP) and its application to the premises (to use a neutral term) erected upon the appellants' land immediately prior to the LEP coming into force on 30 June 1995 (the relevant date). The question may be stated as follows:

"Were the premises erected upon the appellants' land immediately prior to the relevant date two dwelling houses within the meaning of the term ' dwelling house ' as defined for the purpose of the LEP in that they comprised two buildings each containing one, but not more than one, 'dwelling' (as defined)?"

2 The primary judge, Talbot J, in effect answered the question in the affirmative holding that the premises comprised two (attached) buildings each of which contained only one dwelling so that there were two "dwelling houses" erected upon the appellant's land. Accordingly, that land was being used at the relevant date for a purpose which was not prohibited by the coming into force of the LEP.

3 The appellants appeal to this Court against that decision. In my opinion, the primary judge's decision was incorrect in that the premises did not comprise two buildings but only one building containing two dwellings, a use prohibited by the LEP.

The relevant facts

4 The appellants are now, and were at all material times, the owners of the property known as No. 46 Denison Street, Hillsdale (the land). It was common ground that prior to September 1948 there was erected upon the land a building which was a "dwelling house" as now defined for the purposes of the LEP in that it contained one, but only one, dwelling.

5 On or about 13 September 1948 the then owner of the land applied to the respondent (the Council) to erect additions to the existing dwelling house. That application was approved by the Council on 15 September 1948 whereupon, by letter dated 17 September 1948, it notified the then owner that it had approved

"the erection of additions to residence on [the land] "

6 The additions were duly constructed and the premises have been used as two separate dwellings ever since. The original plans approved by the Council in September 1948, together with more recent photographs, reveal what, from the point of view of an observer of the premises from the outside, would appear to be a single structure containing two dwellings. However, the plans indicate that the two dwellings have separate entrances off the same passageway located centrally between the original dwelling and the additions. Further, the resultant two dwellings share some common internal walls.

7 There was unchallenged evidence from a civil and structural engineer called on behalf of the appellants that the 1948 additions utilised the wall of the existing dwelling house, part of its roof and one of its internal rooms which was converted to a laundry. He expressed the opinion that each dwelling was structurally dependent on the other so that if one was demolished, the other could not remain standing and could not function as an independent, freestanding and fully functional building. He further deposed that, as the dwellings shared a common wall and a common roof, they were similar to present day duplexes that are attached by a common party wall and are contained under a common roof.

The nature of the proceedings before the Land and Environment Court

8 The appellants' amended Class 4 application sought only a declaration that the use of the land for the purposes of a building containing two dwellings was an "existing use" within the meaning of s 106(a) of the Environmental Planning and Assessment Act 1979 (the EP&A Act). The primary judge was informed that such a declaration was required to provide the necessary statutory authority to support a proposed development application for a change of use of the land from one non-conforming use to another non-conforming use.

9 Section 106(a) of the EP&A Act defines the term "existing use" relevantly to mean

"the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would … have the effect of prohibiting that use."

10 The issue which thus arose was whether the land was being used for a lawful purpose immediately before the coming into force of the LEP, which instrument had the effect of prohibiting that use. Its resolution depended on the relevant provisions of the LEP to which I now turn.

The relevant provisions the LEP

11 The LEP came into force on 30 June 1995. The land was included in Zone No. 2(a) Residential "A". The primary objective of that zone was to

"provide for the development and use of dwelling houses as the predominant built form".

12 Item 3 of the development control table to Zone No. 2(a) identified the developments which might be carried out only with development consent. Relevantly, development for the purpose of "dwelling-houses" was one such development. Item 4 of the table provided that any development other than that included in Item 3 was prohibited. It was thus common ground that if the land was not being used for the purpose of "dwelling houses" immediately before the LEP came into force, then the LEP had the effect of prohibiting the use of the land (howsoever it be described) at that time.

13 Clause 6 of the LEP adopted for the purposes thereof the definitions contained in the Environmental Planning and Assessment Model Provisions 1980 (the 1980 Model Provisions) except for a number of definitions including that of "residential flat building". Relevantly those Model Provisions contained the following definitions:

" ' dwelling-house ' means a building containing 1 but not more than 1 dwelling.
' dwelling ' means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile."

