Council of the City of Sydney v Wilson Parking Australia Pty Ltd

[2015] NSWLEC 42

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Council of the City of Sydney v Wilson Parking Australia Pty Ltd and Anor [2015] NSWLEC 42

Hearing dates:

21 to 23 July 2014 Last written submissions 08.08.14.

Date of orders:

26 March 2015

Decision date:

26 March 2015

Jurisdiction:

Class 4

Before:

Beech-Jones AJ

Decision:

The Court declares that:

(1)The First Respondent is unlawfully using the premises situated at and known as land at the rear of 4-6 York Street in the City of Sydney (“the premises”) for the purposes of public car parking (“the purpose”) in contravention of the Sydney Local Environmental Plan 2012 and the Environmental Planning and Assessment Act 1979.

The Court orders that:

(2)the First Respondent, its servants, contractors and agents be restrained from using, permitting or suffering the use of the premises for the purpose without first having

(a)obtained development consent therefor; and

(b)complying with any conditions of such consent which must be complied with prior to the use commencing.

(3)the Respondents, their servants, contractors and agents be restrained from

(a)advertising or holding out the premises or any part of them as available for the purpose; and

(b)leasing or licensing the premises or any part of them for the purpose.

(4)Orders 2 and 3 be stayed up to and including 23 April 2015.

(5)Grant liberty to apply within 21 days hereof in respect of costs and the form of relief.

Catchwords:

LAND AND ENVIRONMENT COURT – jurisdiction to hear claim in contract and promissory estoppel – Land and Environment Court Act 1979, s 16(1A) – meaning of “matter” – whether matter ancillary to matter otherwise falling within Court’s jurisdiction – agreement to cease use on premises if class 1 proceedings unsuccessful – whether dispute about agreement ancillary to matter subject of class 1 proceedings – whether ancillary to dispute over whether use of premises in breach of planning instrument – whether ancillary matter can be litigated if matter otherwise within Court’s jurisdiction is not litigated.

CONTRACT – whether undertaking given by party to cease use of premises if class 1 proceedings unsuccessful enforceable as a contract- promise by Council not to seek injunctive relief under s 123 of the Environmental Planning and Assessment Act 1979 - whether supported by valuable consideration – whether agreement involves invalid fetter on statutory powers - whether agreement unenforceable by reason of alleged common or unilateral mistake as to existing use rights

PROMISSORY ESTOPPEL – whether party undertaking to cease use of the premises estopped from resiling from promise to do so – reliance – detriment suffered if assumption generated by undertaking departed from – whether unconscionable for party providing undertaking to depart from it

EXISTING USE RIGHTS – Environmental Planning and Assessment Act 1979, ss 106 to 109 – whether assertion of existing use right to conduct a car park governed by s 107 or s 109 – approach to assertion of existing use that predates planning controls – history of regulation of use of subject premises from July 1946 to present – history of actual use of subject premises from 1934 to present – characterisation of existing use – whether First Respondent established lawful use of premises as car park on and from 12 July 1946 – whether First Respondent established continuous use of premises as non-dedicated car park from 1951 to 1971 – whether use of premises was ancillary to use of adjacent premises as a bank – continuation of use after 1971 – abandonment – intensification – whether conditions of 1975 development approval for electrical substation regulated or qualified existing use in any event

ANSHUN ESTOPPEL – whether First Respondent estopped from asserting existing use right to conduct car park by reason of conduct of earlier class 1 proceedings seeking development consent to operate car park.

Legislation Cited:

- Australian Securities Investments Commission Act 2001 (Cth) – s 93AA
- Environmental Planning and Assessment Act 1979, s 76A, s 100, s 107, s 108, s 109, s 121B, s 123 and s 124
- Environmental Planning and Assessment (Amendment) Act 1985
- Environmental Planning and Assessment Regulation 1980
- Environmental Planning and Assessment Regulation 2000
- Environmental Planning Legislation Amendment Act 1995
- Federal Court of Australia Act 1976 (Cth) – s 32
- Judiciary Act 1903 (Cth) – s 39B(1A)
- Land and Environment Court Act 1979 – s 16, s 20(2), s 56A(1)
- Local Government Act 1993
- Miscellaneous Acts (Planning) Repeal and Amendment Act 1979
- National Parks and Wildlife Act 1974
- Retail Leases Act 1994

Cases Cited:

- A v Hayden (1984) 156 CLR 532
- Abebe v Commonwealth of Australia [1999] HCA 14; 197 CLR 510
- Abret Pty Ltd v Wingebarribee Shire Council (2011) 180 LGRA 343
- Ansett Transport Industries Operations Pty Ltd v The Commonwealth (1977) 139 CLR 54
- Arnold v Minister Administering the Water Management Act 2000 (2008) 73 NSWLR 196
- Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629
- Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404
- Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council [2001] NSWLEC 243; 114 LGERA 345
- Clasic International Pty Ltd v Lagos (2002) 60 NSWLR 241
- Connelly v Director of Public Prosecutions [1964] AC 1254
- Council of the City of Sydney v Wilson Parking Australia 1992 Pty Ltd [2011] NSWLEC 97
- David Securities Pty Ltd v Commonwealth Bank (1992) 175 CLR 353
- Director-General, Department of Environment and Climate Change v Gleeson; Director General, Department of Environment and Climate Change v Epacris Pty Ltd [2009] NSWLEC 4; 165 LGERA 99
- Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157
- Giumelli v Giumelli [1999] HCA 10; 196 CLR 101
- MC Grace v Thomas Street Café Pty Ltd (2007) 159 LGERA 57
- Haoucher v Minister for Immigration & Ethnic Affairs [1990] HCA 22; 169 CLR 64
- Hawkesbury City Council v Dundler [2005] NSWLEC 662
- Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472
- Hudak v Waverley Municipal Council (1990) 18 NSWLR 709
- In re Judiciary and Navigation Acts [1921] HCA 20; 29 CLR 257
- Jeblon Pty Ltd v North Sydney MC (1982) 48 LGRA 113
- King v Lewis (1995) 88 LGERA 183
- Minister of State for the Army v Dalziel (1944) 68 CLR 261
- Mitchell v Waugh (1993) 82 LGERA 44
- Morris v Woollahra Corporation [1966] HCA 65; 116 CLR 23
- Multistar Pty Ltd v Minister for Urban Affairs and Planning and Another (No 2) (2000) 111 LGERA 319
- National Parks and Wildlife Service & Anor v Stables Perisher Pty Ltd (1990) 20 NSWLR 573
- Nix v Pittwater Council (1994) 84 LGERA 199
- North Sydney Municipal Council v Boyts Radio & Electricity Pty Ltd (1989) 16 NSWLR 50
- NTL Australia Pty Ltd v Minister for Land and Water Conservation [2001] NSWLEC 5
- Parrangool Pty Ltd v Botany Bay City Council [2009] NSWLEC 1189
- Pittwater Municipal Council v Nix & Dunn (1993) 80 LGERA 385
- Port of Melbourne Authority v Anshun (1981) 147 CLR 589
- Porter & Anor v Hunters Hill Council [2003] NSWLEC 179
- R v Abu Hamza [2007] 1 Cr App R 27
- R v Croydon Justices ex parte Dean [1993] QB 769
- Royal Agricultural Society (NSW) v Sydney City Council (1987) 61 LGRA 305
- Ryde City Council v Echt & Anor [2000] NSWCA 108
- Scharer v State of New South Wales (2001) 53 NSWLR 299
- Sericott Pty Ltd v Snowy River Shire Council [1998] NSWLEC 168
- Sericott Pty Ltd v Snowy River Shire Council [1998] NSWLEC 297
- Shire of Perth v O’Keefe (1964) 110 CLR 529
- Shoalhaven City Council v South Coast Concrete Crushing & Recycling Pty Ltd [2009] NSWLEC 197
- Sidhu v Van Dyke (2014) 88 ALJR 640
- Solle v Butcher [1950] 1 KB 671
- South Sydney City Council v Houlakis (1996) 92 LGERA 401
- Steedman & Anor v Baulkham Hills Shire Council [No 2] (1993) 31 NSWLR 562
- Steedman and Anor v Baulkham Hills Shire Council [1994] NSWLEC 94
- N Stephenson Pty Ltd v Roads and Traffic Authority of New South Wales (1994) 83 LGERA 248
- Taylor v Johnson (1983) 151 CLR 422
- The Commonwealth v Verwayen (1990) 170 CLR 394
- Re TNT Skypak International (Aust) Pty Ltd v the Commissioner of Taxation [1988] FCA 119
- Tynan v Meharg (1998) 101 LGERA 255
- Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1910) 25 NSWLR 580
- Vumbuca v Baulkham Hills Shire Council (1979) 141 CLR 614
- Wilson Parking Australia 1992 Pty Ltd v City of Sydney Council [2010] NSWLEC 10
- Wilson Parking Australia 1992 Pty Ltd v City of Sydney Council [2010] NSWLEC 1204
- Wilson Parking Australia 1992 Pty Ltd v City of Sydney Council [2011] NSWLEC 1298
- Wilson Parking Australia 1992 Pty Ltd v City of Sydney Council [2012] NSWLEC 1319
- Wilson Parking Australia 1992 Pty Ltd v City of Sydney Council [2014] NSWLEC 12
- Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46; 130 LGERA 79
- Woollahra Municipal Council v Banool Developments Pty Ltd 129 CLR 138, 28 LGRA 410
- Woollahra Municipal Council v TAJJ Investments Pty Ltd (1982) 49 LGRA 123
- Woolworths Ltd v Kelly (1991) 22 NSWLR 189

Category:

Principal judgment

Parties:

Council of the City of Sydney - Applicant
Wilson Parking Australia 1992 Pty Ltd – First Respondent
4 York Street Pty Ltd – Second Respondent

Representation:

Counsel:
J.E. Kirk SC, Ms F. Ramsay - Applicant
T.F. Robertson SC, J.E. Lazarus – First Respondent
Submitting appearance 06.06.14 – Second Respondent

Solicitors:
Legal & Governance Division, City of Sydney Council - Applicant
Pikes & Verekers Lawyers – First Respondent
HWL Ebsworth Lawyers – Second Respondent

File Number(s):

2014/040203

Publication restriction:

Nil

Judgment

1. The land the subject of these proceedings is located at the rear of 4-6 York Street Sydney (the “premises”). It was purchased in 2009 by the Second Respondent, 4 York Street Pty Ltd (“4 York Street’). 4 York Street has not played any active role in these proceedings.

2. It is common ground that since September 2008 the first respondent, Wilson Parking Australia 1992 Pty Ltd (“Wilson”), has operated a car park at the premises. It is also common ground that both of the relevant environmental planning instruments that have applied to the premises since Wilson commenced operating its car park, namely the Sydney Local Environmental Plan 2005 (the “2005 LEP’) and the Sydney Local Environmental Plan 2012 (the “2012 LEP”), have only permitted the use of the premises as a car park with development consent. In the circumstances explained below, from 2008 to 2012 Wilson sought to obtain development consent to operate the car park including via two proceedings in this Court’s class 1 jurisdiction. However, leaving aside the period from 21 June 2010 to 8 June 2011 (see [22]), no such consent has been obtained.

