Lemnian Association of NSW Maroula Club Ltd v Canterbury-Bankstown Council - [2018] NSWLEC 1075

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Lemnian Association of NSW Maroula Club Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1075
Hearing dates: 18-20 September 2017, 26 October 2017
Date of orders: 24 May 2018
Decision date: 21 February 2018
Jurisdiction: Class 1
Before: Gray C
Decision:
The Court orders that:
(1)     The appeal is upheld.
(2)     Development consent (number DA 73/2017) is granted for the intensification and expansion of the use of premises at 42-44 Albert Street, Belmore for the purpose of a club house, and for alterations and additions to the club house premises, subject to the conditions in Annexure A.
(3)     Exhibits 12 and 14 are returned.

Catchwords:
DEVELOPMENT APPLICATION – appeal - existing use for the purpose of clubhouse – extent of existing use – characterisation of proposed use – whether proposal is an expansion or intensification of the existing use – impact of the expansion and intensification – whether impact can be managed with conditions of consent – acoustic impact – traffic and parking
BUILDING CERTIFICATE – appeal – notional development application – whether the building was for the purpose of a use not covered by the existing use – works required prior to the issue of a building certificate
Legislation Cited: Building Code of Australia
Canterbury Local Environment Plan 2012
Canterbury Planning Scheme Ordinance
Environmental Planning and Assessment Act 1979 ss 81A, 96, 106, 107, 108, 109B, 121B, 149E, 149F
Environmental Planning and Assessment Regulation 2000 cl 39, 41, 42, 43
Land and Environment Court Act 1979 s 39A
Liquor Act 1912
Local Environmental Plan 178
Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 Sch 3 Cl 7
Registered Clubs Act 1976
Canterbury Development Control Plan 2012
Cases Cited: Ashfield Municipal Council v Armstrong (2002) 122 LGERA 105; [2002] NSWCA 269
Ashfield Municipal Council v L Armstrong [2003] NSWCA 353
Auburn Council v Nehme (1999) 106 LGERA 19; [1999] NSWCA 383
Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404
Berowra RSL Community and Bowling Club Pty Ltd v Hornsby Shire Council (2000) 114 LGERA 345
Botany Bay City Council v Workmate Abrasives Pty Ltd (2004) 138 LGERA 120
Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114
Cracknell & Lonergan Architects Pty Ltd v Leichhardt Municipal Council (2012) 193 LGERA 151; [2012] NSWLEC 194
Foodbarn Pty Ltd v Solicitor-General for New South Wales (1975) 32 LGRA 157
Harris v Hawkesbury Shire Council (1989) 68 LGRA 183
Ireland v Cessnock City Council [1999] NSWLEC 153
Jojeni Investments Pty Ltd v Mosman Municipal Council (2015) 89 NSWLR 760; [2015] NSWCA 147
Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99
MM & SW Enterprises Pty Ltd v Strathfield Council (2010) 172 LGERA 125; [2010] NSWLEC 8
Paynter Dixon Constructions Pty Ltd v Fairfield City Council [2011] NSWLEC 127
Shire of Perth v O'Keefe (1964) 110 CLR 529
South Sydney City Council v Houlakis and Teakdale Pty Ltd (1996) 92 LGERA 401
Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276
TK Commercial Property Holdings Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 144
Category: Principal judgment
Parties: Lemnian Association of NSW Maroula Club Ltd (Applicant)
Canterbury-Bankstown Council (First Respondent)
Clarence Investment Pty Ltd (Second Respondent)
Representation:
Counsel:
Mr J T Svehla (Applicant)
Mr P Jackson, Solicitor (First Respondent)
Mr I Hemmings SC / Ms J Reid (Second Respondent)
Solicitors:
Soubris & Associates (Applicant)
Pikes & Verekers Lawyers (First Respondent)
Lionheart Lawyers (Second Respondent)

File Number(s): 2017/156256, 2017/37468
Publication restriction: No

Judgment

COMMISSIONER: The Lemnian Association of NSW Maroula Club Ltd (“Lemnian”) operates a registered club known as the Lemnos Club at 42-44 Albert Street, Belmore. Within the club is a space that is used for functions of various kinds, for which the second respondent, Clarence Investment Pty Ltd (“Clarence”) provides catering services.
Lemnian has lodged two separate appeals against decisions made by Canterbury-Bankstown Council (“the Council”) concerning works at the club. The first (proceedings 2017/37468) is an appeal against the refusal of a building certificate application relating to works carried out to change the internal layout of the building and create a large ballroom space on the ground floor of the premises. In the second (proceedings 2017/156126), Lemnian seeks development consent for alterations and additions to the club at the ground floor by adding two multi-purpose rooms and a lounge room and other alterations to the building, and has appealed to the Court following the expiry of the applicable deemed refusal period.
As a result of their commercial relationship with Lemnian, Clarence was joined as a second respondent to each appeal by Justice Moore on 23 June 2017, pursuant to s 39A of the Land and Environment Court Act 1979 (“Court Act”). Clarence supports the appeals. Whilst development for the purposes of a registered club is prohibited in the zone in which the land is located, Lemnian and Clarence rely on there being a lawful existing use. The Council opposes the grant of development consent and the building certificate application on the primary basis that they seek a separate and independent use of the premises as a function centre, which is also a prohibited use in the zone.

A summary of the outcome of the appeal

For the reasons set out below I find that the whole of the site benefits from existing use rights arising from the grant of consent in 1967, but that the existing use is defined by the terms of the approval and accompanying plans, as modified in 1970. I accept that the function activities component of the present application is not a separate or independent use of the premises, but that it forms part of the use for the purposes of a clubhouse. In so determining, I do not accept that the development application seeks a change in use or that the effect of the grant of a partial building certificate is to authorise a separate and independent use for the purpose of a function centre.
I am of the view that the proposal seeks an intensification and expansion of the existing use, and that the impacts of that intensification or expansion can be managed by conditions of development consent. Whilst I accept that the current operation of the club has significant amenity impacts on the surrounding neighbourhood, I find that with the imposition of conditions of development consent those impacts can be managed and that this will allow the Council to regulate that operation. Finally, for the reasons outlined I have determined that it is appropriate for a partial building certificate to be issued for the southern extension of the building upon Clarence or Lemnian undertaking certain works, and that the building certificate should be required as a condition of the development consent.

