Gorczynski v Perera & 1 Ors

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 became one building (see later). The second respondent in these proceedings, Annandale Services Pty Ltd, is the tenant of No. 80 and has made a submitting appearance except as to costs.
The building on No. 78 and No. 80 currently comprises a two storey brick structure having ground floor shop frontages to Booth Street, Annandale, and rooms above. The two shops are separated by a carriageway which leads to the land behind the shops. Above the carriageway is a room which forms part of No. 78 thereby joining No. 78 and No. 80. A single storey extension has been erected at the rear of No. 80 which is not connected to the two-storey structure. In the rear yard of No. 80 was a brick rendered garage with galvanised iron roof which has recently been demolished.
the consents
Consent granted for the use of No. 80 as a real estate agency
Prior to acquisition of No. 80 by the first respondents, these premises had been used for commercial purposes on the ground floor and for residential purposes on the first floor. The Council had approved the use of a room on the ground floor for the purpose of a commercial photographic studio. Such use had been extended without permission to the whole of the ground floor.
By application for development consent No. D/2001/254 (“the use application”) dated 30 April 2001 the first respondents applied to the Council for the development of No. 80. The description of works for the proposed development is as follows:
“Use of the ground and first floor of the existing premises as a real estate office; and for the erection of associated signage.”
The proposed use of the premises is described as:-
“Real estate office”
The Council granted consent to the use application by Notice of Determination on 27 July 2001, subject to conditions (“the use consent”).
Consent granted for the construction of a garage
By application for development consent No. D/2001/48 dated 24 January 2001 (“the garage application”) the first respondents made application to the Council pursuant to s78A of the Environmental Planning and Assessment Act 1979 (the “EP&A Act”) to erect a garage at the rear of No. 80. The description of works contained in the garage application is as follows:
“Demolition of existing garage and the erection of new garage.”
The proposed use is described as follows:
“Garage and storage area.”
On 27 July 2001 the Council granted development consent No. D/2001/48, (“the garage consent”) subject to conditions.
planning instruments
The consents were granted pursuant to the provisions of the Leichhardt Local Environmental Plan 2000 (“the LEP”) which is applicable to No. 78 and No. 80 (together referred to as “the site”). The site is zoned Residential 2(b)2 under the provisions of the LEP. The zoning table applicable to the Residential 2(b)2 zone prescribes development which is allowed without development consent (item 2) and development which is allowed only with consent (item 3). Pursuant to item 4 of the zoning table all other development is prohibited.
Development for the purpose of a real estate agency is not exempt development in accordance with item 2 and does not fall within the types of development listed in item 3. Accordingly such use would be prohibited within the Residential Zone but for the application of cl.23(6) of the LEP. The latter creates an exception allowing commercial use of non-residential buildings in the Residential Zone with consent in the particular circumstances it prescribes. Clause 23(6) of the LEP provides:
23(6) Commercial use of non-residential buildings in the Residential Zone
Consent may be granted to the use of a building or part of a building situated within the Residential Zone for any use allowed only with development consent in the Business Zone, and the alteration of the building so that it can be so used, if:
(a)the whole or part of the building was constructed for a non-residential use, and
(b)the building is capable of being substantially retained, which means the building must be structurally capable of conversion while meeting building, health, amenity and other environmental planning requirements, without the need for the replacement of most of the structure, and
(c)the consent authority is satisfied that the amenity of the locality will not be adversely affected.”
the appellant’s unsuccessful challenges to the use consent
The appellant when applicant at trial submitted that the Council had no power to grant the use consent because the development is prohibited unless the provisions of cl.23(6) are satisfied. The applicant submitted the provisions of cl.23(6)(a) had not been satisfied because the whole or part of No. 80 was not constructed for a non-residential use. Relying on its interpretation of the history of the construction of No. 78 and No. 80, the applicant submitted that No. 80 was constructed for the purpose of a residence.
Additionally, the applicant submitted the provisions of cl.23(6)(b) had not been satisfied since the building did not meet building requirements of the Building Code of Australia (the “BCA”). The applicant had adduced evidence from which it submitted the Court would find that No. 80 did not comply with building, health, amenity and other environmental planning requirements.
The applicant at trial submitted in the written submissions that the matters referred to in cl.23(6)(a) and cl.23(6)(b) are jurisdictional facts, the satisfaction of which were a prerequisite to the grant of consent. On appeal, the appellant did not seriously dispute that cl.23(6)(a) at least was a jurisdictional fact, though asserting it was of a subjective character.
The respondents were successful at trial in relation to the following submissions:
(a)The respondents successfully disputed that the satisfaction of the matters referred to in cl.23(6)(a) and cl.23(6)(b) constituted “jurisdictional facts” prerequisite to the grant of consent, and in submitting that they are each matters of subjective assessment for the Council to be judged according to the standard of Wednesbury unreasonableness and that Council’s assessment satisfied that standard (Judgment [38-9] at Red, 11, [47-9] at Red, 13 and [54] at Red, 16).
(b)As to cl.23(6)(a) the respondents successfully raised matters of fact and law. As to matters of fact, they successfully contended that the evidence established that part of the building was constructed for non-residential use. As a matter of law, the respondents submitted that such clause does not require an interpretation that the building be originally constructed for non-residential use. The respondents successfully submitted that the Council is entitled to have regard to the state of the building when the application for development was made, and was not required to have regard to the use of the building at the date of its original construction (Judgment [63-5] at Red, 19).
(c)In respect of cl.23(6)(b) the respondents successfully submitted that the use consent concerned a change of user only and did not require any physical alteration to the building. Accordingly, cl.23(6)(b) which required the Council to be satisfied that “the building was capable of being substantially retained” was satisfied at the outset. It followed that since no question of conversion of the structure arises, there was no need for Council to consider the matters referred to in such sub paragraph (Judgment [66] at Red, 19).