14 It is to be observed that the term "residential flat building" was defined in the 1980 Model Provisions to mean

"a building containing 2 or more dwellings".

However, it was defined in the LEP to mean

"a building containing 3 or more dwellings, but does not include a building elsewhere defined for the purposes of this plan."


It will be appreciated that the only difference between the two definitions is that the 1980 Model Provisions refer to a building containing two or more dwellings whereas the LEP refers to a building containing three or more dwellings.

The decision of the primary judge

15 The Council submitted before the primary judge that s 106(a) of the EP&A Act required the Court to characterise the existing use of the land. It contended that that use was properly described as a residential use or domicile and that such a broad description was justified by reference to the secondary objectives identified in the subject zone which referred, as recited by the primary judge (at [21]) to compatibility with residential use and amenity of surrounding residential uses. Accordingly, the Council sought to apply a description of residential use to the land as being the appropriate descriptor that characterised its use immediately before the relevant date.

16 The Council further submitted that there was no limit on the number of dwelling houses for which the land might be used with development consent. Accordingly, the land could be lawfully used both before and after the relevant date for more than one dwelling house and, therefore, for more than one dwelling. It was submitted that there was nothing in the definition of "dwelling house" in the 1980 Model Provisions which prevented each of the two parts of the premises from being characterised as a dwelling house upon the basis that there were two attached dwelling houses on the land. The primary judge recorded the Council's argument (in [24]) in these terms:

"According to the Council, what is constructed on the land is two buildings with a common wall serving part of each building consistent with the description of a duplex or semi-detached dwelling used for residential purposes. The residential use therefore continues to be permitted after the coming into force of the 1995 LEP as a purpose permissible with consent."

17 The primary judge then referred (at [25]) to an alternative argument of the Council based upon the extended definition of "building" in s 4(1) of the EP&A Act where the word is defined to include "part of a building". It was submitted by the Council that even if the premises erected upon the land was a single building in the sense of being one structure, nevertheless it comprised two parts each of which contained a "dwelling" as defined so that each such part was by virtue of the extended definition, itself a "building". As each such "building" contained only one dwelling or domicile, it followed that there were two buildings on the land and that each comprised a "dwelling house" as defined.

18 Furthermore, the premises were not a "residential flat building" as defined in the LEP because it did not contain three or more dwellings but only two. It therefore followed, so it was contended, that there were two dwelling houses on the land which was a permissible use thereof both before and after the relevant date. In the result, no question of existing use arose.

19 The appellants argued before the primary judge that the land was at all material times being used for the purpose of a building containing two dwellings. Notwithstanding that in September 1948 the Council approved an addition or extension to the existing building upon the land, that did not mean that when taken as a whole there were two buildings rather than one simply because there were now two separate domiciles or dwellings.

20 The primary judge determined (at [34]) that the evidence confirmed that there were distinct parts of the "premises" which were constructed independently (except to the extent of the common walls) for the purpose of providing two separate residences on the one allotment of land. Each one of those two parts, his Honour considered, contained one "dwelling" as defined. As there were clearly two dwellings on the land, they took a form that, according to the primary judge (at [35]), fell within the common understanding of either a single storey duplex or a pair of semi-detached dwellings. It would seem that his Honour considered that the fact that there were two dwellings upon the land and that the LEP did not limit the number of dwelling houses that might be built on a single parcel of land, was sufficient to constitute the use of the land as one for "dwelling houses" as defined, being a use which was not prohibited by the LEP either before or after it came into force.

21 The primary judge concluded (at [37]) as an alternative finding that

"the total development of the land can be regarded as two buildings each with the benefit of party wall for support at one location and separately used as an individual dwelling thereby meeting the definition of a dwelling house adopted by the LEP from the Model Provisions."

22 Accordingly, his Honour held (at [38]) that the development on the land was for a purpose permissible with consent under the LEP, namely, "dwelling houses". That in itself was descriptive of the use of the land as well as the characterisation of the premises thereon. It followed that the land was not being used at the relevant date for a purpose that became prohibited when the LEP came into force. Accordingly, no question of existing use arose and the appellants' application for a declaration to that effect was therefore dismissed.

Did the primary judge err in finding that the use of the land at the relevant date was for the purpose of one or more " dwelling houses " as defined?

