Currency Corporation Pty Ltd v Wyong Shire Council

[2006] NSWLEC 692

Reported Decision: 155 LGERA 230

Land and Environment Court

of New South Wales

CITATION:

Currency Corporation Pty Limited v Wyong Shire Council [2006] NSWLEC 692
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT:
Currency Corporation Pty Limited

RESPONDENT:
Wyong Shire Council

FILE NUMBER(S):

11494 of 2005

CORAM:

Biscoe J

KEY ISSUES:

Existing Use Rights :- whether land has benefit of existing use rights – whether s 109B Environmental Planning and Assessment Act 1979 applies – whether s 109B affects definition of existing use in s 106 – whether there can be an existing use where s 109B applies – construction of s 109B – whether access way part of proposed development on adjoining premises is prohibited under Wyong Local Environmental Plan 1991.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 ss 4, 4B, 106 - 109B
Environmental Planning and Assessment (Miscellaneous Amendments) Act 1992
Environmental Planning and Assessment Regulation 2000 cll 39 – 46
Interpretation Act 1897 s 8
Interpretation Act 1987 ss 5, 30, 42(1)
Local Government Act 1919 ss 306-310, 579(1)
Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 Schedule 3 cl 2(1), Schedule 3 cl 7(1)
Strata Titles Act 1973 s 37
Strata Titles Act Regulations 1974
Wyong Local Environmental Plan 1991
Wyong Planning Scheme Ordinance 1968
Wyong Planning Scheme (Amendment No 2) Ordinance 1976

CASES CITED:

Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202;
Ashfield Municipal Council v Armstrong (2002) 122 LGERA 105;
Auburn Council v Constanti (2000) 109 LGERA 355;
Auburn Council v Nehme (1999) 106 LGERA 19;
Botany Bay City Council v Workmate Abrasives Pty Ltd (No 2) (2003) 129 LGERA 91;
Calvary Health Care Tasmania Inc v Hobart City Council (2006) 144 LGERA 107;
Council of the City of Gosford v Dillon (Bannon J, NSWLEC, 13 May 1994, unreported);
Dosan Pty Ltd v Rockdale City Council (2001) 117 LGERA 363;
Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources (2004) 137 LGERA 178;
Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270;
Harris v Hawkesbury Shire Council (1989) 68 LGRA 183;
Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472;
House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; (2000) 106 LGERA 440;
Lederer v Sydney City Council (2001) 119 LGERA 350;
McIlveen v Baiada (2003) 131 LGERA 129;
Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works (1974) 48 ALJR 448; 34 LGRA 151;
Penrith City Council v Penrith Waste Services Pty Limited (Talbot J, NSWLEC, 19 December 1995, unreported);
Penrith Waste Services Pty Ltd v Penrith City Council (1998) 101 LGERA 98;
Peters v Manly Municipal Council [2006] NSWLEC 676;
Steedman v Baulkham Hills Shire Council [No 2] (1993) 31 NSWLR 562; 80 LGERA 323;
Vitality Care Pty Ltd v Director General, Department of Natural Resources [2006] NSWLEC 506;
Winn v Director-General of National Parks and Wildlife (Bannon J, NSWLEC, 23 November 1995, unreported)

DATES OF HEARING:

29-30/6/2006, 07/09/2006

 
DATE OF JUDGMENT: 

11/03/2006

LEGAL REPRESENTATIVES:

APPLICANT:
Mr J Webster SC
SOLICITORS
Grech Partners

RESPONDENT:
Mr T F Robertson SC
SOLICITORS
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

3 November 2006

11494 of 2005

CURRENCY CORPORATION PTY LIMITED v WYONG SHIRE COUNCIL

JUDGMENT

HIS HONOUR

:

INTRODUCTION

1 The applicant has appealed against the respondent council’s deemed refusal of its development application No 1904/2004. The application was for the demolition of an existing two storey residential flat building comprising seven strata units, and its replacement with a split level residential flat building comprising six strata units and a basement carpark, at 50 Werrina Parade, Blue Bay. Access to the basement carpark from Werrina Parade is to be via a right of way created over the adjoining property to the south, 52 Werrina Parade. The applicant claims to have existing use rights under the provisions of the Environmental Planning and Assessment Act 1979 (EPA Act) for the existing residential flat building.

2 Two preliminary questions are before me for determination:

Particulars

2.1 The proposed residential flat building relies upon 50 Werrina Parade enjoying existing use rights for permissibility (which depends upon the resolution of question 1).
2.2 It is also proposed to carry out works on the neighbouring land, being 52 Werrina Parade, which will be used as the vehicular access to the basement carpark at 50 Werrina Parade.
2.3 50 and 52 Werrina Parade are zoned 2(a) and residential flat buildings are prohibited in the 2(a) zone.

3 The zoning referred to in 2.3 of the particulars is under the Wyong Local Environmental Plan 1991 (Wyong LEP 1991).

FIRST QUESTION: EXISTING USE RIGHTS

4 The first question is whether the land known as 50 Werrina Parade has the benefit of existing use rights. The applicant relies upon such rights as a source of authority for the grant of development consent. The onus of proving an existing use right is upon the party asserting it: Penrith Waste Services Pty Ltd v Penrith City Council (1998) 101 LGERA 98 at 105 - 106 (CA).

5 Section 106(a) of the EPA Act defines an “existing use” as “the use of a building… for a lawful purpose immediately before the coming into force of an environmental planning instrument which would… have the effect of prohibiting that use”. The council’s submission is that the use of the building for residential flats is not prohibited, by virtue of the operation of s 109B of the EPA Act, and that therefore the use is not an “existing use” within the s 106(a) definition.

6 Division 10 (ss 106 – 109B) of Part 4 of the EPA Act is entitled “Existing Uses” and relevantly provides:

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 4A of Part 3 or 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.

(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.

109A Uses unlawfully commenced

(1) The use of a building, work or land which was unlawfully commenced is not rendered lawful by the occurrence of any subsequent event except:
(a) the commencement of an environmental planning instrument which permits the use without the necessity for consent under this Act being obtained therefor, or
(b) the granting of development consent to that use.
(2) The continuation of a use of a building, work or land that was unlawfully commenced is, and is taken always to have been, development of the land within the meaning of and for the purposes of any deemed environmental planning instrument applying, or which at any time applied, to or in respect of the building, work or land.

109B Saving of effect of existing consents

(1) Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force.
(2) This section:
(a) applies to consents lawfully granted before or after the commencement of this Act, and
(b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and
(c) has effect despite anything to the contrary in section 107 or 109.
(3) This section is taken to have commenced on the commencement of this Act.

7 The word used in s 109B is “development”, which is defined in s 4 to include the use of land, the subdivision of land, the erection of a building and the carrying out of a work.