(d)Alternatively the respondents successfully submitted that, if the requirements of cl.23(6)(b) required that the building meet the relevant building, health, amenity and other environmental planning requirements, there is, or will be by virtue of fulfilment of the conditions attached to the use consent, substantial compliance and that any non-compliance is de minimis (Judgment [66] Red, 66]).
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.
In approximately 1902 the site was transferred to Rose Hall, wife of Henry Hall, butcher. In or about the same year the experts agreed that construction took place on the site. The experts do not however agree upon one important matter, namely whether construction was confined to the building known as No. 78 or whether No. 80 was constructed simultaneously. Mr Clark for the applicant considered that No. 78 was constructed at a different time to No. 80. However, Professor Mackay for the respondent, disputed that conclusion, he believed that construction of single building upon the site was more likely.
Between 1902 and 1920 the experts did agree that a butchery was located on the site (which remained as Lot 26 with successive butchers in occupation). But Messrs Clark and Davies believed that there was a butcher occupying No. 78 only and which comprised a shop and later a shop with dwelling above. Moreover, they concluded that No. 80 was a residential dwelling which only later became a shop and dwelling above. Professor Mackay however believed that between 1902 and 1914 a butchery was likely to have been present in two shop fronts known as No. 78 and No. 80, the business premises being divided by the carriageway. The significance of this inference, if correct (and the appellant strenuously disputes it), would be that from 1902, there was but one building comprising No. 78 and No. 80 “constructed for a non-residential use”. That inference, if substantiated, would satisfy cl.23(6)(a) were it required to be satisfied as a jurisdictional fact.
The heritage experts agreed that further construction took place on Lot 26 in 1914. Mr Davies considered that such work comprised the construction of a new façade and the whole of the upper floor and possibly minor works on the ground floor of Lot 26. Mr Clark believed the work comprised at least construction of the upper floors, together with a façade which was built in stages. Professor Mackay opined that the work involved a rebuild of the shop fronts across the whole of Lot 26, probably with a new façade. In 1914 the rate and valuation books record the entry “shop and shop” at Lot 26.
Between 1914 and 1918 it is agreed by the experts that No. 78 was occupied and used as a butchery. Mr Davies believed that No. 80 was occupied by a Ms Dunningham who was a confectioner who traded elsewhere, then by Mr Robertson who traded at No. 80 as a confectioner. Professor Mackay believed that No. 80 was occupied by confectioners who traded as confectioners from No. 80, namely Dunningham and Robertson successively during the period 1914 to 1918. It is also acknowledged that from 1915 No. 78 and No. 80 were first separately rated.
As to physical evidence related to construction, the experts agreed that the ground floors of the site were built in more than one construction phase and that most appeared to have been built in approximately 1902. Mr Clark believed that the walls and either side of the carriageway which separate No. 78 and No. 80 were built at different times to each other and to the rest of the building. Mr Davies considered that it was likely that the carriageway wall of No. 80 was reconstructed in approximately 1914.
The earliest entry relating to the use of No. 80 in the Sands Directory is that for the year 1915 when the following entry appears for both No. 78 and No. 80:
“78 Willis Robert, butcher
80 Dunningham Mrs Anne, confectr.”
In respect of the year 1916 the Sands Directory contained the following entry for No. 80:
“80 Hard, Mrs Annie, confectionery”
For the year 1917 the Sands Directory records the use of No. 80 as follows:
“80 Robertson Robert, confectionery”
Summary of Expert Findings
The consensus of the experts may be summarised by concluding that there was originally a building located at the rear of Lot 26. In approximately 1902 construction took place at the front of Lot 26. But the experts are divided in their opinion whether such building comprised one or two shop fronts or a shop front and a residence.
In 1914 a new façade and first floor were added to the existing building erected on Lot 26. From 1916 the Sands Directory suggests that separate trading was taking place from No. 78 and No. 80. Accordingly, No. 80 has been used for commercial purposes as least from that date.
The trial judge noted further at 42-6:
“42The land upon which the building comprising No. 78 and No. 80 remained un-subdivided until the registration of deposited plan No. 231539 on 9 December 1966. It is not disputed that at least No. 78 operated as a butcher shop since approximately 1902. The contention is whether No. 80 was constructed separately to No. 78 and if so whether it was constructed for commercial or non-commercial purposes.
43A statement of environment effects accompanied the application for the change of use of No. 80. In section 2.3.2 entitled “Land Use History” a summary of the Sands Directory prepared by Sue Rosen & Associates, Historians and Heritage Consultants for the years 1915-1933 was incorporated. The extract contained the following:
‘In summary, the premises at 80 Booth Street appears to have been used as a shop in the period 1915 to 1931, that the use as a shop or commercial premises continued, in all likelihood, until the late 1960’s when, in 1968, Council approved its use as a photographic studio and a residence. It has been used for other retail/commercial purposes since 1968.’
44 The statement also contained the following (at p. 15):
‘· Part of the building was constructed for a non-residential use.
The property was originally constructed for at least partial non-residential use. As set out in Section 2.3 of this report, records dating back to 1915, (which is believed to be soon after the property was constructed), indicate that premises was used for the sale of confectionary [sic.].
Thus, it is apparent that part of the subject building was constructed for a non-residential use.’
45Prior to Council’s decision to grant consent for the use application it was provided with a report for a meeting held on Thursday 19 July 2001 entitled “Building and Development Council Meeting” (“the report”). The report noted that the existing premises at No. 80 satisfied the requirements of cl.23(6) because, inter alia:
‘(a)Part of the building has been constructed and used for non-residential purposes in the past;’ ...
46The report noted the entries in the Sands Directory and states:
‘Since 1927 there is evidence that the premises were used as a shop and residence although the accuracy of this data cannot be relied upon. Notwithstanding this comment, the premises have been partially used for commercial purposes as is demonstrated by Council’s records.’
The above information supports that part of the building was constructed for a “non-residential use”.