The site and its history

The site on which the club is located is comprised of two lots formally known as Lot 1 in DP 774899 and Lot 5 in DP 549655. The two lots have a total site area of 6134m2. The combined lots have an irregular shape with a 22m frontage to Albert Street to the northwest.
The entrance to the site is through a dead end lane parallel to and south of Albert Street, which is accessible from Cecilia Street to the west of the subject site. The site adjoins a railway line to the east, which runs in a northwest to south-easterly direction.
The locality is residential in character, and consists of a mix of single storey residential dwellings and residential flat buildings. To the west there are a number of residential flat buildings and single storey dwellings, and to the south the site shares its rear boundary with the rear boundaries of single storey dwellings fronting Adelaide Street.
In order to understand the nature of the appeals before the Court, it is useful to provide an outline of the history of the site.

Consent is given for the erection of club premises

On or before 6 May 1965, an application pursuant to cl 41 of the County of Cumberland Planning Scheme Ordinance seeking consent for the erection of club premises was lodged with the then Canterbury Council by the Masonic Club Punchbowl and Districts Limited (“Masonic Club”). On 18 May 1965, Canterbury Council approved the application in principle, subject to, firstly, the Masonic Club obtaining a lease from the then Department of Railways for that area of the land adjacent to the railway (now 42 Albert Street), secondly, the submission of detailed building plans and specifications, and thirdly, to making adequate provision for the parking of motor vehicles.
By letter dated 28 June 1966, Canterbury Council advised the Masonic Club that the application “for permission to erect a single storied brick Clubhouse” has been approved, subject to two conditions:

“1. The plans and specifications complying with the requirements of Ordinance 71 and the Local Government Act.
2. The car parking area being paved and drained to the satisfaction of the
Municipal Health Surveyor.”

On 22 August 1967 Council endorsed the plans and specifications as being “in accordance with the requirements of the Council and such of the Ordinances as apply thereto”. The plans included a bar, cool room, kitchen, dining room, TV/lecture/library room, common area, office, storage and toilets, as well as 56 car parking spaces. The Council has not provided, and there does not appear to be, any conditions associated with the consent other than those set out above.
On 28 August 1970, the Canterbury Planning Scheme Ordinance commenced, and the evidence of Mr Daintry, the town planner engaged by Lemnian who gave evidence at the hearing, is that the zoning of the land under this scheme meant that use for the purposes of a club was permissible on the site if consent was obtained.
On 19 November 1970, Canterbury Council approved an application to modify the 1967 consent to extend the building to provide additional dining room facilities, a sports room and television room, added toilet facilities and extensions to the existing cool room and bar room facilities. This is demonstrated by plans with a stamp affixed to them dated 26 November 1970 and stating “Approved subject to Ordinances 44, 71 and 106 of the Local Government Act 1919…” and “The structure must be erected strictly in accordance with the approved Plans and Specifications as regards the position on the site and in all other respects.”
The Masonic Club undertook the building works and operated the club from the premises. In 1983, Lemnian purchased the premises from the Masonic Club.
On a date unknown to the parties, the zoning of the site under the Canterbury Planning Scheme Ordinance was amended such that development for the purpose of a club became prohibited.
I note that there is no dispute that the consent granted under the County of Cumberland Planning Scheme Ordinance continued to operate under the Canterbury Planning Scheme Ordinance prior to the commencement of the Environmental Planning and Assessment Act 1979 (“EPA Act”) in 1980. Clause 65 of the Canterbury Planning Scheme Ordinance has the effect of preserving the privilege or right conferred on the land by the consent (see the discussion in Harris v Hawkesbury Shire Council (1989) 68 LGRA 183 at 190 on the effect of a similar provision in another instrument). This is supported by the grant of the application to modify the consent that post-dates the introduction of the Canterbury Planning Scheme Ordinance. Further, once the use for the purpose of a club became prohibited by a change to the zoning, cl 25 of the Canterbury Planning Scheme Ordinance operated to preserve the consent (see Harris v Hawkesbury Shire Council at 189).
The evidence is that on 16 October 1994, Local Environmental Plan 178 commenced as a planning instrument under the EPA Act and pursuant to it the zoning of the land similarly meant that development for the purpose of a club was prohibited.
On 1 January 2013 the Canterbury Local Environment Plan 2012 (“CLEP 2012”) commenced. The land is zoned R3 Medium Density Residential pursuant to the CLEP 2012, and development for the purposes of a “registered club” is an innominate use prohibited by the applicable land use table. Development for the purpose of a “function centre” is a similarly innominate prohibited use.

The Council grants further development consent

On 14 May 2014, Canterbury City Council (as it then was) granted development consent for alterations and additions to the club (DA-518/2013) (“the 2014 consent”). The works included changes to existing facades, the addition of floor area, upgrading of fire safety requirements and disabled access, internal reconfiguration of the existing building, landscaping and reconfiguration of the existing car park. The alterations would effectively have resulted in two separate multi-purpose spaces with flexibility to use both spaces for two concurrent events or to allow general club use of one area and an event held in the other.
Whilst the works pursuant to the 2014 consent facilitated a use of the premises as a club, the then Canterbury City Council was satisfied the premises had the benefit of an existing use in accordance with Part 3 Division 10 of the EPA Act as a club.
An application pursuant to s 96(1A) was lodged with Canterbury City Council (DA-518/2013/A) seeking to modify the 2014 consent by the deletion of condition 23, relating to fire hazard properties of finishes. That application was approved on 19 June 2014.
Lemnian entered into a commercial relationship with Clarence in July 2013, with the intent that Clarence would undertake the works authorised by the 2014 consent and provide catering services for functions held in the function room.
Subsequently, works were carried out to the premises that resulted in the extension of the building and the demolition of internal rooms and walls to create a large auditorium space and kitchen. The result of these works is that the premises are comprised of a large auditorium or ballroom of 838.8m2, a foyer bar area, a large kitchen, and space on the lower ground floor currently used for storage.

The Council takes enforcement action

Following complaints that works had been carried out contrary to the 2014 consent as modified, and as a result of an inspection by the officers of Canterbury City Council, a stop work order pursuant to s 121B of the EPA Act was issued to the applicant on 13 August 2014. Following further complaints that occupation of the premises had commenced without an occupation certificate and that the use of the premises was that of a function centre, Canterbury City Council issued a Notice of Intention to Issue an Order pursuant to s 121B of the EPA Act on 15 January 2015 to both Lemnian and Clarence.
Two further applications to modify the 2014 consent were lodged with the Council on 2 November 2014 and 1 June 2015. Both applications were subsequently withdrawn and not determined.
As the works undertaken at the site departed distinctly from those permitted by the 2014 consent, it is agreed that this consent was never commenced.