8 Section 109B was enacted in 1992 by the Environmental Planning and Assessment (Miscellaneous Amendments) Act 1992 with retrospective effect from 1 September 1980, the date the EPA Act commenced. The Minister’s second reading speech introducing the 1992 Bill stated in relation to s 109B:

The bill seeks to make a number of minor amendments to the Environmental Planning and Assessment Act which will streamline the operation of the Act. The amendments address a number of technical difficulties and areas of uncertainty, but do not in any way change the way the planning system operates, rather they fine tune the way the existing system operates. The amendments, which, with one exception, I do not propose to go through in any detail, will assist all participants in the planning system, particularly applicants for consent and councils and consent authorities who are responsible for determining the applications. The amendment which deserves some elaboration is that contained in part 9 of the schedule, which seeks to insert a new section 109B into the Act. The purpose of this amendment is one of clarification only, but it deals with the important area of existing and continuing use rights. One of the fundamental concepts of the Environmental Planning and Assessment Act is the right to continue a development, even if a new planning instrument comes into force, either prohibiting the development or requiring development consent. Though there are a number of restrictions on the extent of those rights, the restrictions have not in the past been considered as preventing a person from continuing to operate to the full extent possible under a valid development consent. It is this aspect to which the amendment is directed.

The purpose of the amendment is to make clear that subsequent environmental planning instruments do not have the effect of prohibiting or requiring a further development consent to authorise the carrying out of a use of land which is permitted by a development consent and which was being carried out at the time the new planning instrument came into force. The amendment does not change the current legal position but rather clarifies and puts beyond doubt what is considered to be the underlying policy and actual effect of the current provisions of the Act. Importantly, the amendments assure people who hold valid development consents that they will be able to complete and continue their development in accordance with the terms of their development consent. The amendments will not, however, in any way affect those operations relying on existing and continuing use rights which have no development consent.

9 The Explanatory Note in the 1992 Act relating to s 109B stated:

Section 107 of the Principal Act allows, subject to the restrictions set out in that section, the continuation of a use of land (referred to as an ‘ existing use ’) that was previously being carried out lawfully but that, because of an environmental planning instrument, becomes prohibited .

Section 109 of the Principal Act allows, subject to the restrictions set out in that section, the continuation of a use of land (referred to as a ‘ continuing use ’) that was previously being carried out lawfully but that, because of an environmental planning instrument, becomes unlawful unless it is authorised by the grant of development consent .

The amendment is only directed at cases in which a use of land was, before an environmental planning instrument prohibited the use or required it to be authorised by a development consent, lawful because it was authorised by a consent that had already been granted.

Proposed section 109B is intended to make it clear that such an environmental planning instrument does not have the effect of prohibiting, or requiring a further development consent to authorise, the carrying out of the use in accordance with the terms of the consent as in force from time to time.

As an example, the amendment would apply to make it clear that a person who had obtained development consent for mining the whole of a parcel of land and had commenced mining part of the parcel would not be prevented from mining the rest of the parcel by an environmental planning instrument:

· That came into effect before mining of the rest of the parcel had commenced; and

· That prohibited or made a new requirement for development consent to authorise the mining of the rest of the parcel.

10 The Environmental Planning and Assessment Regulation 2000 clauses 39 to 46 specify that, with development consent, an existing use can be enlarged, expanded or intensified, altered or extended, rebuilt, or changed to another permissible use. Owing to an amendment made to the Regulation earlier in 2006, those provisions no longer permit a change to another prohibited use. The amendment is not relevant to this application.

The Facts

11 Both parties have undertaken a search of records to ascertain whether the use had a lawful origin. The first record of the building is a Water Board diagram showing a sewerage service to the subject land. It is dated 11 July 1958. An inference arises that it was prepared for the purpose of building work on the site. In 1958 no planning instrument required the approval of the council for the use of a residential flat building in Wyong. A building approval was, however, necessary pursuant to former Part 11 of the Local Government Act 1919 (ss 306-310). The parties accepted that such an approval was given in 1958. The building had to be erected in accordance with the building approval for it to be lawful.

12 The secondary records support the inferences that in response to an application, the council granted a building approval for the construction of the existing building in 1958; that the building was constructed substantially in accordance with the building approval; and that the land was thereafter lawfully used for the purposes of a residential flat building: Ashfield Municipal Council v Armstrong (2002) 122 LGERA 105 (CA).

13 The next record is a s 317A certificate, apparently dated 1973, identifying a non-compliance because of an encroachment of the first floor balcony within a boundary setback.

14 The next record is a report submitted to a meeting of the council’s subdivision committee on 17 October 1974. It refers to an application dated 3 September 1974 on behalf of Far Eastern Investment Pty Ltd for a “strata subdivision in respect of the existing residential flat building” on the subject land. After identifying the abovementioned encroachment, the report states:

As Council has approved the landing encroachment in building application number 475/58 dated 1 July 1958 Council could not justifiably refuse a 317A Certificate of Compliance if the building/s are erected in accordance with the Local Government Act and Ordinances and the approved plans and specification under the circumstances.
…
The non-conforming building consisting of seven flats has been substantially completed in accordance with Council’s approval and the proposal for strata subdivision would meet the requirements of the Strata Titles Act 1973 for the purpose of an approval of Council.

It is recommended that the applicant be advised that:

1. Council would be prepared to approve of a formal application for strata subdivision which complies with the Strata Titles Act 1973, and subsequent amendments thereof, provided that such application included not more than seven residential lots, and if necessary up to three utility lots (garage or car parking), with council preserving its rights to impose conditions under s 39 of the Strata Titles Act 1973, and the following works and requirements have been finalised within a period of six months:

…

15 Minutes of the council’s subdivision committee meeting of 17 October 1974 record a resolution to adopt the recommendations. The report and committee resolution were submitted to a meeting of the council on 24 October 1974. The minutes of that council meeting are not in evidence. Strata Plan 10014 was registered on 26 September 1975. It bears the council clerk’s certificate dated 10 April 1975 under the Strata Titles Act 1973. The copy certificate (on the copy strata plan) in evidence is largely illegible. However, it is possible to deduce what it says by comparing it with the form of Council’s Certificate set out in Schedule 1 (Form 5) of the Strata Titles Act Regulations 1974 (NSW): “The Council of the Shire of Wyong having satisfied itself that the requirements of the Strata Titles Act 1973 (other than the requirements for the registration of plans) have been complied with, approves of the proposed strata plan illustrated herein. This approval is given on the condition that Lots 8 & 9 shown herein are subject to the restriction on user referred to in section 39 of the Strata Titles Act 1973".

16 Despite comprehensive searches, the council has been unable to locate the 1958 building approval or any other documents relating to the 1974 recommendation other than those I have mentioned.