23 Before turning to the submissions of the parties on the appeal, a number of observations should be made:

(a) The 1980 Model Provisions replaced the Model Provisions made on 2 November 1962 pursuant to s 342U(3) of the Local Government Act 1919 (the 1962 Model Provisions). For present purposes, it is sufficient to note the definitions of "dwelling-house" and "residential flat building" in those provisions. They were as follows:

"Dwelling-house" means a building designed for use as a dwelling for a single family, together with such outbuildings as are ordinarily used therewith and includes a dwelling in a row of two or more dwellings attached to each other such as are commonly known as semi-detached or terraced buildings.
"Residential flat building" means a building containing two or more flats, but does not include a row of two or more dwellings attached to each other such as are commonly known as semi-detached or terrace buildings …".

(b) Two comments can be made with respect to the definition of "dwelling house" in the 1962 Model Provisions. The first is that they contain in one definition what is now contained in two definitions in the 1980 Model Provisions, namely, separate definitions of "dwelling house" and "dwelling". The second and more important point is that the 1962 Model Provisions definition was an extended definition and included as constituting a "dwelling-house" a dwelling in a row of two or more dwellings attached to each other and commonly known as semi-detached buildings. Accordingly, under the definition of "dwelling house" in the 1962 Model Provisions, each of the two dwellings in the present case would constitute a "dwelling house" by virtue of the fact that there were two dwellings attached to each other and commonly known as semi-detached buildings. It would not matter whether the relevant premises were characterised as one building or two buildings.

(c) The definition of "dwelling house" in the 1962 Model Provisions was relevantly adopted by Interim Development Order No. 6 – Botany made on 4 December 1964. That instrument was rescinded upon the making of Interim Development Order No. 19 – Municipality of Botany on 16 September 1977. The 1962 Model Provisions were not adopted for the purpose of that instrument. Rather, cl 2(1) thereof contained its own dictionary in which "dwelling house" and "dwelling" were defined in the same terms as those adopted in the 1980 Model Provisions. It is those definitions that, in turn, have been adopted by the LEP.

(d) Accordingly, the definitional history of "dwelling house" in the relevant planning instruments applying to the land makes it apparent that it was not intended that after 1977 a "dwelling-house" should include a dwelling being one of a pair of semi-detached dwellings of the nature of that found by the primary judge (in [35]) to be the proper characterisation of the premises.

(e) Further support for the foregoing is found in the primary objective of Zone No. 2(b) Residential "B", being the only other residential zone in the LEP. That objective is stated to be the provision

"of housing, other than detached housing , in appropriate locations" (emphasis added)
Under Item 3 in the development control table to that zone, not only " dwelling houses " but also " residential flat buildings " are permissible with consent. The point is that although dwelling houses are permissible within the zone, the prime objective of the zone is the provision of housing " other than detached housing "; in other words, residential flat buildings rather than dwelling houses. The objective makes it clear that " detached housing " is intended to refer to " dwelling houses " whereas attached housing is more likely to include a residential flat building as defined in the LEP as being a building containing three or more dwellings.

24 The Council generally repeated on the appeal the submissions which had found favour with the primary judge below. In addition, it submitted that there was no logic (which I assume was intended to refer to planning logic) in permitting with consent on the land two separate buildings each containing one dwelling which would, on the appellants' argument, each constitute a "dwelling house" as defined but in prohibiting the same two dwellings but in a building in which they were attached to each other. However, the same logic, or lack of it, would apply to three single buildings each containing one dwelling upon the land which would be permissible with consent as three "dwelling-houses" as defined and one building containing the same three dwellings which would constitute a "residential flat building" as defined but which would be prohibited.

25 With respect, any attempt to always find planning logic in planning instruments is generally a barren exercise. One can only speculate, for instance, why it was considered that a residential flat building should be defined in the LEP to comprise three dwellings rather than two. And yet there is no provision in either residential zone for what are commonly referred to as duplexes or semi-detached dwellings containing not more than two dwellings. If one considers the conventional duplex of two dwellings located one on top of the other in the one building, then it is clear that, subject to the application of the extended definition of "building" in s 4(1) of the EP&A Act, neither dwelling could constitute either a "dwelling-house" or a "residential flat building" under the LEP. Yet one might query the logic of prohibiting that type of duplex within the residential zones.

