Gorczynski v Perera & 1 Ors - [2004] NSWCA 70

NEW SOUTH WALES COURT OF APPEAL

CITATION: Gorczynski v Perera and Anor & 1 Ors [2004] NSWCA 70 revised - 23/03/2004

FILE NUMBER(S):
40250/03

HEARING DATE(S): 21 November 2003

JUDGMENT DATE: 15/03/2004

PARTIES:
Peter Francis GORCZYNSKI (Appellant)
Ravini Neluka PERERA & Rebecca Patricia DEE (First Respondent)
LEICHHARDT COUNCIL (Second Respondent)

JUDGMENT OF: Meagher JA Santow JA Ipp JA

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): L & E 40208/01

LOWER COURT JUDICIAL OFFICER: Cowdroy J

COUNSEL:
Appellant: J Ayling, SC/ V Bedrossian
R N Perera & R P Dee: P Clay
Leichardt Council: B Preston, SC/ H Irish

SOLICITORS:
Appellant: Wordsworth Lawyers
R N Perera & R P Dee: Mallesons Stephen Jaques
Leichardt Council: Pike Pike & Fenwick

CATCHWORDS:
PLANNING LAW - development consents - jurisdictional facts - Wednesbury unreasonableness - expert findings - purposive construction of LEP - existing commercial use. - ancillary Council powers
WORD and PHRASES - "residential use of a building"

LEGISLATION CITED:
Building Code of Australia
Environmental Planning and Assessment Act 1979 s78A
Leichhardt Local Environmental Plan 2000 2(b)2; cl.23(6)

DECISION:
1. Appeal dismissed
2. The appellant to pay the first and second respondents' costs of the appeal.

JUDGMENT:

- 39 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40250/03
L&E 40208/01
MEAGHER JA
SANTOW JA
IPP JA
15 MARCH 2004
Peter Francis GORCZYNSKI v Ravini Neluka PERERA and Rebecca Patricia DEE & 1 Ors

Judgment

MEAGHER JA: I agree with Santow JA
SANTOW JA:
INTRODUCTION
In these already voluminous and costly proceedings the applicant, and now appellant (Peter Francis Gorczynski), challenges two development consents (“the consents”). The second respondent, Leichhardt Council (“the Council”) granted the consents to the first respondents (Ravini Neluka Perera and Rebecca Patricia Dee). The latter became the owners of the property known as 80 Booth Street, Annandale (“No. 80”) in December 1999. The consents were for the use of No. 80 as a real estate agency, being a commercial and not residential use, and for a garage at the rear of No. 80. All parties but particularly the respondents, conscious of the enormous costs to date appeared to desire that this Court should itself, if at all possible, resolve all matters still in dispute and without remittance back.
SALIENT FACTS
The factual background and findings set out below are taken largely from the judgment of the trial judge, Cowdroy J. Matters still in dispute are identified. I shall on occasion refer to the appellant as the applicant when relating this to the pre-appeal stage.
The appellant is the owner of adjoining land known as 78 Booth Street, Annandale (“No. 78”). The challenged consents relate to the use of the ground floor of No. 80 and the construction of a garage at the rear of No. 80. Both No. 78 and No. 80 are currently contained in the one building, as described below. There is however a live dispute as to certain factual matters including when No. 78 and No. 80…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWCA 70
Decision Date: 15 March 2004

CaseChat Overview and Summary

This case concerned an appeal against a development consent granted by Leichhardt Council for the commercial use of a property at No. 80, Annandale. The appellant, Gorczynski, challenged the validity of the consent, arguing that certain conditions precedent to its grant had not been met. The respondents were Perera and the Council. The matter was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether specific provisions within the Local Environmental Plan (LEP) constituted jurisdictional facts that had to be satisfied before development consent could be granted, and if so, whether those facts were indeed satisfied. The court also considered whether the Council had the power to grant consent for the erection of a garage ancillary to the commercial use of the property, and whether a purposive construction of the LEP was appropriate.

The court reasoned that the provisions in question, specifically clause 23(6)(a) of the LEP, did not impose jurisdictional facts but rather required the Council to be subjectively satisfied according to a standard of Wednesbury unreasonableness. The court found that the Council had met this standard. Furthermore, the court adopted a purposive construction of clause 23(6)(a), concluding that it encompassed not only buildings originally constructed for non-residential use but also those where such use was subsequently established through significant additions or alterations, thereby preserving pre-existing employment uses in residential areas. The court also affirmed that the Council possessed the power to grant consent for an ancillary garage use, drawing upon clause 7(2) of the LEP as an additional source of authority, which permitted the erection of buildings for dwellings, and a garage could be considered as such.

The appeal was dismissed, and the appellant was ordered to pay the first and second respondents' costs of the appeal.