17 Section 37 of the Strata Titles Act 1973 provided that a local council, on application made to it for a certificate of approval of a proposed strata plan, was to issue to the applicant a certificate of approval of that plan if it was satisfied as to prescribed matters. The report to the council’s committee meeting on 17 October 1974 recommended that “Council would be prepared to approve of a formal application”, suggesting that a formal application still lay in the future. I infer from the available evidence that the foreshadowed application was in substance for a certificate of approval under s 37; that the council adopted the recommendation; that the formal application was made and that the council decided to issue the certificate of approval. The certificate on the strata plan was the s 37 certificate of approval. The decision to issue the certificate of approval may have been made in late 1974 or early 1975 but I am content to call it the “1974 approval”.

18 In 1968 the Wyong Planning Scheme Ordinance 1968 (Wyong PSO) was proclaimed. It created a Residential 2(a) zone, in which the subject land was located, where residential flat buildings were permissible, but only with council consent: clauses 11, 13. Part IV provided ongoing protection for existing buildings, existing works and existing uses. Clause 14 (one of the provisions of Part IV) permitted an existing building to be maintained and used for its existing use and an existing use of land to be continued.

19 The use of the subject land as a residential flat building was first prohibited on 17 September 1976 by the Wyong Planning Scheme (Amendment No 2) Ordinance (Wyong PSO Amendment 1976). This was a comprehensive amendment to the Wyong PSO 1968. Relevantly, it prohibited residential flat buildings containing more than two dwellings in the Residential 2(a) zone by amendment to cl 11. It also omitted complex provisions of Part IV (including cl 14) of the Wyong PSO 1968 and substituted the following:

14 Existing buildings and existing works may be maintained and existing uses may be continued.

15(1) Subject to Part VI an existing building or work may, with the consent of the responsible authority, be altered in accordance with subclauses (2) and (3).

(2) An alteration permitted by subclause (1) —
(a) shall be for the existing use of such existing building or existing work and for no other use; and
(b) shall be confined to land on which the existing building or existing work is situated, or to land (if any) which was prior to the 11th December 1963, and has since remained, in common ownership with the land occupied by the existing building.

(3) [irrelevant]

(4) In this clause ‘ alteration ’ includes enlargement, rebuilding or erection of ancillary new buildings or works.

16(1) Existing uses may, with the consent of the responsible authority and (where the land concerned has a prime frontage) the concurrence of the Commission be changed to a use which, in the opinion of the responsible authority, is preferable to the existing use.

(2) In subclause (1) ‘preferable’ means less objectionable and having less adverse affect on the amenity of the area in which the existing building or existing work is situated.

20 The Wyong PSO Amendment 1976 inserted the following definitions into the Wyong PSO 1968:

· “existing building” was defined to mean a non-conforming building erected before the appointed day or a non-conforming building erected in accordance with cl 49 (which referred to incomplete development and is irrelevant). The “appointed day”, as defined in the Wyong PSO 1968, was 3 May 1968.

· “existing use” was defined to mean the use of a non-conforming building or the use of land for the purpose for which it was used immediately before the appointed day or for a purpose for which the responsible authority had consented to its use under cl 16 or, in relation to a building erected in accordance with Ordinance 105 or any permission granted under Part XIIA of the Act and under that Ordinance, the use of that building for the approved purpose.

· “non-conforming building” was defined to mean a building used for a purpose for which buildings could not be erected or used under Part III or VI in respect of the zone in which such building was situated.

21 Thus, from 1976 the building on the subject land became an “existing building”; the use of the land for the purposes of a residential flat building became an “existing use”; and the continuance of the use and the maintenance of the building were permitted by the new cl 14.

22 Clause 4 in Part II of the Wyong PSO Amendment 1976 provided:

4 Nothing in this Ordinance shall prevent
(a) the erection of a building or the carrying out of a work and the use of such building or work in accordance with the terms of any consent granted under the Shire of Wyong Planning Scheme if the erection of the building or the carrying out of the work was commenced, but not completed, before the day upon which this Ordinance takes effect or is substantially commenced within a period of twelve months after that day; or
(b) the use of a building or work erected or carried out after 3rd May, 1968, and before the date of commencement of this Ordinance, in accordance with the terms of any consent granted under the Shire of Wyong Planning Scheme.

23 Residential flat buildings remained a prohibited use within the Residential 2(a) zone in all subsequent environmental plans and are currently prohibited by the Wyong LEP 1991.

24 The applicant has established, in my view, that the use of the building for residential flats was for a lawful purpose immediately before the use became prohibited in 1976. This is a predicate for the application of s 106(a) of the EPA Act. If the matter rested there, it would have to be concluded that use of the building for residential flats was an “existing use” as defined in s 106, and, therefore, that the existing use rights in ss 107 and 108 applied to that use.

Submissions

25 However, the council submitted that the effect of the 1992 retrospective introduction of s 109B was that the use of the building for residential flats ceased to be “prohibited” by the Wyong LEP 1991. Hence, it contended, that use is not an “existing use” as defined in s 106(a) and therefore the applicant has no existing use rights. According to the submission, where s 109B applies there cannot be an existing use as defined in s 106(a).

26 The reasoning behind the council’s submission may be summarised as follows. The 1974 approval for strata subdivision and associated works remained in force after 1976 because of cl 4 of the Wyong PSO Amendment 1976 or, alternatively, because of the Interpretation Act 1897 (NSW) s 8 (since repealed and replaced by the Interpretation Act 1987 s 30). At the commencement of the EPA Act, the Wyong PSO was in force and was therefore a deemed environmental planning instrument: Schedule 3 cl 2(1) Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 (Miscellaneous Act). The EPA Act s 4 defines an environmental planning instrument to include a deemed environmental planning instrument (except where otherwise indicated). Any consent granted under a former planning instrument continued in full force and effect: Schedule 3 cl 7(1) Miscellaneous Act. This included the 1974 consent under the Wyong PSO 1968. Section 109B(1) of the EPA Act provides that nothing in the current Wyong LEP 1991 prohibits (or requires a further development consent to authorise the carrying out of) development in accordance with the 1974 approval under the Wyong PSO. The effect of s 109B is that the use is no longer prohibited by the Wyong LEP 1991. Therefore it is not an existing use as defined in s 106(a).

27 The applicant‘s submissions may be summarised as follows:

(a) section 109B is inapplicable because it relates to a “ consent ” that has been granted and “ is in force ”. The 1974 consent is no longer “ in force ” because the use of the land after 1976 until the implementation of the EPA Act was in accordance with the existing use provisions in the new cll 14 and 15 of the Wyong PSO 1968 (as amended by the Wyong PSO Amendment 1976) and not in accordance with the 1974 consent;
(b) alternatively, if the 1974 consent is still in force, s 109B has no effect in respect of the application of ss 106 to 108. Section 109B in effect allows for an existing consent to be operative as an existing use and as a consent that can be reactivated, but solely as to its own terms: Penrith City Council v Penrith Waste Services Pty Limited (Talbot J, NSWLEC, 19 December 1995, unreported).
(c) alternatively, s 109B ensures that s 107(2) does not apply to those consents, there is no restriction on intensification, alteration, etc of the use and it becomes an ‘existing use’ for the purposes of s 106 to s 108: Dosan Pty Ltd v Rockdale City Council (2001) 117 LGERA 363.

