Douglas Gordon v Woollahra Municipal Council

[1989] NSWLEC 176

Land and Environment Court

of New South Wales

CITATION:	Douglas Gordon v Woollahra Municipal Council [1989] NSWLEC 176
PARTIES:	APPLICANT Douglas Gordon RESPONDENT Woollahra Municipal Council
FILE NUMBER(S):	10599 of 1984
CORAM:	Cripps J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act
CASES CITED:	Double Bay Marina Pty Limited v. Woollahra Municipal Council 19 LGRA 147; Double Bay Marina Pty Limited v. Woollahra Municipal Council 54 LGRA 313). ; North Sydney Municipal Council v. Hall 62 LGRA 1; Food Barn v. Solicitor General 32 LGRA 157
DATES OF HEARING:	10/06/88
DATE OF JUDGMENT:	04/01/1989
LEGAL REPRESENTATIVES:

JUDGMENT:

His Honour: An application has been made to the Court pursuant to the provisions of s.102 of the Environmental Planning and Assessment Act for a modification of a development consent granted by the Court on 20 June 1985. The consent was for the erection of a two storey brick cottage on land at 8 Castra Place, Double Bay. The consent was subject to a condition (imposed by consent) as follows:

use of the building being restricted to purposes only and no activities out from the premises".

The applicant seeks a modification of cl. (v) for the following:

a caretaker/manager or employee of Double Bay (b) to permit the occupant of the dwelling house conduct foot patrols of the Marina for (c) to permit the presence in the dwelling house a telephone extension from the marina (d) to permit the occupant of the dwelling house have access and use of the said telephone inside the dwelling house outside where it is satisfied that the development to which the consent as modified relates is substantially the same development and is satisfied that no prejudice will be caused to any person who objected to the development application the subject of the consent (see s.102(1)(a) and (b)). Mr and Mrs Barraclough, who live next door, were relevantly persons who made objections and their views were put before the Court by the Council.

The present application is the latest of several by the owners of the subject land since 1970. The planning history of the land part of which is the subject of these proceedings has been set out in earlier judgments (see Double Bay Marina Pty Limited v. Woollahra Municipal Council 19 LGRA 147 and Double Bay Marina Pty Limited v. Woollahra Municipal Council 54 LGRA 313).

The property known as No. 8 Castra Place, Double Bay, is used for two purposes. The northern part is used for the purpose of a marina (being the "boatshed land") and the southern part (with the exception of the access strip to the northern part) is used for the purpose of a dwelling house (referred to as the "cottage land"). In 1970, Else-Mitchell J confined the "marina" existing use rights to the northern part of the land together with a one metre wide access strip along the western boundary of the front part of the land. In 1980, McClelland J granted development consent to permit the rebuilding on the "boatshed land" and ordered that the "marina" use of the "cottage land" cease. On 28 June 1985, the Court granted development consent for the erection of a two storey brick cottage on the "cottage land" subject to a number of conditions including the condition the subject of these proceedings. As I have said above, condition (v) was consented to by the applicant. It is relevant to note that the application for

development consent for the erection of a brick cottage on the subject land was opposed by a number of objectors on the ground that the cottage would be used in connection with the boatshed land with the result that an unacceptable level of traffic would come to the locality and the cottage would be used for a commercial purpose. It was, I infer, to allay those suspicions that the applicant consented to the imposition of condition (v).

I should mention that the Court has, on previous occasions, modified the consent relating to the boatshed land and the consent relating to the cottage land but these modifications have no relevance for the present purposes.

In 1988, the Council commenced proceedings against the occupant of the "cottage land" alleging that it was using the cottage for purposes associated with the marina. On 10 June 1988, the Court found that the respondent (Double Bay Marina Pty. Limited) was in breach of condition (v) and appropriate restraining orders were made. The Court found that people using the marina regularly parked their cars in the carport, that mobile workshops used for marina purposes were parked in the street and received electricity from an outlet in the garage of the cottage and that Mr Parsons, the occupant, was the manager and caretaker of the marina whose duties included, inter alia, patrolling the marina at night and attending the marina telephone which was switched through to the cottage when the marina business was closed.