3. The Applicant, the Council of the City of Sydney (the “Council”), seeks declaratory relief to the effect that the use of the premises by Wilson is unlawful and is in breach of a notice issued under s 121B of the Environmental Planning and Assessment Act 1979 (NSW) (the “EPAA”). The Council also seeks injunctive relief effectively preventing the use of the premises as a car park.

4. The Council propounds two separate bases for injunctive relief. First the Council seeks to enforce an undertaking given to it by Wilson through its solicitors on 8 May 2012 (the “undertaking”). The undertaking was to the effect that Wilson would cease operating the car park within 28 days of any adverse final determination of its class 1 appeal to this Court against the refusal of its second application for development approval to operate a car park. Those proceedings were determined adversely to Wilson but it did not cease operating the car park. The Council contends that the undertaking is enforceable in its own right as a contract or, in the alternative, that Wilson is estopped from resiling from it. Wilson disputes that this Court has jurisdiction to determine those claims and otherwise denies that there is an enforceable contract or that it is unconscionable for it to resile from its undertaking.

5. Second, the Council contends that the use of the premises as a car park in circumstances where development consent has not been obtained constitutes a breach of s 76A(1) of the EPAA which can be the subject of an order under s 123. In response Wilson contends that no such consent is required and no such breach is occurring as the premises has the benefit of existing use rights to operate a car park under either of ss 107 and 109 of the EPAA. The Council disagrees and further contends that Wilson is bound by an estoppel of the kind described in Port of Melbourne Authority v Anshun (1981) 147 CLR 589 (“Anshun”) from raising that contention in that it is a matter that should have, and could have, been litigated in the two previous proceedings in this Court’s class 1 jurisdiction.

6. In summary, I find that the agreement embodied by the undertaking is ultra vires and unenforceable as it constitutes an unauthorised fettering of the Council’s power to apply to this Court for relief to restrain a breach of the EPAA. I also find that it would not be unconscionable for Wilson to resile from its undertaking. Thus the Council’s claims in contract and promissory estoppel fail. I also find that there is no Anshun estoppel preventing Wilson from seeking to establish that it was entitled to exercise existing use rights to conduct a car park at the premises.

7. However, Wilson’s reliance on the existing use provisions fails for a number of reasons including that it failed to prove that the conduct of a car park at the premises in the period after 12 July 1946 was lawful. Wilson also failed to prove that there was a continuous use of the premises as either a non-dedicated car park or as a car park that was not ancillary to the use of 341 George Street as a bank between 1951 and 1971 and beyond sufficient to engage the protection of the relevant provisions preserving existing uses during that time.

8. Accordingly, the Council succeeds and, subject to the observation in [236], it is entitled to both declaratory and injunctive relief.

9. The balance of these reasons is structured as follows:

1. The Premises and the Car Park ([10] to [11])

2. The 2005 LEP and the 2012 LEP ([12] to [16])

3. The Class 1 Proceedings ([17] to [32])

4. Enforcement of the undertaking ([33] to [78])

1. Jurisdiction ([33] to [49])

2. Contract and Mistake ([50] to [74])

3. Promissory Estoppel ([75] to [78])

5. Section 76A and the existing use defence ([79] to [229]

1. The EPAA and existing uses ([79] to [92])

2. Regulation from 1946 to 2005 ([93] to [110])

3. Use of the premises from 1927 to 1951 ([111] to [137])

4. Use of the premises from 1952 to 1978 ([138] to [159])

5. Use of the premises from 1978 to the present ([160] to [174])

6. Existing use: Characterisation ([175] to [185])

7. First issue: Lawful use as a car park from 12 July 1946? ([186] to [194])

8. 12 June 1946 to 27 June 1951 ([195] to [198])

9. Second issue: Use as at 16 July 1971 ([199] to [207])

10. 1971 onwards ([208] to [219])

11. The 1975 consent ([220] to [229])

6. Anshun ([230] to [234])

7. Relief ([235] to [240])

(1)   The Premises and the car park

10. The title description of the premises is Lots 13-15 and part Lot 16 in DP939718. It is an irregular shaped parcel of land with a corner splay at the corner of York and Wynyard Streets. The northern boundary faces Wynyard Street. It is 28 metres in length and includes a 3.5 metre wide driveway. The western boundary faces York Street. It is 25 metres in length and includes a 6 metre wide driveway. The southern barrier backs onto Barrack Lane. The total area of the premises is 611 square metres. Located on the premises at the corner of York and Wynyard Streets is a convenience store. The premises are located immediately behind the building at 341 George Street, Sydney. For many years that building was used by the Bank of New South Wales (which later became Westpac) (the “Bank”). From 1934 until 2002 the Bank owned the premises. In 1963 a savings bank was constructed on that part of the premises now used for a convenience store.

11. The car park operated by Wilson on the premises since September 2008 provides car parking for a maximum of 15 cars to fee paying members of the public. It operates from 7am to 7pm weekdays on both a self park and valet basis [1] . A full time attendant is employed at the car park.

    1. Affidavit of Paul Grech sworn 13.06.14 at [9] (“Grech’s first affidavit”)

(2)   The 2005 LEP and the 2012 LEP

12. During the period 2005 to 2012 the relevant planning instrument was the 2005 LEP. Although it was not the subject of submissions, I understand the premises are located within the “City Centre Zone” such that the only form of development that may be carried out without development consent is “exempt development” (subclause 37(1)). The operation of a car park was not exempt development.

13. To understand the issues raised in Wilson’s class 1 appeals it is necessary to set out Clause 66 of the 2005 LEP which dealt with the granting of development approval for car parking. It provided:

“66 Public car parking restrictions

(1) Restrictions that apply in all cases

Before granting consent to development for the purpose of any public car parking, the consent authority must be satisfied that the public car parking:

(a)  will not prejudice attaining the objectives of this Part, and

(b)  will not encourage commuter car parking nor reduce the proportion of public transport users travelling to the city each day, and

(c)  will be used for short-stay public car parking only that is regulated by a restriction in opening hours or fee structure, or both, and

(d)  will be located underground, and

(e)  will be included for the purpose of calculating floor space ratio in the floor space area of the building in which it is situated, and

(f)  will be consistent with, and does not compromise, high quality urban design of buildings on the land and adjacent to the land on which it is situated, and

(g)  is not likely to cause or increase adverse pedestrian impacts or local and city-wide vehicular traffic impacts, and

(h)  in the opinion of the consent authority, is not likely to cause or contribute to an unacceptable level of vehicle saturation of intersections in the vicinity, or an unacceptable reduction of environmental capacity of roads in the vicinity, of the public car park.

(2)  New public car parks

Consent may be granted to development for the purpose of public car parking on land where no public car parking already exists, but only where the consent authority is satisfied that the public car parking directly services major retail, cultural, recreational or entertainment uses which, in the opinion of the consent authority, are not reasonably or adequately serviced by either:

(a)  public transport (either existing or planned), or

(b)  existing public car parking.

(3)  Existing tenant car parks

Without affecting subclause (2), consent may be granted to development for the purpose of public car parking on land on which tenant car parking already lawfully exists, but only to the extent of converting to public car parking any car spaces that are in excess of the maximum number of parking spaces allowed by clause 65(1).

(4)  Existing public car parks

Consent may be granted to development for the purpose of public car parking on land on which public car parking already lawfully exists, but only where the consent authority is satisfied that:

(a)  the development will not result in more public car parking spaces on land than already lawfully exist, and

(b)  the floor space area of all public car parking on the land does not exceed the floor space area of the existing public car parking on the land.

14. “Public car parking” was defined in the 2005 LEP as follows:

“Public car parking in Central Sydney means any land or space in a building used for accommodating parked vehicles on payment of a fee, but does not include:

(a) a pay parking space (within the meaning of the Road Transport (Safety and Traffic Management Act 1999), or

(b) tenant car parking.”

15. “Tenant car parking” was defined in the 2005 LEP as follows:

“Tenant car parking in Central Sydney means car parking provided in connection with a building which reasonably services the needs of the building and which is used only by a person who resides, works in or visits a use carried on in the building or on the land for which the car parking has been provided. For the purposes of this definition, car parking which reasonably services the needs of a building includes car parking provided in accordance with Clause 65 and 66, a development consent, or a code, policy or other instrument adopted or approved by the Council before the commencement of this plan.”

16. Some time in 2012 the 2005 LEP was replaced by the 2012 LEP. It was not disputed that the effect of Part 2 of the 2012 LEP was that the conduct of a car park required development consent. Clause 7.18 of the 2012 LEP specified the circumstances in which development consent could be granted for the purposes of a car park. It suffices to state that they are no wider than under the 2005 LEP.

(3)   The Class 1 Proceedings

17. On 16 September 2008 Council received a query as to the basis upon which Wilson was operating its car park at the premises. A Council officer, Franco Appadoo, attended to inspect. On 13 October 2008 the Council issued an order under 121B of the EPAA to the then owner, NGI Investments Pty Ltd (“NGI”), requiring it to cease the use of the premises as a car park and remove associated signage [2] .

    2. Affidavit of Francis Appadoo sworn 17.04.2014 at p 6 (“Appadoo”)

18. On 27 October 2008 Wilson lodged a development application to operate a car park at the premises (the “first DA”). Mr Appadoo decided to defer enforcement action pending the outcome of that application. On 22 April 2009 the first DA was refused [3] . Wilson sought review by the Council pursuant to s 82A of the EPAA. On 1 December 2009 that application was refused.

    3. Appadoo at [11] to [13]

19. Throughout 2009 there was an exchange of correspondence between Wilson and the Council. It is unnecessary to describe it in detail other than to note that the Council unambiguously asserted that the continued use of the premises as a car park was in breach of the EPAA. [4]

    4. Affidavit of Adrian Hawkes sworn 26.04.14 (“Hawkes”) at p 7

20. On 10 December 2009 Wilson lodged an appeal invoking this Court’s class 1 jurisdiction against the refusal of the first DA.

21. On 19 February 2010 Commissioner Bly published reasons concerning a preliminary objection taken by Council to Wilson’s appeal (Wilson Parking Australia 1992 Pty Ltd v City of Sydney Council [2010] NSWLEC 10). The Council contended that, as the first DA did not propose underground car parking, clause 66(1)(d) of the 2005 LEP mandated the refusal of Wilson’s appeal. However Commissioner Bly held that clause 66(1)(d) was a “development standard” for the purposes of “State Environmental Planning Policy No 1 – Development Standards” (“SEPP 1”). This meant that it was possible to relax its operation depending, inter alia, on whether compliance would be “unreasonable or unnecessary” (see Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46; 130 LGERA 79 at [26] per Lloyd J).