Decision

28 The question is whether the land known as 50 Werrina Parade, Blue Bay has the benefit of existing use rights. If the effect of s 109B is to take the land outside the definition of “existing use” in s 106(a), as the council submits, then the existing use rights in ss 107 and 108 do not apply and the applicant cannot, pursuant to the Environmental Planning and Assessment Regulation 2000 cll 39 to 46, obtain a development consent to enlarge, expand, intensify, alter, extend or rebuild the existing use.

29 The two key legislative provisions are ss 106(a) and 109B. Section 106(a) defines “existing use” as “the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would… have the effect of prohibiting that use”. Section 109B(1) provides that: “Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force”.

30 In my opinion the subject land has the benefit of existing use rights. I do not accept the council’s submission that s 109B applies and takes the development outside the definition of existing uses in s 106(a). In my view, s 109B is inapplicable. Alternatively, if s 109B is applicable, it does not affect the definition of an “existing use” in s 106. My reasons are as follows.

Section 109B is Inapplicable

31 In considering whether s 109B is applicable, the identification of the relevant “development”; the meaning of the words “carrying out”, “in accordance with” and “consent”; the terms of the consent; whether the consent is “in force”; and whether the development is “in accordance with” the consent, are all important.

32 In my opinion, s 109B is inapplicable for a number of reasons. The first reason is that I do not think that the council’s 1974 approval is a “consent” contemplated by s 109B. “Consent” is not defined in the EPA Act. Section 4 defines “development consent” as a “consent under Part 4 to carry out development [which] includes, unless expressly excluded, a complying development certificate”. As discussed earlier, the 1974 approval was a decision to issue a certificate of approval required under s 37 of the Strata Titles Act 1973. It was not a “consent” under that Act, within the meaning of s 109B, nor under the Wyong PSO 1968. Section 37 required a local council, on application made to it for a certificate of approval of a proposed strata plan, to issue a certificate of approval if it was satisfied as to specified matters. Such a certificate by the council was endorsed on the registered strata plan in 1975. Clause 4(b) of the Wyong PSO Amendment 1976 is irrelevant on this point because it provides that nothing therein prevents the use of a building or carrying out of work in accordance with the terms of any consent granted under the Wyong PSO 1968. The Wyong PSO 1968 did not contemplate consent for a strata subdivision under the strata titles legislation. The Wyong PSO 1968 and the 1976 amendment contained no provision equivalent to s 4B(2)(a) of the EPA Act which says that “subdivision of land includes the procuring of the registration in the office of the Registrar-General of a strata plan or a strata plan of subdivision within the meaning of the [strata legislation]”.

33 The second reason why s 109B is inapplicable, in my opinion, is because the relevant “development” is not “in accordance with” the 1974 approval (assuming it to be a “consent”). “Development” is defined in s 4 to include, inter alia, the use of land, the subdivision of land, the erection of a building and the carrying out of works. The relevant development for which the applicant contends is the use of a residential flat building. I consider that this use is not “in accordance with” the 1974 approval. It is independent of that approval. The 1974 approval was concerned with another subject: the issue of a certificate of approval under the Strata Titles Act 1973.

34 The third reason why s 109B is inapplicable, in my view, is because there is nothing left to be “carried out” in accordance with the 1974 approval (assuming it to be a “consent”). The distinction between continuing a use (such as the use of a residential flat building) and carrying out a development was recently recognised by the Full Court of the Supreme Court of Tasmania in Calvary Health Care Tasmania Inc v Hobart City Council (2006) 144 LGERA 107 at 113 - 114 [15] citing Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works (1974) 48 ALJR 448, 34 LGRA 151. The distinction was also recognised in Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472 at 483 [24] in the joint judgment of McHugh ACJ, Hayne and Heydon JJ:

No doubt, as counsel for the respondent pointed out, ‘ development’ , as used in the EPAA, could refer to the subdivision of land, the use of land or to both subdivision and use. It by no means follows, however, that a person occupying a lot in a plan of subdivision carries a development out on the land by simply occupying the land. Where, as here, the subdivision of the land was the relevant development, the subsequent purchaser of a subdivided lot does not ‘ carry that development out ’ by occupying, and thus using, one of the lots in the subdivision.

35 In context, I consider that the words “carrying out a development” in s 109B refer to an activity, permitted by a consent in force, which has not yet occurred. The example given in the Explanatory Note to s 109B in the 1992 Act which introduced it was that: “The amendment would apply to make it clear that a person who had obtained development consent for mining the whole of a parcel of land and had commenced mining part of the parcel would not be prevented from mining the rest of the parcel by an environmental planning instrument that came into effect before mining of the rest of the parcel had commenced, and that prohibited or made a new requirement for development consent to authorise the mining of the rest of the parcel”. That example is far removed from, and suggests that s 109B is irrelevant to, the facts of the present case.

36 The development the subject of the 1974 approval ceased to be “carried out” in 1975 when the strata plan endorsed with the certificate of approval was registered and the associated works finalised. That “development” was exhausted at that time. Thereafter there was nothing left to be “carried out”. The 1974 approval assumed the underlying use of the residential flat building, rather than constituting a consent to it.

37 The fourth reason why s 109B is inapplicable, in my opinion, is because the 1974 approval is not “in force” (assuming it to be a “consent”). The council submitted that cl 4(b) of Part II of the Wyong PSO Amendment 1976 had the effect of continuing it in force. Clause 4(b) of the Wyong PSO Amendment 1976 provided: “Nothing in this Ordinance shall prevent… (b) the use of a building or work erected or carried out after 3rd May 1968 and before the date of commencement of this Ordinance, in accordance with the terms of any consent granted under the Shire of Wyong Planning Scheme” (ie the Wyong PSO 1968). As previously mentioned, it appears that the 1974 approval was not under the Wyong PSO 1968 but under the Strata Titles Act 1973. Therefore cl 4(b) is irrelevant.

38 Even if the 1974 approval was under the Wyong PSO 1968 (and assuming it to be a “consent”), I still do not think the approval is “in force”. When the lawful use of the land for a residential flat building became prohibited in 1976 under the Wyong PSO Amendment 1976, the right to continue to use the land for that prohibited purpose was, in my opinion, by reason of the existing use provisions of the Wyong PSO 1968 (clauses 14 and 15), which were inserted by cl 3(e) of the Wyong PSO Amendment 1976, not under cl 4(b). The new cl 14 provided: “Existing buildings and existing works may be maintained and existing uses may be continued”. The new cl 15(1) provided: “Subject to Part VI an existing building or work may, with the consent of the responsible authority, be altered in accordance with subclauses (2) and (3)”. Moreover, cl 4(b) of the Wyong PSO Amendment 1976 did not say that old consents under the Wyong PSO 1968 remained in force. It said that nothing in the Ordinance prevented the use of a building or work erected or carried out in accordance with the terms of any consent granted under the Wyong PSO 1968. It saved the use, not the consent.

