Council of the Municipality of Ku-Ring-Gai v Mobil Oil Australia Limited

[1992] HCATrans 361

~ ~

IN THE HIGH COURT OF AUSTRALIA	',('··~
Office of the Registry

Sydney No S75 of 1992

B e t w e e n -

THE COUNCIL OF THE MUNICIPALITY

OF KU-RING-GAI

Applicant

and

MOBIL OIL AUSTRALIA LIMITED

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

Ku-Ring-Gai 1 10/12/92

AT SYDNEY ON THURSDAY, 10 DECEMBER 1992, AT 3.08 PM

Copyright in the High Court of Australia

MR W.R. DAVISON:  I appear for the applicant, may it please

Your Honours.	(instructed by Abbott Tout Russell
Kennedy)

MR M.G. CRAIG, OC: If the Court pleases, I appear for the

respondent. (instructed by Cutler Hughes & Harris)

MR DAVISON:	Your Honours, this matter relates to the provisions of the Environmental Planning and
Assessment Act as they relate to existing use. The
particular provisions of the Act are to be found in sections 106 to 108. Could I hand to Your Honours
a copy of the relevant provisions of the Act and
regulations.  As Your Honours will see, the
existing use is defined and perhaps if I can go about the matter this way so as to compare the
existing framework with that which preceded the
Environmental Planning and Assessment Act and hand up four copies of the County of Cumberland Planning
Scheme Ordinance which includes provisions similar
to those which applied in the planning instruments
in New South Wales on the question of existing use prior to the coming into force of the Environmental
Planning and Assessment Act.

We say, Your Honours, that the provision in

section 106 of that which is an existing use is

essentially the same as the definition of "existing

use" in that instrument in clause 3 on page 2. The

only difference - there are two differences but

which are not differences of substance so far as

this application is concerned. They are the

qualification in the new regime that the use must

be for a lawful purpose and that the planning

instrument which comes into force must be one which

has the effect of prohibiting that use. In other

words, one only has existing uses for those uses

which the instrument prohibits, not those uses

which become permissible under the new instrument.

They were not features of the previous legislation

but they are differences which are, in our

submission, irrelevant to the matters which arise

in these proceedings.

The right of existing use is created by

section 107(1) of the Environmental Planning and

Assessment Act and then the right is circumscribed

by section 107(2) and that circumscription is

generally recognized as being to limit the ambit of

rights of existing use flowing from three decisions

of this Court - Parramatta City Council v

Brickworks; Eaton v Warringah and Norman v Gosford, and the analysis of that approach is at page 25 and

there is no demur from that.

Ku-Ring-Gai 2 10/12/92

The limitations that were created by section

107(2) were relaxed by regulations made pursuant to

section 108. Section 108 provided that:

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;

(b) the change of an existing use to another

use; and

(c) the enlargement or expansion or

intensification of an existing use.

Those provisions are to be compared with the

previous regime which is to be found in clauses 33 and 34 of the County of Cumberland Planning Scheme Ordinance where, under that Ordinance, without

consent, one could alter, enlarge or rebuild an

existing use and in clause 34, one could change the

existing use to another use with consent under the
planning instrument.

The regulations which were brought into effect

to deal with that for which section 108 provided
are in Part 6 of the Environmental Planning and
Assessment regulation 1980. They are regulations

51 to 55. The relevant ones so far as these

proceedings are concerned are 52A, 53 and 54.

MASON CJ:  What is the relationship between the

regulation-making power in 108 and the ambit of

section 107(2)? For example, if you compare

107(2)(b)(i) with 108(c)?

MR DAVISON:  The relationship, Your Honour, is, in 107 to

say within existing use, or what is permitted as

existing use to continue, the things set out in (2)

are not included. In other words, one does not

have, within (1), any of the things that are

referred to in (2), but 108 provides that there may

be regulations which permit those same activities

with consent - I withdraw that - which may permit

those same activities. The regulations when made,

and they came in to force - - -

MASON CJ:  So the regulations may confer an authority to do

something which is not permitted by virtue of

107(2).

MR DAVISON:  Yes, Your Honour, or not permitted by the ambit

of 107(1) as read down by 107(2).