22. On 21 June 2010 Commissioner Dixon published reasons for judgment in respect of the balance of Wilson’s appeal (Wilson Parking Australia 1992 Pty Ltd v City of Sydney Council [2010] NSWLEC 1204). Wilson was successful. The Commissioner found that the “SEPP 1 objection [in respect of subclause 66(1)(d)] is well founded” (at [56]) and that it was “appropriate to exercise the discretion in subclause 66(2)” of the 2005 LEP (at [64]).

23. The Council appealed pursuant to s 56A(1) of the Land and Environment Court Act 1979 (the “LEC” Act). Such appeals are restricted to a “question of law”. On 8 June 2011 Sheahan J upheld the appeal, set Commissioner Dixon’s decision aside, and remitted the matter for further hearing (Council of the City of Sydney v Wilson Parking Australia 1992 Pty Ltd [2011] NSWLEC 97). His Honour rejected the Council’s grounds of appeal concerning Commissioner Dixon’s approach to subclause 66(1)(d)) (at [67]) but upheld the Council’s contention that Commissioner Dixon had misconstrued and misapplied subclause 66(2) (at [68] to [85]).

24. The proceedings were re-heard before Commissioner Dixon. The hearing commenced on 17 June 2011. They were adjourned part heard to 17 August 2011. On that day the Commissioner raised with the parties whether there was “any existing use issue that’s raised in relation to the appeal”. Senior Counsel then appearing for Wilson told this Court that the “use [of the subject premises as a car park] was truly ancillary to the commercial use of the building [at 341 George Street] as distinct from a separate and independent use”. [5]

    5. Transcript 17.05.11 at p 2

25. On 18 October 2011 Wilson’s appeal against the refusal of the first DA was dismissed. Commissioner Dixon found that the first DA did not satisfy subclause 66(2) of the 2005 LEP (Wilson Parking Australia 1992 Pty Ltd v City of Sydney Council [2011] NSWLEC 1298 at [19]).

26. On 17 November 2011 Wilson Parking lodged another development application to operate the car park at the premises (the “second DA”).

27. On 11 April 2012 the Council refused the second DA. On 16 April 2012 Wilson’s solicitors advised that their client proposed to appeal the refusal under s 82A of the EPAA. [6]

    6. Hawkes at p 27

28. In late April 2012 officers within the Council gave consideration to commencing enforcement proceedings in this Court’s class 4 jurisdiction. There was a discussion between the Council’s solicitor and Wilson’s solicitor about the possibility of that being avoided if Wilson undertook to cease using the premises as a car park if it was unsuccessful in a class 1 appeal to this Court against the refusal of the second DA. On 7 May 2012 Wilson’s then solicitors advised the Council’s solicitor that they had instructions to commence class 1 proceedings and not seek review by the Council of the refusal of the second DA under s 82A. They stated that they would provide an undertaking shortly.

29. On 8 May 2012 Wilson’s then solicitors wrote to the Council’s solicitors advising that their client would file a class 1 appeal against the refusal of the second DA. [7] They proffered the undertaking which was in the following terms:

“Undertaking by Wilson Parking

This will confirm that Council has agreed to delay Class 4 proceedings against our client’s use of the premises whilst our client undertakes a Class 1 Appeal, provided that our client undertakes to cease its use of the Premises within 28 days of the later of:

(a) the making of an order by a Commissioner of the Court refusing consent of Development Application: D/2011/1966, or, if appealed, the determination of any appeals from the decision of the Commissioner, or, if remitted;

(b) any decision by a Commissioner of the Court on remitter from the decision of the judge of the Court referred to in (a) refusing consent to the Development Application.

This will confirm our instructions that Wilson Parking hereby provides this undertaking.”

7. Hawkes at p 31

30. Wilson’s class 1 appeal against the refusal of the second DA was filed on 9 May 2012 (the “second class 1 proceedings”). On 22 November 2012 Wilson’s appeal was dismissed (Wilson Parking Australia 1992 Pty Ltd v City of Sydney Council [2012] NSWLEC 1319). Commissioner Brown found that Wilson did not satisfy subclause 66(2) of the 2005 LEP and that subclause 66(2) was not a development standard for the purposes of SEPP1 (at [26]) but, even if it was, no basis for relaxing its application was demonstrated (at [36]).

31. Wilson appealed pursuant to s 56A(1) of the LEC Act. They engaged different solicitors and Counsel. The appeal was heard by Pepper J on 17 April 2013. Her Honour dismissed the appeal on 17 February 2014 (Wilson Parking Australia 1992 Pty Ltd v City of Sydney Council [2014] NSWLEC 12; 201 LGERA 232). Her Honour upheld the Commissioner’s conclusion that subclause 66(2) was not a development standard (at [82]) and, even if it was, found no error of law on the part of the Commissioner in rejecting the SEPP 1 objection (at [97]).

32. By late March 2014 the 28 day period of the undertaking had expired. Council wrote to Wilson’s new solicitors seeking compliance with the undertaking. [8] It suffices to state that Wilson did not comply.

(4)   Enforcement of the Undertaking

8. Hawkes at p 34

(a)   Jurisdiction

33. The first issue that arises in relation to the Council’s reliance on the undertaking as either a contract or as the foundation for a promissory estoppel is whether this Court has jurisdiction to entertain an action for its enforcement. Section 16 of the LEC Act provides:

16 Jurisdiction of the Court generally

(1) The Court shall have the jurisdiction vested in it by or under this or any other Act.

(1A) The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act.

(2) For the purposes of this Act, the jurisdiction of the Court is divided into 8 classes, as provided in this Division.”

34. The Council relied on s 16(1A) as the source of this Court's jurisdiction to hear and determine its action to enforce the undertaking.

35. Prior to the introduction of subsection 16(1A) it was held that this Court had no accrued or pendent jurisdiction of the kind exercised by the Federal Court (National Parks and Wildlife Service & Anor v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 (“Perisher”)). Although s 32 of the Federal Court of Australia Act 1976 (Cth) appears to confer that jurisdiction, its true source arises from the vesting of the Federal Court with jurisdiction to hear and determine certain “matters” which is taken to include the “non-Federal aspect of the justiciable controversy” (Perisher at 580D per Gleeson CJ).

36. In Scharer v State of New South Wales (2001) 53 NSWLR 299 at 308 (“Scharer”) Stein JA described the introduction of s 16(1A) as a response to the decision in Perisher, although in Arnold v Minister Administering the Water Management Act 2000 (2008) 73 NSWLR 196 (“Arnold”) at [69] Spigelman CJ described that response as “measured”. In particular the phrase “ancillary” was found to be much narrower than “associated” as used in s 32 of the Federal Court of Australia Act 1976 (Nix v Pittwater Council (1994) 84 LGERA 199 at 204-205 per Gleeson CJ). It only embraced matters that were “incidental”, “accessory” or “auxiliary” to the second mentioned matter in s 16(1A) (Nix at 205 and Scharer at 308). In Arnold at [74] Spigelman CJ stated that “[t]here is a concept of subservience implicit in the idea of an ‘ancillary matter'”.

37. In Arnold at [73] Spigelman CJ noted that “questions of fact and degree” are involved in determining whether or not one matter is ancillary to another. His Honour accepted that where the determination of a legal issue constitutes an “essential step in the course of determining an issue that is [otherwise] within the jurisdiction of a court, then the determination of the former will be ancillary to the determination of the latter” (at [75]). Nevertheless his Honour accepted that this was not exhaustive of the circumstances in which one matter will be found to be ancillary to another for the purpose of s 16(1A) (Arnold at [68] and [77] to [82]). In fact this Court’s authority to determine such matters flows from the grant of jurisdiction in s 16(1) even without s 16(1A) (see Connelly v Director of Public Prosecutions [1964] AC 1254 at 1301; Perisher at 581 per Gleeson CJ). Some observations in this Court that s 16(1A) only confers authority to decide such legal issues which are “essential” to the matters otherwise within the Court’s jurisdiction do not survive Arnold at [68] (see for example Hawkesbury City Council v Dundler [2005] NSWLEC 662 at [41] per Cowdroy J).

38. A related question is whether this Court’s jurisdiction in relation to the ancillary matter can be invoked where the Court’s jurisdiction has not been invoked in respect of the “matter that falls within its jurisdiction” as referred to in s 16(1A). The most obvious example of such a case is where the parties have agreed to resolve a dispute about, for example, the enforcement of a “right, obligation or duty conferred or imposed by a planning or environmental law” (LEC Act s 20(2)) but a dispute arises as to the terms or the enforceability of the agreement. Even if the connection between the two disputes satisfies the degree of connection required for the latter dispute to be considered ancillary to the former, could only that latter dispute be litigated in this Court without the former?

39. Two aspects of an initial reading of s 16(1A) point to an affirmative answer to that question.

40. The first is the use of the phrase “matter”. If the phrase “matter” has its accepted meaning, namely the “subject matter for determination in a legal proceeding”, rather than the proceeding itself (In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 at 265) then the “matter that falls within jurisdiction” in s 16(1A) would subsist without proceedings being commenced in this Court to determine it. Each of sections 17 to 21C of the LEC Act amplify the grant of jurisdiction in s 16(1) by vesting the Court with jurisdiction to hear and determine certain "appeals", "references", "other matters", "applications" and "proceedings" under various environmental legislation. Of itself this does not suggest a different meaning of “matter” to that stated In re Judiciary and Navigation Acts. Sections 17 to 21C and the corresponding provisions of the environmental legislation that they invoke simply supply the foundation for the controversy which constitutes the matter that falls within jurisdiction (Re TNT Skypak International (Aust) Pty Ltd v the Commissioner of Taxation [1988] FCA 119; 82 ALR 175 at 181 per Gummow J; Abebe v Commonwealth of Australia [1999] HCA 14; 197 CLR 510 at [279] per Callinan J). The jurisdiction to resolve such controversies is necessarily narrower than that conferred by provisions which confer jurisdiction on a Court to hear and determine matters arising under a particular act (e.g. s 39B(1A) of the Judiciary Act 1903 (Cth); Skypak id).

41. Some decisions of this Court have cast doubt on whether “matter” as used in s 16(1A) has the meaning attributed to it in In re Judiciary and Navigation Acts (see for example Pittwater Municipal Council v Nix & Dunn (1993) 80 LGERA 385 at 387 per Bannon J ). Neither Nix nor Arnold addressed the meaning of “matter”. In Scharer it was held that a proceeding to enforce a statutory right of way conferred by the National Parks and Wildlife Act 1974 was within the exclusive jurisdiction of this Court conferred by s 20(2) of the LEC Act. Stein JA (with whom Hodgson JA agreed) also held that this Court could also consider a claim for damages for the obstruction of the right of way (at 308):

“Assuming for the moment that the Land and Environment Court does not have the power in ‘these proceedings to award damages as part of the relief available to enforce the right, it seems to me that s 16(1A) fills the void. Damages are plainly ancillary to the matters which fall within jurisdiction; the existence of the right and its enforcement by injunctive or ancillary orders or declaratory relief.”

