Don Fox Planning Pty Limited v Baulkham Hills Shire Council

[2004] NSWLEC 484

Land and Environment Court

of New South Wales

CITATION:	Don Fox Planning Pty Limited v Baulkham Hills Shire Council [2004] NSWLEC 484
PARTIES:	APPLICANT: Don Fox Planning Pty Limited RESPONDENT: Baulkham Hills Shire Council
FILE NUMBER(S):	10603 of 2004
CORAM:	Watts C at 1
KEY ISSUES:	Development Consent :- Whether the development if modified will remain substantially the same as the development for which consent was originally granted - Whether the proposed continued use of the building as a real estate agency is in the public interest.
LEGISLATION CITED:	Baulkham Hills Shire Council's Local Environmental Plan 1991, (BHLEP) - Sydney Regional Environmental Plan No 19 - Rouse Hill Development Area, (SREP19) - Development Control Plan No. 32 - Kellyville Rouse Hill Residential, (DCP32) - Environmental Planning and Assessment Act 1979, ss79C and 96(6) - Existing use rights, (EUR)
CASES CITED:	Mison and Others v Randwick Municipal Council and Others (1991) 23 NSWLR 734 - Parramatta City Council v Brickworks Limited 36 LGERA 437 - Progress and Securities Pty Limited v North Sydney Municipal Council [1988] NSWLEC 55 (19 August 1988)
DATES OF HEARING:	31/08/2004
DATE OF JUDGMENT:	08/31/2004
LEGAL REPRESENTATIVES:	APPLICANT: Mr J C Cole, solicitor SOLICITORS: Abbott Tout RESPONDENT: Mr A Galasso barrister instructed by Mr A I Petersen, solicitor SOLICITORS: PricewaterhouseCoopers Legal

JUDGMENT:

Appeal No: 10603 of 2004

10

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

31 August 2004

10603 of 2004
Don Fox Planning Pty Limited v Baulkham Hills Shire Council

JUDGMENT

1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979, against the decision of the Baulkham Hills Shire Council (the council) to refuse a modification application to delete a condition of consent in respect of a development approval granted on 23 September 2002, to occupy the existing building as a real estate agency (Development Application 224/03/HA) at Lot 92, DP 1014547, RMB 105 Windsor Road, Kellyville.
2 Condition 2 of the original consent caused the real estate agency to operate for a period limited to 2 years from the endorsed date of consent, until 23 September 2004. The applicant seeks to delete Condition 2 by way of the present Section 96(2) modification under the Environmental Planning and Assessment Act 1979.
3 I visited the land in company with the parties on the morning of the proceedings.
4 I have concluded that the development, as modified, with the removal of Condition 2, would remain substantially the same as the development for which consent was originally granted and thus may be considered under s 96 of the Act. Also that on merit the proposed continued use of the building as a real estate agency would not be contrary to the public interest. As a result I uphold the appeal.

The land
5 The land is situated on the northern side of Windsor Road, and has an area of some 2,324m2.
6 Subdivision Consent No 3365/03/ZA was approved on 5 September 2003 and created 2 conventional and 2 residue lots, leaving the real estate agency on a 1,291m2 lot. This subdivision is yet to be registered with the Land and Property Information Service.

Relevant planning controls

Baulkham Hills Shire Council’s Local Environmental Plan 1991, (BHLEP)
7 Under the provisions of the BHLEP the land is zoned Residential 2(a) and the proposed use defined as a ‘commercial premise’, is prohibited within that zone. However provided the use was lawfully established ‘existing use rights’ apply. The parties agreed that the land has existing use rights under Division 10 of the Environmental planning and Assessment Act 1979.
8 Assuming existing use rights apply the objectives (c) and (d)(ii) of the Residential 2(a) zone are relevant only in so far as they might influence the character of likely future development in the area:

Objective (c) is “…to allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours”,
Objective (d)(ii)) is “…to allow a range of development, ancillary to residential uses, which serves the needs of the surrounding population without conflicting with the residential intent of the zone”.

