Calleja v Botany Bay City Council

[2004] NSWLEC 660

Land and Environment Court

of New South Wales

CITATION:	Calleja v Botany Bay City Council [2004] NSWLEC 660
PARTIES:	APPLICANT William Calleja and Tessie Calleja RESPONDENT Botany Bay City Council
FILE NUMBER(S):	40820 of 2004
CORAM:	Talbot J
KEY ISSUES:	Existing Use Rights :- distinction between purpose or use and description of building.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 4, s 81A, s 106 Botany Local Environmental Plan 1995 cl 14
CASES CITED:	North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd And Others (1989) 67 LGRA 344 ; North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd And Another (1990) 21 NSWLR 532 ; Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 ; Shire of Perth v O'Keefe And Another (1964) 110 CLR 528
DATES OF HEARING:	17/11/04
DATE OF JUDGMENT:	12/01/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr P C Tomasetti (Barrister) SOLICITORS Storey and Gough RESPONDENT Mr T S Hale SC SOLICITORS Houston Dearn O'Connor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

1 December 2004

40820 of 2004 Calleja W & T v Botany Bay City Council

JUDGMENT

1 Talbot J: The property known as 46 Denison Street, Hillsdale comprises Lot 24 in Deposited Plan 13108, Lot B in MPS(RP) 56586 and Lot C in MPS(RP) 89262 now the whole of the land in Certificate of Title Volume 6908 Folio 8.

2 It is not in dispute that prior to September 1948 a single dwelling house was erected on the property pursuant to a consent issued by the respondent Council. Furthermore it is not in dispute that on 15 September 1948 the Council approved the erection of additions to the existing residence in accordance with approved plans pursuant to Part XIIA of the Local Government Act 1919 and Ordinance No. 105.

3 The plans approved in September 1948 show that there was an intended provision for separate accommodation in two distinct living areas sharing a common or party wall. Each depicted living area has its own entrance off what appears to be a common pathway leading from the street. The proposed additions wholly comprised one of the distinct living areas.

4 When the County of Cumberland Planning Scheme Ordinance was introduced in 1951 the subject land was placed in the Industrial Area, Class “A” zone. In that zone dwelling houses and residential buildings, other than those required for use or occupation by persons whose residence is essential to the industry established or to be established in the zone, were purposes for which buildings may not be erected or used. It is again common ground that no relevant industry was established or was proposed to be established on the land. However pursuant to cl 32 of the County of Cumberland Planning Scheme Ordinance an existing building or an existing work could be maintained and could be used for its existing use and an existing use of land could be continued.

5 The County of Cumberland Planning Scheme Ordinance was suspended in respect of the subject land on 22 July 1960.

6 In 1962 Model Provisions were adopted and included the following definitions of a dwelling house and a residential flat building:-

“ 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 terrace 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 and “Flat” means a room or suite of rooms occupied or used or so constructed, designed or adapted as to be capable of being occupied or used as a separate domicile.

7 William Calleja and Tessie Calleja (“the applicants”) accept that the building on the land at that stage complied with the definition of dwelling-house contained in the Model Provisions and consequently was not a residential flat building.

8 From 4 December 1964 Interim Development Order No. 6 – Botany (“IDO 6”) applied to the land. Under IDO 6 interim development could be carried out with the consent of Council for the purposes of, inter alia, dwelling houses and residential flat buildings not exceeding three storeys in height. The 1962 Model Provisions were adopted for the purposes of IDO 6.

9 Under Interim Development Order 19 (“IDO 19”), made on 16 September 1977, the land was included in the Residential (a) Residential “A” zone as a consequence of which dwelling houses, as defined in IDO 19, were development which could be carried out without consent of the Council and residential flat buildings, as defined, were prohibited. In IDO 19 a dwelling house was defined as meaning a “building containing one but not more than one dwelling”, whereas a residential flat building was defined as “a building or group of buildings on one allotment of land, each of which contained two or more dwellings.” Arguably pursuant to the definitions contained in IDO 19 the subject building was a residential flat building and therefore, pursuant to the prohibition on any development other than development otherwise permissible in Column V in the Table, may have been development which could not be carried out The reference to one allotment of land in the definition of a residential flat building needs to be borne in mind when considering the later definitions. IDO 19 contained special provisions regarding existing development.