42. The first part of this extract is alluding to the possibility that s 22 of the LEC Act may have provided a sufficient foundation for the Court’s power to award damages in Scharer. The balance of the passage appears to treat the concept of “matter” in s16(1A) consistently with what was stated in In re Judiciary and Navigation Acts.

43. The second aspect of s16(1A) that points to an affirmative answer to the question posed in [38] is the absence of any express words in s 16(1A) suggesting that the jurisdiction conferred by s 16(1A) for ancillary matters is limited to the circumstance that the proceedings have been commenced in this Court in respect of the “matter that falls within its jurisdiction”. By contrast s 32 of the Federal Court of Australia Act only confers jurisdiction in respect of associated matters where the jurisdiction of the Court has otherwise been properly invoked.

44. On this approach the spectre that s 16(1A) could operate to enlarge this Court’s jurisdiction beyond what was intended would be avoided by the continued adoption of the strict approach to what is necessary for one matter to be considered “ancillary” to another. This is reinforced by the necessarily narrow width of many of the matters that “fall … within [the Court’s] jurisdiction” (see [40]).

45. However the authorities suggest the answer to the question posed in [38] is “no”. In NTL Australia Pty Ltd v Minister for Land and Water Conservation [2001] NSWLEC 5 at [28] Perlman CJ derived five propositions from the decided cases concerning s 16(1A) including:

“(c) Although s 16(1A) amplifies to some extent the jurisdiction of this Court (Nix and Dunn v Pittwater Council), it operates only in relation to a matter which is ancillary, that is, incidental, accessory or auxiliary (Nix and Dunn v Pittwater Council). I respectfully adopt, in this connection, the statement of Talbot J in Duncan v Moore at p 319 that ‘… the matters brought within the Court’s jurisdiction by s 16(1A) are only those matters which must be resolved as part of an accessory or ancillary subservient function in the course of determining the matter within jurisdiction’;” (emphasis added)

46. In Arnold at [74] Spigelman CJ referred to this part of NTL, although his Honour did not expressly address the present question. In any event this statement in NTL has been taken to require there to be “a matter within jurisdiction in proceedings pending before the Court to which another matter in those same proceedings can be said to be ancillary” (Porter & Anor v Hunters Hill Council [2003] NSWLEC 179 at [63] per Pain J) (“Porter”). A number of decisions of this Court prior to NTL were to the same effect (Mitchell v Waugh (1993) 82 LGERA 44; and N Stephenson Pty Ltd v Roads and Traffic Authority of New South Wales (1994) 83 LGERA 248 at 265).

47. The Court was not invited to reconsider this aspect of NTL and thus it will proceed on the basis that the answer to the question posed in [38] is “no”.

48. Either at the time or shortly after the undertaking was proffered there were potentially two matters falling within the jurisdiction of the Court within the meaning of s 16(1A). The first is the subject matter of the second class 1 proceedings that were then in contemplation and later commenced. The undertaking constituted an agreement between the parties as to how they would conduct their affairs pending the outcome of those proceedings and in the event that they were resolved adversely to Wilson. The dispute as to the enforceability of the undertaking is clearly a “matter” as that phrase was interpreted in In Re Judiciary and Navigation Acts and as possibly implied by the above passage from Scharer. Further, in my view, that matter was clearly ancillary or auxiliary to the matter in issue in the second class 1 proceedings and had the requisite degree of subservience. As noted it addressed the ancillary question of what was to happen on the premises the subject of the second class 1 proceedings pending their outcome and afterwards. However the second class 1 proceeding is not before this Court. The principle stated in NTL at [44] and applied in Porter does not permit the ancillary matter to be litigated if the principal matter is not.

49. The second matter that potentially falls within the jurisdiction of this Court is the dispute between Wilson and the Council as to whether its conduct of a car park on the premises was in breach of any obligation imposed by a planning or environmental law, specifically s 76A of the EPAA (LEC Act; s 20(2); the “class 4 dispute”). The parties had been in dispute over that matter since late 2008. It is a matter that is litigated in these proceedings (cf NTL supra). In my view the dispute over the enforceability of the undertaking has a close connection to the class 4 dispute in that it purported to resolve it. There was no wider dispute between the parties that the agreement was purporting to resolve. The more difficult question is whether the dispute over the enforceability of the undertaking is ancillary or subservient to the class 4 dispute. If this was dependent on the manner in which the Council framed its case then the answer would be “no”. The Council’s primary claim was to enforce the undertaking and it only relied on s 76A of the EPAA in the event that claim failed. However it is the substance of the dispute not the manner in which a party pitches its case that engages s 16(1A) of the LEC Act. The origin of the undertaking was a long standing dispute over whether or not Wilson was in breach of s 76A. The Council has now applied to this Court for a judicial determination of that dispute. In substance the dispute as to whether it was resolved by an enforceable undertaking is truly ancillary to the Class 4 dispute. I am satisfied that the Court has jurisdiction to determine both matters.

(b)    Contract and Mistake

50. In the event the Court concluded that it had jurisdiction to determine the Council’s claim in contract, Wilson made five submissions as to why it should not succeed. I uphold one of those submissions but I will deal with each in turn.

51. First, Wilson contended that the undertaking could not be enforced as a contract because it was not supported by any consideration. It submitted that the Council’s agreement to delay the commencement of Class 4 proceedings was “illusory” because “had no undertaking been given, any enforcement action, taken by the Council would undoubtedly have been adjourned pursuant to s 124(3)(a) of the [EPAA]” or some analogous power pending the determination of its application for development approval. [9] It referred to the “practice” of this Court to adjourn such matters as recognised in Tynan v Meharg (1998) 101 LGERA 255 at 259.

    9. First Respondent’s outline of submissions dated 17.07.14 at [32] (Wilson’s first submissions)

52. Wilson’s submissions overstate the position. While it is the Court’s practice to adjourn enforcement proceedings pending the outcome of a development application it is not an invariable rule. Any such rule would be inconsistent with the discretionary nature of the power conferred by s 124(3)(a) of the EPAA in that it permits but does not require the Court to adjourn proceedings to restrain a breach of the Act to enable a party to obtain a consent to rectify the breach. At the time the undertaking was given Wilson had been operating the car park for almost four years without development approval. It had exhausted its appeals rights in respect of the refusal of the first DA. Viewed prospectively at the time the undertaking was given it is not inevitable that, absent the undertaking, any class 4 proceedings would have been adjourned pending the outcome of the second DA.

53. The promise by the Council meant that Wilson avoided the risk of an order preventing it operating a car park from the premises. The risk was a real one. Further the relevant promise by the Council was to delay commencing enforcement action. The mere commencement of that action would have caused inconvenience to Wilson. Thus there was more than ample consideration moving from the Council to avoid it being characterised as “illusory”. It was sufficient in law and no further inquiry into its adequacy is warranted (Woolworths Ltd v Kelly (1991) 22 NSWLR 189 at 193-194).

54. Second, Wilson also submitted that the agreement represented by the undertaking and the promise by the Council not to take class 4 proceedings was an “unlawful” contract in that it represented an invalid fetter on a statutory power or discretion (see Ansett Transport Industries Operations Pty Ltd v The Commonwealth (1977) 139 CLR 54 at 74-76 per Mason J; “Ansett Transport”). Such contracts are “invalid or ultra vires” (Ansett Transport at 76.5).

55. In Ryde City Council v Echt & Anor [2000] NSWCA 108 (“Echt”) the Court of Appeal reaffirmed that a Local Council does not have a duty to enforce various provisions of the Local Government Act 1993 (the “LGA”) but instead had a discretion to enforce the law. At the relevant time, s 673 of the LGA provided:

“The Minister, the Director-General or a council may bring proceedings in the Land and Environment Court or such other court as may be specified in this Act for the purpose of the proceedings for an order to remedy or restrain a breach of this Act.”

56. In Echt Spigelman CJ referred to this provision as conferring a “power” on the Council (at [55]) which was consistent with the Council having a discretion to enforce the law (at [56]). Echt confirms that Councils are not obliged in every case to enforce the law and that provisions such as s 673 confer a discretion to enforce the provisions of the LGA. Conversely, it would follow that Councils cannot contractually oust or fetter their power to enforce the LGA including by invoking s 673.

57. In this case it was accepted that the relevant form of class 4 proceedings that Council agreed to delay was an action under s123(1) of the EPAA. This provision enables “any person” to bring proceedings for a breach of the EPAA provisions, including the breach of any environmental planning instrument. Unlike, say, s 673 of the LGA it does not confer standing solely on bodies with regulatory functions. However it still constitutes a discretionary power conferred on the Council that cannot be contractually fettered. The provisions of the EPAA that are being enforced are not concerned with private rights. They are directed to public purposes. Further numerous provisions of the EPAA recognise a role for Councils in the creation, implementation and enforcement of environmental planning instruments (eg s 54(1b); Division 1A of Part 6 and s 121B). At least so far as it applies to Councils, s 123(1) facilitates their performance of those functions. Properly analysed s 123 confers a discretion on the Council to seek enforcement of the EPAA and that discretion cannot be fettered by agreement. Whether a private individual could contractually bind themselves not to bring proceedings under that provision is a different question which need not be decided.

58. Accordingly I find that the agreement recorded in the undertaking was not a valid contractual fetter on the Council’s power and was not capable of being enforced against either the Council or Wilson as a contract (Ansett Transport id). This conclusion needs, however, to be placed in context. It is not unusual for public bodies including regulators and prosecutors to make statements that amount to a promise or commitment not to commence proceedings if certain conditions are fulfilled. Sometimes these commitments have statutory backing so that the public body can be held to the commitment. Otherwise, with the exercise of some administrative powers that can adversely affect a person’s rights or interests, the proffering of a promise as to the manner of their exercise can generate a legitimate expectation that it will not be departed from unless the representee is afforded a right to be heard  (Haoucher v Minister for Immigration & Ethnic Affairs [1990] HCA 22; 169 CLR 64; Attorney-General of Hong Kong v. Ng Yuen Shiu [1983] 2 AC 629). More controversially, in a rare case, the commencement of legal proceedings by the public body in breach of an undertaking may justify a stay of the proceedings as an abuse of process (Director-General, Department of Environment and Climate Change v Gleeson; Director General, Department of Environment and Climate Change v Epacris Pty Ltd [2009] NSWLEC 4; (2009) 165 LGERA 99; R v Croydon Justices ex parte Dean [1993] Q.B. 769; R v Abu Hamza [2007] 1 Cr. App. R. 27 at [50]).

59. However none of this discourse involves the enforcement of any contractual fetter on the public body’s power to commence proceedings. Such a fetter is treated as being inconsistent with the statute conferring the discretionary power (Ansett Transport id). It follows that, in such cases, if a representee was to depart from any commitment given in exchange for a promise from the public body then the only legal consequence would be that the public body would be able to commence the relevant proceeding. Thus in this case the Council has now commenced the proceedings it agreed to delay namely the class 4 proceedings seeking enforcement of the 2005 LEP. However, absent a statutory basis for doing so and leaving aside any possible estoppel, a court could not hold the representee to their commitment (cf Australian Securities Investments Commission Act 2001 (Cth), s 93AA).

