Gorczynski v Perera & Ors

[2005] HCATrans 100

[2005] HCATrans 100

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S136 of 2004

B e t w e e n -

PETER FRANCIS GORCZYNSKI

Applicant

and

RAVINI NELUKA PERERA

First Respondent

REBECCA PATRICIA DEE

Second Respondent

LEICHHARDT COUNCIL

Third Respondent

Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 MARCH 2005, AT 12.31 PM

Copyright in the High Court of Australia

MR T. HALE, SC:   If the Court please, I appear with my learned friend, MR V. V. BEDROSSIAN, for the applicant.  (instructed by Wordsworth Lawyers)

MR P.R. CLAY:   May it please the Court, I appear with MS M. CARPENTER, for the first respondent.  (instructed by Mallesons Stephen Jacques)

MR B.J. PRESTON, SC:   Your Honour, I appear with MS H.P. IRISH, for the second respondent, the Council.  (instructed by Pike, Pike & Fenwick)

McHUGH J:   Yes.  Mr Hale.

MR HALE:   Your Honour, the question at issue is the proper construction of certain clauses of the Leichhardt Local Environmental Plan, in the context of the findings of fact made by the Court of Appeal. I acknowledge the burden I have in persuading the Court that leave should be granted.

McHUGH J:   It is a very significant burden you have to carry.  It does not excite one as a potential case for special leave to appeal, Mr Hale.

MR HALE:   That is why I acknowledge it from the outset and particularly having regard to your Honour’s comments in the last matter.  Perhaps I could come to that later because we put the case on the basis that having regard to the findings of fact made by the Court of Appeal – that is the primary findings of fact – that the appeal should have been allowed.  The subject matter of the appeal is this.  The applicant is the owner of 78 Booth Street, Annandale.  The first respondent is the owner of the adjoining property, 80 Booth Street, Annandale.

The applicant challenged the validity of a development consent granted by the Council which would permit a commercial use of the entirety of the adjoining property, that is 80 Booth Street, the commercial use being a real estate office.  The land is zoned residential and the applicant contends that the use is prohibited.

McHUGH J:   The consent relates to the use of the ground floor?

MR HALE:   In fact to the entirety.  The use, as I say, in a residential area – commercial use is prohibited unless, as was the issue in the case, the applicant for consent could bring itself within clause 23(6) of the LEP.  If I could take the Court to that, conveniently it is set out at page 39 of the application book.  It is elsewhere but that is probably a convenient place to see it.

McHUGH J:   It simply says, does it not, that it is a precondition of its application that:

the whole or part of the building was constructed for a non‑residential use ‑ ‑ ‑

MR HALE:   As your Honours know, over a period of 11 days before the trial judge the trial judge made certain findings of fact.  The Court of Appeal made different findings of fact and on our contention based upon those primary findings of fact clause 23(6) has not been made out.  Fundamentally, going back to clause 23(6)(a) which requires “the whole or part of the building” being “constructed for a non‑residential use”, the way the case had been conducted and, indeed, found before the trial judge was that prior to 1914 both properties, 78 and 80, had been connected and therefore it came within the terms of 23(6).

The Court of Appeal came to a different view of the facts and we have summarised those facts in the summary of argument but, put simply, the findings made by the Court of Appeal are these.  Firstly, it found that prior to 1914 the two buildings were separate and we find that at page 5 of the application book, that No 80, the subject property – it is paragraph 43 at the bottom of page 55 of the application book.  What the Court of Appeal found is that in approximately 1902 a single dwelling had been constructed.  It was constructed and used as a residence.  The court then found and accepted the appellant’s submissions that in 1914 there were alterations made to the façade of the residence on the ground floor of No 80, namely, to make a shopfront.  The front of the ground floor was subsequently used for a commercial use.  Additionally, there was a first floor constructed in 1914.  Your Honours will find those fundamental findings, as I say, firstly at paragraph 43 at the bottom of page 55, going over to 56.  As your Honour sees in the second line of 56:

It was only by virtue of that second floor structure that the buildings were joined.

It quotes the submissions of the appellant.  Your Honours will see at 42.5:

“In 1914 a new façade and first floor were added to the existing building –

That is the work undertaken in relation to the ground floor, at least the basis of the finding for the work done to the ground floor.  His Honour also found, at page 57 of the application book, paragraph 44:

I am satisfied –

that the evidence –

points against No 80 as having been so used as a shop before 1914.

On the evidence the position is, applying it to section 23(6), in our submission, neither part of the building was constructed for a non‑residential use.  The ground floor was originally constructed in approximately 1902 and altered with the building, or the alteration of a shopfront window which does not constitute its construction.  The first floor was constructed in 1914 and there is no suggestion that it was constructed for anything other than residential use.