Ku-Ring-Gai 10/12/92

MASON CJ: Yes. Was that common ground that that is the

effect of the regulation-making power?

MR DAVISON:  Yes, as I understand it, Your Honour. The

regulations as they were made, and they were made, with the exception of 52A, in essentially the same

form when the Act was made, provided that each of

those elements of exclusion could. be permitted with

consent and with those permissions being,

themselves, circumscribed. Sorry, that power

itself being circumscribed.

Tpe particular power here relied upon is 53:

existing use may, with consent under the Act

For the purposes of section l0B(l}(a) of the

being obtained therefore and subject to

subclause (2), be rebuilt.

And that was what was occurring in respect of the

subject application.

Any rebuilding ..... shall be for the existing

use of the building or work or for a use

changed or consented to be changed in

accordance with clause 54 but for no other

use;

be carried out only on the allotment or

allotments on which the building or work was
erected or carried out immediately before the

relevant date -

and either be -

floor space of the building as rebuilt;

or ..... shall not exceed by more than

10 percent the floor space of the -

previously existing building.

MASON CJ: Did it comply with regulation 53(2)(c):
such that the floor space of the building as
rebuilt; or
area of the land on which the work, as rebuilt
is carried out -
MR DAVISON:	Yes, Your Honour.
MASON CJ:	shall not exceed -

which of the two was it?

Ku-Ring-Gai 10/12/92

MR DAVISON: In fact, I think it was in excess of the floor

space of the building. The two elements that are

in (2)(c), Your Honour, are the floor space of the

building or the area of land on which the work is

carried out. The two are mutually exclusive and

what is here involved is a building, not a work, so

that (2)(c)(ii) is inapplicable; it is only

(2)(c)(i) which applies.

MASON CJ: Yes, I see, all right.

MR DAVISON:	And (2)(c)(ii) would have application in things in the nature of a quarry dealt with in the
Brickworks case.  And then the building that was
ultimately approved I think was, in fact, greater
than 10 per cent, but there is no issue about that,
Your Honour; that was a question of merit with
which there is no cavil in His Honour the trial judge's findings, and not a matter which arose in the appeal.

So the question that arose in this case was

whether a service station which existed on one

parcel of land as at the appointed date - - -

MASON CJ: 

It had been consolidated at the appointed date?

MR DAVISON: 

It had. The two parcels being, the day before

the appointed date, two allotments, had been
consolidated on the day before the appointed day so
that at the appointed day they were one allotment
but still two parcels and the question of the

dichotomy of parcels does not arise because the

only word we are here concerned with is

"allotment".  And so it is common ground that on

the appointed day there was but one allotment. On

approximately half of it there was a service station; on the other half of it there was a

dwelling house which was shortly thereafter
demolished and the land remained vacant from the
time of demolition until the application point and

it remains still vacant.

It was common ground, as I understand it, that

the second parcel of land could not be said to have

been used as a service station so as to fit within

the existing use definition. What the applicant

relied upon, the applicant for consent relied upon,

was clause 53(2)(b), the assertion being that he

could do that which he sought to do on the

allotment which included the land to which it was

conceded no existing use rights attached.

The learned trial judge approached the matter

on a different basis, and I need not trouble

Your Honours with that basis. The Court of Appeal

approached the matter on the basis that there was

Ku-Ring-Gai 10/12/92

but one allotment, that the words of (2)(b) were

clear and permitted the building to be rebuilt on

that allotment whether or not it was land to which
the right of existing use extended, and it is that,

Your Honours, with which we, with respect, take

issue.

Mr Justice Clarke, who wrote the judgment with

which the other two members of the court agreed,

firstly at page 28, noted that there was:

undoubted power under reg 54 to consent to a

proposed change of an existing use and no

reason appears why that power could not be

exercised in this case.

The proposition put by the appellant in the Court
of Appeal was that the power undoubtedly existed in

respect of the land that was used as the existing

use but did not extend to the land which was not

used for the existing use.