60. Mr Kirk SC for the Council accepted that his client’s promise that it would not commence class 4 proceedings could not be enforced against it. [10] He nevertheless submitted that time passed and his client in fact refrained from commencing proceedings in accordance with the agreement recorded in the undertaking and that is sufficient to warrant Wilson now being kept to its undertaking. [11] However the Council’s consideration for the undertaking was not refraining to take enforcement action but promising to refrain from taking enforcement action. Any contract to that effect was ultra vires the EPAA and no matter how much the Council committed itself to its terms it was not enforceable against either party.

    10. T212.9

    11. T209 to T210

61. In light of this conclusion it is unnecessary to consider Wilson’s further contention that the agreement recorded in the undertaking is unenforceable because it has a tendency to interfere with the judicial process (A v Hayden (1984) 156 CLR 532 at 553 to 557 per Mason J). Its additional contention that it purports to oust the jurisdiction of this Court has no substance.

62. Third, Wilson contended that in giving the undertaking Wilson was “acting under an operative mistake that the subject land did not have the benefit of existing use rights”. Wilson cited Taylor v Johnson (1983) 151 CLR 422 at 432-3 per Mason ACJ, Murphy and Deane JJ[12] presumably being a reference to the following passage:

“The particular proposition of law which we see as appropriate and adequate for disposing of the present appeal may be narrowly stated. It is that a party who has entered into a written contract under a serious mistake about its contents in relation to a fundamental term will be entitled in equity to an order rescinding the contract if the other party is aware that circumstances exist which indicate that the first party is entering the contract under some serious mistake or misapprehension about either the content or subject matter of that term and deliberately sets out to ensure that the first party does not become aware of the existence of his mistake or misapprehension. What we have said is sufficient to demonstrate the broad basis of support which the authorities provide for that proposition. Moreover, and perhaps more importantly, it is a principle which is best calculated to do justice between the parties to a contract in the situation which it contemplates. In such a situation it is unfair that the mistaken party should be held to the written contract by the other party whose lack of precise knowledge of the first party's actual mistake proceeds from wilful ignorance because, knowing or having reason to know that there is some mistake or misapprehension, he engages deliberately in a course of conduct which is designed to inhibit discovery of it. Our comment can, for present purposes, be limited in its application to the case where the second party has not materially altered his position and the rights of strangers have not intervened.” (emphasis added)

12. Wilson’s first submissions at [38]

63. This passage is taken as being descriptive of the equitable doctrine of unilateral mistake. If established it will not render an agreement void but only liable to be set aside depending on the other considerations that guide a court of equity. Wilson does not seek to have this Court set aside the undertaking but instead submits that the Court should decline to enforce it. The establishment of a unilateral mistake in the sense discussed in the above passage is a basis for declining to grant specific performance and is a basis upon which this Court could decline to enforce the undertaking.

64. Wilson read an affidavit from its general manager, Mr Peter Witts. Mr Witts instructed Wilson’s previous lawyers and Counsel throughout the course of the two class 1 proceedings. He provided instructions to Wilson’s former solicitors to proffer the undertaking. In his affidavit he stated that the Council did not provide Wilson with various documents showing the historical use of the premises for parking. He stated that had he known of them “and been advised of Wilson Parking’s use rights at the time the undertaking was given I  would have ensured that the undertaking was qualified and subject to any existing or continuing use rights which Wilson Parking could demonstrate” [13] . The cross examination of Mr Witts sought to demonstrate that he and Wilson’s previous legal representatives made a forensic decision not to fully investigate whether the premises had the benefit of existing use rights. However Mr Witts stated that, based on advice from their former Counsel and solicitors, he held a positive belief that Wilson did not have existing use rights. [14] I accept that evidence. It is consistent with the statement made to this Court by Wilson’s Senior Counsel during the course of the second class 1 proceedings (see [24]).

    13. Affidavit of Peter Witts sworn 1 May 2014 at [15]

    14. T171

65. Nevertheless Wilson has not established a case of unilateral mistake. Mr Witts was not mistaken about either the “content or subject matter” of any of the terms of the undertaking (cf Taylor v Johnson supra). The terms and scope of the agreement recorded in the undertaking were clear and known to all.

66. Further, there is no evidence that the Council was aware that Wilson was labouring under any mistake as to existing use rights. As noted, in August 2011 Wilson’s Counsel advised the Court that there were no existing use rights on the premises. Based on that statement it can be inferred that the Council understood that Wilson was acting on the basis that there were no such rights. However there is no material capable of demonstrating that the Council was aware that such an understanding was wrong. Wilson pointed to the material in the Council files. I address that material below. In summary the Council’s file only contained documents indicating that at some point more than 50 years previous the premises had operated as a paid car park and that for some periods since that time cars had been parked on the premises but only in conjunction with the operation of a bank at 341 George Street. That does not come even close to demonstrating that any Council officer with the requisite authority had any knowledge of an existing use right as at 2012.

67. Otherwise there is no basis for concluding that any officer of the Council had some “reason to know that there [was] some mistake or misapprehension” on Wilson’s part but “engage[d] deliberately in a course of conduct which is designed to inhibit discovery of it” (cf Taylor v Johnson id). The only suggested conduct of the Council was its alleged failure to hand over its files. There is no evidence that the Council was asked to provide them.

68. In any event, for the reasons set out below, Mr Witts was not mistaken in concluding that there were no existing use rights.

69. Fourth, Wilson seeks to have the Court not enforce the undertaking on the basis of a common mistake. It relies on the following statement by Denning LJ in Solle v Butcher [1950] 1 KB 671 at 693 (“Solle”) namely:

“A contract is also liable to in equity to be set aside if the parties were under a common misapprehension either as to the facts or as to their relative and respective rights, provided that the misapprehension was fundamental and that the party seeking to set it aside was not himself at fault.” (emphasis added)

70. In Clasic International Pty Ltd v Lagos (2002) 60 NSWLR 241 (“Lagos”) Palmer J applied this statement in circumstances where the common mistake was that the parties believed their lease was valid (Lagos at [38]) whereas it contravened the Retail Leases Act as its duration was for less than five years. His Honour found that the doctrine of common mistake was applicable to mistakes of law as well as to mistakes of fact (Lagos at [42]; see David Securities Pty Ltd v Commonwealth Bank (1992) 175 CLR 353). The above passage from the judgment of Denning LJ in Solle supports that proposition in any event (“misapprehension … as to their relative and respective rights …”).

71. I have already accepted that, at the time the undertaking was given, Mr Witts believed that no existing use rights attached to the premises. I also accept that the Council knew that Mr Witts was under that belief. I infer that it accepted Wilson’s statement to the Court that there were no such rights at face value. Assuming that both parties were mistaken as to the existence of such rights, I nevertheless am doubtful that any such mistake on the Council’s part would be properly characterised as “fundamental” . In Solle Denning LJ noted that a number of the cases invoking the principle stated in [69] were “compromises of disputed rights” and they had been “subjected to justifiable criticism” (Solle at p 693). Neither the content nor the source of the criticism was elaborated upon. Presumably it included the complaint that, if the very point of the agreement was to resolve a dispute about existing rights, then the utility of such agreements would be undermined if a party could later seek to avoid them by contending that both sides were mistaken as to the strength of that party’s rights and they were in fact stronger than anyone realised. In doing so the party could thereby seek to re-litigate the very dispute that was compromised.

72. The answer may be that, in cases like the present, the operative state of mind of the Council was not its belief that there were no existing use rights but its belief that, irrespective of whether there were such rights or not, Wilson was not pursuing any claim based on any such rights. If that is so, then any misapprehension about the strength of Wilson’s rights may not be “fundamental” (cf Solle). In any event, it is not necessary to consider this further. For the reasons set out below, neither Wilson nor the Council were mistaken in their belief as to the absence of existing use rights.

73. Fifth, Wilson also raised various discretionary reasons as to why no injunction would issue to enforce any contract as constituted by the undertaking. They all reflect points that have already been addressed save that it was also submitted that damages are an adequate remedy. That contention has no substance. Ultimately, the Council seeks to ensure that the use of the premises accords with the relevant planning instrument. An award of damages could not achieve that, even if they were capable of quantification.

74. Nevertheless for the reason noted in [57] to [58] the Council’s case in contract fails.

(c)   Promissory Estoppel

75. The Council also claimed that a promissory estoppel arising from the undertaking bound Wilson. The submissions on this issue focused on two aspects of a claim in promissory estoppel, namely reliance and detriment if the relevant assumption is not fulfilled. In relation to reliance, Wilson contended that the Council suffered “no detriment in reliance on the representation made by Wilson”. [15] This submission confuses two aspects of estoppel namely the necessity to demonstrate that a party relied on an assumption engendered by a promise or representation and the detriment that may be suffered if the assumption is departed from. In this case the inference is overwhelming that the Council refrained from taking action in the form of class 4 proceedings on the basis of the undertaking and I so find (see Sidhu v Van Dyke (2014) 88 ALJR 640 at [51]).

    15. Wilson’s first submissions at [43]

76. That still leaves the question of the detriment if the assumption is not fulfilled. It is not the case that the Court will only grant the minimum relief necessary to do equity between the parties. Instead in Giumelli v Giumelli [1999] HCA 10; 196 CLR 101 at 112, 123-125 [40]-[48], Gleeson CJ, McHugh, Gummow and Callinan JJ held that in some cases equity may require the taking of active steps by the defendant to fulfil the expectation generated by the promise. Sidhu was such a case. Nevertheless the governing principle is one which protects a party from “the detriment which would flow from the [other party’s] change of position if the defendant were to be permitted to resile from his or her promise” (Giumelli id). Hence one limit upon the circumstance on which a party will be held to their promise is where “the potential damage to an allegedly estopped party [is] disproportionately greater than any detriment which would be sustained” by the innocent party (The Commonwealth v Verwayen (1990) 170 CLR 394 at 441 per Deane J; Sidhu at [83]). Thus in Sidhu at [84] the High Court stated:

“If the respondent had been induced to make a relatively small, readily quantifiable monetary outlay on the faith of the appellant's assurances, then it might not be unconscionable for the appellant to resile from his promises to the respondent on condition that he reimburse her for her outlay.”

77. In its written submissions the Council identified the detriment that it would suffer if the assumption generated by the undertaking was not fulfilled as the costs of these proceedings [16] although it nevertheless contended that it would be unconscionable for Wilson to resile from the undertaking. In contrast Wilson generates substantial profits from the conduct of a car park at the premises. The prospect of a commercial entity such as Wilson withdrawing from an unequivocal undertaking given by it to a public body in circumstances where it was legally represented is unattractive. Nevertheless if it was held to its undertaking then the damage that would be sustained by Wilson in giving effect to its promise would be disproportionately greater than the relevant form of damage suffered by the Council if Wilson withdraws from its undertaking. In those circumstances, the principles I have just stated compel a conclusion that it would not be unconscionable for Wilson to depart from the undertaking.