Orders

Orders of the court

1. Appeal dismissed

2. The appellant to pay the first and second respondents' costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Essentially, the trial judge was satisfied, as to cl.23(6) that (a)paras (a) and (b) were not jurisdictional facts prerequisite to the grant of consent but matters about which Council was merely required to be subjectively satisfied according to the undemanding Wednesbury unreasonableness standard and that Council met that standard in being so satisfied, but so that (b)were paras (a) and (b) instead jurisdictional facts, the trial judge then purported “to state [the court’s] hypothetical findings”, and would have found that the provisions of paras (a) and (b) of cl.26 were satisfied. historical evidence as summarised by the trial judge Sources Much of the historical information in relation to the site tendered at these proceedings was derived from two sources, namely, the Sands (NSW) Directory (“the Sands Directory”) and the Wise’s Directory of New South Wales. These sources were precursors to modern telephone books in that, as at the published dates of their various editions, they listed the postal addresses of most of the buildings in Sydney and its suburbs as well as the persons living or working at such premises. These directories also provided the trade or profession of each person listed. The Sands Directory was published between 1858 and 1933 usually on an annual basis. Although its format changed during this time it was regularised by the early 1870's. The Wise’s Directory was in a similar format to the Sands Directory although it also included an extensive coverage of rural New South Wales. The Wise’s Directory was published once every two years from 1886 then annually from approximately 1900. The construction history of the building incorporating No. 78 and No. 80 was also assessed by inspections conducted of the structures. Three experts provided evidence. The applicant retained Mr Paul Davies, an architectural and heritage consultant, and Mr Paul Clark, a civil engineer. Professor Richard Mackay, a heritage consultant architect, gave evidence for the Council. Mr Mitchell, an engineer, also gave evidence. Sequence of use and occupation The site was originally part of George Johnston’s North Annandale grant made on 8 October 1799 and comprising 290 acres. Part of the land was subdivided in 1876 by Robert Johnston (George Johnston’s son) and much of the land was thereafter purchased by John Young, including the site. The evidence established that a building had been erected on the site which comprised Lot 26 of section 27 of Deposited Plan No. 638 (“Lot 26”) containing an area of 24 ¼ perches by 1889. On 25 January 1893 a lease was entered into between the registered proprietor, William Hastie, to Henry Hall, a butcher. A plan of the Metropolitan Water Sewerage and Drainage Board made on 21 February 1889 appears to show a building at the rear of the site, as does its later plan made in 1893. The Rate and Assessment Books for Annandale Council dated 1896 indicate a building on the site which was occupied by Henry Hall. The Sands Directory for that year records Henry Hall occupying such site as a butcher.

Decision

Reasons for decision

The fact that cl.23(6)(a) expressly permits only part of a building to have been constructed for a non-residential use, notwithstanding the balance of the building might have been constructed for a residential use, is consistent with the sub-clause permitting a subsequent construction of the part for the non-residential use.conclusion I conclude that the principal jurisdictional condition of cl.23(6)(a) to operate, namely that, “the whole or part of the building was constructed for non-residential use” comprehends not only a building which in whole or part was originally constructed for a non-residential use, but also a building as here subsequently so constructed by way of major extension or addition for a non-residential use. Indeed, were it necessary so to decide, I would conclude that so extensive were the additions and alterations carried out in 1914 that the result was a new building which in my view would satisfy cl.23(6)(a). Such an interpretation of cl.23(6)(a) best serves the evident purpose of these provisions, namely retaining pre-existing employment uses in residential areas. There is no live issue in relation to sub-paragraphs (b) and (c) of cl.23(6). Accordingly the development consent for a commercial use of No. 80 was valid. appeal ground 6 – was leichhardt council empowered to grant consent for the erection of the garage for its (associated) use? The findings of the trial judge in relation to the garage record that Council assented to the application for the new garage “having regard to the change of use application”, expressly noting: “the proposed structure is permissible with consent in the zone provided its use is ancillary or incidental to a lawful use of the site”. Council relied upon a use of the land for the erection of a garage which was ancillary to the lawful non-residential use of the building (for a real estate agency) permitted under cl.23(6). It does not appear that Council expressly relied upon cl.7 of LLEP 2000 either as an independent head of power or as augmenting such power as was conferred by cl.23(6). The judgment (at [75-6]) sets out the trial judge’s reasons for concluding that cl.7(2) provided an additional source of power to support the grant of the garage use, as follows: 75Clause 7 of the LEP contains general provisions relating to development of land and cl.23(6) enables a commercial use of non-residential buildings in a residential zone, thus providing an exception to development in the Residential Zone. Accordingly, a valid grant of consent to use the building for commercial purposes in the Residential Zone would permit the incidental use of a garage, used in conjunction with the business. That is, the whole allotment is entitled too the benefit of the use: see Steedman v Baulkham Hills Shire Council [No. 1] [1991] 87 LGRA 26 at 27. Although a real estate use is not a permissible use as provided by cl.18 of the LEP in the Residential Zone, it becomes permissible by virtue of the operation of cl. 23(6). 76Additionally, council possessed power pursuant to cl.7(2) of the LEP to grant consent for the erection of a building and the use thereof for the purpose of dwellings. A garage can be used for the purpose of dwellings. Accordingly, cl.7(2) provides an additional source of power to support the grant of the garage use: see Johns v Australian Securities Commission (1993 178 CLR 408 at 426; Minister for Urban Affairs and Planning v Rosemount Estates (1996) 91 LGERA 31 at 85-86; J & J O’Brien v South Sydney City Council (2002) 121 LGERA 223 at 230-231. Having granted the use consent council was therefore empowered to proceed to grant consent in respect of the garage consent.”

Ratio Decidendi

Legal Principle Established

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