There had been an earlier decision of the

Court of Appeal dealing with that proposition of

North Sydney Municipal Council v Bevillesta Pty

Ltd, copies of which I hope Your Honours have. In

that case, dealing with that regulation, 54, that

was a case where the court was concerned with one

building which was used for various uses, some
permitted under the planning instrument and
therefore not existing uses within the meaning of
section 106, and others which were existing uses

within the meaning of section 106, and the case

related to whether one could change the proportion

in which the building was used in its several parts for existing uses into the area which did not enjoy

existing use rights, that is to say, was used for a

permitted purpose. And the court there said,

beginning at the foot of page 5:

Were the only uses of the building uses

would have no operation because, the use for	for motel and office purposes, clause 54(2)
motel purposes not being an existing use,
there would then be only one existing use.
But Mr Hemmings called in aid the fact, as it
was accepted to be, that part of the ground
floor was being used for shops. He submitted
that therefore the requirement that the
building was being used "for more than one
existing use" was satisfied. But that, in our
opinion, does not authorise a change in the
use of floors 10 to 15, which are not being used for an existing use but for motel
purposes. Put another way sub cl (2) seems to
us quite clearly to empower the obtaining of
consent only for changing the proportions in

Ku-Ring-Gai 6 10/12/92

which the several parts of a building are

being used for more than one existing use, in
respect to the totality of the parts of the

building used for those existing uses, and not

any part of the building (such as floors 10-15

in the present case) which are not being used

for an existing use.

So that in that case, Your Honours, the court came

to a view that the right created by regulation 54

was one which was confined to the land which

enjoyed the right of existing use and, in that

case, land being part of a building; in this case,

simply land.

His Honour then, going back to

Mr Justice Clarke's decision, at page 29 line 10,

said:

The argument, as I understand it, depends upon

the acceptance of two propositions. First,

that the phrase "existing use" in ss 107 and

108 should be understood in the wider sense

explained in those cases.

Those cases being Brickworks, Eaton and Norman

earlier referred to. We take issue with

His Honour's assumption of that proposition. The

position of the appellant was that the definition

of "existing use" in section 106 was similar in all

relevant respects to the definition of "existing

use" applicable in Brickworks, Eaton and Norman in

the three planning instruments which affected them.

In Brickworks it was the Cumberland Ordinance; in

Eaton it was the Warringah Ordinance; and in

Gosford, I think again it was the Cumberland

Ordinance.

His Honour's second proposition is one that we

accept and argued, that:

nothing in sl08 or the regulations enabled the

expansion of the area on which the rebuilt

building is to stand beyond that which is

found to be the area of existing use in

accordance with -

principally Eaton's case. His Honour found that

submission to be misconceived. He said that:

It takes no account of the effect of the new

legislation and the regulations which, as I

earlier pointed out, imposed a much narrower

meaning upon the phrase "existing use" in

s 107 -

Ku-Ring-Gai 10/12/92

and that, with respect, Your Honours, we accept.

We do not accept the qualifying words:

and introduced a new regime wherein the

relevant local government authority was
empowered to grant consent in appropriate
cases to applications for enlargements or

expansions of existing uses.

That right already existed under the earlier

delegated legislation, as I have indicated by

reference to the Cumberland scheme. So His Honour

then went on, on page 30, the first full paragraph,

line 3, to say:

In short the scheme brought into effect

by the enactment of the Act and regulations,

and later amendments, replaced the original

liberal test of existing use with a narrower

one while at the same time empowering local

government control authorities to grant

consent to changes in use or enlargements or expansions or other specified alterations to

the use in appropriate cases. I should add

that reg 52A, which came into force on 6 March

1987, authorises the granting of consent to

the enlargement, expansion or intensification
of an existing use. This regulation was

passed pursuant to the power ins 108(l)(c)

and the conditions imposed upon the

enlargement, with consent, of an existing use

were the same limitations -

and we emphasize the word "limitations" -

as appear in reg 53(2)(a) and (b). The

express power to consent to the expansion of

an existing use seems to me to be quite

inconsistent with the argument which has been

presented by the appellant. Its counsel

sought to answer this point by contending that

expansion was, in effect, merely another

expression for intensification and was

designed to cover the problems discussed in

Norman's case.

The proposition, Your Honours, was that the word

"expansion" where it finds expression in

regulation 52A is a little different from the

ability to alter or enlarge in regulation 52 and,

in any event, in regulation 52A, the expansion must

be for the existing use or for a use to which the

use is changed pursuant to clause 54 and, on the

basis of the earlier submissions, that necessarily

means it can only be upon the land which enjoys the

existing use rights and not other land.