Lemnian makes further applications

On 2 September 2015, Lemnian lodged a development application for alterations and additions to the club (DA-396/2015). On 10 September 2015, a building certificate application (BC-64/2015) was lodged with Canterbury City Council. It is that same building certificate application that is currently before me for determination. On 19 September 2016, development consent was refused by the Council for DA-396/2015 and on 26 October 2016, the Council refused the building certificate application.

Multiple court proceedings are commenced

On 2 February 2017 the Council commenced Class 4 civil enforcement proceedings in the Land and Environment Court against both Lemnian and Clarence seeking declarations and consequential relief preventing the premises from being used as a "function centre", that being a prohibited use under the CLEP 2012.
On 3 February 2017, Lemnian commenced appeals against both the refusal of the building certificate (proceedings 2017/37468) and the refusal of the development application (proceedings 2017/37466).
On 2 March 2017, Lemnian lodged a further development application with the Council. Following the expiry of the deemed refusal period for that application, Lemnian lodged an appeal concerning that application, which is the second appeal before me for determination. The earlier appeal against the refusal of development application DA-396/2015 (proceedings 2017/37466) was discontinued on 17 July 2017.

The building certificate application

Lemnian appeals against the Council’s refusal of a building certificate in relation to the whole of the building. However, having considered the evidence of the experts on the Building Code of Australia (“BCA”), both Clarence and Lemnian invite the Court to issue a partial building certificate relating only to the extension of the building to the south. This is depicted as being above the red line in Plan 04B Issue E.
The Council opposes the grant of a building certificate based on a number of contentions, which can be summarised as follows:

There is insufficient information to grant a building certificate (contention 5).

The building works sought to be approved facilitate the use of the premises as a “function centre”, which is a prohibited use (contentions 1, 3 and 4).

The building works result in a use with an intensity that is inappropriate for the site (contention 2).

The development appeal

The development application the subject of the appeal seeks consent for alterations and additions to the club by the subdivision of the current auditorium to provide a smaller auditorium and a “Lemnian Room” for club members and their guests, together with a members' lounge and a ramp for disabled access. It includes alterations and additions to the building that was not part of the 1967 consent (as amended) (“the existing consent”). The proposal also includes fire upgrading, the use of the lower ground floor for non-habitable cellar or storage space, and the use of the outdoor permeable space for car-parking. During the hearing, Clarence sought to reduce the scope of the development application concerning the southern extension to simply alterations and additions to the walls and doors of that extension.
The evidence is that Lemnian is pursuing the present application in order to restore some space that can be used to carry out club meetings and other activities that do not require the use of the auditorium.
The Council opposes the grant of development consent for reasons that can be summarised as follows:

The works the subject of the application facilitate the use of the premises as a “function centre” which is a prohibited use under the CLEP 2012.

The approval of the application will require retrospective approval of the unauthorised works, and there is no power to give retrospective approval.

The proposed areas to be dedicated to the use of the building as a registered club will not adequately cater for the members and guests attending the premises as a registered club.

The intensity of the development sought to be approved is inappropriate for the subject site given its impact on neighbouring residents; and

There is insufficient information to assess the application, in that a traffic management plan has not been submitted and the parking plan does not adequately take into account existing trees and obstacles on the site.

The role of the Court on appeal

The role of the Court in considering each appeal is to assess and determine each application on its merits based on the evidence in the proceedings and the issues raised by the Council in the statement of facts and contentions. In doing so, the Court re-exercises the functions of the Council in determining the building certificate application and the development application (s 39 of the Court Act).

However, a pre-condition to the exercise of the role of the consent authority in determining the development application is that the proposed use is permissible with development consent. In the present application, this involves considering the nature and extent of the existing use rights and whether the operative provisions of the EPA Act and regulations allow the proposal the subject of the application to be permissible with development consent.
Further, in considering the building certificate appeal, the Court has the following power pursuant to s149F(3):

“(3) On hearing the appeal, the Court may do any one or more of the following:
(a) it may direct the council to issue a building certificate in such terms and on such conditions as the Court thinks fit,
(b) it may revoke, alter or confirm a notice under section 149C,
(c) it may make any other order that it considers appropriate.”

In considering the building certificate appeal, the Court re-exercises the functions of the Council in determining the building certificate application but has the additional powers conferred by s 149F(3) referred to above. In exercising those functions, the Court has variously referred to it being a “hypothetical or notional development application” (see Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276).
Therefore, I consider that the matters for my determination are as follows:

The nature and extent of the existing use.

Whether the works sought to be approved through both the development appeal and the building certificate appeal are for the purpose of the existing use.

Whether the development application seeks the “enlargement, expansion or intensification” of an existing use.

If the proposed development is for the “enlargement, expansion or intensification” of the existing use, whether the impacts can be managed through the imposition of conditions of development consent.

Whether the proposed areas to be dedicated to the club use are appropriate for development for the purposes of a club.

Whether the proposed development is appropriate for the site, considering the impacts of the development on adjoining residents and the other matters required by s 79C of the EPA Act.

What works are required to be completed prior to the issue of a building certificate.

The nature and extent of the existing use

The parties and the planning experts, Mr Daintry and Mr McDonald, agree that the whole of the land the subject of the proceedings has the benefit of an existing use for the purpose of a club. The nature and extent of that existing use is relevant to determining whether there is power to grant development consent to what is sought in the development application.

The statutory provisions

The term “existing use” is defined in s 106 of the EPA Act, which provides:

“106 Definition of "existing use"
In this Division, existing use means:
(a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4 of this Part, have the effect of prohibiting that use, and
(b) the use of a building, work or land:
(i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and
(ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.”

The existing consent, granted in 1967 pursuant to the County of Cumberland Planning Scheme Ordinance and modified in 1970, is taken to be a development consent within the meaning of the EPA Act pursuant to cl 7(4) of Schedule 3 of the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979. Clause 7 of Schedule 3 provides:

“7 Consents, approvals and permissions
(1) Any consent, approval or permission granted in respect of an application made under a former planning instrument, and in force immediately before the appointed day, shall, subject to subclause (2), continue in full force and effect subject to:
(a) the operation of any provision of that instrument or any term or condition of that consent, approval or permission governing or relating to the currency, duration or continuing legal effect of that consent, approval or permission, and
(b) the operation of any condition (other than that referred to in paragraph (a)), restriction or limitation, subject to which that consent, approval or permission was granted.

