Georgouras v Warringah Council
[2010] NSWLEC 1246
•12 August 2010
Land and Environment Court
of New South Wales
CITATION: Georgouras & Anor v Warringah Council [2010] NSWLEC 1246 PARTIES: APPLICANTS
RESPONDENT
Nicholas Georgouras
Janet Georgouras
Warringah CouncilFILE NUMBER(S): 10453 of 2010 CORAM: Pearson C KEY ISSUES: SECTION 121B ORDER :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Acct 1979
Civil Procedure Act 2005
Warringah Local Environmental Plan 2000CASES CITED: Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157
Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404DATES OF HEARING: 12 August 2010 EX TEMPORE JUDGMENT DATE: 12 August 2010 LEGAL REPRESENTATIVES: APPLICANTS
Mrs Janet Georgouras (agent)RESPONDENT
Mr Tony Pickup, solicitor
Storey & Gough Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESCommissioner Pearson
12 August 2010
10453 of 2010 Nicholas Georgouras and Janet Georgouras v Warringah Council
JUDGMENTThis determination was given extemporaneously
and has been edited prior to publication
1 Commissioner: This is an appeal under s121ZK of the Environmental Planning and Assessment Act 1979 (the Act) against an Order made by Warringah Council (the Council) under s 121B of the Act on 3 June 2010. The Order was given to Mr Nicholas Georgouras and Mrs Janet Georgouras (the applicants) and relates to premises at Unit 10, 27 Dale Street Brookvale, Lot 10 SP33756 (the premises). The Order directed the recipients to cease use of the office area of the premises “as a child care and education facility” (order 1(c)), and to comply with Development Consent Approval 86/414 dated 9 October 1986 (order 15). The Order contained the reasons for the issue of the order.
2 The powers of the Court under s 121ZK of the Act include the power to revoke or modify the order, to substitute an order, to find that the order is sufficiently complied with or to make such order with respect to compliance as the Court thinks fit or to make any other order with respect to the order as the Court thinks fit.
3 The order was addressed to Mr Nicholas Georgouras and Mrs Janet Georgouras. The appeal to the Court was commenced in the name of Mrs Janet Georgouras. By consent, an order was made under s 64 of the Civil Procedure Act 2005 to join Mr Nicholas Georgouras as applicant, and he has been represented in these proceedings by Ms Janet Georgouras as agent.
4 The proceedings commenced with a conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act) on 28 July 2010 which commenced with a site view. The parties were unable to reach agreement under s 34(3) of the Court Act and the conciliation conference was terminated. The parties consented to my disposing of the proceedings under s 34(4)(b) of the Court Act, and a hearing was held on 12 August 2010.
5 The premises that are the subject of the order are leased by the applicants from Bombadier Investments Pty Limited. I note that the Council has separately issued an order to the owner of the premises under s 121B of the Act in relation to building works which the Council asserts are unauthorised. That order is not the subject of this appeal, which concerns only the use to which the premises are being put.
6 The applicants’ position is that their use of the office area to mind their children and supervise their education is ancillary to the office use. The Council does not dispute that the applicant carries out office activities associated with the business of the artist’s studio. The issue is whether the minding of children and the supervision of their education which takes place in the office area is a use which requires development consent.
Evidence
7 The conciliation conference commenced with a site view, and the Council’s bundle of documents included photographs of the premises. The premises are divided on two levels. The lower level is used as an artist’s studio and includes a kitchen area and an area with a washing machine. The upper level is used as an office and there is a staircase connecting the two. The office area includes desks and three computers, a television, book shelves, lounges and a separate area with a cot, and a bathroom.
8 The applicants provided a written Statement of Facts, which records that they have three children, aged 3, 13 and 16. The 13 year old child is registered with the Board of Studies for home schooling and the 16 year old is enrolled with TAFE New South Wales for distance study for the Higher School Certificate. The applicants state that they have 24 hours a day, seven days a week, access to the premises, and spend most of their time there. They state that the office area is used for the professional and administrative activities of the artist’s studio. In terms of the children’s activities, the applicants state that the two older children study for approximately four to five hours during the week days, and that they spend approximately one to two hours a day working in the studio. The applicants state that generally meals are eaten by the applicants and their children on the premises. The evidence as to the nature and extent of activities in the premises was not contradicted. The applicants provided documentary evidence of Board of Studies registration and TAFE enrolment of their two older children.
Council’s case
9 The Council’s position is that the minding and education of the children is not authorised by the Development Consent 86/414 issued on 9 October 1986. That development consent granted approval to the erection and strata subdivision of a building containing “12 factory/warehouse units with ancillary offices”.