Existing use rights, (EUR)
9 Under Pt 4, Div 10 of the Environmental Planning and Assessment Act 1979 , s 106 relevantly defines an existing use as the use of land for a lawful purpose immediately before the coming into force of an environmental planning instrument, which would have the effect of prohibiting that use.
10 Section 107 of the Act provides that nothing in the Act prevents the continuance of an existing use.
11 Section 108 permits the making of regulations with respect to existing uses, and such provisions, known as ‘incorporated provisions’, are incorporated in every environmental planning instrument including the BHLEP.
12 Clauses 41 - 45 of the Environmental Planning and Assessment Regulation 2000 (‘Regulation’) are some of the incorporated provisions and make provision for an existing use to be enlarged, expanded or intensified, or altered or extended, or rebuilt or changed to another use, in each case with development consent.
13 In 1972 Gibbs J in the High Court set out the ‘Golden Rule’ of EUR in Parramatta City Council v Brickworks Limited 36 LGERA 437 where at page 455:
These clauses are designed to preserve and protect existing rights and ought to be liberally construed and not restricted by dubious implications drawn from words used in other clauses directed to a different subject matter.

Modification of consents
14 Under Pt 4 Div 7 s 96 of the Environmental Planning and Assessment Act 1979 , the Court may consider a modification application.
(1A) Modifications involving minimal environmental impact

A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:


(a) it is satisfied that the proposed modification is of minimal environmental impact, and

(b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and

(c) it has notified the application in accordance with…

Sydney Regional Environmental Plan No 19 – Rouse Hill Development Area, (SREP19)
15 SREP19 applies to the land and aim cl (2)(1)(a) refers to orderly development of land however, existing use rights apply.

Development Control Plan No. 32 - Kellyville Rouse Hill Residential, (DCP32)
16 DCP32 applies to the land and relates to the residential development, however, existing use rights apply in this case.

The proposal and its history
17 The applicant seeks to delete Condition 2 of Development Consent No 224/03/HA for the use of the existing building for a real estate agent, under s 96(2) of the Environmental Planning and Assessment Act 1979. Condition 2 of the consent granted 23 September 2002, reads:

2. Duration of Consent
Approval is granted for a period of two (2) years from the endorsed date of consent. Upon cessation of this period, consideration may be given to an extension of time for the use of the premises, subject to a further application being made to and approved by Council, and including a comprehensive assessment of the impact upon adjoining residential property and future development of the area being undertaken by the applicant and accompanying such application.

Processing of the modification application
18 The modification application was lodged with the council on 13 October 2003, and was notified to adjoining owners for a period of 14 days, and the council received no submission.
19 The council by letter dated 4 December 2003, wrote to the applicant advising that the proposal will impact upon future residential amenity and should be withdrawn. The applicant responded on 12 December 2003.
20 When the council considered the original application, the applicant agreed by letter dated 11 September 2002 to limit the development and “…include a condition of consent limiting the occupation of the building for a maximum of 2 years for a real estate agency”. It was on this basis that the council determined the application with the condition limiting the time of the consent included.
21 The applicant had had until 23 September 2003 to appeal the imposition of Condition 2, however did not lodge such an appeal.
22 A report that recommended refusal of the modification application was considered at Council's Delegated Authority Meeting on 23 January 2004.

The council’s decision
23 By notice dated 10 February 2004 the council refused the modification application (Development Application 224/03/HA/A) for the following reasons:
1. The proposed continued use of the building for a real estate agent is contrary to objectives (c) and (d)(ii) of the residential 2(a) zone as contained within Local Environmental Plan 1991 and draft Local Environmental Plan 200X in that the use has the potential to adversely impact upon the future residential amenity of the area and conflicts with the residential intent of the zone (Section 79C(a)(i) and (ii), Environmental Planning and Assessment Act, 1979).
2. The proposed continued use of the building for a real estate agent is contrary to aim (2)(1)(a) of Sydney Regional Environmental Plan No. 19 - Rouse Hill Development Area, as it does not allow the orderly residential development of the land, (Section 79C(a)(i) Environmental Planning and Assessment Act, 1979).
3. The proposed continued use of the building for a real estate agent is contrary to the intent of Development Control Plan No. 200 - Kellyville Rouse Hill Residential in that it has the potential to adversely impact upon the residential nature of the area (Section 79C(a)(iii) Environmental Planning and Assessment Act, 1979).


The hearing
24 The appeal was filed on 24 May 2004.
25 At the hearing the court received a statement of evidence on behalf of the respondent council from Ms K McKenzie, town-planning co-ordinator of Baulkham Hills Shire Council.
26 On behalf of the applicant Mr D Fox, consultant town planner, gave written evidence.
27 Ms McKenzie and Mr Fox prepared a joint report, however, this did not lead to any consensus.

The issues
28 On 18 August 2004 the council filed a further amended statement of issues.