    16. Submissions of the Council of the City of Sydney dated 15.07.14 (Council’s first submission) at [26]; Reply submissions of the Council of the City of Sydney dated 22.07.14 at [10]

78. Accordingly the Council’s claim for injunctive relief based upon a promissory estoppel fails.

(5)   Section 76A and the Existing Use Defence

(a)   The EPAA and existing uses

79. The second basis upon which the Council seeks injunctive relief is an alleged continuing breach of s 76A of the EPAA, which provides:

“76A Development that needs consent

“(1) If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:

(a) such consent has been obtained and is in force; and

(b) the development is carried out in accordance with the consent and the instrument.

(2) For the purposes of subsection(1), development consent may be obtained:

(a) by the making of a determination by a consent authority to grant development consent, or

(b) in the case of complying development, by the issue of a complying development certificate.

(5) …

76C This Division is subject to the other provisions of this Act, unless express provision is made to the contrary.”

80. The relevant form of “development” for the purposes of applying this provision is the “use” of the premises as a (paid) car park (EPAA; s 4). The 2012 LEP is an environmental planning instrument that specifies that such development may not be carried out except with development consent. However that may not exhaust the environmental planning instruments that require consent for the purposes of s 76A. I trace below the various environmental planning regimes that have applied to the premises since 12 July 1946. It seems that, from around the time of the commencement of the EPAA, the parts of those regimes that regulated the use of the premises became “deemed environmental planning instruments” and have continued in force, but that is not the case with those parts which preserved existing uses (see Steedman & Anor v Baulkham Hills Shire Council [No 2] (1993) 31 NSWLR 562 at 578G per Handley JA; EPAA schedule 6, clause 123) (“Steedman”). Other than a discrete issue concerning a development consent that was granted in respect of the premises in 1975 (see [220]ff), it is not necessary to consider this further. Leaving aside that consent, the Council’s case of a breach of s 76A does not gain any strength by relying on any environmental planning instrument created prior to the 2012 LEP.

81. As noted in resisting the contention that its operation of the car park is in breach of s 76A(1) of the EPAA, Wilson contends that it is entitled to rely on the existing use rights for the premises preserved by either or both of s 107 and s 109 of the EPAA. Wilson’s ultimate contention was that the premises “had been used more or less continuously for the purposes of car parking since about 1932” and that “accordingly, when Wilson commenced the operation of a car park on the subject land in 2008, that use could be carried out without the need to obtain development consent …”. [17]

    17. Wilson’s first submissions at [8]

82. There was some debate as to whether the relevant section sought to be relied on by Wilson was s 107 or s 109 although it was accepted that there was no material difference in the application of those provisions to this matter (although see [231]). Sections 106, 107, 108 and 109 of the EPAA provide:

106 Definition of “existing use”

In this Division, 

"existing use" means:

(a) 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, but for Division 4 of this Part, have the effect of prohibiting that use, and

(b) the use of a building, work or land:

(i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and

(ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.

107 Continuance of and limitations on existing use

(1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use.

(2) Nothing in subsection (1) authorises:

(a) any alteration or extension to or rebuilding of a building or work, or

(b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or

(c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or

(d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or

(e) the continuance of the use therein mentioned where that use is abandoned.

(3) Without limiting the generality of subsection (2) (e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.

108 Regulations respecting existing use

(1) The regulations may make provision for or with respect to existing use and, in particular, for or with respect to:

(a) the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and

(b) the change of an existing use to another use, and

(c) the enlargement or expansion or intensification of an existing use.

(d) (Repealed)

(2) The provisions (in this section referred to as the incorporated provisions) of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument.

(3) An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force.

(4) Any right or authority granted by the incorporated provisions or any provisions of an environmental planning instrument extending, expanding or supplementing the incorporated provisions do not apply to or in respect of an existing use which commenced pursuant to a consent of the Minister under section 89 to a development application for consent to carry out prohibited development.

109 Continuance of and limitations on other lawful uses

(1) Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained.

(2) Nothing in subsection (1) authorises:

(a) any alteration or extension to or rebuilding of a building or work, or

(b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or

(c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of the use therein mentioned, or

(d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or

(e) the continuance of the use therein mentioned where that use is abandoned.

(3) Without limiting the generality of subsection (2) (e), a use is presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.

83. Wilson indicated a preference for relying on s 107 on the basis that the decision of Pepper J noted in [31] found that subclause 66(2) of the 2005 LEP was a prohibition and not a development standard and the outcome was to effectively prohibit the use of the premises as a car park. I do not accept that means that either the 2005 LEP or 2012 LEP “prohibited that use” (cf s 106). Sections 106 and 107 are directed towards environmental planning instruments which create “absolute ... prohibitions [on a relevant use] and [do] not include those which could be relaxed by the grant of consent” (Steedman at 579F per Kirby P). Nothing in either the 2012 LEP (or the 2005 LEP or any of its predecessors) had the effect of prohibiting the use of the land as a car park (cf EPAA; s 106). Instead they required consent for that use. Accordingly the relevant provision is s 109.

84. If Wilson is able to successfully invoke s 109(1) then that would avoid the result that that part of the 2012 LEP which specifies that development in the form of car parking cannot be carried out without consent, applies to the use of the premises for that purpose; i.e. if s 109(1) is invoked then the premises are not “land to which that provision [of the 2012 LEP] applies” (cf s 76A(1)). (If the Council sought to rely on any previous planning instruments then the same reasoning applies to that instrument.)

85. To invoke s 109(1) in relation to the 2012 LEP Wilson must establish that, immediately before it came into force, the premises were being used (as a car park) for a “lawful purpose”. As the lawful purpose relied on by Wilson at that time was itself based on existing use rights said to exist immediately before the 2005 LEP came into force, Wilson must in turn establish that, prior to the coming into force of the 2005 LEP, the premises were being used for car parking which was itself lawful by reason of an existing use right (Steedman at 572G per Kirby P) and that, leaving aside any question of onus, the use was continued and not abandoned prior to the introduction of the 2012 LEP. A continuation of this logic leads to a chain of inquiry as to whether there existed an existing use right to conduct a car park prior to the introduction of each successive previous planning instrument coming into force and whether that right survived to the time of the introduction of the next instrument. Further the survival of any right to continuing the existing use is to be determined according to the prevailing regime protecting existing use rights. Neither subsection 109(1) nor subsections 109(2) and (3) operate retrospectively prior to their enactment in 1980 and 1986 respectively (Steedman at 581C per Handley JA).

86. Steedman was a similar case to this one in that it involved an asserted right of existing use dating back to a time prior to the introduction of planning controls in July 1946. The outcome of the Court of Appeal’s judgment in Steedman was a finding that there was a relevant use of the particular property at that time but the issue of its survival thereafter was remitted back to this Court. The remitted proceedings were then heard and determined by Perlman CJ (Richard Michael Steedman and Anne Steedman v Baulkham Hills Shire Council [1994] NSWLEC 94). Her Honour explained the task that this Court was required to undertake in light of the Court of Appeal’s analysis as follows (at pp 2-3):

“The finding of the Court of Appeal was that there was a separate and independent use of the Kemp property for the purpose of an extractive industry at 12 July 1946, which was the date of the commencement of the Town and CountryPlanning (General Interim Development) Ordinance, the first of the planning instruments to apply to the land.

What is now required, as a consequence of that finding, is to determine whether the use, found to be existing in 1946, continued thereafter and was not abandoned, so that at the time of the coming into effect of each successive planning instrument which applied to the land, the existing use provisions operate to obviate the necessity to obtain consent to continue to use the land for that purpose. There are three dates which are relevant for this exercise. The County of Cumberland Planning Scheme Ordinance commenced on 27 July 1951. The Shire of Baulkham Hills Planning Scheme Ordinance commenced on 17 April 1964, and the Shire of Baulkham Hills Interim Development Order No 118 commenced on 13 May 1977.

…

If it is shown that the use found to be existing in 1946 has continued thereafter, then the applicants will be entitled to the declaration that they seek. If, however, the evidence establishes that the use was not continuous during the relevant periods, then the onus is upon the applicants to establish that, although not continuous, the use has not been abandoned (Woollahra Municipal Council v Banool Developments Pty Ltd [1973] HCA 65; (1973) 129 CLR 138).

The determination of whether a use has been abandoned depends on all the facts and circumstances, including, amongst other things, the subjective intention of the relevant person (per Hope AJA in Hudak v Waverley Municipal Council (1990) 18 NSWLR 709 at 716).” (emphasis added)

87. In this passage Perlman CJ referred to the onus of proving both continuity and the absence of any abandonment as being upon the party seeking to establish the existing use. Three matters should be noted.

88. First this aspect of her Honour’s judgment was addressing the position prior to the enactment of the existing use provisions of the EPAA. Subsections 109(2) and (3) deal with onus of proof in relation to events on and after their commencement, namely 3 February 1986.

89. Second, in referring to the need for the use to be “continuous”, her Honour was invoking the explanation of the phrase “continuance of the use” in former s 309(2) of the Local Government Act 1919 (NSW)] provided by Mason J in Woollahra Municipal Council v Banool Developments Pty Ltd 129 CLR 138, at p. 144; 28 LGRA 410 at 415, namely:

“The expression 'continuance of the use' [in former s 309(2) of the Local Government Act 1919 (NSW)] in its natural and ordinary sense may be conveniently rendered as 'the continued use'. So understood the expression connotes neither a use which is commenced afresh after prior termination or abandonment or a continuity of use which is necessarily uninterrupted or unbroken. Rather does it suggest a use which is still continuing, notwithstanding that it may be marked by some interruptions or breaks which are not of such a kind to bring about a termination or abandonment of the use."

90. In this passage Mason J contemplated that a continuous use was one that encompassed “interruptions or breaks”. In placing the onus of proving that the use was continuous on the party seeking to establish the existing use, Perlman CJ was simply reflecting the effect of Morris v Woollahra Corporation [1966] HCA 65; 116 CLR 23.

91. Third Perlman CJ’s statement that the onus rested upon Mr and Mrs Steedman to demonstrate that the use had not been abandoned prima facie sits uneasily with the general law concerning abandonment, including Banool, which accepts that the party asserting abandonment bears the onus of proof (Banool at 415 and Jeblon Pty Ltd v North Sydney MC (1982) 48 LGRA 113). However her Honour’s observations were predicated on it being found that the “use was not continuous”, whereas the statements in the cases to the effect that the onus of abandonment rests upon the party who asserts it were uttered in a context where the degree of interruption or break in the use, if any, did not otherwise affect the characterisation of the use as continuous (see the discussion of Banool and Woollahra Municipal Council v TAJJ Investments Pty Ltd (1982) 49 LGRA 123 in Hudak v Waverley Municipal Council (1990) 18 NSWLR 709 at 716 A-C per Hope AJA) (“Hudak”). This approach was later reflected in the structure of s109(2) and (3) which casts an onus of proving abandonment on the party who asserts (s 109(2)(e)) but creates a rebuttable presumption of abandonment if the use ceases for a period of 12 months (s 109(3)).