Ku-Ring-Gai 10/12/92

GAUDRON J: But that gives, does it, no weight or no account

of the use of the word "allotment" which is there

in all the regulations - regulation 52, 52A, 53.	I
do not know if it - in 54 it is not.

MR DAVISON:	No.
GAUDRON J:	Which would perhaps explain the Bevillesta

decision, anyway.

MR DAVISON:  It was only in the context of those things

physical and, in our respectful submission,

subcla~se (2) of each of those regulations - 52,

52A and 53 - are words of limitation to the powers

that are given in subclause (1) and they are

expressed so as to confine, not to amplify.

DEANE J: But on your argument would (2)(b) have any

operation at all?

MR DAVISON:  Yes, Your Honour.

DEANE J: What?

MR DAVISON:	It has the operation to, where the use was one which on the Eaton test applied to.two allotments
of land, it would confine the right to expand to the allotment upon which the activity was actually
being conducted and not to the second allotment. or the Eaton test, a use of land which was not
physical at the appointed day - that is to say the
time of corning in to force of the planning
instrument - this limitation confines that use to
that allotment. In other words, it operates and
can and should only operate as a limitation, not as
an expansion, because the words within each of
those regulations relate to the existing use and to
determine what the existing use is one has to go
back to section 106.  One takes account of
section 106 in the context of Eaton's case. It is
accepted that applying those principles that the
use rights and therefore it could not be said that second parcel of land did not enjoy the existing
the second parcel should gain those rights simply
because of regulation (2)(b) in each of those three
regulations.  They are words of limitation, they
are not words which operate so as to expand the right to use land for an existing use, and the
right can only be to use the land for the existing
use.

The reasoning which applies in Bevillesta

applies equally to this circumstance. If I can go

back to the Bevillesta reasons where Their Honours

dealt with clause 52, at page 7, although it did

Ku-Ring-Gai 9 10/12/92

not deal with this question of allotment,

Their Honours said, at about point 4 on the page:

We think it clear that sub cl (2) limits or qualifies the uses to which the building as altered or extended under sub cl 1 may be put.

And that, Your Honours, is our proposition.

The alterations proposed were, the Court

was informed, of the nature of structural

adaptations of the internal portions of the building. Internal walls or partitions and

facilities now used for motel purposes would

be removed or changed to make the area

suitable for office use.

We do not think that the words " ... shall

be for the existing use of the building

"would authorise the use of the altered

space for office purposes -

again, our point: the fact that it is required to

be confined to the existing use means that you

cannot take any part of the regulations so as to

permit that which would otherwise not be permitted

in referring to the use of the building, the

words do not in our opinion have the effect

that, if some part of the building is being

used for office space, another part not so

used can by being altered, be properly

converted to the use of that other part. The

term "building" is defined bys 4 of the Act

to include part of a building and, in our

opinion, cl 52(2)(a) - - -

DEANE J:  I have got lost, I am sorry. Why does it not come

within 52A(l)?	Why is it an expansion of the
existing use?

MR DAVISON:  In the Bevillesta case, Your Honour?

DEANE J:  No, in this case. I can understand you saying

that expansion only means intensifying but that

certainly is not the prima facie impression one

gets from the words. I mean, why do you not read

52A(l) as saying you can expand in the physical

sense or enlarge in the physical sense the existing

use provided you do not go beyond the allotment on

which the existing use was carried out immediately

before the relevant date?

MR DAVISON:  The qualification, Your Honour, is because "any

such enlargement or expansion shall be for the

existing use". Existing use can only be the

Ku-Ring-Gai 10 10/12/92

service station and the land which enjoyed the

existing use rights for the service station is half

of the allotment. Again, the words in

section 52A(2) are words of limitation, not of

empowerment.

So that what regulation 52A does is not

entitle you to expand the use on to land which did
not enjoy the right of existing use. That is the

fundamental issue in question in the case,

Your Honour.

GAUDRON J:	You do not complain because there is going to be what was an existing use and a new use, as it were.
MR DAVISON:	No.
GAUDRON J:	No.

DEANE J: Well, that all turns on not reading "expanded" as

enlarging the physical area.