26 The Council sought in particular to support the primary judge's finding that, by dint of the extended definition of "building" in s 4(1) of the EP&A Act as including "part of a building", in the present case each of the two dwellings was contained in a part of the building and, therefore, each part itself constituted "a building" within the meaning of the definition of "dwelling house".

27 There are a number of problems associated with that finding. The first is that the definition only applies except insofar as the context or subject matter otherwise indicates or requires. In the present case, the matters to which I have referred in [23] above make it tolerably clear that the reference in the definition of "dwelling house" in the 1980 Model Provisions to "a building" is a reference to that building taken as a whole rather than to any part thereof. Secondly, if the argument is taken to its logical conclusion, each room in a building would constitute a part of the building and, therefore, according to the Council's submission, a building in its own right. As I have observed, the context in which the word "building" is used in the definition of "dwelling house" makes it clear that the extended definition of "building" in s 4(1) of the EP&A Act has no application thereto.

28 The Council then submitted that the word "building" in the definition of "dwelling house" should be given its ordinary natural meaning which, according to the Macquarie Dictionary (revised 3rd ed), is defined to mean

"a substantial structure with a roof and walls".

The Council then sought solace in the judgment of Jacobs J (as he then was) in Hilderbrandt v Stephen [1964] NSWR 740 where (at 742) his Honour said:

"I shall deal first with the ordinary meaning of the word 'building'. Although popularly it refers to a house, its ordinary meaning, I think, is wider than this; but I think that in its ordinary meaning, it at least involves the concept of a structure with a roof and a support for that roof … to me the ordinary concept is, as I have said, a structure of which the main feature is probably the existence of some form of roof."

29 In my opinion, the Council gains no comfort from the dictionary meaning of "building" which is consistent with that adopted by Jacobs J in Hilderbrandt. On the basis of that meaning it is clear that the premises were a "building" being a substantial structure with a roof and walls. There is nothing in the ordinary meaning of the word "building" which justifies the conclusion that the premises constituted more than one building as so defined.

30 The Council also placed reliance upon the decision of this Court in Botany Municipal Council v Feneck (1987) 61 LGRA 299. In that case, Samuels JA, with whom Priestley and McHugh JJA agreed, when considering the expression "existing dwelling houses" in a provision of a planning instrument which permitted the conversion of existing dwelling houses into two separate occupancies so as to increase the availability of rental accommodation, observed (at 304) that the use in the instrument of the respective phrases "existing dwelling houses" and "homeowners"

"suggests to me, once more, the notion of the ordinary idea of a dwelling house as a detached or semi-detached house comprising in all a single dwelling."

31 His Honour (at 303) had earlier indicated that he could see no reason to confine the right of conversion in question to cases where the existing dwelling house was a single structure and exclude cases, such as that before the Court in that case, of a dwelling above a shop or of a dwelling in a building which also contained other uses. Nevertheless, notwithstanding his Honour's preference that the expression "existing dwelling houses" suggested the notion of either a detached dwelling house or a semi-detached house comprising a single dwelling, he accepted that he was bound by the definition of "dwelling house" as constituting a complete and exclusive definition of the scope and use of the building under consideration. That definition was in the same terms as the definition of "dwelling house" in the 1980 Model Provisions as was the definition of the "dwelling". Thus, at 302-303, Samuels JA said this:

" 'Containing' [in the definition of 'dwelling-house'] does not mean including, but rather comprising, or consisting of or being composed of, which are all meanings of 'comprised' taken from the Macquarie Dictionary . If one is asked to describe the functional contents of a building, one could not actually comply with the request by listing only a part. The contents of a building are all that it contains. To say that a building contains so-and-so is to convey the idea that that is all that it contains. This meaning is, I think, supported by the definition itself, which specifies that the building may contain one but may not contain more than one dwelling. This seems to me to contemplate the construction I favour because if 'containing' introduces other than a complete and exclusive description, it would be an accurate description of a multi-dwelling building to say that it contained one dwelling."