...
(4) A consent, approval or permission referred to in subclause (1) is taken to be a development consent within the meaning of the Environmental Planning and Assessment Act 1979.” [emphasis added]

Both the County of Cumberland Planning Scheme Ordinance and the Canterbury Planning Scheme Ordinance fall within the definition of “a former planning instrument” under the Miscellaneous Acts (Planning) Repeal and Amendment Act. Specifically, the existing consent was “in force immediately before the appointed day” pursuant to cl 7(1) because the provisions of the Canterbury Planning Scheme Ordinance, which was the former planning instrument that applied to the land immediately before the appointed day, preserved consent granted under the County of Cumberland Planning Scheme Ordinance (see paragraph 17 above).
In the event that there was any doubt that the existing consent, taken to be a development consent, authorised use for the purpose of the clubhouse, s 81A(1) of the EPA Act provides that a development consent “that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the development application.”
To benefit from an existing use under s 106(b), the consent must be granted “before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use.” Applying the definitions contained in s 4 of the EPA Act, an environmental planning instrument must be one that is “in force”. The relevant instrument is therefore the CLEP 2012, which has the effect of prohibiting use for the purpose of a club.
Once “a building, work or land” has been identified as benefiting from an existing use as defined in s 106, the operative provisions setting out the privileges attaching to such existing use are contained in ss 107-109 of the EPA Act. Sections 107 and 108 are as follows:

“107 Continuance of and limitations on existing use
(1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use.
(2) Nothing in subsection (1) authorises:
(a) any alteration or extension to or rebuilding of a building or work, or
(b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or
(c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or
(d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or
(e) the continuance of the use therein mentioned where that use is abandoned.

(3) Without limiting the generality of subsection (2) (e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.
108 Regulations respecting existing use
(1) The regulations may make provision for or with respect to existing use and, in particular, for or with respect to:
(a) the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and
(b) the change of an existing use to another use, and
(c) the enlargement or expansion or intensification of an existing use.
(d) (Repealed)

(2) The provisions (in this section referred to as the incorporated provisions) of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument.
(3) An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force.
...”

The provisions referred to in s 108 of the EPA Act are contained in Part 5 of the Environmental Planning and Assessment Regulation 2000 ('EPA Regulations'), which allow reliance on an existing use for certain development in specified circumstances:

“41 Certain development allowed
(1) An existing use may, subject to this Division:
(a) be enlarged, expanded or intensified, or
(b) be altered or extended, or
(c) be rebuilt, or
(d) be changed to another use, but only if that other use is a use that may be carried out with or without development consent under the Act, or
(e) if it is a commercial use-be changed to another commercial use (including a commercial use that would otherwise be prohibited under the Act), or
(f) if it is a light industrial use-be changed to another light industrial use or a commercial use (including a light industrial use or commercial use that would otherwise be prohibited under the Act).

...
42 Development consent required for enlargement, expansion and intensification of existing uses
(1) Development consent is required for any enlargement, expansion or intensification of an existing use.
(2) The enlargement, expansion or intensification:
(a) must be for the existing use and for no other use, and
(b) must be carried out only on the land on which the existing use was carried out immediately before the relevant date.

43 Development consent required for alteration or extension of buildings and works
(1) Development consent is required for any alteration or extension of a building or work used for an existing use.
(2) The alteration or extension:
(a) must be for the existing use of the building or work and for no other use, and
(b) must be erected or carried out only on the land on which the building or work was erected or carried out immediately before the relevant date.

...”

As indicated by the above provisions, the benefit conferred by the existing use is determined by reference to the “relevant date”, which is defined in cl 39:

“39 Definitions
In this Part:
relevant date means:
(a) in relation to an existing use referred to in section 106 (a) of the Act-the date on which an environmental planning instrument having the effect of prohibiting the existing use first comes into force, or
(b) in relation to an existing use referred to in section 106 (b) of the Act-the date when the building, work or land being used for the existing use was first erected, carried out or so used.”

Independent from the rights conferred by reason of “a building, work or land” benefiting from an existing use in accordance with the definition contained in s 106 of the EPA Act, s 109B provides a separate avenue that saves existing consents notwithstanding a later prohibition. It provides:

“109B Saving of effect of existing consents
(1) Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force.
(2) This section:
(a) applies to consents lawfully granted before or after the commencement of this Act, and
(b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and
(c) has effect despite anything to the contrary in section 107 or 109.

(3) This section is taken to have commenced on the commencement of this Act.”

As noted by Craig J in Cracknell & Lonergan Architects Pty Ltd v Leichhardt Municipal Council (2012) 193 LGERA 151; [2012] NSWLEC 194 at [49]-[51] and Robson J in TK Commercial Property Holdings Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 144 at [82], s 109B preserves an operative consent so that it can continue to operate, but a saved consent under s 109B is neither constrained by the restrictions in s 107 nor enjoys the benefit of s 108 or the regulations. To be preserved by s 109B, the consent must have remained in force beyond the planning instrument under which it was granted, which is achieved through the application of transitional, savings or existing use provisions in the later planning instruments that pre-date the EPA Act (see Auburn Council v Nehme (1999) 106 LGERA 19; [1999] NSWCA 383).

The existing use

Lemnian and Clarence rely on the existing use falling within the definition at s106(b). This is supported by the decision of the Court of Appeal in Jojeni Investments Pty Ltd v Mosman Municipal Council (2015) 89 NSWLR 760; [2015] NSWCA 147, in which the Court held that s 106 identifies two types of existing use, the first being developments that did not require consent before the use became prohibited (s 106(a)) and the second being developments which were permissible with development consent and for which consent was obtained before the use became prohibited (s 106(b)). In explaining this, Leeming JA says at [11]:

“the definition of “existing use” distinguishes between a use which was for a lawful purpose which became prohibited, and a use for which development consent was obtained which became prohibited. The former category of uses did not require development consent: Steedman at 569 and 580; the latter are uses which were lawful only because consent had been obtained. It may be seen that the definition thereby picks up the “conventional threefold structure”, seen most clearly now in ss 76, 76A and 76B of the Environmental Planning and Assessment Act, to which Spigelman CJ referred in Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; 61 NSWLR 707 at [2].”