39 The council alternatively submitted that if the Wyong PSO 1976 did not continue in force the 1974 approval, then s 8 of the Interpretation Act 1897 (NSW) did. That Act was in force at the relevant time. It has since been repealed and replaced by the Interpretation Act 1987 (NSW) which has a similar provision in s 30. Section 8 of the 1897 Act relevantly provided: “Where an Act repeals in whole or in part a former Act, then, unless the contrary intention appears, the repeal shall not: … (b) affect any right, privilege, obligation or liability acquired, accrued, or incurred under an enactment so repealed”. The Interpretation Act 1897 only applied, in its terms, to the interpretation of Acts, not to Ordinances. It contained no provision equivalent to s 5(2) of the later Interpretation Act 1987 which provides: “This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned.” However, s 579(1) of the Local Government Act 1919 provided before the Act was repealed after 1980, that “an ordinance shall save as therein otherwise expressly provided be construed as if the Interpretation Act 1897, applied mutatis mutandis to the interpretation thereof”. Consequently, s 8 of the Interpretation Act 1897 appears to apply to the interpretation of the Wyong PSO 1968 and the Wyong PSO Amendment 1976.

40 The council submitted that, applying s 8, the Wyong PSO Amendment 1976 did not affect the 1974 approval because the latter gave rise to a “right” or “privilege” and therefore the 1974 approval remained in force. This submission assumed, I think, that the 1974 approval was a development consent under the Wyong PSO 1968. I have earlier expressed a different view, but let it be assumed for present purposes that the assumption is correct. The submission then throws up a point in which there is a tension between the authorities. In Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 a council’s consent to the use of land under the County of Cumberland Planning Scheme, which ceased to apply to the land in 1963, was not saved by a provision of the Shire of Warringah Planning Scheme. That Scheme, which came into force in 1963, provided that any “right” or “privilege” under the old scheme was not affected by revocation of the old scheme. Stephen J, with whom McTiernan and Walsh JJ agreed, said at 293 – 294:

Be that as it may, there are two features of consents granted under schemes such as those here in question which appear to me to make it inappropriate to speak of them as conferring either a ‘ right ’ in the narrow or wide sense or a ‘ privilege ’. First, although a consent will no doubt result from an application by an individual it is essentially impersonal in the sense that it does not concern itself with and is not limited to the applicant but is a consent to the world at large in relation to the land which is its subject. Once granted it makes lawful, in a town planning context, what would otherwise be unlawful but does so by reference to the acts done and not to the identity of the actor; I would think that a mere trespasser could justify his use of land in terms of town planning controls by reference to some prior consent successfully applied for by a prior lawful occupier. For this reason it appears to me to be inappropriate to regard such a consent as conferring rights or privileges in the sense in which I understand those words to be used in cl. 65(1)(b). It is well established that in provisions such as cl. 65(1)(b) no alleged right can be protected so long as it is one common to the community as a whole. As it was said in Abbott v. Minister for Lands [1895] AC 425 at 431, there must be an ‘ act done by an individual towards availing himself of that right ’ before it can be said to be ‘ a `right accrued' within the meaning of the enactment’ . What are protected are rights which have been acquired by or have accrued to an individual; consents under the present schemes do not confer rights of this character.

Secondly, I doubt whether it is proper to regard as a ‘right’ or ‘privilege’ acquired or accrued under the County Scheme what is no more than the relaxation of a prohibition imposed by that very Scheme. The Scheme took away the liberty at general law of occupiers of land to use their land as they saw fit but in relation to the appellant's land enabled the renewed exercise of that liberty in a very qualified way if a consent from the responsible authority was first sought and obtained. To describe that situation as one in which a right or privilege had accrued to or been acquired by the appellant under the Scheme appears to me to be a misuse of language; the effect of the Scheme when a permit is issued under it is merely that users of relevant land are in part remitted to their former liberties at general law.”

41 In Harris v Hawkesbury Shire Council (1989) 68 LGRA 183, the NSW Court of Appeal decided that the development consent in that case was capable of giving rise to a privilege, which was preserved by a savings clause in a planning scheme ordinance, and distinguished the dicta in Eaton. In Lederer v Sydney City Council (2001) 119 LGERA 350 at 373 [123], Lloyd J was more forthright, holding that development consents were “foremost among the rights and privileges which may be granted under an environmental planning instrument”. In Vitality Care Pty Ltd v Director General, Department of Natural Resources [2006] NSWLEC 506 at [29], I observed that a development consent did not, of itself, create a right or privilege of a type which is preserved by s 30(1)(c) of the Interpretation Act 1987, relying upon the dicta in Eaton. In Vitality, it was unnecessary to decide the point because the more recent Court of Appeal decision on accrued rights in Dubler Group Pty Ltd v Minister for Infrastructure, Planning and Natural Resources (2004) 137 LGERA 178 allowed Eaton to be distinguished. In Vitality, my attention was not drawn to Harris or Lederer. The Full Court of the Supreme Court of Tasmania has recently applied the dicta in Eaton: Calvary Health Care Tasmania Inc v Hobart City Council (2006) 144 LGERA 107 at 116 – 117 [28] (without referring to Harris or Lederer).

42 The council submitted that the dicta in Eaton was obiter and that I was obliged to follow what was said to be the contrary ratio in Harris. In Harris, the appellant had obtained a development consent for a shop in 1971 under the County of Cumberland Planning Scheme Ordinance. Upon the coming into effect of the Windsor Planning Scheme Ordinance, the use of the land as a shop was prohibited, except in so far as the savings provision of the Windsor Planning Scheme Ordinance permitted a continuance of the use. The question was whether the development consent survived the repeal of the County of Cumberland Planning Scheme Ordinance. Clause 83 of the Windsor Planning Scheme Ordinance (set out in Harris at 190) was similar to the savings provision considered in Eaton and similar to s 8 of the Interpretation Act 1897. The Court of Appeal decided that the consent gave rise to a privilege in respect of the land. Although that may, at first blush, seem inconsistent with the Eaton dicta, the Court of Appeal distinguished Eaton because the words in the Windsor Planning Scheme Ordinance emphasised that the right or privilege which was preserved was one enjoyed in respect of any land to which that ordinance applied. Before me the council submitted that the ratio of Harris was that a consent under the County of Cumberland Scheme created at least a privilege which was capable of being saved by the savings provision in the Windsor Planning Scheme Ordinance; that the dicta in Eaton was obiter, and that therefore I was bound to follow Harris rather than Eaton. Given that the Court of Appeal distinguished, but stopped short of disagreeing with, a judgment in which three High Court judges concurred, it is preferable that a primary judge also should take that course, if appropriate, rather than the course urged by the submission.

