Harris v Pittwater Council

[2006] NSWLEC 697

Land and Environment Court

of New South Wales

CITATION:	Harris v Pittwater Council [2006] NSWLEC 697
PARTIES:	APPLICANTS Brian Harris and Victoria Harris RESPONDENT Pittwater Council
FILE NUMBER(S):	40440 of 2006
CORAM:	Pain J
KEY ISSUES:	Construction and Interpretation :- Whether two detached dwelling houses on single lot were lawful under Cumberland Planning Scheme Ordinance - whether two existing detached houses are dual occupancy development
LEGISLATION CITED:	County of Cumberland Planning Scheme Ordinance Evidence Act 1995 Local Government Act 1919 Pt 12 Local Government (Amendment) Act 1951 Pittwater Local Environmental Plan 1993 Warringah Planning Scheme Ordinance 1963
CASES CITED:	Canterbury Municipal Council v Revel Pty Ltd (1969) 17 LGRA 104; Holmes v Ryde Municipal Council (1969) 17 LGRA 366
DATES OF HEARING:	03/11/2006
DATE OF JUDGMENT:	11/07/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr J Ayling SC with Mr D Morgan SOLICITORS Abbott Tout RESPONDENT Mr A Galasso SC SOLICITORS Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

7 November 2006

40440 of 2006 Brian Harris and Victoria Harris v Pittwater Council

JUDGMENT

1 Her Honour: In these Class 4 proceedings the Applicants are seeking a declaration that the use of 23 Paradise Avenue, Paradise Beach, Clareville for two detached dwelling houses is lawful under the Pittwater Local Environmental Plan 1993 (“the Pittwater LEP”). In the alternative, a declaration is sought that the property enjoys existing use rights for two detached dwelling houses.

2 It became clear in argument that if it becomes necessary to seek the alternative declaration concerning existing use rights, the first declaration would have to be made first in any event. In other words, the declarations sought are not literally alternatives.

3 Essentially the issues in the case revolve around firstly, whether the construction of a second dwelling house on the lower level at 23 Paradise Avenue Paradise Beach, now known as 23A, was lawful at the time it was constructed in about 1960. The land built on has frontage to a public reserve and Pittwater. Secondly, if it arises following my conclusion on the first issue, whether under the Pittwater LEP 1993 dual occupancy provisions (introduced in 1999), the two dwellings are prohibited development. If I hold that they are prohibited then the declaration of existing use rights is sought. At the time 23A was built there was an existing house on the upper level of the block known as 23. These proceedings were commenced after an application to make alterations to 23A was refused by the Council because it did not consider existing use rights applied for two dwelling houses on the land.

4 There was a large fire in the relevant council chambers (then Warringah Council) in 1970s and a large number of Council records were destroyed.

5 Prior to 1 May 1992 the land was located in the Local Government Area of Warringah Shire Council. The County of Cumberland Planning Scheme Ordinance (“the CPSO”) was published as a schedule to the Local Government (Amendment) Act 1951 and by s 2 of that Act it was deemed to be an ordinance. The CPSO was proclaimed in the Government Gazette on 2 August 1957.

6 Prior to 1960 and until after 1961 the land was located in the “Living Area” zone under the CPSO. In that zone the only purpose for which buildings could be erected or used without development consent from the responsible authority was for dwelling houses.

7 On 1 May 1992 pursuant to a proclamation of the New South Wales government the Local Government Area of Pittwater was proclaimed. Upon that proclamation the land came within the Local Government Area of Pittwater.

8 The Shire of Warringah Planning Scheme Ordinance 1963 (“the Warringah PSO”) replaced the CPSO in 1963 and the subject land was zoned Residential A. Dwelling houses did not require development consent under that PSO. No issue arises in this case about its application, I mention it only for completeness.

Whether building lawful in about 1960

9 There is no dispute that the building (now known as 23A) was built on the land in about 1960 by the then owner, Mr Tyrrell (also referred to in the evidence as Mr Terrill), or at least the Council has called no evidence to dispute the Applicants’ evidence about its physical construction at that time. The Council does not contest that the building has continued to stand up to the present.

10 The affidavits relied on by the Applicants provide evidence relating to the use of the property from the time it was built until the present. Mr Frank Takos, a qualified architect, stated in his affidavit sworn 3 October 2006 that the property appears to have remained largely unaltered since 1950s and/or 1960s. Annexed to his affidavit is a copy of his expert report entitled “Determination on Authenticity & Age of Residence”. This report considered various aspects of the property and stated that areas such as the ground floor bathroom and kitchen included interior decorating details typical of the 1950s and 1960s.

11 The affidavit of Neil Champion sworn 29 May 2006, stated that he has visited the area for holidays since 1954 and is familiar with the subject property. From the 1950s he observed people living in each of the two dwellings on the site, and using two separate driveways, leading him to believe that Lots 23 and 23A were unrelated, separate dwellings.