The Council does not dispute that the existing use falls within the definition of s106(b), and no argument is made by it that the existing use has been abandoned.
In support of its position, Lemnian and Clarence rely on evidence that:

The 1967 consent was granted under the County of Cumberland Planning Scheme Ordinance. Under the scheme, development for the purposes of a club was permissible with approval in the zone within which the land is situated.

Following the commencement of the Canterbury Planning Scheme Ordinance and at some point prior to its repeal in October 1994, the zoning of the land changed such that the use for the purpose of a registered club became a prohibited use. That prohibition continued under the Local Environmental Plan 178 – Belmore Lakemba, and the current CLEP 2012.

The plans were endorsed by the Chief Health & Building Inspector and the Town Clerk of the Municipality of Canterbury on 22 August 1967, and according to Mr Daintry the use was lawfully commenced in accordance with the existing consent.

The premises have continuously been used for the purpose of a club, in accordance with the statement of Mr Havas, who has been attending the club since 1971.

This evidence is not in dispute. Further, as set out above, the Council does not dispute that the existing consent, granted under the County of Cumberland Planning Scheme Ordinance, continued to operate under the Canterbury Planning Scheme Ordinance.
I accept, therefore, that the elements of s 106(b) are met and the site benefits from an existing use for the purpose of clubhouse. I accept that the existing consent relates to the whole of the land, and that therefore the existing use attaches to the whole of the land the subject of the proceedings. Each component part of what was approved, including the car parking and the building, is development for the purpose of clubhouse, or club, use.

The extent of the existing use

I also accept the submission made by the Council that the existing use is constrained by the terms of the existing consent, as modified, including what is depicted in the approved plans.
Lemnian and Clarence rely on Ashfield Municipal Council v Armstrong (2002) 122 LGERA 105; [2002] NSWCA 269 as authority for the proposition that it is inappropriate to limit the existing use to the built form. However, in Ashfield Municipal Council v Armstrong the existing lawful use was not derived from a consent that was on conditions or accompanied by approved plans and the circumstances are clearly distinguishable on that basis. This distinction is clearly drawn by the Court of Appeal in Jojeni Investments Pty Ltd v Mosman Municipal Council at [71], in which Leeming JA refers to the facts of the case, finds that the existing use rights in that case were under s106(a) (not (b) as in the present proceedings) and then states that “[t]his is not a case like Parangool or MM & SW Enterprises where the development consent prescriptively identifies the permitted use. It is instead a case like Ashfield Municipal Council v Armstrong or Woollahra Municipal Council v Banool Developments Pty Ltd where the lawful use is not derived from any consent or approval.”
It is clear, therefore, that the “lawful purpose” served by the existing use must be derived from the terms and conditions stipulated in the development consent. The principles that apply to circumstances in which there is development consent are summarised by Pepper J in MM & SW Enterprises Pty Ltd v Strathfield Council (2010) 172 LGERA 125; [2010] NSWLEC 8 (which decision was confirmed on appeal in MM & SW Enterprises Pty Limited v Strathfield Municipal Council [2011] NSWCA 14) at [81-82]:

“81 In circumstances where premises are subject to a development consent, the terms of the consent become the “lawful purpose” from which an existing use can arise pursuant to s 106(b)(i) of the EPAA (Botany Bay City Council v Workmate Abrasives Pty Ltd (2004) 138 LGERA 120 at [12]-[14] and House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 at [36]-[37]).
82 Only the “lawful purpose”, that is, the terms and conditions stipulated in the development consent, can be relied upon by the applicant to secure existing use rights. Any other “use” – such as an unlawful use or an actual use that is different from the consenting use – is not a lawful use, and cannot be relied upon to gain existing use rights (Fatsel Pty Ltd v ACR Trading Pty Ltd [No 3] (1987) 64 LGRA 177 at 190).” [emphasis added]

The lawful existing use is thus defined by the terms of the existing consent, including the approved plans in accordance with which the building must be constructed. The extent of the existing use is limited first to use for the purpose of “clubhouse”, and second by reference to what is depicted in the plans.
In referring to it as use for the purpose of “clubhouse”, this is based on the 1967 approval flowing from the letter communicating that approval in 1966. It is distinct from a use for the purpose of “registered club” which is the use under the current planning instruments. It follows that you cannot use the current definition of “registered club” to determine the types of uses that can be carried out for the purposes of the “clubhouse” use approved through the existing consent.
The reference to the purpose of “clubhouse” also differs slightly from the use described by the parties throughout the hearing as being one for the purpose of “club”, although the Council remarked in its submissions that the terms “club”, “clubhouse” and “registered club” may be used interchangeably.
The result of the second limitation, that the extent of the lawful existing use is limited by reference to the approved plans, means that the existing use for “clubhouse” is restricted to the built form on those plans and the 56 car parking spaces. Whilst the whole of the land benefits from the existing use, in that it benefits from consent for the purpose of “clubhouse”, it is limited by the terms of the consent and only the building envelope depicted in the approved plans is the building that benefits from that same use.

Further, section 107(1) permits the continuance of the existing use, but any extension to the building or alterations to it requires development consent (see s 107(2)). The effect of s 107 is that an existing use that falls within the definition of s 106(b) can only be lawfully continued in accordance with the terms of the development consent, and therefore, in the present circumstances, the terms of the existing consent.

Characterisation of the proposed use

The primary matter raised by the parties for consideration is whether the use facilitated by the development application can be characterised as a use for the purpose of “clubhouse” consistent with the existing use.