43 If I had to enter into this debate, I would point out that s 8 does not say that the source of a right or privilege – such as (let it be assumed) a development consent – remains in force. It says that the repeal does not affect the right or privilege itself. This would weigh against the conclusion that it keeps the consent (the source of the right or privilege) in force, which is the question under s 109B.

44 However, it is unnecessary to resolve this debate. It is sufficient to say that the intention of the Wyong PSO Amendment 1976, in my view, was to protect existing uses through the existing use provisions in cll 14 and 15, not by keeping old consents in force; and that s 8 of the Interpretation Act 1897 (if applicable) recognised rather than thwarted that intention.

45 If the 1974 approval remained in force under the Wyong PSO Amendment 1976 (contrary to my view), it would then be necessary to consider the council’s submission that it continued in force by reason of cl 7 of Schedule 3 to the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 (Miscellaneous Act), which was one of the companion statutes to the EPA Act: Harris v Hawkesbury Shire Council (1989) 68 LGRA 183 (NSWCA) at 189; House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 (NSWCA) at 506; (2000) 106 LGERA 440 at 449; Auburn Council v Constanti (2000) 109 LGERA 355 at 367 (Pearlman J); McIlveen v Baiada (2003) 131 LGERA 129 at 133 [10] (Lloyd J). The Court of Appeal in Harris and House of Peace regarded its earlier inconsistent decision in Auburn Council v Nehme (1999) 106 LGERA 19 as distinguishable, if not erroneous, because it did not refer to either cl 7 of Schedule 3 to the Miscellaneous Act or to the transitional provisions in the Auburn Planning Scheme Ordinance there under consideration. Clause 7 of Schedule 3 of the Miscellaneous Act provides:

7 Consents, approvals and permissions

(1) Any consent, approval or permission granted in respect of an application made under a former planning instrument, and in force immediately before the appointed day, shall, subject to subclause (2), continue in full force and effect subject to:
(a) the operation of any provision of that instrument or any term or condition of that consent, approval or permission governing or relating to the currency, duration or continuing legal effect of that consent, approval or permission, and
(b) the operation of any condition (other than that referred to in paragraph (a)), restriction or limitation, subject to which that consent, approval or permission was granted.
(2) Where no provision or term or condition of the type referred to in subclause (1)(a) operates in respect of a consent, approval or permission therein mentioned, the provisions of section 99 of the Environmental Planning and Assessment Act 1979 shall apply to that consent, approval or permission as if it were a consent referred to in that section which had taken effect on the appointed day.
(3) The provisions of section 103 of the Environmental Planning and Assessment Act 1979 shall apply to a consent referred to in subclause (1) as if that consent were a consent referred to in that section.
(4) A consent, approval or permission referred to in subclause (1) is taken to be a development consent within the meaning of the Environmental Planning and Assessment Act 1979 .

46 In my opinion, cl 7 of Schedule 3 is irrelevant in the present case because the 1974 approval was not granted in respect of an application made under a “former planning instrument” but under the Strata Titles Act 1973.

Section 109B does not affect s 106

47 The second reason why, in my opinion, the subject land has the benefit of existing use rights is that, even if s 109B applies, it does not affect the definition of “existing use” in s 106.

48 The council’s submission is that by reason of, and since, the retrospective enactment of s 109B in 1992, the Wyong LEP 1991 no longer has the effect of prohibiting residential flat building use on the subject land; and, therefore that that use is not an existing use as defined in s 106(a). If the submission were to be accepted, it would indicate that the retrospective introduction of s 109B in 1992 has had a substantial, if not radical, effect on the definition of “existing use” in s 106. Previously a use for a “lawful purpose” within s 106 comprehended both uses which were lawful because no consent was required and uses in accordance with planning consents. Now, according to the submission, the latter category has disappeared because of s 109B.

49 Textual and other considerations, as well as the authorities, are against the council’s submission. Section 109B does not say that an environmental planning instrument which prohibits a use does not apply to a use permitted by a consent that is in force. It is concerned with the narrower question of permitting the “carrying out” of a “development” – which by s 4 includes a use – in accordance with the terms of a consent that is in force. In my view, the use itself remains prohibited and therefore s 106(a) applies. The effect of s 109B is that if any part of the development has not been “carried out” when the prohibition is introduced, then the “carrying out” of that part is not prohibited, provided that it is carried out in accordance with the terms of the consent.

50 Section 106(a) is in terms concerned with whether an environmental planning instrument, but for Division 4A of Part 3 or Division 4 of Part 4, would have the effect of prohibiting the previously lawful use. It is not in terms concerned with whether the environmental planning instrument, but for s 109B, would have the effect of prohibiting the previously lawful use.

51 The Minister’s second reading speech to the 1992 Bill which introduced s 109B retrospectively (set out earlier) said in relation to s 109B: “The amendment does not change the current legal position”. That is contrary to the council’s submission that it did change the then current legal position under s 106, and in a substantial way. The Explanatory Note (also set out earlier) which introduced s 109B gave no indication of any intention to affect the definition of existing uses in s 106. The contrary is suggested by the example of the clarifying effect of s 109B given in the Explanatory Note, an example which is far removed from the present case.

52 It has been said that s 109B was intended to do no more than clarify the position in relation to existing consents: Winn v Director-General of National Parks and Wildlife (Bannon J, NSWLEC, 23 November 1995, unreported). The limited operation of s 109B was emphasised in Council of the City of Gosford v Dillon (NSWLEC, 13 May 1994, unreported) by Bannon J who said: “[Counsel] submitted that because of the existence of the original consent, the provisions of s 107 imposing limitations on the meaning and extent of existing use and the provisions of s 109 concerning existing use for a lawful purpose are rendered irrelevant by s 109B(2)(c). In my opinion, the amending section does not have that effect. The emphasis in s 109B(1) is upon the consent which has been granted remaining in force. Section 109B(2)(b) makes it clear that the section does not have the wide operation claimed on behalf of the respondent, and support for this view is found in the Second Reading Speech”.

53 The title of Division 10 of the EPA Act, which comprises ss 106 to 109B, is “Existing Uses”. Within the genus indicated by the title fall more than one species of existing use. One species, also called “existing use”, is defined in s 106. It is the subject of ss 107 and 108. Another species is a “use” (not within the s106 definition of “existing use”) which is the subject of ss 109 and 109A. Finally, s 109B refers to a “development” in accordance with a consent that has been granted and is in force before or after the commencement of the Act. “Development” is defined in s 4 to include the use of land, the subdivision of land, the erection of a building and the carrying out of a work. A “development” use referred to in s 109B(1) is not a discrete use but straddles ss 107 and 109, as is acknowledged in s 109B(2)(c). Section 109B(2)(c) provides that s 109B has effect despite anything to the contrary in s 107 or 109. Consequently, the carrying out of a use to which s 109B applies is unshackled from the constraints on development in ss 107(2) and 109(2) if the consent permits the carrying out of development without those constraints. Section 109B(2)(c) would have been unnecessary if s 109B(1) did not apply to existing uses.