MR DAVISON:  Enlarging the area to which the right of

existing use attaches.

GAUDRON J: But that all proceeds on the basis that you can

view things as discrete parcels of land, does it

not? Surely if, let us say, you had a large

allotment, the northern corner of which had a use,

and it was only ever one allotment, would you say

that you could still only use the northern corner

expanded by 10 per cent?

MR DAVISON:  Yes, Your Honour, and that, indeed, is that to

which the regulations read as a whole direct one. The words are of limitation. If it happened that

the existing use was on 1000 square metres in the

corner of 10 hectares, all being in one 10 hectare

allotment, does that mean that one may enlarge that

relatively small existing use into the totality?

DEANE J: With consent.
MR DAVISON:	With consent, Your Honour, yes.

DEANE J:  Why not? I mean, 52A fixes the limit by saying it

has got to be restricted to the allotment on which

the existing use was carried out immediately before the relevant date. Why, in that context, would you

say 52A means it has not only got to be restricted

to that allotment but it has got to be restricted

to the precise limits of the part of the allotment

on which it was carried on.	I mean, it just does
not make sense.

Ku-Ring-Gai 11 10/12/92

MR DAVISON: Well, Your Honour, our submission is that it

makes sense where those words are used in each of

the regulations as words of limitation.

DEANE J: But you cannot say "expansion" is a word of

limitation.

MR DAVISON:  No, but one may enlarge, expand or intensify

the existing use, that is to say the use of the

land or building to which the right of existing use

attaches. One has to come back each time to that

which is identified by reference to the decision of

this Court in Eaton's case as being the land which

enjoyed the benefit of the right of existing use.

DEANE J: That brings us back. If you read it that way I do

not see what (2)(b) adds to it.

MR DAVISON: It adds nothing, Your Honour. In our

respectful submission, it operates and can only

operate so as to subtract.

DEANE J: Well, what does it subtract? Without (2)(b) you

can only do it on the precise areas of land where

you were doing it before. What does (2)(b)

subtract? Give me an example.

MR DAVISON:  The Eaton example of where the timber was being

stacked at the appointed day on one side of the

fence and, say, in this case, the fence was an

allotment boundary and historically there may have

been a use of the allotment on the other side of

the fence - and the size of it would be irrelevant for the argument - there would be a confinement to the allotment at the appointed day upon which the

use was actually being conducted.

DEANE J:	I follow that.
MASON CJ:	Mr Davison, do we get any assistance from looking

at 107(2)(b)? I notice that if you look at

107(2)(a) then regulation 52 appears to be directed

to that restriction.

MR DAVISON:  Yes, Your Honour.

MASON CJ: If you look at 107(2)(b)(i), then regulation 52A

is again directed to that restriction. But (2)(b)

creates a restriction in terms of:

increase in the area of the use made of a

building, work or land.

There does not seem to be any particular regulation

directed to that.

MR DAVISON:  No, Your Honour.

Ku-Ring-Gai 12 10/12/92

MASON CJ: But in both regulation 52 and in regulation 53

you do see that there are provisos in respect of

the area of land.

MR DAVISON:	Yes, Your Honour.
MASON CJ:	And not only expressed in terms of allotment or allotment. There does not seem to be any such
proviso in the case of 52A.

MR DAVISON:  The same in terms of the 10 per cent. There is

the same restriction in 52A(2)(b) as is to be found

in (2)(b) in 52 and 53 read, as we put it, as a

restriction. The question is whether it is a

restriction or operates so as to expand the right

of existing use.

DEANE J:	Can I take you back to your answer to me?
MR DAVISON:	Yes, Your Honour.
DEANE J:	Is it not the position that you can only get

(2)(b) having any meaning, in the example you gave,

by giving a different meaning to "existing use" in

(2)(b) to the meaning which you give to "existing
use" elsewhere in 52A? Because, the way you put
it, (2)(b) operates in a case where the existing

use did not actually spread over the whole area,

but your whole argument is, that existing use in

52A refers only to the particular area. Well, is

there not a contradiction there?

MR DAVISON:	With respect, no, Your Honour.
DEANE J:	I mean, assume, as you submit, that existing use

for the purposes of your answer to me, has the

wider notional use which you suggest. Well then,

what operation does 52A(2)(b) have?