The Council’s position that there are two separate and independent uses

The Council contends that the development application and the building works sought to be approved facilitate the use of the premises as a “function centre” which is a prohibited use in the zone pursuant to the CLEP 2012. The Council says that the existing use rights do not relate to this “function centre” use.
The Council submits that the proposed alterations and additions to be carried out by Lemnian and Clarence are for the purpose of facilitating two separate and independent uses, namely, for the use as a function centre, and as a registered club. The Council submits that this is supported by applying the “genus” test, which involves first identifying the appropriate characterisation of the purpose of the existing use, and second whether the proposed use “is really and substantially a use for the designated purpose.” (Shire of Perth v O'Keefe (1964) 110 CLR 529 at 535). The Council says that the proposed use for the purposes of a function centre is not of the same genus as the existing use for the purpose of a club.
The Council also submits that if the two uses are separate and independent, the function centre use is not ancillary to the use for the purpose of a club. The Council relies on the principle set out by Meagher JA in Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 that whether a use is ancillary to another use or independent from that other use “is a question of fact and degree in all the circumstances of the case”.
The Council relies on the definitions of “club” in the Macquarie Dictionary (5th edition), which include “a group of persons organised for a social, literary, sporting, political or other purpose, regulated by rules agreed by its members”. A further definition for “club” is “the building or rooms owned by or associated with such a group, sometimes lavishly decorated and furnished, and offering dining, gambling, theatrical, and other facilities to members”. “Clubhouse” is defined as “a building in which a club meets, designed to cater for the special needs of the members and in close proximity to the place where the club's activities are carried out”.
The Council says that the plans the subject of the existing consent depict a club or clubhouse containing dining facilities, bars, lounges, a boardroom, ancillary offices, and a sports bar/TV room. The Council submits that the activities that one might expect from these built areas, together with the 56 spaces for car parking, are the extent of the existing use. Whilst the Council accepts that the carrying out of functions would be a use that is ancillary to, and incidental to, the use of land as a clubhouse, the drawings do not have an identifiable function room/ballroom or auditorium as part of the then club use. Further, the Council says that the extent and intensity of carrying out such functions is limited by the purpose of the existing use and constrained by relevant ascribed areas of the approved building.
The Council submits that the use of the premises has evolved from this more acceptable ancillary and incidental use to a separate, independent and dominant use as a function centre. It says that the use for functions to the current extent renders it a separate and independent use for the purpose of a function centre. The Council says that those function activities fulfil a purpose that no longer serves the purposes of the club.
In support of this submission, the Council relies on the evidence that the works carried out rendered the premises a “purpose built” function centre in which the auditorium used for functions comprised most of the floor area of the ground floor of the premises, supported by a large kitchen facility. The unauthorised works removed all of the other rooms within the club, other than the bar and foyer area. The result is that of 1206m2 of ground floor area, 837m2 is comprised of the function room and lounge area, and 176m2 is comprised of the kitchen.
The Council also relies on evidence that demonstrates that there were 116 functions in 2016, over a 12 month period, and that in the financial reports for the years ended 31 December 2014, 31 December 2015 and 31 December 2016 the principal activity of Lemnian was described as “that of continuing operations of leasing property to be used as a wedding reception and function centre.” This description contrasts with the principal activity described in the financial report for the year ended 31 December 2013, which was “that of continuing operations as a licensed club and leasing property.”
The Council also relies on the description contained on the website for Clarence, which says of the premises that it is a “breathtaking purpose built wedding reception venue” seating between 300-600 people.
The Council therefore submits that based on the activities currently taking place, the premises serve the predominant purpose of the hosting of functions, particularly weddings. At a level of generality, those activities do not facilitate the use of the premises as a club when one has regard to the dictionary definitions of a club. The Council submits that this use is not part of the club use, and is not incidental to or ancillary to the lawful existing use of the land.
Further, the Council relies on the evidence of Mr McDonald, town planner, and submits that in considering the greater impacts of the purpose built function centre, it is clear that the impact of the new use is distinct from the impact of the operations of a club. Those amenity impacts concern both noise and traffic and with the function centre use are concentrated to those times that functions are taking place.
The Council says that the development application maintains the dedication of the vast majority of the built form for the purposes of holding functions, and is therefore an application for a separate use for the purposes of a function centre.
Finally, the Council says that Clarence and Lemnian cannot rely on the club functions authorisation, which Lemnian obtained from Liquor and Gaming NSW under the Registered Clubs Act 1976, as evidence in support of the function activities forming part of the club use. The Council relies on Paynter Dixon Constructions Pty Ltd v Fairfield City Council [2011] NSWLEC 127, in which Craig J considered the introduction of accommodation to premises operating as a registered club, and found that compliance with other legislation such as the Registered Clubs Act is a separate matter to the determination of purpose of use under planning law at [30]:

“In the context of planning law, a statement of the purpose for which land is being used is a description or characterisation of what is being done with, or upon, the land, not an account of the motives of the person involved in that activity. The question in the present case is whether the use to which the land is being put, which is to be identified by reference to the nature of the activity being conducted upon it, is a use for a purpose authorised by the Act.”

The Council therefore submits that based on the evidence, the proposal allows the continuation of the current operation as a wedding reception and function centre with limited club use. The Council submits that the principal activity of the premises will be consistent with what is expressed in the financial statements, of a wedding reception function centre, notwithstanding that some club facilities will be restored.

Clarence and Lemnian submit that the function activities form part of the club use

Clarence and Lemnian make the following submissions in support of its position that the function activities form part of the club use. Firstly, Clarence says there is nothing that limits the use of a club for functions in Part X of the Liquor Act 1912 or the definition of ‘Club’ in the Canterbury Planning Scheme Ordinance (as opposed to the County of Cumberland Planning Scheme Ordinance referred to in the written submissions, which did not contain a definition of ‘club’, but divided clubs into “residential clubs” and “non-residential clubs” and groups the “non-residential club” with other uses under the genus of “place of meeting”). That definition provides that a club is:

“a building used or intended for use by persons associated, or by a body incorporated, for social, literary, political, sporting, athletic or other lawful purpose whether or the same or of a different kind and whether or not the whole or part of such building is the premises of a club registered under Part X of the Liquor Act 1912.”

Clarence and Lemnian submit that functions for members, temporary members and their guests are clearly a use for persons associated with the Club for a social purpose, and are not an ancillary use. They rely on the evidence of Mr Daintry, whose opinion is that function activities form part of activities associated with club use.
Secondly, Clarence submits that the existing consent did not limit the types of activities that could be carried out at the premises. They rely on the fact that the approval included conditions, none of which sought to limit or constrain the social activities that were able to be conducted at the clubhouse (for its members, temporary members and guests), including functions.
Thirdly, Clarence and Lemnian say that as part of the evolving use of the premises, the club has continued to operate and does so under the separate authority conferred by the Liquor Act 2007. The licence is a club licence, and includes a club functions authorisation that allows the provision of club functions in the whole of the existing auditorium. The licence imposes conditions on the operation of the club, but does not limit the hours of operation (save for the sale of take away liquor).
Fourthly, Clarence submits that it is erroneous to determine whether there is a separate and independent use based on the frequency and intensity of the function activities.
Fifthly, Clarence submits that it an error to characterise the existing use by reference to the CLEP 2012. That is, the existing use cannot be constrained by the current definition of the use within the CLEP 2012 to the exclusion of other prohibited uses specified by the CLEP 2012. Rather, Clarence says that the correct legal approach is to properly construe the use authorised by the existing consent.
Sixthly, Clarence says that the use is to be considered at an appropriate level of generality, and not in terms of the detailed activities, transactions or processes. In support of this submission, Clarence relies on Jojeni Investments Pty Ltd v Mosman Municipal Council (at [75]). Clarence says that regard must be had to the purpose of the use, and submits that although the nature of the use has changed, the purpose of the use for a club has not.
Lemnian and Clarence submit, therefore, that the proper construction of the existing consent is that it authorised use of the whole of the land for the purpose of clubhouse, which club is now registered under the Registered Clubs Act. That use is for the social activities of members, temporary members and guests of the Lemnian Club which include functions for those members and guests at an intensity and of a type unconstrained by the consent.