54 The authorities support the proposition that a use to which s 109B applies is also an “existing use” within the meaning of s 106(a), and therefore has existing use rights under ss 107 and 108. It has been said that an “extant development consent… is a species of existing use rights”: House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 at 507 [38] per Mason P (CA). An “existing use”, as defined in s 106, must have been a use “for a lawful purpose” before it was prohibited. In order for it to have been a use for a lawful purpose it must have been lawful not only in the sense that it was not prohibited, but it also must have had consent if consent was required for that activity under the then current planning regime: Dosan Pty Ltd v Rockdale City Council (2001) 117 LGERA 363 at 381 [76] per Lloyd J. If it has the consent required under the then current planning regime, it follows that it also may fall under s 109B. Lloyd J cited Steedman v Baulkham Hills Shire Council [No 2] (1993) 31 NSWLR 562; 80 LGERA 323. In that case Kirby P (with whom Meagher and Handley JJA agreed) said at 569: “I take ‘unlawfully commenced’ [in s 109A] to mean that, at the time that the activity said to constitute the use began, such a use or purpose was either (i) prohibited; or (ii) permissible only with consent, and consent had not been granted”. Handley JA at 578 referred to existing uses which were conditionally prohibited but which were lawful with consent.

55 In Dosan consent had been granted for various uses on certain premises. In relation to one of those premises (No 709) that use was later prohibited when the land was rezoned. Lloyd J held that the lawful origin of the use was the consent and that the “use became an ‘existing use’ as that term is defined in s 106 of the EP&A Act”: at 373 [27]. His Honour held that not only did the lands enjoy existing use rights, including protection under s 108, but that the use was also protected by the consent under s 109B: at 376 [40], 379 [56]. The dual application of ss 106 and 109B were discussed at 381-382 [74] – [83]. The fact that one use was being conducted on the premises without consent led his Honour to conclude that it was not operating lawfully and therefore could not give rise to existing use rights: at 382 [82].

56 In Auburn Council v Costanti (2000) 109 LGERA 355 at 366 [48] – [49] Pearlman J held that a use authorised by a consent was an existing use protected by s 107(1), as well as a use authorised by consents in force under s 109B(1). In Botany Bay City Council v Workmate Abrasives Pty Ltd(No 2) (2003) 129 LGERA 91 at 104 [59] - [60], Cowdroy J held that the use of land lawfully authorised by an old consent had the benefit of an existing use as defined under s 106 and, accordingly, s 107 permitted the continuance of the use. Further, s 109B also applied so that no new development consent was needed. In Penrith City Council v Penrith Waste Services Pty Ltd (NSWLEC, 19 December 1995, unreported), Talbot J said:

The EPA Act has always recognised that where development is being carried out lawfully in accordance with a consent immediately before the coming into force of a prohibition, then it is protected by s 107(1) as being an existing use within the definition in s 106(a). Section 106(a) also protects development where operations do not have the benefit of a development consent but nevertheless are being conducted lawfully…

Subsection (2)(a) of s 109B provides that the section applies to the consents under consideration in this case. Section 109B(2)(c) has clarified the pre-existing law by removing the constraints imposed by ss 107(2) and 109(2) where the development already has the benefit of a consent and is in accordance with that consent.

Section 107(2) imposes constraints on the extent of development where the existing use is not in accordance with a consent but nevertheless enjoys existing use rights for a lawful purpose. Where the carrying out of development is in accordance with a consent at the date of the prohibition, s 107(2)(a), (b) and (b1), have no effect. In other words approved development carried on in accordance with a consent is not constrained by the provisions of s 107(2). The effect of s 109B is that, notwithstanding s 107, the terms of any development consent remain as the control of the development. Development may be carried on as an existing use only in accordance with a consent or subject to s 107(2).

It must follow therefore that PWS is entitled to continue any existing use in accordance with a consent that has been granted and is in force, by the authority of s 109B(1). It is not necessary to rely upon s 34(4)…

Section 109B(1) is merely declaratory of the effect of s 109(1) or the combined effect of ss 107(1) and 106(a) in respect of the continuance of a use pursuant to a consent…

Section 109B(2) will have the effect of negating the provisions of s 107(2) in respect of an existing use where PWS proves the carrying out of the development is in accordance with a consent that has been granted and is in force.

57 In Lederer v Sydney City Council (2001) 119 LGERA 350 a consent had been granted under the EPA Act for an advertising sign. As that use was never prohibited under an environmental planning instrument, Lloyd J held that it was not an “existing use” as defined in s 106. Lloyd J then considered whether the use was protected by s 109 or s 109B: at 371 [114] – [124]. He held that as there had been an abandonment of the use, s 109 could not apply. But as the consent was still in effect and could not be abandoned, s 109B applied and that consent allowed for the signs to be re-erected. Lloyd J’s approach allowed for the possible application of all of the provisions of s 106, 107, 109 and 109B, not merely the application of s 109B.

58 Although a use may straddle s 109B (attracting the benefit of a consent) and s 107 (protecting existing use rights as defined in s 106), s 107 existing use rights can be abandoned, whereas a consent under s 109B cannot be abandoned: Auburn Council v Nehme (1999) 106 LGERA 19 (CA); Lederer v Sydney City Council (2001) 119 LGERA 350 at 372 [118].

59 The authorities are against the council’s submission. The council pointed out that its submission had not been put in those cases. It is true that the submission is novel, but I am not persuaded that the authorities would have been decided differently if the submission had been put, nor that they were decided wrongly.

60 The council argued that it is “chaotic”, and therefore cannot have been the legislative intent, to have two existing use schemes, one governed by the terms of old consents in force unconstrained by s 107(2) and the regulations, the other constrained by s 107(2) and the regulations. I do not see it in that way. They seem to me to be reasonably orderly and, more importantly, what the legislature intended.

61 For these reasons, my answer to the first preliminary question is “yes”.

SECOND QUESTION: ACCESS WAY

62 The second question is whether that part of the development proposed to take place on 52 Werrina Parade is prohibited in any event.

63 Although the development application form describes the subject land as 50 Werrina Parade, works are in fact proposed to be undertaken to reconstruct an existing access way on adjoining 52 Werrina Parade. Those works are necessary to provide vehicular access to the subject land. A swept driveway is proposed so that access can be gained to the proposed basement carpark on the subject land.