12 The affidavit of Gary Gleeson sworn 1 June 2006, who resided in close proximity to the subject site during the 1950s and 1960s, stated that the subject property was separate accommodation from the original dwelling built on the land, and was built for Mr Tyrrell’s children (Mr Gleeson’s cousins) to reside in. He stated that he inspected the building in 2005 and it remained as he remembered it during the 1950s and 1960s.

13 The affidavit of Colin Beard, who rented the subject property between 1988-1999, stated that the dwelling house comprised a lounge room, two bedrooms, a kitchen and a bathroom on the first floor, and garage on the lower floor with additional bathroom facilities. The subject property was separately metered for electricity and he paid those bills. He had his own garbage bin, which the Council would collect. The water board connected the whole property and surrounding area to the sewer in 1990. He stated that the dwelling house at the rear was always separately occupied during this time. Mr Beard stated that he enjoyed the property’s full amenity during this time, and found it a comfortable and adequately serviced house in which to reside.

14 The affidavit of Bernie Moriarty, a registered surveyor and photogrammetrist sworn 18 July 2006, attached photographic evidence of the two buildings on Lot 23A and 23. According to the photographs, the subject building was not in existence in 1955, but was by 1961 and in 1967.

15 The Applicants also relied on two statutory declarations, that of Neville Norman Whitting, sworn 15 May 2002, builder of the subject property, and of Norman Henry Harris, neighbour of Mr Tyrrell from 1958 to 1983. Both Mr Whitting and Mr Harris are deceased.

16 A notice under s 67 of the Evidence Act 1995 was issued by the Applicants’ solicitors to the effect that they intended to rely on Mr Whitting’s and Mr Harris’ statements as both are deceased. I allowed these statements to be read despite objection from the Council under s 138 of the Evidence Act that the evidence was prejudicial and this outweighed its probative value. I was not satisfied that was so in the circumstances of this case where the Applicants bear the onus of proving matters which occurred a long time ago, the Council’s records which could assist the Applicants’ case are likely to be incomplete, and the statement was sworn by persons whose evidence is clearly pertinent to the issues before the Court. While I appreciate that the Council does not have the benefit of cross-examining Mr Whitting in particular that should not prevent the Applicants relying on the statement and I intend to take the matters in it into account. The same could be said in relation to Mr Harris although his evidence is less crucial to the Applicants’ case.

17 The statement of Mr Harris was read into evidence. It stated that his brother in law built the second building on Mr Tyrrell’s land for Mr Tyrrell and his wife. He stated that whenever he visited the property, the second building appeared occupied. The building was separately connected to the power supply and he would not describe it as a boatshed or storage area. It was a self-contained dwelling with bathrooms, living room, kitchens, two bedrooms and a garage underneath. He also stated that the subject property appeared no different to him on his last visit in 2002 than when it was first built, except that it has now been clad in sheeting and has aged.

18 The statement of Mr Whitting was also read into evidence. It stated that he built the subject dwelling in the early 1960s, under contract to Mr Richard Tyrrell. He stated that he lodged a building application to Warringah Shire Council to do so. He stated that he specifically remembered having this application stamped by the Council. He built for Mr Tyrrell’s son and daughter a separate self-contained house in accordance with approved plans. During the course of construction the Council building inspectors came and inspected the work. The house was connected to the local electricity supply, and built with a separate septic tank. When the building was completed, the Council officers came to the site for a final inspection, and no problems were noted.

19 The Applicants argued that the then owner of the land had obtained building consent under the Local Government Act 1919, Pt 12 as that was the only consent required and the building was lawful. The Applicants’ evidence did not include the building consent issued by Warringah Council. Nor was this produced from the Council’s records.

20 The evidence of Mr Whitting is important given his recollection of events as the builder of 23A in about 1960. The affidavit of Marc Nathan Jaku, solicitor for the Respondent, sworn 3 November 2006 attests to a conversation he had with the widow of Mr Whitting, who told him that no records in relation to the subject property were kept by the couple. This was used as the basis for an argument that Mr Whitting was relying at the time he swore the affidavit solely on his memory of events many years before. Nevertheless I intend to give it weight.

21 The Council disputed that 23A was constructed and used as a dwelling house however and argued it was constructed and used as a boatshed. It relied on a plan lodged by the Cape Cod company with a development application to Warringah Council in 1982 for alterations to the house on the upper part of the property. That plan identified the building as a boatshed and garage. The plan produced from the Council’s file shows the site plan has been drawn through with the words “site plan deleted” written over it. There is no explanation for this.

22 I note that the affidavit of John Brennan sworn 15 June 2006, a nearby resident of the area from 1978 to 2005, stated that in 1982, the owners of the subject property were Stan and Pauline Austin, who rented 23A to a series of tenants. He stated that although the subject property has changed hands many times since he first moved to the area in 1978, it had always had a tenant until he left in 2005.