The trial judge also made specific findings in regard to the reasonableness of the decision in relation to clause 23(6)(b) of the LEP:
“Reasonableness regarding decision in relation to clause 23(6)(b) of the LEP:
50The statement of environmental effects which accompanied the development application in respect of the change of use referred to the requirement of cl.23(6)(b) of the LEP. It states, inter alia:
‘The current application does not propose any alterations or additions to the existing structure, including structural changes, partitioning or fitout. Most, if not all, of the ground floor area has been used for commercial purposes in the past. The rear area and first floor area require no modifications for use as real estate offices.
The assessment by Leichhardt Council of the earlier DA for the use of the Site as a real estate office in 2000 (D/2000/434) suggests that Council’s health and building department had no concerns with the suitability of the building for use as a real estate office. The impacts on amenity are considered minimal, as discussed in Section 5.3.6 of the SEE.
In summary, the building can be fully retained, and is eminently suitable for use as a commercial premises. No structural modifications are required to convert the former first floor residential areas for commercial use.’
51The report (see p. 10) for the building and development Council meeting held on Thursday 19 July 2001 contained the following relevant statement:
‘(c)The current application does not propose any alterations or additions to the existing structure, including structural changes, partitioning or fitout. Some minor building works would be required to comply with the BCA requirements in terms of fire protection. The first floor can readily be converted for use as a real estate office. Therefore, the building is capable of being fully retained and capable of conversion for commercial use which complies with relevant building and planning instruments.’
The report also stated (see p. 11):
‘The proposed signs are of a minor nature and will generally have minimal impact onto the nearby heritage item and conservation area. The terrace to the east has a fascia sign and signs attached to the front façade of the building. Therefore, these additional signs upon the subject property are of a magnitude which is considered to be acceptable for this streetscape.’
52Having considered the matters, Council granted the use consent, subject to conditions. BCA, as follows:
‘9. Interim/Final Fire Safety Certificate’
Prior an Interim/Occupation Certificate being issued by the Principal Certifying Authority, and Leichhardt Council the owner of the building shall furnish to the Principal Certifying Authority a final/interim Fire Safety Certificate with respect to each essential fire safety measure specified in the current Fire Safety Schedule for the building to which the Certificate relates.
The Certificate shall state:
(a) That each essential fire safety measure has been assessed by a properly qualified person.
(b) That each essential fire safety measure was found, when it was assessed, to be capable of performing to a standard not less than that required by the current Fire Safety Schedule for the building to which the certificate is issued.
Reason: To ensure the safety of persons in the event of a fire.
10. Emergency Lighting
An emergency light complying with AS 2293 (Part 1) must be provided to serve the internal stairway in accordance with the requirements of Part E4 of the Building Code of Australia.
Reason: This condition is to ensure the safety of persons in the building in the event of fire.
11. Portable fire extinguishers
A portable fire extinguisher and fire blanket must be provided adjacent to the ground floor kitchen area in accordance with Part E1 of the building Code of Australia and are to be maintained in accordance with the AS 2444.
Reason: This condition is to ensure the safety of persons in the event of fire and for the suppression of fire ad the prevention of fire.
13. Interim/Final Fire Safety Certificate
The owner of the building must certify to Leichhardt Council every year that the essential fire safety measures installed in the building have been inspected and are capable of operating to the required minimum standard.
Reason: This condition is to ensure that there is adequate safety of persons in the building in the event of fire and for the prevention of fire, the suppression of fire and the prevention of spread of fire in accordance with the Fire Safety Schedule.
16. Compliance with Building Code of Australia
16.1All building work (other than work relating to the erection of a temporary building) must be carried out in accordance with the requirements of the Building Code of Australia (as in force on the date the application for the relevant construction certificate or complying development certificate was made).
16.2This clause does not apply to the extent to which an exemption is in force under clause 80H or 80I, subject to the terms of any condition or requirement referred to in clause 80H(6) or 80I(4).
53Additional matters were incorporated into the consent which were described as “advisory”. They included, for example, certification of a smoke alarm in the building.”
The trial judge ruled on the evidence in the event that compliance with the clauses in the Act did constitute jurisdictional facts:
“56Mr Paul Clark (civil engineer) provided evidence for the applicant that there were various non-compliances with the requirements of the BCA in respect of the building at No. 80. Mr Clark considered that such matters, namely structural deterioration due to loss of mortar in joints and damage to the western wall caused by footing movement were largely the result of the age of the building. Mr Clark considered the dividing wall in the adjoining roof space between No. 78 and No. 80 created significant problems in relation to ability to resist the spread of fire. Mr Clark said that the former garage would not comply with various requirements of the BCA. Mr Clark drew attention to the fact that the stormwater drainage in the courtyard of No. 80 did not comply with the requirements of the Council or of the BCA. Additionally he noted that a sewer did not lie entirely within the easement of the drainage and accordingly a section located beneath the garage would be inaccessible to the owner of No. 78.
57For the first respondents, Mr Nicholas Mitchell (structural and civil engineer), provided evidence in relation to the matters observed by Mr Clark. As to the external surfaces, Mr Mitchell noted that there was some movement and cracking to the building known as No. 78 and No. 80. As to the internal alleged defects, he noted differential movements between ceiling panels and walled sections which he considered to be slight. In the addition to the rear of No. 80 he observed moderate differential movements between ceiling panels and walled sections. Mr Mitchell disposed in his affidavit sworn 7 June 2002:
‘10. It is my opinion that the structure of No. 80 is currently in a stable and serviceable condition. The general condition of the building is sound and the classification of damage to AS2870 would be category 2 to 3 slight to moderate.’
58Mr Mitchell continued:
‘11.The various defects noted are considered to be part of normal building maintenance for a building of this age and type, they are defects which should be repaired in due course to prevent further deterioration of the building, but in my opinion, in no way do they affect the safety of the occupants or overall stability of the building.
12.With respect to the requirements of the Leichhardt Council LEP Clause 23(6), in my opinion, the use of the building as a Real Estate office would not require the replacement of most of the structure. The walls, floors and roofs could be substantially retained with minimal structural alteration required to make the building suitable for office use.’
59Mr Mitchell viewed a video recording of investigations of the sewer line servicing No. 78 and No. 80. He observed some misalignment between pipe segments but concluded that there were no major defects in the sewer system. Mr Mitchell also examined the condition of the stormwater and reviewed video recordings of the stormwater line. He concluded that the stormwater line showed that maintenance was required due to misalignment between pipe segments, roots, soil and a major break in the pipe.
60Mr Mitchell concluded that the maintenance of the sewer was not unusual considering its age and type. He added that it is normally the responsibility of both owners to maintain the common sewer drainage line.
Findings: use consent
61In respect of cl.23(6)(a), the Court finds that No. 78 and No. 80 prior to 1914 comprised one building. That is, in the absence of any subdivision of the land upon which the building was erected the building was indivisible. Whether a portion of the building, now known as No. 80, was built at the same time as No. 78, or at a later time is immaterial, since there was only one building. [The appellants contended at paragraph 29 of their submissions that the building composed two different structures at construction and the physical joining of them at a later date did not change this – see paragraph 6 below].
62The expert opinion is so divided upon the history prior to 1914 of the building that no finding can be made that No. 80 was constructed at a later date to No. 78. The experts agree that there was substantial building work undertaken in 1914 to the existing building. Up to that date the building comprised at least, in part, commercial premises. Such work included the provision of new facades, and the upper stories to the building. Such work has remained substantially in tact. The report for the building and development Council meeting on Thursday 19 July 2001 records that during the assessment of a development proposal of 19 May 1988 (DA 124/88) the following observations were made:
‘The subject building and its pair at 78 have original fully glazed shopfronts at ground floor level. Given the character of the ground floor façade it is considered that the front room is not suitable for residential use.’
63Accordingly, at least as at 1988 the Council was satisfied that at least part of No. 78 and of No. 80, that is, part of the whole building, was used for non-residential purposes. Council records also establish as follows:
‘The above demonstrates that the site has a history of being partially used and constructed for non-residential use that can be traced back as far 1968 using Council records.’
64Council in its report had adopted the view that it should consider, for the purpose of cl.23(6)(a) whether, for the application of cl.23(6), the building had been constructed for such purposes at a date prior to consideration of the application before it. It did not regard it necessary to revert to the original construction to establish compliance with cl.23(6)(a). [The court concurred with the Council’s approach].”
The trial judge made the following factual findings in relation to the Garage consent:
“67The first respondents became aware that the existing garage had been built without Council approval. An expert report prepared in relation to the structural integrity of the existing garage revealed certain defects. Accordingly, the first respondents sought consent to demolish the existing structure and to replace it with another structure. Simultaneously the Council issued an order pursuant to s121B of the EP&A Act requiring the demolition of the existing garage.
68At its meeting of 17 May 2001 the Council resolved that the application for development consent be deferred for consideration in conjunction with the use application. A report prepared for the building and development Council meeting on Thursday 19 July 2001 records that the garage consent had been “reassessed having regard to the change of use application”. The change of use application was that referred to above, namely the use consent.
69Such report referred to the history of the site and to certain litigation that had taken place in this jurisdiction which are not relevant for the present purposes. The report noted that the proposed structure was permissible with consent in the zone provided its use was ancillary or incidental to a lawful use of the site. The report stated:
‘The use of the garage is appropriately dealt with as part of the application before its erection.’
70The report of Council observed that a sewer line ran beneath the existing garage. In this respect the report noted as follows:
‘The application proposes to construct a concrete casing around the existing sewer line in the area below the new garage. The existing pipes which service both 78 and 80 Booth Street are understood to be clay pipes and their condition is unknown. The applicant has subsequently advised that they intend to excavate around and expose the pipes during construction to allow inspection. Sections of pipe found to be damaged will then be replaced as needed with new sections prior to encasing as part of the construction process.’
71The report demonstrates that the Council had considered the objection of the applicant in respect of the sewerage line and other issues raised by him. The report shows that great care had been taken by the Council officer to address all issues relevant to a proper assessment of the development application pursuant to s79C of the EP&A Act.
72Council duly granted consent, subject to numerous conditions.”
The appellant in his original written submissions (Orange, 10) contended that on the clear weight of the available evidence the trial judge ought to have positively determined that:
37.1the building situated upon the first respondent’s property [No. 80] had been constructed separately from the building on the appellant’s property [No. 78];
37.2the building situated upon the first respondent’s property, being separate from and a different building to that situated upon the appellant’s property, had been constructed originally for a wholly residential use; and
37.3in the circumstance, the factual pre-condition imposed by paragraph (a) of sub-clause 23(6) had been proven by the appellant not to exist as a fact.
At para 38 of the appellant’s written submissions it was put in the alternative that there was insufficient evidence for the trial judge to make a finding that the factual requirement of para (a) of sub-clause 23(6) existed in fact. That is to say, this submission was alternative to the submission that the trial judge should have determined positively that the factual pre-condition imposed by para (a) of cl.23(6) had been proved by the appellant not to exist in fact (para 37 of appellant’s written submissions).
The original written submissions of the appellant, from paras 39 through 46 with appendices A and B analysing and summarising the relevant evidence sets out the basis for the appellant’s contention that (i) as of 1902 when No. 80 was first built there were two and not one buildings comprising No. 78 and No. 80 so that (ii) at the time of their original construction the two buildings cannot have been one structure. That evidence is subsumed more crisply in the appellant’s written reply. It is supplemented by additional reference to source material from what is described as “the Annals from St Aidans”, being the building next door to the present No. 78. I deal more fully with that material and its implications, together with the second respondent’s response, in now turning to the resolution of the various questions posed by this appeal.
RESOLUTION OF APPEAL
The critical part of the evidentiary material as summarised by the appellant in his written reply of 5 December 2003 is set out below:
“Evidentiary Material
15.It appears clear that building(s) were erected on “Lot 26” (the present Nos. 78 and 80) prior to 1893, when the parcel was leased by its owner, William Hastie, to Henry Hall, butcher. An 1889 Sydney Water plan showed buildings at the rear of the site, which were shown again in the 1893 plan.
16.The adjacent Lot 25 is occupied by St Aidan’s Church (74 Booth Street). There was no street number used for Lot 26 in any official record until 1904-5, when the Rates Book refers to the Land as No. 80 (Exhibit 11 before the Trial Judge). Thereafter, in places, there are references to No 76 and No 80. (Mackay agrees that references to No. 76 appear to refer to what is now No. 78: Blue A/B 21D-E. See also Blue A/B 29H.) It was not until 1914 that the Rate and Assessment Books note both No 78 and No 80 Booth Street for the first time.
17.From 1898 to 1902, the Rates Book describes the property as “shop and dwelling”.
18.There appears to be no doubt that the “shop” in question was the butchery operated by Henry Hall at the rear of the land.
19.The Annals from St Aidans established that in 1902 “buildings” were constructed on Lot 26 and “first occupied”. The “adjacent building” (the present No. 78 is next door to St Aidans) was occupied as a butchery and continued to be so occupied until the mid-1950s.
20.Joseph Phillips was, according to the Rate Books, the occupier of Lot 26 in 1902/3 and 1903/4. He was a butcher and the Sands Trades & Professions Directory shows him as carrying on business in the premises. Whether he lived there is uncertain, as the electoral rolls show him as residing at “Young and Collins Streets”. The Rates records do not indicated that the owner of Lot 26, Mr Hastie, is resident elsewhere. The inference is that he is resident at Lot 26.
21.In about 1904, the Rates records show Mr AE Fowler as the occupant of Lot 26. He also takes over the butcher’s shop at what is now No. 78. The Sands Trades & Professions Directory confirms that, by 1905, Mr Fowler is the butcher at what was then known as No. 76 (which was agreed by Mackay to be a reference to No. 78 Booth Street). Mr Phillips disappears from the records.
22.In 1905, the Sands Trades & Professions Directory records Mr Fowler as a butcher at No. 76. Wise’s Suburban directory shows Mr Fowler at “No 80”. This is confirmed by the Rates records. Wise’s also shows a TJ Spindler as an occupant, presumably of the residential part.
23.By 1907, the Rates records show that No. 80 is occupied by Mr Thomas Stone. The Sands Trades & Professions Directory shows Mr Stone as a butcher trading at No. 76.
24.In about 1907, the premises, then called “No 80” by the council, are leased to Robert Willis, butcher. The tenant buys the property on 16 April 1908 and retains ownership until 1920 when he transfers title to his wife and ceases trading.
25.Council records continue to refer to the premises (being Lot 26) as No 80 until 1915, when current numbering (78 and 80) begins.
26.In 1914, building works are carried out (presumably by Mr Willis). The precise extent and nature of those works was disputed, but it appears that the primary judge accepted that the upper story was part of those works (Red A/B 46.6).
27.It was this upper storey (but in particular No. 78’s new room over the carriageway) that resulted in the two buildings becoming attached, thereafter appearing as if they were a single structure: see Black A/B 358D-F.
28.It appears that it was around this time that the ground floor façade of the dwelling at No. 80 was altered to become a shopfront and that, in about 1915, the front room commenced being used as a confectionery by Mrs Dunningham.
29.The only objective evidence within the records of the form of the buildings constructed in 1902 is from the Annals of St Aidans, which refer to “buildings”, the “adjacent” one being occupied as a butchery. The adjacent building was what is now No 78. It follows that there is no evidence that No. 80 was ever used for non-residential purposes at any time prior to 1914.
30.Physical evidence as to the state of the building in 1902 is the subject of disagreement. It was, however, agreed by the experts that more than one construction phase is evident on the ground floor (Blue A/B 40S).”