The relevant matters for determining whether the development is for the purpose of a clubhouse

The parties’ submissions on characterisation obscure the simplicity of determining what use is proposed in the development application. Development is for a purpose (see Shire of Perth v O'Keefe), and I need only be satisfied that the development proposed in the development application is for the purpose of a clubhouse. This is largely drawn from the development application itself, and many of the submissions made were not relevant to this point.
In particular, previous or current alleged illegality cannot be used to characterise the future use sought by the proposed development. Even if the premises have been the subject of unauthorised works which resulted in a purpose built function centre, and even if I was to accept that they have been used in the more recent past or are currently being used for the separate and independent purpose of a function centre, it is not relevant to the characterisation of the proposed use sought in the development application. Whilst, if proven, it could be relevant in determining whether the existing use has been abandoned or whether the use no longer meets the definitional requirements of s 106(b), the Council has not contended either of those propositions.
Further, the risk that the premises might be used for the purpose of a function centre in future is not a relevant consideration in determining a development application for the purpose of a clubhouse. That is, whether there is a risk that the use of the premises might evolve into a prohibited use is irrelevant to considering whether consent should be granted for a permissible use. I need only be satisfied that the application seeks consent to carry out development for the purpose of a clubhouse, and that the proposed building can be used for that purpose. Similarly, the risk that the building the subject of a building certificate application might be used for an impermissible use is not a reason for refusal of the building certificate (see Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276).
I am also not assisted by the approach commonly referred to as the “genus” test, which would require me to consider whether the proposed development fits in the genus of the existing use as a “club house”. The “genus” test does not apply to circumstances in which there is a development consent or approval and the consent specifies the use. Further, it only has utility if the use for which consent is sought needs to be characterised so as to determine whether it falls in the same “genus” as the existing use (see Botany Bay City Council v Workmate Abrasives Pty Ltd (2004) 138 LGERA 120 at [14], and Jojeni Investments Pty Ltd v Mosman Municipal Council at [72]). That question does not arise in the present proceedings, as Lemnian seeks consent for a building with the same purpose as that of the existing use.
I accept the Council’s submission that the existence of a club functions authorisation on the club licence issued to Lemnian is not sufficient to establish that the function use is part of the use for the purpose of “clubhouse”, in the same way that in Paynter Dixon Constructions Pty Ltd v Fairfield City Council obtaining consent under the Registered Clubs Act for accommodation does not resolve the planning question regarding what the purpose of the use is. Simply because Lemnian is authorised to carry out functions as part of its operation as a club does not necessarily mean that the planning purpose of the function use is “clubhouse”. However, again, this has limited relevance as consent is not specifically sought for a separate function use, unlike in Paynter Dixon Constructions Pty Ltd v Fairfield City Council where separate consent was sought for accommodation services.
In determining whether the application seeks consent to carry out development for the purpose of a clubhouse, it is relevant to consider whether the function activities of the club that are incorporated in the development application through the draft Plan of Management and the Statement of Environmental Effects are a separate and independent use proposed for the purpose of “function centre”, or whether the function activities fall within the use for the single purpose of clubhouse. A separate and independent use will only arise if it can be said that the function activities serve a different purpose to the clubhouse use. However, even if there are two uses that serve different purposes, both are permissible if one is ancillary to a permissible use (Foodbarn Pty Ltd v Solicitor-General for New South Wales (1975) 32 LGRA 157).
I cannot divide the proposal into component parts (e.g. the auditorium and the club house facilities) and consider the use of each part, but I must rather consider what end is served by the various works and activities to be carried out (Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 at [28]). Further, as stated by Preston CJ at [34], “the nature of the use needs to be distinguished from the purpose of the use. Uses of different natures can still be seen to serve the same purpose.”

The use proposed in the development application is for the purpose of club house

In considering the nature and purpose of the development application expressed in the application and supporting documents, I am satisfied that the proposed use is for the purpose of a club house. The development application does not seek consent for any use other than use for the purpose of a club house.
In the draft Plan of Management dated 12 May 2017 and the Statement of Environmental Effects of Mr Daintry dated 2 March 2017 and lodged with the application, it acknowledges that function activities are, and will be, carried on as part of the use for the purpose of the club house. I do not accept the Council’s submission that these function activities result in there being two separate purposes served by the proposed development of the premises. Instead, for the following reasons, I am of the view that the carrying out of functions within the building is part of the use for the purposes of the clubhouse.
First, the activity of carrying out functions by its nature falls within a range of activities that are for the purpose of clubhouse. Whilst there was no definition of “club” or “clubhouse” in the County of Cumberland Planning Scheme Ordinance pursuant to which the existing consent was given, it is useful to consider the definition of “club” contained in the Canterbury Planning Scheme Ordinance, which came into effect following the initial grant of consent in 1967 and prior to the modification of that approval. That definition was relied on by Clarence and Lemnian (and is quoted above at [81]), and includes use “for social” purposes. The nature of the function use is for social purposes for its members and temporary members. This is supported by the statement of Mr Havas, which annexes an undated statement signed by the director indicating that “[p]rior to 1983, The Masonic club, for many years not only served its members but also provided the surrounding community with an establishment to host many celebrations and private functions. Following the purchase of the abovementioned property, the Lemnian Association of NSW has been host to thousands of various functions and proudly continues to do so.” The statement then contains a list of types of functions, which include functions such as weddings and engagement parties, but also include “Buffet Restaurant” and “Restaurant”.
Second, there is nothing about the proposed configuration of the club premises as depicted in the plans lodged with the development application that renders it development for the purpose of something other than the clubhouse. That is, I am satisfied that the proposed building can be used for the purpose of a clubhouse. The mere fact that the auditorium and large kitchen comprises the majority of the floor area does not mean that they cannot be so used. The auditorium supports a range of clubhouse activities, and the proposal seeks to restore an area that supports the non-function activities of the club outside of the auditorium, and therefore to restore a balance of activities at the club. I accept from the evidence that Lemnian wishes to promote a range of other activities, and they wish to create a better equipped but flexible space in which this can occur.