Our contention, upon those facts, is neither part of the building was constructed for a non‑residential use.  If one has a single storey which has a second storey added then, in our contention, the building is constructed in two stages.  Ones does not simply say that the addition of the second floor renders it a new building, a new construction.  I say that in the context of the fact that the shopfront is the alteration upon which the judgment was based.  Your Honour will see that, in particular, at application book 60, paragraph 52.

We contend that the provision, properly understood, to a building or part of a building was constructed means – construction of a building means the building of a building and, as we say, if the ground floor was built then part of the building was built in 1902 for residential use.  The first floor was constructed in 1914 for a non‑residential use.  No residential use is asserted.  His Honour’s findings, based upon his ultimate conclusion, based upon the findings of fact, are found at application book 63 at paragraph 61 under “CONCLUSION”.

His Honour seems to have considered that the construction of the building would take place after the second floor was added.  We contend that was an error in the interpretation of construction of clause 23(6)(a).  We contend a simple point, not a factual question, except to the extent relating the facts as found by the Court of Appeal to the provision.  The next point and the next challenge is to be found in relation to another part of the development, namely, the garage.

McHUGH J:   Is this the consent to the erection of the garage, is it?

MR HALE:   The consent to the erection of a garage.  What the Court of Appeal found was that by virtue of 23(6) the table of prohibited uses had been altered.  If I could take your Honours to application book 67 and 68 where the relevant provisions are set out, your Honours see at about line 23:

Development which is allowed or prohibited in each zone

Except as otherwise provided by the Plan, development of land within a zone that . . . 

(b)      is prohibited,

is specified in the development control table –

If your Honour sees clause 18, it is at the bottom of that page, and if you go over the page, commercial uses are not permissible, do not come within item (3) and therefore come within item (4).

McHUGH J:   I thought his Honour held it was permitted use within item (3) of the Development Control Plan - Justice Santow, I mean.

MR HALE:   No, with respect.  What his Honour did is his Honour took the view that since 23(6) applied to the house, therefore, as I understand his judgment, he concluded that the land use table was effectively expanded by virtue of 23(6).

McHUGH J:   Yes, and because of 23(6) it then became a permitted use within ‑ ‑ ‑

MR HALE:   That is so.

McHUGH J:   Yes.

MR HALE:   Our point is this, that 23(6) is an exception, going back to subclause (2).  That is on page 67 of the application book.  It is an exception.  It does not affect the land use table.

McHUGH J:   His Honour did not agree with Justice Cowdroy’s approach to that issue, did he?

MR HALE:   That is correct.  It was overturned on that as well.  His Honour’s reasoning was that since the garage was going to be used for a commercial purpose, therefore, that was the use it would have and therefore by reason of the combined effect of the land use table and clause 23(6) it was now permitted.  We say as a matter of construction that cannot be so.

McHUGH J:   Has not this ordinance been amended since the decision of the Court of Appeal?

MR HALE:   It has been amended but only in a minor respect and that brings me to an apology I should make.  In our submissions we included, I

think, the amended form of it which relevantly I do not know has any bearing on the matter.  They are the simple propositions we advance.  While that latter point might have some general application to the local government law of New South Wales, I cannot put it any higher than that, it being a conventional type of clause – not 23(6) but the land use total.

The basis upon which we seek leave is that it is the case of an applicant seeking to restrain what was contended to be an unlawful use in the property next door to his.  It was a case which was conducted at first instance over a period of 11 days, going through the historical material leading to the trial judge making findings which obviously were not accepted by the applicant, but those findings effectively being overturned more consistently with the contentions of the applicant and we would contend that in the circumstances if it were the case that the Court of Appeal’s judgment were erroneous and were allowed to stand, in the circumstances it would render an injustice to the applicant.

No doubt it will be pointed out by my learned friends, if called upon, that the applicant does lawfully conduct in part of his property, the ground floor, a commercial use, namely a laundromat, but that is not to the point.  That is the basis upon which we put this simple point.  I do not know that I can say anything further.

McHUGH J:   Yes, thank you.  The Court need not hear you, Mr Clay or Mr Preston.

This case concerns the construction of three clauses in the Leichhardt Local Environmental Plan 2000 and its application to a particular set of facts. In the Court’s opinion, there is nothing about the case that warrants a grant of special leave to appeal.

Accordingly, the application must be dismissed and must be dismissed with costs.

AT 12.46 PM THE MATTER WAS CONCLUDED