The appellant, fairly in my view, deals at length with the second respondent’s expert Mr McKay and his evidence, identifying some confusions in his cross-examination, but conceding that the views held by the respondent’s experts were rational and possible (Black, 346ff). The appellant expressly conceded that, although the Annals of St Aidans referred to there being buildings (plural) on Lot 26, only one building (singular) was used as a butchery (Black, 352J-K).
In earlier written submissions made by the appellant, paras 42 and 43 demonstrate that the findings actually made by the trial judge on specific factual issues lead inexorably to the conclusion that the two buildings were only joined in 1914. This was when a new façade and first floor were added to the existing building erected on Lot 26. It was only by virtue of that second floor structure that the buildings were joined. I quote those paragraphs below:
“42.On the face of the Trial Judge’s conclusions, the determination that the requirement of paragraph (a) of sub-clause 23(6) was satisfied cannot be sustained. In this respect, the appellant submits that the following points are noteworthy:
42.1     The use consents in respect of the first Respondents’ property as challenged by the Appellant “relate to the use of the ground floor of No. 80” (paragraph 2 of the Judgment (Red A/B 28 (line 54));
42.2     “The two shops are separated by a carriageway which leads to the land behind the shops. Above the carriageway is a room which forms part of No. 78 thereby joining No. 78 and No. 80.” (paragraph 3 of the Judgment (Red A/B 29 (line 9));
42.3     The experts agreed that construction took place on the site, which site previously incorporated both the First Respondents’ and the Appellant’s buildings, in approximately 1902 (paragraph 20 of the Judgment (Red A/B 33 (line 56));
42.4     The experts agreed that “the ground floors of the site were built in more than one construction phase and that most appeared to have been built in approximately 1902” (paragraph 24 of the Judgment (Red A/B 34 (line 56));
42.5     “In 1914 a new façade and first floor were added to the existing building erected on Lot 26” (paragraph 29 of the Judgment (Red A/B 35 (line 45)); and
42.6     “In approximately 1902 construction took place at the front of Lot 26 but the experts are divided in their opinion whether such building [being the structures currently present on the First Respondents’ property and the Appellant’s property] comprised one or two shops or a shop front and a residence” (paragraph 28 of the Judgment (Red A/B 35 (line 36)).
43.It follows from the above factual findings by the Trial Judge that, at the time of the original construction of the structures presently upon the First Respondents’ and the Appellant’s properties, there was no second floor structure. That second floor structure was added to the buildings in about 1914. It is only by virtue of that second floor structure that the buildings became joined. Therefore, at the time of their original construction the two buildings cannot have been one structure. In any event, there was never any internal means of passage between the two buildings. The Trial Judge has, therefore, fallen into error in his reasoning process and in his conclusions.”
As to whether No. 80 had been used as a shop at any time before 1914, the appellant provides an analysis of the evidence. It, I am satisfied, points against No. 80 as having been so used as a shop before 1914. I quote the evidence and submissions made by the appellant as distilled in his reply:
“31.Mackay’s thesis that there was only one building, incorporating both No 78 and No 80, constructed in 1902, is wholly conjectural. No explanation is offered as to why the two buildings are currently separated by the right of way if originally constructed as one building. The thesis only holds good if the upper floor was also constructed in 1902 with an internal passageway between the upper floors of the two buildings, so as functionally to join the two disjunct parts constructed at ground level. The weight of the evidence (apparently accepted by Cowdroy J) is that the upper floor was not built until 1914. In fact, as stated earlier, Mackay seeks to explain the plural reference to “buildings” in the Annals of St Aidan’s by hypothesising that the extra storey had not yet been constructed in 1902 when that reference was made (see Black A/B 356Q-R and 358D-F). That explanation also has no basis in anything but conjecture.
32.There is no objective written record which identifies the present No 80 as having been a shop at any time before 1914. Mackay’s argument that the two disjunct buildings were both butcher’s shops (one for fresh meat, one for cured) is entirely conjectural, utterly unsupported by any evidentiary material and is also unlikely. Why would a butcher operate two shops, side by side, with a carriage way between, thus requiring additional staff and making it necessary for meat to be transferred in the open air from one to the other?
33.Much the more likely scenario, it is submitted, is that No 78 was the shop and No 80 the residence. The physical separation of a house and a butcher’s shop makes sense and avoids disturbance of residential amenity by smell, and noise from deliveries and the use of saws and cleavers. Living above a butcher’s shop in the days before refrigeration would not be an attractive prospect. Further, there is no evidence that No 80 was constructed as a butcher’s shop. Even in its present form, the shopfront area of No 80 is very small and without amenities, and the stairs to the first floor are adjacent: see Blue A/B 70Q-T. There is no evidence in the fabric of the building to suggest that the front room of No. 80 was purpose-built as a shop (Blue A/B 9I-J). In any event, the thesis of construction as a single building is not supported by the fact that no internal means of passage seems ever to have existed between No 78 and No 80.
34.Mackay’s willingness to resile in cross-examination (see Black A/B 346ff) from his previous position, so much as to concede that the views held by the Appellant’s experts were rational and possible (although, for reasons he did not state, he still formally adhered to his original thesis) weakens his evidence to the point where it may confidently be submitted that the preponderance of evidence is that:
34.1.    No’s 78 and 80 were constructed in 1902 as two free-standing buildings on the one parcel;
34.2.    that from completion, No 78 was used as a butcher’s shop and No 80 as a residence (or at least not as a shop or for any other non-residential purpose);
34.3.    that it was not until 1914 that additions were constructed which physically attached the two buildings at first floor level, although only by a party wall; and
34.4.    that the “shopfront” at No 80 was not constructed until 1914 or soon thereafter by changing the use of the front room of the house to a shop, in which a confectioner began operation shortly thereafter.”
The second respondent, Leichhardt Council, relied upon a document entitled “Schedule 1” as an “evidentiary schedule” supporting the opposite submission. It was that as of 1902, No. 78 and No. 80 constituted one building. I do not consider that proposition was made out. It does not accommodate the concessions made by its expert Mr McKay, in the cross-examination referred to above. While much of the material in Schedule 1 overlaps with the material referred to by the appellant, it could not be said that Schedule 1 is accepted by the appellant as uncontroversial; see paras 42 to 49 of the appellant’s written submissions in reply.
When Mr Preston, SC, counsel for the second respondent, put his oral argument on appeal, while he did not in terms concede the propositions to which I have earlier made reference concerning the separateness of the two buildings in 1902 and the non-residential usage commencing only in 1914, his submissions in the end did not really take serious issue with the substantial evidentiary basis for those propositions. Rather, he submitted that the buildings, as altered and added to in 1914, became a single new building upon that alteration and addition and thus must satisfy cl.23(6)(a). Indeed Mr Preston, SC put his submissions in a number of alternative ways, all designed to confess and avoid the respondents’ contention that until 1914 there were two buildings and only from 1914 was there one building, but a building part of which “was constructed for a non-residential use” in terms of cl.23(6)(a).