10 Finally, when Botany Local Environmental Plan (“Botany LEP 1995”) was gazetted on 30 June 1995, the subject land was included in Zone No. 2 (a) Residential “A”. Dwelling houses are included in the categories of development that may be carried out only with development consent. The definition of a dwelling contained in the Environmental Planning and Assessment Model Provisions 1980 is adopted by Botany LEP 1995 as follows:

“ 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.

11 The definition of Residential Flat Building in Botany LEP 1995 is a building containing three or more dwellings. According to the applicants, as the subject building is not a dwelling house or a residential flat building within the meanings adopted by Botany LEP 1995, it is prohibited as an innominate development, not being development which may be carried out without development consent or which may be carried out only with development consent. Contrary to this argument the respondent Council submits that the two dwellings are in effect each a dwelling house contained in two buildings on the one allotment of land.

12 The applicants’ claim is that the development on the subject property is an existing use within the following meaning of that expression in s 106 of the Environmental Planning and Assessment Act 1979 (“EP&A Act”).

106. In this definition “existing use” means:

….

13 Mr Tomasetti appears for the applicants. He has explained to the Court that the applicants are seeking a declaration that the use of the subject land for the purposes of a building containing two dwellings is an “existing use”, within the meaning of s 106(a), in order to provide the basis of support for a development application for change of use from one non-conforming use to another non-conforming use.

14 The Council’s response is that the Botany LEP 1995 does not have the effect of prohibiting the residential use of the building, or the land upon which it is erected, and accordingly there is no relevant existing use within the meaning of s 106. Furthermore, for the purpose of s 106 the characterisation of the building is irrelevant as distinct from the characterisation of the use of the building. Notwithstanding the last argument the Council also maintains that the erection of two semi detached dwellings or a building containing two dwellings is development that is permissible with consent under the LEP.

The Council’s argument

15 It is convenient to deal with the argument put by Mr Hale SC, on behalf of the Council first, as that is where the real challenge lies.

16 His initial argument is that there is a distinction between a description of the use of a building and the description of the building itself. Mr Hale identifies the relevant question by reference to the inquiry undertaken by Kitto J in Shire of Perth v O’Keefe And Another (1964) 110 CLR 528 at 534-5 as follows:-

But at the outset it is necessary to observe that the “existing use” by-laws take two steps which should be kept distinct from one another. First it is required that a purpose be identified as the end for which it can be seen that the premises are being used at the date of gazettal of the by-laws. Then the provision is made that the land may continue to be used for that purpose : not that the precise manner of use for that purpose may alone continue but that us e generally for that purpose may continue.

17 In North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd And Another (1990) 21 NSWLR 532 the Court of Appeal had to decide whether the use of units within Blues Point Tower at North Sydney fell within the terms of an approval to use the building as a “residential flat building”. The Court decided that the use of units in the building as serviced apartments did not have the necessary degree of permanency as the description of a flat as a “dwelling” or a “domicile” required. Mahoney JA delivered the judgment of the Court. Priestley and Handley JJA agreed with his reasons for judgment. His Honour identified the issue as the use of the land. He stated that whereas the physical structure of the land or the building forming part of it are for this purpose relevant, they do not determine whether the use of it is permissible. He held that the matter was to be decided according to whether the actual use fell within the terms of the consent. Ultimately the case was decided by identifying the nature of the use envisaged by the phrase “residential flat building”.

18 According to Mr Hale, therefore, to describe a building as a residential flat building or as a dwelling house does not determine the use of the building. Applying the reasoning in Sydney Serviced Apartments, Mr Hale contends that the use of the premises at 46 Denison Street Hillsdale is properly described as a residential use or domicile for the purposes of s 106.