64 The council submitted that the proposed traffic access way over the adjoining land, 52 Werrina Parade, is prohibited because it should be characterised as being for the purpose of the proposed residential flat building. Development for that purpose is prohibited on the adjoining land. The adjoining land has only a single dwelling thereon, which is permissible in the zone, and therefore does not have existing use rights for a residential flat building. The applicant submitted that the proposed use of the adjoining land as a driveway was for road access, which is a permitted use, and that whilst its purpose is to service the residential flat building on the subject land, it is not that purpose but the road use which is relevant when considering permissibility under the Residential 2(a) zone: Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202. The council responded that if the access way is to be characterised as a road, then the road is prohibited because it is a private road and the only road for which approval can be granted is a public road. That is because “road” is defined in the Wyong LEP 1991 as a public road. This access driveway, it was said, is not a public road.

65 In the leading case of Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202, the applicant was the owner of a battleaxe lot. The head of the battleaxe was zoned light industrial. The access handle was zoned residential. The applicant wished to use the head of the lot for storage of formwork material, which was a permissible use, and use the access handle as a vehicular access way to it. In the residential (access handle) zone “road” was a permissible use but light industry was prohibited. The question was whether the use of the access handle was a “road” or whether it should be characterised according to its purpose which was to provide access to the light industrial zone head. Cripps J held that the council had power to grant consent for the use of the access handle as a “road” within the meaning of that term in the land use table for the residential zone. He held at 207:

Permission may be granted for the use of the land as a ‘ road’ notwithstanding that the vehicles will proceed to and leave from land zoned light industrial. I do not think that the innominate prohibited light industrial use excludes, in the present case, the nominate permissible use. It is true that the road will serve an area of land zoned light industrial but that circumstance does not give it a separate ‘ light industrial’ purpose or, perhaps more precisely, a ‘ formwork and materials storage ’ purpose within the meaning of the Canterbury Planning Scheme Ordinance. In my opinion, a ‘ road ’ use is contemplated by this scheme as a separate use. The function of a road is to permit the passing and repassing of vehicles. The use of the handle for a ‘ road ’ which is a nominate, permissive use under the relevant residential zoning does not become an innominate, prohibited use because the start and/or destination of vehicles passing over the road is light industrial land.

That decision has been followed, including in TC Punnett and Associates Pty Ltd v Warringah Council (2001) 115 LGERA 314 at 319 – 320. Similarly, I am of the opinion that the use of the proposed access way should be characterised by its use as a road.

66 However, the council says that it is a private road not a public road, and that a private road is prohibited. The word “road” is defined in cl 7 of the Wyong LEP 1991 as “any way or street open to the public for the passage of vehicles, persons or animals”. The way that a road is permissible under the Wyong LEP 1991 is that cl 6 adopts the Environmental Planning and Assessment Model Provisions 1980 (Model Provisions), except for a few of those provisions. Clause 35 of the Model Provisions provides: “Nothing in the local environmental plan shall be construed as restricting or prohibiting or enabling the consent authority to restrict or prohibit – (a) the carrying out of development of any description specified in Schedule 1”. Clause 8 of Schedule 1 provides: “The carrying out of any development required in connection with the construction, reconstruction, improvement, maintenance or repair of any road, except the widening, realignment or relocation of such road”.

67 The issue then becomes whether “road” in cl 8 of Schedule 1 includes a private road. The Model Provisions contain no definition of “road”. If the definition of “road” in the Wyong LEP 1991 applies, then it means a public road. The competing construction is that as “road” is not defined in the Model Provisions, it includes a private road as well as a public road. The Interpretation Act 1987 s 42(1) provides for a statutory rule to make provision with respect to a matter by adopting another document. Section 5(6) applies s 42 to environmental planning instruments as if they were statutory rules. The legal effect of such an adoption was considered in Cadbury-Fry-Pascall Pty Ltd v Federal Commissioner of Taxation (1944) 70 CLR 362 at 388 where Williams J quoted the following passage from Perpetual Trustee Co (Ltd) v Wittscheibe (1940) 40 SR (NSW) 501 at 510: “In In re Woods’ Estate; Ex parte Her Majesty’s Commissioners of Works and Buildings (1886) 31 Ch D 607 the Court of Appeal held that if a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that is to write those sections into the new Act just as if they had been actually printed into it”. Thus, those parts of the Model Provisions which have been adopted by the Wyong LEP 1991 are to be taken as if they are written into it. Clause 6 of the LEP excepts from adoption cl 42 of the Model Provisions, which is the definition section. This suggests an intention that the definitions in the LEP are to apply to the adopted Model Provisions. In my view, the definitions in the LEP govern the adopted Model Provisions because they are effectively written into the LEP and because the definition section in the Model Provisions is excluded from adoption.

68 However, it does not follow that the part of the development proposed to take place on the adjoining property is prohibited. In Argyropoulos (above) Cripps CJ addressed a submission that the only permissible road in a residential zone was a public road and said:

On behalf of the council, it was submitted that the word " roads " in the table of nominate permissible uses in a residential zone means "public roads" being dedicated public roads and excludes any other type of road… With respect to [that] argument, it is not inappropriate, in my opinion, to observe that even if the question be answered in accordance with council's submission, it would not follow that it was not open to the council to consent to the use of land as a " public road " as a matter of power. The circumstance that the land might not (or even as the law stands, cannot) be dedicated to the public to become a public road does not mean, as a matter of power, that the council cannot grant development consent. The circumstance that the land is unlikely to be dedicated or that it may not lawfully be dedicated is a matter, albeit an important matter, for council to consider, but it does not operate to deprive the council of power to grant consent: see Grace Bros Pty Ltd v Willoughby Municipal Council [1981] 2 NSWLR 80; 44 LGRA 422.

…
As I have said, it must be steadily borne in mind that relevant provisions of the Canterbury Planning Scheme Ordinance do not compel a council to grant development consent for land to be used as a road in a residential zone. It may grant development consent or it may refuse it. If it grants consent, it may limit the number or type of vehicles passing over the road and/or impose conditions with respect to the period during the day or night when the road can be used by vehicles. In my opinion, [the council’s] first submission should be rejected.

69 On this reasoning, this Court, standing in the shoes of the council, has power in the appeal to consent to the use of the land as a public road and to limit the number or type of vehicles passing over the road and/or to impose other conditions. In my opinion, if such a consent were to be granted, the development proposed to take place on the adjoining property would not be prohibited.

70 Accordingly, I propose to answer the second question “No”.

CONCLUSION

71 I answer the preliminary questions as follows:

1. Whether the land known as 50 Werrina Parade, Blue Bay, has the benefit of existing use rights. I answer this question “yes”.

2. If the answer to question 1 is “yes”, whether that part of the development proposed to take place on 52 Werrina Parade is prohibited in any event. I answer this question “no”.

72 The exhibits may be returned.

12/11/2007 - typographical errors - Paragraph(s) para 15 (change 2004 to 1974) para 9 (change "form" to "from")