Thus it was submitted that it did not matter whether there was one building or two when No. 80 was originally constructed in 1902, because either way cl.23(6)(a) would be satisfied, treating that provision as a jurisdictional fact. The latter was a point now conceded; see, for example, T, 21/11/03 at 60.55. But the appellant disputed that this pre-condition was an objective one asserting instead that it was a subjective pre-condition. I shall return to that later.
The argument ran that if there were one building when No. 80 was originally constructed in 1902, then clause 23(6)(a) must be satisfied. However, if one takes into account the construction of a second storey coupled with a new shop-front for No. 80, that building itself constituted a new single building with No. 78 in its own right or by virtue of the joinder at the first floor level.
That too it was said satisfied clause 23(6)(a) for the reasons developed in various ways below. First, it was argued that No. 80 was so extensively altered and added to in 1914 that it became a new building. It was as from that time at least constructed (as to the shop on the ground floor) “for a non-residential use” within cl.23(6)(a). Clause 23(6)(a) only required a part of the building constituted by No. 80 to be so constructed. In particular, that part of the shop on the ground floor constructed for a non-residential use allowed Council to consent not only to the non-residential use of that part but to non-residential use of the whole of No. 80 and to be altered so it could be so used. The syntax of cl.23(6) refers to consent being granted “to the use of a building or part of a building” if “the whole or part of the building was constructed for a non-residential use” [emphasis added]. The second reference to “part” is not linked back to the first reference to part by a qualifying word like “that part” or “such part”. Thus the consent may relate to non-residential use of a different part of the building to that part previously constructed for a non-residential use.
If this argument were accepted, it would pre-suppose that even if cl.23(6)(a) is to be understood as reading in the word “originally” before the word “constructed”, the extent of the alterations to No. 80 rendered it in effect a new building “originally” constructed from 1914 for a non-residential use.
However, the second respondent’s argument was not put only on that basis. The primary submission of the second respondent is that the word “originally” or language to similar effect, is not presently to be found and should not be implied. The contention is that “the building” is whatever that building happens to be at the time the application is made to council for development approval pursuant to cl.23(6). If that building was at any time constructed by way of alteration or otherwise for a non-residential use then, provided that construction was permissible at the time, this would suffice to satisfy cl.23(6)(a).
The argument then proceeds that as in 1914 a non-residential use was the subject of the construction change whereby a shopfront was installed on the ground floor (being subsequently used for a confectionary business) this constituted the necessary non-residential use. Alternatively, if No. 78 and No. 80 constituted the one building as from 1914, then the same analysis applies.
In support of that broader construction of cl.23(6)(a), the second respondent seeks to place that provision in context. Thus cl.20 of the LEP sets out relevant objectives of the Leichhardt’s Local Environment Plan or LEP “in relation to employment”, of which paras (b), (c) and (i) are relevant, quoted below:
“(a)……
(b)to ensure the sustainable growth of Leichhardt’s economy by retaining existing employment uses and fostering a range of new industrial and business uses, to meet the needs of the community, and
(c)to ensure new buildings are compatible with existing street and allotment patterns, the orientation of existing buildings and the pattern of open space. New buildings should complement the style of surrounding buildings, works and landscaped areas, and
……
(i)to ensure non-residential development in residential zones does not detract from the function of the established business centres or adversely impact on amenity.”
Those objectives emphasise the economic and community value in retaining existing compatible employment uses. If in the present case a non-residential use of No. 80 dating back to 1914 were to be precluded, this would hardly comport with those objectives. Nor would it fulfil the evident purpose of cl.23(6), as articulated by Cripps J: “to mitigate the hardship of owners of land who had lost (or never had the opportunity to exploit) existing use rights in residential zones; Leichhardt Council v Saleh (unreported, LEC No. 40171 of 1986, 5 December 1986), Cripps J at 11. I agree with that reasoning.
It can therefore be seen that the effect of sub-cl 23(6) is to add to the nominated purposes for which development may be carried out with development consent in the Residential Zone, by including, where sub-cl.23(6) is satisfied, the purposes for which use is allowed in the Business Zone (except those purposes excluded by sub-cl.23(7). Where so satisfied, the result is in effect to amend the list of nominated purposes in item 3 of the Development Control Table for the residential zone in cl.18 of the LEP by adding these other non-residential use purposes. Development for any of these other purposes is allowed, provided development consent is obtained, in the residential zone.
There is also a live dispute between appellant and the second respondent as to whether the applicant for development consent carries the burden of proof to demonstrate satisfaction of any of the jurisdictional facts upon which cl.23(6) depends or whether the onus is on the party opposing that application, being here the appellant. At the least, the appellant submits that in evidentiary terms the burden of proof with respect to the existence of a jurisdictional fact necessarily falls upon the party asserting compliance with such a requirement. I agree that the burden of proof falls upon the respondent to demonstrate satisfaction. The very nature of a jurisdictional fact is that if the pre-condition be not satisfied, then the jurisdiction of council to grant the development consent would be absent. Moreover, I consider that the pre-condition here in question is an objective one, requiring demonstration by the appellant of whether construction for a non-residential use has taken place. That entails also determining when that must have taken place in order to satisfy s23(6)(a).
I start with the objectives of the LEP as an important aid to the construction of cl.23(6)(a), namely retaining existing employment uses in order to ensure the sustainable growth of Leichhardt’s economy (cl.20(b)). In so doing they “mitigate the hardship of owners of land who had lost … existing use rights in residential zones”. If cl.23(6)(a) limited commercial use of non-residential buildings in a residential zone to those which at the time they were first built were constructed for a non-residential use, that would indeed defeat that objective. How restrictive and oppressive this would be in result is illustrated by the present circumstance. Here we have a building which has been used for commercial purposes for nearly 90 years. It would be an extraordinary result if that use were retroactively impermissible by virtue of the current LEP. It would on that restrictive interpretation be impermissible because the non-residential use did not date back to the time there were first a building on No. 80 and notwithstanding that the construction for a non-residential use can be taken to have been permissible at the time, 90 years ago, when it was first carried out.
That interpretation is supported by the complete absence of any language equivalent to the adverb “originally” to qualify the verb “construct”. Moreover, the verb “construct” is not limited in operation to the original erection of a building.
Thus it is significant that cl.23(6), when its conditions are satisfied, not only permits non-residential use of a building requiring no further alteration for that purpose. It also permits alteration to the building so that it is enlarged, added to and rebuilt and to an extent different in scale, nature and character to what was there before (see Parramatta City Council v Bolton (1974) 33 LGRA 303 at 308-309, 312-313 per Hope JA with whom Hutley and Samuels JJA agreed, citing with approval Woollahra Municipal Council v Banool Developments Pty Ltd (1972) 27 LGERA 396 at 411 per Kerr CJ and Jacobs JA; Rodi v Warringah Shire Council (1975) 33 LGERA 314 at 320-321 per Waddell J and Leichhardt Council v Saleh (supra) per Cripps J at 12-13); That is consistent with a relatively expansive scope to the clause generally.
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.”