It was also part of the Council's case that Mr Parsons attempted to sell berths at the marina to members of the public on conditions allowing the purchasers some entitlement to use the house and the pool. Although I accepted the evidence of Mr Barraclough that on occasions he had seen people in the house and around the pool who were previously on the marina, I was not satisfied, in the light of Mr Parsons' explicit denial and the unsatisfactory nature of the evidence of the private inquiry agent retained by the Council, that the Council's allegation was established. Nonetheless, because the Council established a breach of condition (v), orders were made having the effect of restraining the use of the boatshed land in contravention of that condition.

It was clear that Mr Parsons' occupancy of the cottage was an important part of the marina business being conducted on the same allotment of land. In the earlier proceedings, I determined that the use of the cottage was in breach of the planning laws even if condition (v) were ignored. I was of the opinion that what was being carried out in the dwelling house was not ordinarily incidental to the use of the land for the purpose of a dwelling house (see North Sydney Municipal Council v. Hall 62 LGRA 1 where the Court of Appeal held that the circumstance that a person uses premises as his ordinary dwelling is not inconsistent with the premises being put to another distinct and unauthorised use.)

Mr Parsons has sworn an affidavit in the present proceedings and he has not been cross examined. He is the general manager of the marina. He has sworn that the business of the marina is conducted from offices on the marina and that no equipment relating to the use of the marina was stored in the house at Castra Place when he previously occupied it and was using it, as the Court has found, in breach of the conditions of the planning consent. Mr Parsons left the premises after the Court made orders last year. It is, however, apparent that if the application is granted, Mr Parsons proposes to use the premises as a caretaker manager and/or employee of the marina, to conduct patrols at night and to attend the telephone which is proposed to be switched through to the cottage from the marina.

Mr Barraclough has given evidence in support of the Council's objection to the consent being modified to the effect that since Mr Parsons left No. 8 Castra Place, there has been less traffic in the local streets and that the general area has been the quietest for many years.

I reject the application for modification on two bases. First, because I am not satisfied that the consent as modified would be "substantially the same development" as that for which consent was granted. The nature of the development for which consent was granted can be found in the conditions attached to the consent (see s.4(11) of the Environmental Planning and Assessment Act. As I have said, condition (v) was consented to by the applicant and formed part of the development consent granted by the Court. In my opinion, to modify the condition in the manner contended for would be substantially to alter the development consent. It has been put to me that the activities intended to be carried out in and about the premises are capable of being characterised as activities ordinarily ancillary to the use of the dwelling house and that if, for example, Mr Parsons carried out those activities from a house in Paddington, it could not be said that the house in Paddington was being used other than a dwelling house purp

ose. However, the circumstance that if condition (v) had not been attached to the consent what is proposed must be classified as an activity ordinarily ancillary for the purpose of a dwelling house is, in my respectful opinion, beside the point. The consent granted by the Court was subject to the condition, consented to by the applicant, that there be no activities ancillary to the marina business carried out from the premises. It is true that the ancillary use to which the cottage is to be put has less connection with the marina than those the subject of proceedings last year. Nonetheless, if the modification is permitted, the cottage will be used for a purpose directly associated with the marina. I am not satisfied, therefore, that the consent, if modified, will remain substantially the same. It is, therefore, unnecessary for me to express any opinion whether what is proposed is a use of premises for an independent and illegal purpose (see Food Barn v. Solicitor General 32 LGRA 157).

Secondly, I am not satisfied that persons who objected would not be prejudiced if the modifications were allowed. Mr Barraclough asserts he would be. It was suggested to Mr Barraclough in cross examination that he was biased and it was submitted that his evidence was, in any event, so flimsy that it did not demonstrate that any prejudice would result if the modification were granted. However, the onus is not on the Council to satisfy the Court that there would be prejudice. The onus is on the applicant to satisfy the Court there would be no prejudice. Even if I disregarded Mr Barraclough's evidence, I would not be satisfied that there would be no prejudice to people who had previously objected. Although it is not proposed to permit people to park in the carport and although mobile workshops would no longer receive their electricity from the cottage, it seems likely that the use of the property for the residence of the manager caretaker will lead to an intensification of the marina use with consequential incre

ase of traffic in Castra Place. For the abovementioned reasons, I am of the opinion that the application should be refused.