10 The relevant planning controls are contained in the Warringah Local Environmental Plan 2000 (the LEP). The Council accepts that the minding and educating of children in the circumstances of the applicants does not fall within the definition of “childcare centre” or “further education” as those terms are defined in the LEP. The order issued to the applicants describes the use of the premises as “a childcare and education facility.” The Council submits that this is descriptive of the use being carried out at the premises which is “minding and educating of children.” The Council’s position is that this is a separate use that is not ancillary to the warehouse use, and that in planning terms it is an innominate use which in accordance with cl 7 of the LEP would require development consent unless it is exempt development or is identified in Schedule 2 to the LEP, and that neither of these is the case.
11 The Council relies on the legal principles established in two decisions of the Court of Appeal, Foodbarn Pty Limited v Solicitor General (1975) 32 LGRA 157, and Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404. Those decisions concern determination of whether one or more use is ancillary to another, or has to be regarded as a separate and independent use. In Foodbarn Glass JA held (at 161):
- It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used…
Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged.
12 In O’Donnell Meagher JA (with whom Samuels AP and Clarke JA agreed) held (at 409):
- Notwithstanding the principles laid down in Foodbarn, it does not follow that a use which can be said to be ancillary to another use is thereby automatically precluded from being an independent use of the land. It is question of fact and degree in all the circumstances of the case whether such a result ensues or not…. But when one use of the land is by reason of its nature and extent capable of being an independent use it is not deprived of that quality because it is "ancillary to", or related to, or interdependent with, another use.
13 In applying these principles to the facts, the Council submits that the use of the office area for the minding and educating of children would not normally be a use ordinarily associated with or incidental to the approved use, as children would not ordinarily be using or attending a factory or warehouse building. The Council refers to the differing requirements under the Building Code of Australia for factories and warehouses as opposed to those applying to schools, education establishments or dwellings. The Council submits that factories and warehouses are generally associated with industry-type activities which may use chemicals or use other construction methods or generate noise, which may not be suitable to be located in close proximity to children. The Council submits that this is distinctly different to the same activity, being the use of premises as an education facility for home schooling, within a residential building. The Council submits that the use of the office area for minding and home schooling of the children is being carried out to such a degree that the Court should find that it is an independent use of the premises for that purpose. The Council points in this regard to the fact that the area used for this purpose comprises the majority of the space designated for the office use. In particular, the Council relies upon the layout of the office, the fact that the children spend the majority of their time there, the size of the play area for the 3 year old child, and the fact that meals are consumed there. In the Council’s submissions, there is everything that one would usually see in a dwelling. The Council accepts that there is no evidence that anyone other than the 3 year old child sleeps there.
Consideration
14 It may be accepted, as the Council submits, that ordinarily home schooling of children would take place in a dwelling. However, that would not necessarily have to occur in a dwelling with access to an outdoor play area. There is no specific provision for home schooling in the LEP, and the Council relies on it being usually associated with a dwelling.
15 The development consent authorises the use of the premises as a factory/warehouse with ancillary office, ancillary in the sense that while the office area may be physically on a different level, it was not intended to be approved as an office other than one associated with the use of the factory or the warehouse. Having regard to the extent of the activities taking place in the office area, which it was accepted include activities associated with the business conducted at the factory and warehouse, I am satisfied that the activities of childminding and supervision of the older children’s education can be regarded as an incidental domestic use to the approved use of the office as ancillary to the factory/warehouse on the lower level. The situation is analogous to the situation where children might be present at an office or other workplace for extended periods of time before and after school, which would possibly also involve the supervision of homework and the provision of meals. Even if the childminding and supervision of education have to be considered to be a separate use, I would not regard it as an independent use such as to require consideration of its permissibility under the planning regime or to require development consent in these circumstances. In my view, the use is analogous to that described in O’Donnell by Meagher JA when he referred, at p 409, to a resident using his land to park a motorcar at his house, or an employer installing a canteen at his factory for his workers, neither of which Meagher JA regarded as being an independent use.
16 In those circumstances I am not satisfied that the premises are being used in contravention of the conditions of Development Consent 86/414, or that the consent is not being complied with in terms of the use being made of the premises. Accordingly, in my view, there is no basis for the issuing of either order 1(c) or order 15, and the orders should be revoked.
17 The Orders of the Court are:
1. The appeal is upheld.
2. The order issued under s 121B of the Environmental Planning and Assessment Act by Warringah Council on 3 June 2010 to Mr Nicholas Georgouras and Mrs Janet Georgouras relating to premises at unit 10, 27 Dale Street, Brookvale, is revoked.
3. The exhibits are returned except for exhibits 2 and E.
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