Before considering the availability of alternative sources of power, I commence by considering the source of power relied upon without considering what additional effect cl.7(2) of LLEP 2000 has in the circumstances.
The argument which implicitly the Council appears to have accepted for the unaided sufficiency of cl.23(6) of the LLEP is stated at [108] to [112] of the second respondent’s original trial submissions which are incorporated in the current submissions. I set out the relevant paragraphs below:
108.In relation to the first source of power, the grant of consent to use a building situated within a Residential Zone for a purpose allowed with consent in the Business Zone (such as real estate agency in this case) ordinarily will authorise the use of the allotment of land upon which the building is situated for that purpose.
109.The allotment on which the building is located is rightly regarded as a unit. Use of part of the allotment (the part on which the building is erected) for the authorised purpose will result in the whole of the allotment constituting the unit being used for that purpose: Steedman v Baulkham Hills Shire Council (No. 1) (1991) 87 LGERA 26 at 27 per Meagher JA.
110.The nature and extent of the use of the land for a purpose allowed with consent in the Business zone (in this case, real estate agency) shows that the whole of the allotment upon which the building is erected is the land to which the use authorised by the consent attaches: Scully v Leichhardt Council (1994) 85 LGERA 109 at 111 per Pearlman CJ.
111.Certainly, the total area of the allotment is not disproportionate to the nature of the use authorised by the consent (real estate agency): Eaton and Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 at 273 per Barwick CJ. Contrast the situation in Salvation Army v Newcastle City Council (2000) 107 LGERA 40 at 47-48 per Pearlman CJ and Lemworth Pty Ltd v Liverpool City Council (2001) 117 LGERA 305 at 313-314 per Stein JA where the nature of the use in those cases led to a conclusion that the land unit was smaller than the allotment.
112.The consequence in this case is that the grant of the use consent authorised the use of the whole of the allotment for the purpose of real estate agency.”
However, I agree with the appellant’s contention that a consent given “to the use of a building or part of a building” in the words of cl.23(6) does not by force of cl.23(6) alone carry with it a power to authorise the giving of a consent to the erection and use of other buildings on the land upon which the building stands, when that is for a prohibited purpose. In particular I agree that the “unit” in the case of applications made pursuant to cl.23(6) is expressly identified by the clause itself as the relevant building that gives rise to the cl.23(6) exception. It is not the land upon which the building is situated or further buildings ancillary or otherwise that may be sought to be erected on the land. Such a construction finds no warrant in the words of cl.23(6) and involves a substantial extension of its ambit as expressed in the language used. That could, taken to its extreme, permit any number of commercial use buildings to be augmented on a site that happened to have erected on it the original building giving rise to the cl.23(6) permitted usage.
While here the garage is said to be a building ancillary in its use to the original building, that can only mean use ancillary to the commercial use contemplated, namely a real estate agency. Such a commercial use by way of the garage does not find support in cl.23(6), certainly not unaided. None of the authorities cited by the second respondent deal with a situation in which the planning unit, as here, is expressly stated in the empowering instrument (cl.26 of the LEP) to be a building or part of a building.
The second respondent attempted to extricate itself from this difficulty by putting two alternative arguments, both of which draw upon any additional power conferred by sub-cl.7(2) of LLEP. Clause 7(2) is best quoted in the context of the whole of cl.7 as I do below:
“General Provisions in Relation to the Development of Land
(1)          Zones which apply in the Plan
The following zones are applicable to land to which the Plan applies:
Residential Zone,
Business Zone,
Industrial zone,
Open Space zone,
Public Purpose Zone.
Land is included in a zone if it is shown on the Zoning Map in the manner specified in that zone’s development control table in the Plan.
(2)Development which is allowed or prohibited in each zone
Except as otherwise provided by the Plan, development of land within a zone that:
(a)      may be carried out with or without development consent, or
(b)      is prohibited,
is specified in the development control table for the zone.
(3)          Land use objectives
Consent must not be granted for development proposed within a zone unless the consent authority has taken into consideration such of the objectives of the Plan as are relevant to the proposal and is satisfied that the development is consistent with those objectives.
For the purposes of this subclause, in the event of an inconsistency between the general objectives of the Plan and a specific objective applicable to the proposed use, the specific objective applicable to the proposed use prevails.”
Clause 7(2) is also to be read with cl.18 which sets out what is described as a development control table for the residential zone and is in the following terms:
“18. Development Control Table: Residential Zone
The following Table applies to development within the Residential Zone:

(1) Description of the zone

The Residential Zone provides for residential development and allows, with consent, other uses which are compatible with residential amenity. Land within this zone is shown coloured pink on the Zoning Map.

(2) Development allowed without development consent

Exempt development

(3) Development allowed only with development consent

Development for the purpose of:

Advertisements
Bed and breakfast accommodation
Boarding houses
boatsheds
child care facilities
community facilities
community gardens
dwellings
educational establishments
exhibition homes
group homes
health care premises
high impact telecommunications facilities
home based employment
hospitals
local shops
places of public worship
playgrounds
public transport stops
roads
SEPP 5 housing
demolition
subdivision

(4) Prohibited development

Any development not included in item (2) or (3)

In effect the augmentation of cl.7(2) in aid of cl.23(6), said to empower the Council to grant the garage consent, occurs in either of two ways, the second of which drawing also on cl.18. The first way is by permitting the erection and use of a garage ancillary to the use of the main building for what is incontrovertibly a lawful purpose, namely the erection of a building and the use of that building for the purpose of “dwellings”; see list above. The second respondent then sought to argue that the grant of the garage consent was not outside power though as yet incomplete for so long as there was development consent for a dwelling upon No. 80:
“A garage can clearly be used for the purpose of dwellings. It matters not that at the present time there is not a use of the land for the purpose of dwellings. This simply means that the garage consent is incomplete. It will not be complete until there is a further development consent authorising the use of the main building for the purpose of dwellings. Such a further consent would, of course, be authorised by clause 7(2) of the LEP. However, the fact that the garage consent is not yet capable of being implemented because there is not yet a further development consent for the use of the main building for the purpose of dwellings does not mean that the grant of the garage consent was outside power.”
The short answer to this argument is that where there is no current dwelling, there can be no basis under cl.7(2) and cl.23(6) for permitting a garage to be erected for such use. To suggest otherwise is to rely on a fiction.
An alternative argument was however based on the combination of clauses 7, 18 and 23(6). That argument is succinctly set out in the second respondent’s incorporated written submissions at paras 113-4 quoted below:
“113On the proper construction of clauses 7, 18 and 23(6) adds to the purposes for which development may be allowed only with development consent in item 3 of the development control table in clause 18 for the Residential Zone, the purposes allowed only with development consent in the Business Zone. Hence, the grant of the use consent for real estate agency had the effect, in relation to this land only, of adding as a permissible purpose in item 3 in the development control table for the Residential Zone, real estate agency. This then enabled the Council to use the general power to grant consent under clause 7(2) of the LEP to the erection and use of a building on the land for real estate agency. The Council dealt with the two development applications in this order: first, determining to grant the use consent (item 26) and next, determining to grant the garage consent (item 27): see Exhibit 2, Vol 2, Tabs 53 and 54 and Tabs 37 and 38.
114Accordingly, the Council had power to grant consent for the erection of the garage and its use for the purpose of a real estate agency in conjunction with and as ancillary to the use of the main building on land for that authorised purpose.”
I would accept that this is a proper construction of clauses 7, 18 and 23(6). The use of a garage as being for the purpose of the real estate agency is, unlike the earlier submission that it is somehow an inchoate use for the purpose of future dwellings, perfectly tenable. The garage is clearly erected to be used for the purposes of the real estate agency. “It is clear from the evidence that the parking afforded by the garage was for staff and clients;” see Black, 58F-H and 62F-J. As such it becomes a permitted use within item 3 of the development control table in cl.18 for the residential zone in the manner set out above. The only difficulty remaining is whether the Council, which did not purport to rely upon that combination of clauses, may be permitted to do so.
Spigelman CJ in VAW (Kurri Kurri) Pty Ltd v Scientific Committee (established under s127 of the Threatened Species Conservation Act 1995) [2003] NSWCA 297 identifies the circumstances in which an administrative body is permitted to rely on another head of power than that which it stated it was exercising. Spigelman CJ cites the observations of Bowen CJ in Australasian Broadcasting Tribunal & Actors Equity of Australia v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1 at 10 observing that the reasoning of Bowen CJ in the quoted passage below is stated too widely and should not be followed (at [20]). The quoted passage is as follows:
“… where an administrative body which states it is exercising a particular power in laying down a general rule lacks power on the stated ground, but could have laid down the rule validly under another head of power, it would generally be wrong for a court to uphold the rule as if it had been made under the unstated head of power, particularly where the consequences for the citizen of each exercise of power are different.”
Spigelman CJ refers to a number of subsequent authorities and in particular Lockwood v the Commonwealth (1953) 90 CLR 177 at 184. Bowen CJ indeed referred to Lockwood, but did so without explaining why it was not applicable, given his own conclusion to the contrary. In that case Fullagher J said, “It is, I think, a settled principle that an act purporting to be done under one statutory power may be supported under another statutory power …”.
Most recently in Newcrest Mining (WA) Ltd v the Commonwealth (1997) 190 CLR 513 at 618 Gummow J stated the proposition in the following way: “…the validity of an administrative act is not necessarily impugned by there having been a mistake as to the source of the power stated by the decision-maker as that upon which reliance was placed.” [emphasis added]
Spigelman CJ observed that the issue is always one of statutory interpretation and is dependent on the particular statutory regime under consideration (at [29]).
Turning to the present statutory regime as constituted by LLEP 2000, there is no incompatibility between cl.23(6) and cl.7(2) read in conjunction with cl.18. When they are continued in the way I have described, they form a scheme permitting limited non-residential development in residential zones in the circumstances laid down by cl.23(6).
Accordingly, reliance is here placed, not on an alternative source of power as such, but on several sources of power including cl.23(6), operating in combination and with no incompatibility between them. To quote the joint judgment of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93], “the test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in reliance on an inappropriate statutory power, but which could be supported by another statutory power should be invalid.”
Here, cl.23(6) was inappropriate only in the sense that, standing alone, it could not support approval of the garage but read with the linked provisions of clauses 7 and 18 LLEP 2000 there could hardly be any sense in which it was a purpose of the legislation to deny the effect of cl.7(2) and cl.18 in augmentation of cl.23(6).
conclusion
Accordingly, I would conclude that the garage was the subject of a valid consent. That is however subject to consideration of the appellant’s contention, that council’s discretionary determination was vitiated by Wednesbury unreasonableness.
wednesbury unreasonableness and the garage
Accepting then that the garage could have been approved by council within its powers, there is a further attack based on the decision being by Wednesbury unreasonableness; see appeal ground 4, which is in general terms. I have early concluded that para (a) of cl.23(6) is a jurisdictional fact which must be positively established and the only residual matter is whether the Council’s decision in granting consent to the garage was unreasonable in the Wednesbury sense. The trial judge canvassed various matters under this heading in his judgment (see [80-84]). The only matter pressed before us related to the need to encase the sewer. That was said to cause an obstruction of access to it. The trial judge concluded that “this of itself is not a ground of manifest unreasonableness”.
The circumstances were these. The garage is constructed over the sewer pipe which in turn has been encased. This means that the pipe would be protected but ready access would be prevented.
Council was well aware that the sewer line would be encased. As the trial judge noted (at [70]) this is what the report before Council said:
“the application [sic] proposes to construct a concrete casing around the existing sewer line in the area below the new garage. The existing pipes which service both 78 and 80 Booth Street are understood to be clay pipes and their condition is unknown. The applicant has subsequently advised that they intend to excavate around and expose the pipes during construction to allow inspection. Sections of pipe failed to be damaged will then be replaced as needed with new sections prior to encasing as part of the construction process.” [emphasis added]
Therefore there can be no suggestion that the Council were unaware of the position concerning encasement and the position of the pipes. Its decision to grant consent was not vitiated by Wednesbury unreasonableness. It was for Council to determine whether, aware of the problem of convenient access to the pipes beneath the approved garage, it should impose a condition about encasement. Council must have been conscious that encasement protected the integrity of the pipes so reducing the likelihood of any need for access. It was for council to weigh up the advantage of ready access, as against any disadvantage or cost from risk of damage if not encased.
conclusion
Council’s decision to grant development consent to the garage was not so unreasonable that no reasonable council could have decided as it did.
OVERALL CONCLUSION
Accordingly, the appeal must fail both as to the development consent in relation to the real estate agency at 80 Booth Street and the development consent in relation to the garage on the same property.
There remain related appeals concerning various cost orders which I deal with in a separate judgment. For reasons which I there elaborate, those appeals fail also.
ORDERS
I would propose orders as follows:
1. Appeal dismissed.
2.The appellant to pay the first and second respondents’ costs of the appeal.
IPP JA: I agree with Santow JA
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LAST UPDATED: 23/03/2004

[2004] NSWCA 70

15 March 2004