92. Similar to Steedman, in this case the suggested use is said to date prior to the commencement of planning controls and there has never been any form of development consent given for the operation of a car park on the premises. Consistent with Steedman this means that the relevant inquiry requires the Court to consider the evidence concerning the use of the premises since a time prior to the introduction of the first planning control in 1946 and address the relevant planning regime regulating usage of the premises and protecting existing use rights since that time. I will address the latter issue first.

(b)   Regulation from 1946 to 2005

93. Up to 12 July 1946 there was no relevant restriction placed on the use of the premises. On that day the “Town and Country Planning (General Interim Development) Ordinance” made under the Local Government Act 1919 (NSW) (“LGA 1919”) came into force (“IDO 105”). Subclause 6(1) of IDO 105 provided that “[d]evelopment which is not permitted by this Ordinance shall not be carried out except with the permission of the interim development authority”. The commencement of the operation of a car park was a type of development in respect of which permission of the interim development authority was required. However a form of protection for existing uses was provided by the definition of “Development” in section 342T of LGA 1919 which applied to subclause 6(1). It provided:

“Development includes the erection of any building and the carrying out of any work and any use of the land for a purpose which is different from the purpose for which the land or building or work was last being used." (emphasis added)

94. Thus the continuation of the same purpose for which the land was last being used was not “development”, did not require permission and was not unlawful if undertaken without permission. Further there was no requirement that the purpose for which the land was being used prior to the introduction of IDO 105 was lawful: Vumbuca v Baulkham Hills Shire Council (1979) 141 CLR 614 (“Vumbuca”) .

95. With effect from 27 June 1951 the County of Cumberland Planning Scheme Ordinance (“CCPSO”) took effect pursuant to s 2 of the Local Government (Amendment) Act 1951. Subclauses 29(2) and (4) provided:

“(2) Land, included in a zone, whether forming the site of a building or not, shall not be used without the consent of the responsible authority for any purpose for which a building in the same zone may be erected or used only with the consent of the responsible authority.

(j)   1971 onwards

208. The findings that I have just made represent another reason why Wilson’s attempt to invoke an existing use fails. It is not possible from this point to continue the Steedman type analysis on some alternative hypothesis that Wilson has established an existing use for non-dedicated car parking (or car parking that was not ancillary to some other use) under subclause 26(1) of the CSPO. However, in light of the submissions made concerning some of the events after 1971, I note the following.

209. First, subject to one matter, the available documentary evidence from 1971 through to the demolition of the various structures in 2006 to 2007 all refer to such parking as was done on the premises as being for use of persons or vehicles associated with the Bank (including its “Transport Department”) (see [160]ff). The only possible exception is the DA lodged for the use of the former savings bank building as a convenience store in 2008 which refers to the availability of car parking and unloading facilities at the “parking and loading area off York street” which appears to be reference to the premises ([173]). It is not clear whether this was an assertion of an existing use right. Even if it was it might only represent an assertion that the use of the premises as a dedicated car park (or as a car park ancillary to the Bank’s use) extended to the savings bank and that in turn could extend to the new occupiers of that building. In any event without the basis for the statement being expanded upon nor adopted by the Council I do not attribute much weight to it given the effect of the other documentary material.

210. Second, as I have said, much attention was directed in the submissions to the effect of the conditions imposed by the 1975 consent. Leaving aside the issue of whether those conditions engaged s 109(2)(d) of the EPAA, they have an evidentiary significance. I consider it highly improbable that the Bank contravened them by purporting to charge for the use of car spaces. I also consider it highly improbable that the Bank undertook the charitable exercise of allowing non-Bank users to park in those spaces for free especially while cash trucks were being loaded nearby. Further I also consider it improbable that after 1975 the Bank operated the premises by having one-third of the area devoted to the loading and unloading of cash trucks, a dedicated area of five spaces for unpaid parking, and then grafting out some extra dollars by offering paid valet parking to Bank and non-Bank personnel in the tiny floor space that was left over.

211. In the end result the circumstances surrounding the granting of the 1975 consent and the documentary record demonstrate that, in the period from 1971 up until the sale of the premises by the Bank, the balance of the available floor space of the premises was used as a dedicated car park for the Bank’s vehicles, some of its staff and possibly those persons attending the Bank’s premises at 341 George Street (as well as possibly the savings bank on the corner of Wynyard and York Streets).

212. Third, the Council contended that “post 1996” there has been an “intensification and enlargement of the use of the premises as a carpark” within the meaning of s 109(2)(c) [92] . The Council pointed to the report noted in [172] above which referred to parking facilities on the Premises for “five to six vehicles” in 2007 [93] , the reference to five unpaid car parking spots in the conditions attaching to the 1975 consent and various images from 2006 that apparently show “very little space left for carparking”. The Council contrasted that with the 15 spaces offered by Wilson and also noted that the operation of Wilson’s car park results in a higher number of traffic movements than previously because it offers short term parking.

     92. Council’s first submissions at [56]

     93. PG1 at p 489

213. It is not immediately apparent why the Council’s submissions referred to an intensification “post 1996”, although that may be a reference to the commencement of the 1996 LEP (see [109]). In a case where the existing use is said to pre-date the enactment of s109(2), then the date of the commencement of that provision, namely 3 February 1986, is at least the first relevant date to undertake the comparison exercise concerning intensification or enlargement (see King v Lewis (1995) 88 LGERA 183) (“King v Lewis”). If a certain level of intensity is demonstrated at that time then the principles concerning abandonment apply in respect of any reduction in usage after then. The matters pointed to by the Council in respect of the period after 1996 do not discharge the onus upon it on that issue. However, that still leaves the expansion by Wilson into the area that was previously used by the cash cars up to and including 1986.

214. Wilson contended that the “fact that the number of cars parked on the subject land has ebbed and flowed over the years is of no moment”, that the whole of the site need not have been used for car parking for the whole of the relevant period and that, even if it was established, it was irrelevant if there was a higher turnover of cars entering and exiting the site [94] . Wilson drew an analogy with a quarry which resumes production after it was idle for a certain period and does not thereby intensify its use. Wilson also cited the judgment of Lloyd J in Shoalhaven City Council v South Coast Concrete Crushing & Recycling Pty Ltd [2009] NSWLEC 197at [191] and [195] (“Shoalhaven”).

     94. Wilson’s first submissions at [26]

215. Shoalhaven does not assist Wilson at least so far as it now parks cars in the area previously used by the cash cars. In Shoalhaven Lloyd J held that an increase in the level of extraction from a quarry was an intensification of existing use of extracting “material” (at [190]). His Honour explained that whether a use has intensified depends upon the “nature of the use” in question (at [195]). Thus in King v Lewis there was held to be an intensification arising from an increased rate of extraction from quarrying activities. In South Sydney City Council v Houlakis (1996) 92 LGERA 401 (“Houlakis”) there was found to be an enlargement, expansion or intensification by reason of an increase in the trading hours of licensed premises.

216. On the hypothesis that the relevant use is “carparking”, an increase in the number of car park spots is in my view clearly an intensification of that use. Nevertheless the Council bears the onus of proof on both the fact and the degree of any such intensification. Allowing for the space involved in the cash truck operations as being one-third, I am satisfied that, even if the relevant use was car parking, and leaving aside the restrictions imposed by the 1975 consent, Wilson’s use of the area previously used by cash cars represents a 50% intensification of any use that preceded the introduction of subsections 109(2) and (3) into the EPAA.

217. Alternatively Wilson’s expansion into the area previously used for the cash trucks was clearly an “enlargement”. One effect of s 109(2)(d) was to confine any existing use rights to the “actual use ... to the land actually (as opposed to potentially) physically being used … on [3 February 1986]” (Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1910) 25 NSWLR 580 at 587). On this approach any expansion of the area devoted to car parking after 3 February 1986 into the area used by the cash trucks is not authorised by ss 109(1).

218. It follows that, if I had otherwise upheld Wilson’s case, it would have been necessary to grant some limited relief to the Council to preclude Wilson from using that area, or otherwise not providing car parking for more than 10 cars.

219. Fourth the Council contends that there was an abandonment of any existing use of the premises as a car park when it was used as a builder’s yard from 2006 to 2008 (see [167]ff). The Council relied on two aerial photographs attached to Mr Hand’s affidavit dated “2007” and “2008” that he stated depicted the area as a “construction staging area/yard”. In light of my rejection of Wilson’s characterisation of the existing use of the premises it is not possible to fully address this contention. However I note that the material that was tendered was capable of demonstrating that the premises were not used to park cars for at least a year and was thus capable of giving rise to a presumption of abandonment under s 109(3). The photographs referred to in the Heritage Impact Statement lodged in July 2007 depict the area as a builder’s yard yet Wilson did not commence operating its parking station until September 2008.

(k) The 1975 Consent

220. I have already addressed some of the submissions made by the Council in respect of the 1975 consent. The Council made two related submissions which only arose in the event that Wilson’s contention that it was entitled to rely on an existing use for car parking including paid car parking was accepted.

221. First it contended that the use of the roof of the substation for paid car parking by Wilson is a contravention of the 1975 consent. It submitted that, as the CSPO was a deemed environmental planning instrument that survives to the present, Wilson’s use of the substation roof for paid car parking is in breach of s76A(1)(b).

222. Wilson rejected this contending that its existing use rights circumvent this and otherwise submitting that it is not now carrying out “development” within the meaning of s 76A(1) and cannot be injuncted under s 76A(1) (see Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472; “Hillpalm”). [95] I address the former contention next and I do not accept the latter. In Hillpalm the relevant consent permitted the subdivision of the land and it was alleged that it was subject to certain conditions including the creation of a right of way. The right of way was not created. A subsequent owner and occupier of the land who did not subdivide the land was found not to be carrying out “development” in the form of a subdivision of the land, was therefore not in breach of s76A(1) and thus could not be injuncted under s 123 of the EPAA (Hillpalm at [41] to [50] per McHugh, Hayne and Heydon JJ). However the subdivision of land is not a continuing activity whereas the relevant “use” authorised by the 1975 consent, namely the operation of an electrical substation and unpaid car parking, is an ongoing activity (see [158]). Subject to considering existing use rights, Wilson and 4 York Street are conducting a use of the premises including the substation and are doing so in a manner that contravenes the 1975 consent (Hillpalm at [49]).