23 The Council also relied on copies of building records in the Council’s card system, a manual record of building applications granted by Warringah Council at that time. The cards produced show three entries for the subject property. One is an entry from 1960 for Paradise Avenue, Plan no A114.59 with Tyrrell as owner, Whitting as builder, description “W Adds, Lot 22/4, Asst 9365”. There is no explanation in the affidavit of Caroline Jeanne Kades Council officer, sworn 2 November 2006, to which they are attached as to how the system operated, in particular as to what “W adds” means. The Council submitted that must mean “weatherboard additions”, which does not suggest a new building was built. The Applicants argued that in the absence of any explanation of how the system operated “W adds” could easily be considered to refer to a new building. This entry in the card system otherwise confirmed the evidence of Mr Whitting in any event in my view.

24 The affidavit of Michelle Cramsie Council officer, sworn 21 August 2006, was relied on which stated that according to the Council’s domestic waste records there was only one rate notice issued to the premises, which had been the case since at least 2000, and one domestic waste charge service being charged for the property since at least 1993. I agree with the Applicants that none of that is conclusive that 23A Paradise Avenue does not have two dwelling houses on it, given that there is only one owner of the land.

Application of the CPSO

25 The Council argued that development consent was required under the CPSO because the building did not satisfy the definition of dwelling house in the Ordinance and that no such development consent was obtained. “Dwelling house” is defined under the CPSO as:

… a building designed for use as a dwelling for a single family, together with such outbuildings as are ordinarily used therewith, and includes a dwelling in a row of two or more dwellings attached to each other such as are commonly known as semi-detached or terrace buildings.

A dwelling house did not require development consent.

26 The Council argued that there was no provision in the CPSO allowing more than one dwelling on a single lot. (As the Applicants stated, nor is there a prohibition.) Further Ordinance 71 applied and this provided for a council to specify a minimum lot size and in default nominated 2500 square feet as the minimum lot size. The parties disagreed that the subject lot is much larger than 2500 square feet.

27 Because there was already a dwelling house which satisfied the definition on the lot when 23A was built, a further building which was not an outbuilding or a semi-detached building could not be a dwelling house. What was built as a result of 23A was two buildings for two families. The cases of Canterbury Municipal Council v Revel Pty Ltd (1969) 17 LGRA 104 and Holmes v Ryde Municipal Council (1969) 17 LGRA 366 were relied on to support this argument.

28 The Applicants argued that the building clearly met the definition of dwelling house because it was a single building, designed to meet the needs of a single family.

29 I agree with the Applicants that the building 23A is a dwelling house as defined in the CPSO. It clearly meets the terms of the definition. In the absence of any limitation on the number of detached dwelling houses on a single lot under the CPSO it appears that the dwelling house known as 23A does not need development consent. Reliance on Ordinance 71 does not assist the Council given the size of this land is substantially larger than the specified minimum and there is no indication that the relevant Council identified a minimum lot size. Further I agree with the Applicants’ submissions that Ordinance 71 was directed to minimum lot sizes in relation to subdivision.

30 I do not find the two cases relied on by the Council to be of assistance given that the form of the buildings in issue was different to that here. Holmes concerned whether a single building consisting of several dwellings which were not terrace houses was a dwelling house under the CPSO. Justice Else-Mitchell held it was not. In Canterbury Municipal Council v Revel the building in issue was a cottage designed to accommodate two families. This was held not to satisfy the definition of dwelling house in the CPSO.

31 I consider the Applicants have discharged their onus of proof in proving that building 23A was built as a dwelling house in about 1960 and has been used since then for that purpose. I also consider the dwelling house built in about 1960 on the lower level of 23 Paradise Avenue was lawfully constructed.

Dual occupancy development Pittwater LEP

32 Dual occupancy development is defined under s 5 of the Pittwater LEP as:

dual occupancy development means development that results in 2 dwellings (whether attached or detached) on a single allotment of land (or which would have that result were it not for the fact that the allotment is to be subdivided as part of the development), and it makes no difference if dual occupancy development is described in another way in this or any other environmental planning instrument.

33 Clause 21B states that dual occupancy development on land within Area 1 as shown on the Dual Occupancy Map is prohibited. It is agreed the subject land is in Area 1.

34 The Council argued that the existence of the two dwellings does give rise to a dual occupancy development on the single lot and that the development of two detached dwellings was therefore prohibited. Development includes use of land under s 4 of the CPSO.

35 The Applicants argued that what is prohibited is dual occupancy development, in other words there must be development which results in two dwellings being created in order for cl 21B to have effect. There are two existing dwellings on the land which existed when the 1999 amendment to the LEP took effect. That amendment coming into effect did not render the two dwellings on one lot dual occupancy development and these are not therefore prohibited development. It is not therefore necessary for the Applicants to obtain a declaration that they have existing use rights for the two detached dwelling houses at 23 Paradise Avenue.

36 I agree with the Applicants’ interpretation of cl 21B. In terms of the order sought I therefore make an order in accordance with prayer 1.2 of the Amended Application.

37 I will reserve the question of costs.

Orders

38 The Court makes the following orders:

1. That on a proper construction of Pittwater LEP 1993 the use of the property, being Lot 22A in DP18005, Folio Identifier 22A/18005 known as 23 Paradise Avenue, Paradise Beach, Clareville as the site of the two dwelling houses presently erected thereon, is lawful.
2. Exhibits to be returned
3. The question of costs is reserved.