32 Samuels JA then dealt with a submission that the word "building" in the definition of "dwelling house" should have the meaning ascribed to it in the relevant definition of "building" which was defined to include "any structure or part thereof". His Honour then continued:

"Hence it is said the dwelling as found by the assessor … is a part of the structure and therefore a building, and thus capable of satisfying the definition of 'dwelling-house', whatever the meaning to be given to the word 'containing'. Mr Davison meets this contention with the submission that the definition of 'building' in s 342B applies 'unless the context or subject matter otherwise indicates or requires' and argues that the structure of cl 5A is a contrary indication …
In my opinion the appellant's answer must prevail. The provisions to which I have referred and particularly the definition of 'dwelling house' applied to cl 5A(2) do to my mind supply a context which excludes the extended definition of 'building' in s 342B."

33 In my opinion it follows from the decision of this Court in Feneck that the primary judge's conclusion, to the extent to which it based upon the extended definition of "building" in s 4(1) of the EP&A Act, cannot stand. In my respectful opinion, although it may well be that the premises might be commonly understood as a pair of semi-detached dwellings, that of itself does not satisfy the definition of "dwelling house" in the 1980 Model Provisions as adopted by the LEP. That definition requires, in my opinion, that there be one dwelling contained within a single building. It is thus confined to detached housing rather than attached housing (such as semi-detached dwellings or terrace dwellings).

34 It follows that in my view the land was, at the time the LEP came into force, being used as a single building containing two dwellings and, therefore, did not fall within the definition of "dwelling house". It equally follows that not being a "dwelling house" the use of the land for the purpose of two dwellings contained within a single building became a prohibited use of the land when the LEP came into force and was, therefore, an "existing use" as defined in s 106(a) of the EP&A Act.

The Council's notice of contention

35 By its notice of contention the Council submitted that the primary judge should have held that the use of the land since the LEP came into force was for the purpose of a domicile or dwelling (or two domiciles or dwellings) and/or for a residential purpose which use was not prohibited by the LEP. The Council advanced this argument before the primary judge but his Honour did not find it necessary to rule upon it.

36 In my opinion, the argument has no merit. The basis of it, as I understand the Council's written submissions on the point, was that the appellants' submissions were directed to development in the form of the erection of a building rather than development in the sense of the use of land, there being a distinction between the two forms of development as apparent from the definition of that term in s 4(1) of the EP&A Act. It was thus submitted that once the premises were erected, partly before 1948 and partly in 1948, the development consent approving the erection of the building constituting the premises was complete. Since that time the building had been continuously used for residential purposes. Accordingly, so the argument ran, the use of the land was properly characterised as a domicile or even as two domiciles. As such, neither was prohibited under the LEP, there being no suggestion that the LEP prohibited more than two dwelling houses upon the land. Although the erection of a building which constituted a residential flat building (as defined) was prohibited, there was no prohibition against the use of the land for more than one domicile.

37 With respect, I find this argument rather convoluted. As the appellants submitted, to characterise the use of the land as residential is at too general a level of abstraction. To determine whether the use of the land was for a lawful purpose before the coming into force of the LEP (but thereafter prohibited by the LEP) required that its use be characterised at a more particular level of abstraction. It is clear that the use of the land for "residential purposes" could not be divorced from the nature of the development upon it and, therefore, could not exclude consideration of the building which was used for that purpose. Either the land was used for the purpose of one or more "dwelling houses" (as defined) or it was not. To be so used required each "dwelling" (as defined) to be contained within "a building". Unless the use could be so characterised, each dwelling could not constitute a "dwelling house". If that was the case, it followed that the use of the land, albeit for a residential purpose, in the form of a single building containing more than one dwelling was prohibited by the LEP.

38 In my opinion, the appellants' submissions are clearly correct. The alternative argument contained in the Council's notice of contention should, therefore, be rejected.

Conclusion

39 In my opinion, the appellants have demonstrated that the primary judge erred in finding that the land was used for the purpose of two "dwelling houses" as defined in that it comprised two buildings each containing one dwelling. It follows that, although the land was being used for a lawful purpose (not being one or more "dwelling houses") immediately before the LEP came into force, that instrument had the effect of prohibiting that use as a consequence whereof it became an "existing use" within the meaning of s 106(a). Accordingly, the appellants are entitled to the declaration they seek although it should be confined to the position as at the date of his Honour's decision, namely, 1 December 2004. This is because there is no evidence (nor should there have been) that the use of the land as at that date has continued to the present time and it is possible that the declared existing use might in the future be abandoned: cf s 107(2)(e) and (3) of the EP&A Act.