     95. First Respondent’s further submissions dated 31 July 2014 at [25]]

223. Second, the Council contended that, even if Wilson established an existing use for the premises as a car park as at December 1975, that use was regulated by the conditions imposed by the 1975 consent. In particular it was contended that the use of the surface area of the substation for paid car parking was a “breach of [a] consent in force under this Act in relation to that use or any condition imposed or applicable to that consent” within the meaning of s 109(2)(d) with the result that s 109(1) did not assist Wilson to the extent it sought to defend the Council's allegation that it was in breach of the 2012 LEP and the 1975 consent by charging for parking on the roof of the substation. Wilson contended that s 109(2)(d) was not engaged as the 1975 consent was not a consent “relating” to that use as it had not either created the use or expanded, intensified or enlarged it, as might now occur under the regulations made under s 108 ([107]), or previously might have occurred under the CCPSO (see [97]) . The Council argued that there was no reason to construe “relating to” so narrowly and provided that it affected any such use that was sufficient.

224. From a planning perspective it is difficult to see the rationale for Wilson's contention in that it appears to involve the Bank having sought and obtained permission to build and operate an electrical substation subject to a condition that its ceiling could be used for five unpaid car parking spots and then being apparently free to ignore that condition. The difficulty for the Council's submission is identifying a source of power in 1975 to limit or regulate existing uses. The relevant instrument in force at the time, the CSPO, did not appear to confer any express power to do so. However, as next explained, it does operate to limit the scope of any existing use so as to require compliance with the 1975 consent once the substation was constructed.

225. The Council placed particular reliance on the decision in Sutherland Shire Council v Bartlett (1969) 18 LGRA 91 in which Else-Mitchell J injuncted a land owner from using a fruit stall on their property. A fruit stall had been erected on the property in 1948 following interim development approval but it was demolished in 1960. The Council then consented to the erection of a new stall but only for a limited period. At the end of that period the owner sought to resist the removal of the stall on the basis of an existing use right. Else-Mitchell J found that the property had the benefit of existing use rights under clause 32 of the CCSPO (see [97]) but that was of no assistance in relation to the second fruit stall (at 93):

“As has already been pointed out, the defendant's existing use rights under cl 32 of the County of Cumberland Planning Scheme Ordinance could be availed of only in relation to the original stall built in 1948 or the land itself without buildings (cf. cll 28 and 29). When the original stall was demolished the right to use the land for the sale of fruit and vegetable products continued but the only right to use the new stall derived from the development consent of 17th October, 1960, and was subject to the terms and conditions of that consent. This seems to me to follow from the definition of “development” in s 342T as including three separate categories of activity, namely, first the erection of any building, secondly the carrying out of any work, and, thirdly the use of any land, building, or work for any new purpose. Each of these categories of activity required interim development consent and logically so because the object of interim development control is ‘to prevent any alteration in the status quo of land which may prejudice the ultimate plans for its development’ (Burwood Municipal Council v. Parkes Development Pty Ltd  [(2)]; cf. Ex parte Arnold Homes Pty Ltd; Re Blacktown Municipal Council  [(3)]). The saving which the definition implies of preserving the right to use land for the purpose for which it was last being used does not extend to authorizing the use of a new building for such a purpose because the erection of the new building itself is development which cannot be undertaken without consent; and, as has been said, the consent to the erection of the new stall was expressly limited to a period of time which has now expired.”

226. To the extent that this passage traces an existing use right to a time prior to 1951 it is similar to the hypothesis upon which this topic is being addressed, namely that Wilson has established an existing use right over the premises to a time prior to the CCSPO coming into force. Critically this passage makes it clear that existing use rights in respect of "land" do not extend to a new "building" constructed on that land.

227. As at the time of the construction of the substation, the equivalent provision to clause 32 of the CCSPO was sub-clause 26(1) of the CSPO set out in [101]. It referred to the maintenance of an "existing building or an existing work", the use of such a building or work for its "existing use" and an "existing use of land". A 'building" included any "structure or any part thereof" (LGA 1919, s 342B). The substation was clearly a building as defined but it was not an "existing building" in that it was not constructed before the commencement of the CSPO (see the definition of "existing building" in clause 4(1) of the CSPO.)

228. Even if one accepts that Wilson has established an existing use right over the premises to a time prior to the CSPO and CCSPO coming into force, in my view it follows that, from the time that the substation was constructed, the use of the roof of the substation to park cars was not the continuation of a "use of … land for the purpose for which it was used immediately before the appointed day" within the meaning of the definition of "existing use" in sub-clause 4(1) of the CSPO (see [103]). Instead it was the use of the (roof of a) building, namely the substation, that had been constructed after the commencement of CSPO and that use did not engage the protection of existing uses conferred by clause 26(1) of the CSPO. Instead it was regulated by the conditions attaching to the construction of that building, namely that parking on the ceiling of the substation be for a maximum of five cars and not involve payment.

229. In the end result Wilson may be correct in contending that the conditions attaching to the erection of the substation are not conditions "relat[ing] to that use" within the meaning of s107(2)(d) of the EPAA being the use of the premises as a car park that it asserts. However, it is not necessary to decide that issue. The effect of the above is that any existing use rights that Wilson may have established in relation to the premises as at December 1975 did not extend to the roof of the substation after its construction. Regardless of how it appeared to the naked eye, that area of the premises was the roof of a “building” and was regulated by the conditions that attached to its construction. It follows that, even if Wilson had established an existing use of the balance of the premises as a car park, the Council would be entitled to some relief to prevent a breach of s 76A(1)(b) by Wilson in the form of a contravention of the conditions attaching to the 1975 consent.

(6) Anshun

230. As noted the Council also contended that an Anshun type estoppel precludes Wilson from relying on an existing use right to defend these proceedings. Whether this is correct depends upon whether Wilson’s assertion that the premises had the benefit of an existing use right for car parking is an issue that could have been agitated in either or both of the class 1 proceedings and should have been raised in the sense that it “would have been unreasonable not to rely on it” (Anshun at 602). It was accepted that in determining a class 1 proceeding this Court cannot determine whether Wilson had the benefit of existing rights simpliciter. However the Council submitted that this Court could have determined that issue as part of, or incidental to, its determination of Wilson’s class 1 proceedings. The Council referred to a number of judgments given in respect of class 1 proceedings that have determined whether the proposed developer had the benefit of existing use rights and, if so, their scope. However, in each of those cases, the Court did so because it was a necessary component of the determination of the appeal from a refusal of a development application. This was principally because the developer was seeking consent for the enlargement or intensification etc, of an existing use right under the 2000 Regulation (eg Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council [2001] NSWLEC 243; 114 LGERA 345 at [32]); Parrangool Pty Ltd v Botany Bay City Council [2009] NSWLEC 1189 at [51]).

231. However Wilson could not have relied on any aspect of Part 5 of the 2000 Regulation in either of the class 1 proceedings for two reasons. First, because nothing in its case involved the express or implicit seeking of permission for any of the activities referred to in clauses 42 to 45 of the 2000 Regulation, ie enlargement, intensification, alteration or rebuilding or change of an existing use (see [107]). Second, the relevant part of the 2000 Regulation only applies to existing uses as defined in s 106 of the EPAA and regulated by s 107. However, I have already found that Wilson’s asserted existing use does not fall within those provisions. Instead, had it been established, it would be preserved and regulated by s 109. Accordingly I do not accept that Wilson could have, much less should have, raised the existence of existing use rights in either of the class 1 proceedings. To the contrary it would have been an exercise in futility.

230. In Anshun what was significant to the finding that the plaintiff was estopped from bringing a claim for indemnity was the potential for inconsistency between any judgment in those indemnity proceedings and the judgment given in earlier proceedings between the same parties in which the claim for indemnity could have and should have been litigated (Anshun at 596). No such inconsistency arises in this case. The outcome of both class 1 proceedings was that Wilson did not receive development approval to conduct a car park on the premises. The matter now being litigated is whether it needed any such approval. There is no relevant inconsistency between finding that they were not entitled to development approval under the 2005 LEP and any finding that they have an existing use right derived from an alleged use that predates it coming into force (cf Multistar Pty Ltd v Minister for Urban Affairs and Planning and Another (No 2) (2000) 111 LGERA 319).

231. In its supplementary submissions in reply the Council further contended that Wilson could have and should have also brought class 4 proceedings to seek declaratory relief as to the existence of existing use rights, and sought to have those proceedings either heard with the class 1 proceedings or at least heard by the same (judicial) member of the Court. It cited the proceedings in Sericott Pty Ltd v Snowy River Shire Council [1998] NSWLEC 297 and Sericott Pty Ltd v Snowy River Shire Council [1998] NSWLEC 168 as an example of this approach. However the fact that class 4 proceedings could have been brought by Wilson to vindicate an existing use right does not bring this case within Anshun. Anshun is concerned with estoppels that arise out of earlier proceedings that were finally determined and not with different proceedings that could have been commenced but were not. As events have transpired class 4 proceedings were commenced, namely these proceedings. Properly analysed this aspect of the Council’s argument is simply a complaint about the timing of the commencement of class 4 proceedings.

232. No Anshun estoppel arises against Wilson precluding it from relying on s 109 of the EPAA in these proceedings. However, its attempt to do so fails for other reasons.

(7)   Relief

235. Prayer 1 of the Amended Summons seeks a declaration to the effect that the use of the premises as a car park by Wilson is unlawful. The Council has succeeded in establishing that and I will make a declaration to that effect.

236. Prayer 2 seeks a declaration that Wilson is in breach of the order under s 121B of the EPAA issued on 13 October 2008 (see [17]). However the order was addressed to NGI and not Wilson, and NGI is not a party to these proceedings. In those circumstances it is difficult to envisage any basis to make this declaration. If the Council wishes to press this claim it can exercise liberty to apply.

237. Prayers 3 and 4 seek injunctive relief. Beyond what already has been addressed, Wilson did not press a contention that injunctive relief should be refused as a matter of discretion. However it was agreed that any injunctive order should be stayed for a period of 28 days.

238. I will grant liberty to apply in respect of the form of relief and the appropriate costs order. If the liberty is not exercised within twenty-one days then I will make an order that Wilson pay the Council’s costs of the proceedings, and that the proceedings be otherwise dismissed.

239. Accordingly the Court declares that:

1. the First Respondent is unlawfully using the premises situated at and known as land at the rear of 4-6 York Street in the City of Sydney (“the premises”) for the purposes of public car parking (“the purpose”) in contravention of the Sydney Local Environmental Plan 2012 and the Environmental Planning and Assessment Act 1979.

Further the Court orders

2. That the First Respondent, its servants, contractors and agents be restrained from using, permitting or suffering the use of the premises for the purpose without first having

1. obtained development consent therefor; and

2. complying with any conditions of such consent which must be complied with prior to the use commencing.

3. The Respondents, their servants, contractors and agents be restrained from

1. advertising or holding out the premises or any part of them as available for the purpose; and

2. leasing or licensing the premises or any part of them for the purpose.

4. Orders 2 and 3 be stayed up to and including 23 April 2015.

5. Grant liberty to apply within 21 days hereof in respect of costs and the form of relief.

**********

Endnotes

Amendments

09 April 2015 - 7 citations corrected on cover sheet and in judgment.

Decision last updated: 09 April 2015