19 To emphasise the point that he seeks to make, Mr Hale refers to s 81A of the EP&A Act where it is provided in subsection (1) that a development consent that enables the erection of a building is sufficient to authorise the uses of building when erected for the purpose for which it was erected if that purpose is specified in the development application. Clearly therefore, so the argument goes, there is a distinction between the building itself and the use of that building for a particular purpose. Likewise, s 95(4) and (5) contrastingly deal with development consent for the erection of a building, the subdivision of land or the carrying out of a work and development consent for the use of any land building or work for the purposes of determining whether a development consent has lapsed.

20 Insofar as a development consent authorises the erection of a building or other structure Mr Hale says that the consent is exhausted in that respect once the building is completed.

21 Mr Hale also argues that the broad description of a residential use is justified by reference to the secondary objectives identified for Zone No. 2(a) Residential “A” in Botany LEP 1995 where there is a reference to compatibility with residential use and amenity of surrounding residential uses. There is also a specific provision in cl 14 of the LEP which deals with the continuation of the non-residential use of buildings in Residential zones. The Council therefore seeks to apply a description of residential use to the subject land as being the term or expression that characterises the use of buildings.

22 Although Mr Hale seeks to characterise the approval in 1948 as being confined to the physical erection of some additions to an existing residence, the approved plans in fact concisely identify the intended use of each room throughout the whole building when completed. The approval is expressed to be granted subject to strict compliance with the “plans and specifications…and also subject to the conditions…”. Although the plans have been produced and form part of the evidence the specifications and conditions have not been found.

23 Mr Hale further relies upon the established fact that nothing in any environmental planning instrument subsequent to 1948 suggests that the continuation of the use of the premises must cease or that the building must be demolished. Accordingly, on that basis alone he contends that s 106 has no application.

24 Moreover, he contends there is no limit on the number of dwelling houses that may be carried out as development with development consent on a particular block of land. The land use table specifically permits development for the purpose of “dwelling houses” to be carried out with development consent. Although the definition of dwelling house from the 1980 Model Provisions prevails, that is not to say that the two parts of the subject premises cannot be categorised as dwelling houses, there being two attached dwelling houses on the land. 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.

25 Alternatively, applying the extended definition of a “building” in s 4 of the EP&A Act which includes, “part of building”, Mr Hale submits that if there are two parts of this building, then each can be regarded as a building containing one dwelling. It is interesting to note that the definition of residential flat building in Botany LEP 1995 does not pick up a building until it contains three or more dwellings.

26 On one view there is no description in the LEP which is directly applicable to the subject premises. However, according to Mr Hale they cannot be a single dwelling house because there are two domiciles. Furthermore they cannot be a residential flat building because the building does not contain three or more dwellings. The only remaining alternative therefore, following the Council’s argument through, is that there are two dwelling houses on the land. Even so, Mr Hale does not need to get to that point because that process involves the characterisation of the building and not the use, contrary to his principal submission.

27 Mr Hale discerns no change between the time when the extended building was originally approved in 1948 and the present time where, under the 1995 LEP, the applicant is entitled to construct two semi detached buildings on the land as dwelling houses both of which can thereafter be used for a residential purpose. He claims that the successive redefinitions of the type of building in relevant planning instruments have no role to play in determining whether the use of the building for residential use is currently permissible.

The applicants’ argument

28 On the other hand Mr Tomasetti argues, on behalf of the applicants, that the land is presently being used for the purpose of accommodating a building containing two dwellings. Accepting Mr Hale’s observation that such a building does not directly fall within a relevant definition for the purposes of the LEP, then it must be prohibited “as any development other than development included in Item 2 or Item 3 ” in the Land Use Table. Relevantly, the Table only specifically refers to development for the purpose of “dwelling houses” in Item 3 as being development which may be carried out only with development consent. Equating the reference to “carry out” to “carry on” he says the use of the land for something other than a purpose identified in Item 2 or 3 of the Table is prohibited.