MR DAVISON:  The limitation - - -

DEANE J: But it will not limit, because if existing use has

that wide notional thing that it applies to the

whole area, the area will have had that existing

use. If it has the - perhaps I am missing

something.

MR DAVISON:  Yes, I am sorry, Your Honour.

DEANE J: Obviously the application does not depend on it

completely.

MR DAVISON:  The definition of existing use - it comes back,

Your Honour, to the definition of "existing use".

We say the definition of "existing use" is similar

to that which applied historically and therefore

Eaton's case and Brickworks case - - -

Ku-Ring-Gai 13 10/12/92

DEANE J:  I thought you started by saying, existing use

means only the precise area of land being used for

the purpose of 52A(l).

MR DAVISON:  No, Your Honour. Perhaps I put that clumsily

by reference to the facts of this case. What was

conceded was, in the Court of Appeal, that the

existing use applied only to the service station

land and not to the dwelling house land, which was

the other parcel within the allotment.

GAUDRON J:  You said that was conceded? I did not

understand that to be so or at first instance.

MR DAVISON: Well, it was not at first instance. Well,

perhaps I am wrong in saying that it was conceded.

At page 26 at the top of the page, Your Honour,

Mr Justice Clarke makes this finding:

Upon that interpretation of the Act

section 107 provides no support for the

respondent's case. At the date upon which the

ordinance became operative no part of the

northern section of the respondent's land was

physically used as either a service station or

a convenience store. Accordingly, the

respondent's existing use rights under

section 107 were limited to the southern

section of the land.

I do not understand - - -

GAUDRON J: But that is assuming a particular

interpretation.

MR DAVISON:	Yes. That is the interpretation that flows from the analysis on page 25; that is to say, the
analysis of the decision of the Court of Appeal in
Vaughan-Taylor.

DEANE J: Yes, I understand the way you answer my query but

it really brings you back to the question, "What do

'enlarge' and 'expanded' mean?", because if they

mean you can physically expand, it bears on how you

interpret (2)(b).

MR DAVISON:  If they mean, Your Honour, that one may expand

the existing use on to land not enjoying the right

of existing use, contrary to Bevillesta, then, yes,

that would be so.

DEANE J: And (2)(b) then operates to say, "But you can only

expand it within the allotment on which it was

carried on".

MR DAVISON:  Yes, Your Honour, on the appointed day.

Ku-Ring-Gai 14 10/12/92

GAUDRON J: But it is not correct to say, contrary to

Bevillesta, is it, because that was not an

enlargement in the ordinary sense; it was an

alteration of proportions?

MR DAVISON: 

Yes, Your Honour, but we say to the same effect

that there what the court was concerned about was
the building and what one -

GAUDRON J: Yes, but what regulation 54 is predicated on is

no alteration in the size of the land or the

building involved, whereas the others are, of

course - well certainly 52 and 53 expressly

contemplate that.

MR DAVISON:  It is the reasoning on pages 7 and the top of

page 8 that I rely upon in Bevillesta, which

relates to regulation 52.

GAUDRON J: Yes, 52.

MR DAVISON:  And the question of public importance,

Your Honours, is the question of construction of

the Environmental Planning and Assessment Act and
the meaning of the definition of "existing use" in
section 106 of the Act, being divined by reference

to a subsequently enacted regulation. Those are

our submissions, may it please Your Honours.

MASO~ CJ:  Yes, thank you. The Court need not trouble you,

Mr Craig.

The decision of the Court of Appeal, which is the subject of the proposed appeal, was predicated on certain assumptions which are set out in the

judgment of that court. Having regard to those assumptions and accepting them, the Court is of

opinion that the decision of the Court of Appeal is

not attended with sufficient doubt to justify the

grant of special leave to appeal.	The application
is therefore refused.

MR DAVISON:	May it please the Court.
MR CRAIG:	We apply for costs, if Your Honour please.
MASON CJ:	You do not oppose costs?
MR DAVISON:	No, Your Honour.
MASON CJ:	The application is refused with costs.

AT 3.56 THE MATTER WAS ADJOURNED SINE DIE

Ku-Ring-Gai 15 10/12/92