Threshold Issue
1. Whether the development, if modified, will remain substantially the same as the development for which consent was originally granted, pursuant to s.96 (2) (a) of the EP&A Act.
2. Whether Condition 2 of Development Consent granted 23 September 2002 (in respect of Development Application 224/03/HA) is so fundamental and essential to the whole development consent that it ought not to be severed from that consent.
Particulars
The proposed modification, if approved, will result in a substantially different development in a qualitative and quantitative sense, since the original consent would allow the commercial activity for a finite period of 2 years, whereas the consent, if modified, will allow that commercial activity to be carried on indefinitely.
Merit Issues
3. …
4. …
5. …
6. …
7. Whether the site the subject of these proceedings is suitable for the proposed development (s. 79C(1)(c) Environmental Planning & Assessment Act 1979 ).
Particulars
(a) The proposed continued commercial use of the site may adversely impact on future residential amenity and orderly development of the land; and
(b) The proposal is inconsistent with the existing and desired future character of the locality and with the zone objectives; and
(c) The proposed continued use of the building as a real estate agency has the potential to adversely impact upon the residential nature of the area.
The respondent relies upon:
· Baulkham Hills Shire Council’s Local Environmental Plan 1991 zone objectives (c) and (d)(ii) for Residential 2(a);
· Draft Local Environmental Plan 200X zone objectives (c) and (d) (ii) for Residential 2(a);
· Sydney Regional Environmental Plan No 19 – Rouse Hill Development Area , aim 2(1)(a); and
· The intent of Development Control Plan No 200 – Kellyville Rouse Hill Residential .
8. Whether the proposed continued use of the building as a real estate agency is in the public interest (s. 79C (1)(e) Environmental Planning & Assessment Act 1979 ).
Particulars

(a) The proposed continued use of the building, as a real estate agency is inconsistent with the zone objectives of the applicable environmental planning instruments.
(b) Whether it is in the public interest to attempt to appeal against Council's determination of the modification application in circumstances where no appeal against the imposition of that condition was brought within 12 months of the date of determination of the development application pursuant to Section 97(2) of the Environmental Planning & Assessment Act 1979 .
(c) Whether the deletion of Condition Number 2 of Development Consent granted 23 September 2002 (in respect of Development Application 224/03/HA) is contrary to the public interest in circumstances where that condition is so fundamental to the whole development consent that absent that condition, it is likely that consent would not have been granted.

29 Issues 3, 4, 5, and 6 were deleted prior to the hearing. The following emerged as the salient issues:
· Whether the development, if modified, will remain substantially the same as the development for which consent was originally granted; and
· Whether the proposed continued use of the building as a real estate agency is in the public interest.

The evidence and findings

Whether the development, if modified, will remain substantially the same as the development for which consent was originally granted
30 The applicant’s representative submitted that since the original consent issued circumstances have changed. [Note: Exhibit A p 8]. The two-year consent period has almost lapsed and its purpose was to permit of the rezoning of the Grina [the client’s] land. The applicant’s representative submitted that the two-year period was always to be revisited. Now all the problems associated with the rezoning have been resolved and the council has made its decision in respect of the cul-de-sac, which is proposed behind the real estate agency, and the area of EUR would be limited in extent. As a result the environmental impacts are now known and have been able to be gauged as a result of the operation of the approved use.
31 Contrary to the submission of the respondent, the applicant submitted that the reasonable expectations of nearby residents would be that the EUR would continue. The only reason for maintaining the condition would be to allow the council to revisit the consent at the end of another two-year period. It was submitted on behalf of the applicant that it would be unreasonable to maintain the time limitation, and the applicant asked that the appeal be upheld, that approval be granted to the modification application and that Condition 2 be removed.
32 The representative of the council submitted that the fundamental question is whether, when the consent as it exists, is compared with the consent as modified, without a time limitation, the two could be considered the same application as was originally approved. It was submitted that without the ongoing checking that the council would provide that it is not substantially the same.
33 It was also submitted on behalf of the council, that Ms McKenzie, the council’s town planner had prepared a planning report on the original application and there has been no change between then and now, [Note: Exhibit A Attachment 7]. The projected transposition of the 2(c) and 2(a) zone has not occurred and is now withdrawn. It was submitted that the applicant who volunteered the 2-year period now wishes to take the benefit and withdraw from the burden. Progress and Securities Pty Limited v North Sydney Municipal Council [1988] NSWLEC 55 (19 August 1988).
34 It was submitted on the test examined in Misonand Others v Randwick Municipal Council and Others (1991) 23 NSWLR 734 at p 737 at p 737 that without the time limitation condition the application would not be substantially the same application as was originally approved. The respondent’s representative submitted that the modification application should be refused.
35 I accept the submissions of the applicant that the two-year time limit was an interim measure to allow for the rezoning of nearby land to 2(c) [the pet shop land] and the approval of the cul-de-sac. The burden has been discharged and it would be inappropriate to refuse the application applying the principles of the Progress and Securities case.
36 There is no evidence to suggest that the real estate agency would operate any differently with the time limit removed. The changes brought about by the approval of the cul-de-sac would be likely to reduce the extent of the land enjoying EUR. The applicant was prepared to submit to a condition confirming this reduction in area, however, the council did not take up this offer. I conclude that the existing use with the time limitation removed would involve minimal environmental impact and remain substantially the same development as the development for which the consent was originally granted, and I would not refuse the application for this reason.