29 Adopting the criteria set by the then President of the Court of Appeal in North Sydney Municipal Council v Boyts Radio and Electrical Pty LtdAnd Others (1989) 67 LGRA 344 at 353 Mr Tomasetti asserts that the approach taken by Mr Hale is too general and construes the use too broadly and liberally. Mr Tomasetti relies upon the approval granted in 1948 as Council approval for a single building containing two dwellings in the context of a consent to the extension of an existing building. He interprets the approved plan as depicting a single building. Mr Tomasetti agrees that it was not necessary under the legislation applicable in 1948, notably the Local Government Act 1919, to seek a separate consent or approval to occupy the building for residential purposes.

30 The reference to residential use and residential uses in the secondary objectives for the Residential A zone in Botany LEP, relied upon by Mr Hale to support a definition of the use as a residential use is, according to Mr Tomasetti, less than helpful particularly as the use of the plural suggests there can be more than one type of residential use. Therefore although it is correct to properly characterise the use as a residential use the description is far too broad. Equally he says Mr Hale’s reliance upon the decision in Sydney Serviced Apartments is not useful in the present context as that case turned upon the construction of the description of a use in a development consent that specifically approved a residential flat building.

The appropriate test

31 In Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 310 McHugh J referred to the relevant test as follows:-

Accordingly, a test has been devised which requires the purpose of the use of the land to be described only at that level of generality which is necessary and sufficient to cover individual activities, transactions or processes carried on at the relevant date. Thus the test is not so narrow that it requires characterisation of the purpose in terms of the detailed activities, transactions or processes which have taken place. But it is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities as a class have made of the land.

32 In Boyts Radio the then President of the Court of Appeal referred to the “appropriate genus which best describes the activities in question” in a town planning context.

33 The courts have clearly concentrated on the identification or characterisation of the use of the land in seeking to determine whether an existing use has been established. This approach is consistent with the definition of “existing use” in s 106 of the EP&A Act.

Application of the test to the subject land

34 The evidence confirms that the two distinct parts of the premises were constructed independently (except to the extent of the party wall) for the purpose of providing two separate residences on the one allotment or block of land. Each one of the two parts contain one dwelling.

35 Dwelling houses are included in the Botany LEP 1995 as a purpose for permissible development, with development consent. The “purpose” equates to the “use” of the development in the context of s 106. There are clearly two dwellings on the land each being a suite of rooms capable of being occupied or used as a separate domicile. The two domiciles were constructed at different times and for all practical purposes are fully self contained. The dwellings are built in a form that falls within the common understanding of either a single storey duplex or a pair of semi-detached dwellings.

36 According to the Australian Oxford English Dictionary these expressions, in Australia at least, are interchangeable. Both involve the concept of a house joined to another and particularly in the case of semi-detached dwellings having a party wall on one side. There is no constraint imposed by the LEP that limits the number of dwelling houses that may be built on a single block of land.

37 Alternatively, the total development on 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.

38 In either case the development on the land is for a purpose permissible with consent under the Botany LEP 1995, namely “dwelling houses”. That in itself is descriptive of a use as well as characterisation of the building.

39 The premises were not being used at the relevant date for a purpose that became prohibited when Botany LEP 1995 was made. The use is permissible with the consent of the Council. It does not fall into the innominate category of uses prohibited by Item 4 in the Table of the LEP. It is not necessary to resort to the broad generalisations attempted by Mr Hale to reach this conclusion. The purpose of dwelling houses is adopted in terms by the LEP and is capable of application without resorting to other language to describe the use.

40 For the above reasons the application is dismissed.

41 There has been no argument in relation to costs. In the usual exercise of its discretion the Court would make an order that the successful party have the benefit of a order for costs. The applicant is granted leave to file and serve any Notice of Motion in respect of an order for costs within 7 days. In default the Court orders that the applicant pay the respondent’s costs of the proceedings.

42 The exhibits may be returned.