40 Accordingly, I would propose the following orders:

(1) Appeal allowed.

(2) Set aside the orders made by Talbot J on 1 December 2004.

(3) Declare that the use of the land described in the Schedule to the Amended Application Class 4 dated 8 September 2004 for the purpose of a building containing two dwellings was, as at 1 December 2004, an "existing use" within the meaning of s 106(a) of the Environmental Planning and Assessment Act 1979 (as amended).

(4) The respondent to pay the appellants' costs of the proceedings in the Land and Environment Court and of the appeal but to have with respect to the latter a certificate under the Suitors' Fund Act 1951, if otherwise qualified.

41 BASTEN JA: I agree with the orders proposed by Tobias JA and his Honour’s reasons. I would add a brief comment on the nature of the issue identified in this case. The definition of “existing use” in s 106 of the EP&A Act requires the identification of a particular use at a particular time, namely immediately before the coming into force of a relevant environmental planning instrument. What must be identified is “the use of a building, work or land”. Once the use has been identified, two questions must be asked: first, whether the use was “for a lawful purpose” immediately before the commencement date of the instrument and, secondly, whether the effect of the instrument was to prohibit that use.

42 In the present case, the Court was taken to a previous planning application in relation to the building, which resulted in its present form and structure and earlier planning legislation under which particular steps had been taken. Such materials are likely to be relevant for only limited purposes. An earlier planning application may assist in establishing that the building on the land had achieved its present form prior to the commencement of the relevant instrument. But that was not an issue in the present case. Similarly, earlier legislative provisions may assist in determining whether the use was “for a lawful purpose” at the critical date. That, however, was not in issue in this case either. Such provisions may also give assistance in understanding the meaning of the present Act or the relevant instrument, but were not of assistance in that regard in the present case. Subject to one qualification, the use and purpose required to be identified by s 106(a) will be almost wholly a question of fact. The qualification is that, at least where an earlier lawful purpose is not in issue, the characterisation of the use will need to be undertaken in a manner which allows an answer to the question whether that use was prohibited by the new instrument.

43 As the authorities demonstrate, the answer to that question will often depend on the level of particularity or generality with which the use is identified. Indeed, this is one such case. If the use of the land and the building is identified as ‘residential occupation’, then one must conclude that it is not a prohibited use under the 1995 LEP. However, the specification of zones and the prescription of developments which may be carried out with or without consent, together with the proscription of other developments, require that the use be identified with a greater level of precision. If the building is used as two separate dwellings, as defined in the 1995 LEP, and, for the purposes of that definition, the building must be treated as a single building, it is not a dwelling house and is therefore not a permitted use of land from the date at which the 1995 LEP commenced. If it were not permitted, it was prohibited for the purposes of s 106(a).

44 The resolution of the case may therefore be seen to turn on the question whether the two dwellings were contained in a single building or whether each part should be treated as a separate building. The definition is not critical for the purposes of s 106(a). The reference to “a building” in that provision would clearly permit reference to part of a building, where the use was so limited. Similarly, it would cover more than one building where the use extended to more than one building: Interpretation Act 1987 (NSW), s 8(c).

45 The use of the term “building” which is critical for present purposes is that found in the definition of “dwelling-house” in the EP&A Model Provisions, 1980, which definition is incorporated into the 1995 LEP by cl 6 of the latter instrument. Whether the term “building” in that definition can mean part of a building in some circumstances, such as a caretaker’s flat in a school-house, need not be determined for present purposes. As Tobias JA has explained, it should not be given that meaning in relation to a building containing two dwellings, being parts each used or capable of being used as a separate domicile, so as to constitute each part a separate building. If that construction were correct, it is difficult to see why a building containing four flats would not constitute four dwelling houses, at least if the construction involved no common areas. That conclusion would tend to undermine the distinction drawn between residential “A” and residential “B” zones. Apart from the reference in the objects of the latter zone to housing “other than detached housing”, the incorporation into the developments permitted with consent in that zone of “residential flat buildings” is the only variation from the kinds of development permitted in residential “A” zones. A construction which effectively removed this point of distinction would subvert a clear purpose of the different zoning provisions and should not be accepted.

46 YOUNG CJ in EQ: I agree with Tobias JA.

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