Whether the proposed continued use of the building as a real estate agency is in the public interest
37 When the original development application was notified to the adjoining owners there were no objections. The reporting officer and the council concluded at that time that there would be unlikely to be any adverse impacts due to the use, that the land was suitable for the proposed development, concluded that the proposal would be satisfactory and in the public interest. [Exhibit 1 Report dated 23 July 2002].
38 The evidence of Mr R Henry the real estate agent in occupation, told the Court on the site inspection, that he has been operating nearly two years under the present consent. He confirmed that when he opened business three persons were employed and for a while the number of employees increased to four. He said that it currently operates with two employees, himself and an assistant. He indicated that there is “…not a lot of foot traffic” and the business is mostly carried out in open homes and viewings. He had never seen the car park full, and one or two cars a day pull up. There have been no traffic accidents in the area and as was seen on the view the properties on sale suggested that the real estate agency services the local area.
39 I accept Mr Henry’s evidence that the real estate operation has been wound back slightly and continues in an inoffensive manner.
40 The fact that there have been no objections raised in response to the advertising of the modification application for the removal of the time limit, supports the contention that the existing use as a real estate agency has been carried out, over time, in an environmentally acceptable manner. As there have been no significant adverse changes in its use since it was approved, I conclude that the use would remain satisfactory and be in the public interest. I would not refuse the application for this reason.
41 For the above reasons, the appeal is upheld.

Conditions
42 The conditions are those that applied to the original consent in Exhibit 4 with Condition 2 deleted.

Orders
43 My orders are:
1. The appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 is upheld.

2. Modification application lodged with the council on 13 October 2003, to delete Condition 2 of a development consent in respect of an approval granted on 23 September 2002 to occupy the existing building for a real estate agency (Development Application 224/03/HA) at Lot 92 DP 1014547, RMB 105 Windsor Road, Kellyville is approved subject to Conditions 1 to 9 in Annexure A.

3. The exhibits are retained.

S J Watts
Commissioner of the Court
sw

In the Land and
Environment Court
of New South Wales

Annexure A

Don Fox Planning Pty Limited
v
Baulkham Hills Shire Council

GENERAL MATTERS

1. Development in accordance with submitted plans
The development being carried out substantially in accordance with the approved plans and details, stamped and returned with this consent.


2. Deleted

3. Provision of Parking Spaces
The provision and maintenance thereafter of 5 off-street car parking spaces.

4. Hours of operation
The hours of operation being restricted to the following:


9.00am – 6.00pm seven (7) days per week.

Any alteration to the above hours of operation will require the further approval of Council.

5. Signage
A separate application being submitted to, and approved by, Council prior to the erection of any advertisements or advertising structures other than the sign approved in this consent.
In this respect, approval is granted for one (1) double sided externally illuminated sign of size 3 metres x 1.4 metres, located wholly within the subject site, as outlined within the facsimile dated 30 July 2002.

6. Existing Signage being removed
Any existing signage on the premises being removed prior to the erection of the above sign, the subject of this consent.


PRIOR TO OCCUPATION OF THE BUILDING

7. Building Classification
The classification of the existing building is required to be upgraded from a Class 6 to a Class 5 building – office, prior to occupation of the building.

8. Fire Extinguisher
The provision of a Type A fire extinguisher within the building prior to occupancy of the building.


9. Carpark
The design of the parking area shall be in accordance with:

· Australian Standard 2890.1-1993 – “Parking facilities – Off-street carparking”;
· Council’s Development Control Plan No. 102 – “Car Parking”;
· Council’s Design Guidelines for Subdivisions and Developments.

All internal car parking spaces and access roads shall be prominently and permanently linemarked, signposted and maintained to ensure entry and exit is in a forward direction at all times and that parking and traffic circulation is appropriately controlled. All car spaces are to be 2.5m wide and 5.4m in length.
S J Watts
Commissioner of the Court