Third, I accept the evidence that Lemnian will continue to carry out other club activities in addition to functions, as they have done in the past despite the current configuration of the club premises. For example, the website for the Lemnos Club makes it clear that they are open for lunch, snacks and drinks for members and guests in opening hours as well as for Taverna nights on the first Thursday of the month. In the plan of management dated 12 May 2017 it is clear that at that time there were a range of events planned for the Lemnos Club, including meetings of the board of directors, meetings of the sub-committee, celebrations of significant calendar events, and Ladies Committee lunches.
Fourth, it is clear from the development application that the carrying out of function activities is to be within the clubhouse building and is to be managed either by Lemnian or another party, presently Clarence, who is doing so with the authority conferred by their commercial relationship with Lemnian. One of the terms of the agreement between Lemnian and Clarence is that Lemnian and members of the Lemnos Club are able to use the club premises, except that they cannot use the function room when there is a wedding reception or similar function. This is made clear in clause 14 of the Deed of Agreement for Lease, which provides at 14(e) that:

“The Lessee shall be entitled to utilize the Lemnos Room for the Lessee’s business purposes at all times that the Lemnos Room is not required by the Lessor for the Reserved Functions, which the Lessor is required to pre-book at least twelve (12) months in advance.”

Fifth, the function activities and the lease to Clarence to cater and manage functions forms part of the activities to fund the continuing operation of the club. This is set out in the evidence of Mr Daintry in the joint report.
Therefore, although the development application, if granted, would allow functions to continue to be carried out in conjunction with other club activities, it does not propose a use that is separate to, or independent from, the existing use for the purpose of clubhouse. The use that will result is therefore permissible with development consent subject to the requirements of the EPA Regulations. With respect to the application for the building certificate, this means that the proposed building certificate does not relate to works that facilitate the prohibited use of “function centre”.
Of course, if development consent is granted for the purpose of a clubhouse, this does not authorise the carrying out of development for the purpose of a function centre. It may be that there is a ‘tipping point’ at which the function activities become so frequent and dominant that the premises becomes a function centre as alleged has occurred in the past. If that point was to be reached, it would be a matter for the Council to pursue enforcement action but the risk of that occurring is not a basis for refusal of consent for the permissible use.

Is there an “enlargement, expansion or intensification” of the existing use?

In the written submissions provided on behalf of Lemnian, the development application starts with a description that it “seeks to deal with the consequence of the Unauthorised Works undertaken by the Second Respondent, to reinstate separate Club facilities, multipurpose rooms for members…”.
The Statement of Environmental Effects lodged with the development application provides a lengthy description of the proposal, and includes fire safety upgrades, providing disabled access through an access ramp, and the creation of the Lemnian Room, which “is a proposed bar, lounge and dining room, equivalent to that approved under DA 518/2013. A folding panel wall will also divide the multipurpose area into two rooms when required to service Club functions such as Board meetings and other committee meetings. The Lemnian Room will be created by a new permanent internal wall... [etc]”.
In the written submissions provided on behalf of Clarence, the development application is described as being one for alterations and additions to the premises, with the following description:

“a. Alterations at ground floor to divide an existing ballroom to create 'the
Lemnian Room' which will include a bar, lounge and dining room with a floor
area of 151.34m2;
b. Reduction in the area of the existing auditorium to 528m2 ;
c. Addition of a disabled access ramp access to the ground floor; and
d. Acoustic attenuation to fire door to southern elevation, together with additional fire door to rear exit.
e. Demolition of the DJ loft behind the stage area in the auditorium; and
f. BCA upgrade works.”

Clarence sought to restrict the description of the development application to alterations and additions, and therefore to cl 41(b) and cl 43 of the EPA Regulations, which concerns (at cl 43(1)) the “alteration or extension of a building or work used for an existing use”.
The problem with this approach is twofold. First, the alterations that are proposed for the southern extension of the building are sought to a part of the building that did not exist at the time of the existing consent, and therefore do not fall within cl 43(1) as being to a “building or work used for an existing use”. Development consent for use of that part of the building is therefore also required. Second, this approach fails to recognise the “notion of increase” depicted in the proposed plans and therefore the reality that what is sought, or what should be sought, is an expansion or intensification of the existing use. The reasons for my findings in this regard are as follows.

The alterations to the southern portion can only be approved if there is consent for the expansion of the use

Given that the existing use is derived from the existing consent, and therefore that only the building envelope depicted in the approved plans is the building that benefits from that use, seeking alterations to something other than that approved building envelope is outside the scope of cl 43.
I accept the submission of the Council that had consent been sought for the extension of the building prior to the works being carried out, this would have fallen within the scope of cl 43, and the application of s 80A of the EPA Act would allow the use of that extended portion of the building.
However, that was not done, and, given that development consent cannot be granted for works already carried out, the best outcome for the development appeal would be the grant of consent to the prospective use of that part of the building (see Ireland v Cessnock City Council [1999] NSWLEC 153). As the whole of the land benefits from an existing use for the purpose of “club house”, the prospective use of that part of the building which is extended is in effect an expansion of the existing use.
Clarence submits that it is not necessary to seek consent for the use of the extension of the building to the south. It relies on the existing consent to authorise the use of the whole of the land for the purpose of a club. Clarence relies on the decision of the Court of Appeal in Ashfield Municipal Council v Armstrong (2002) 122 LGERA 105; [2002] NSWCA 269 and submits that the fact that the premises are not configured in the same manner as the existing consent is irrelevant.
Clarence also relies on the second decision of the Court of Appeal, in Ashfield Municipal Council v L Armstrong [2003] NSWCA 353, and submits that an existing use that applies to the whole of the land does not restrict that use to the surface of the land or any other subset of the land. At [45], the Court found:

“In the present case “the existing use” has been declared in respect of the whole of the relevant land. There is simply no occasion, in my view, for restricting that use to the surface areas or such distance below the surface as might equate with the area occupied by the existing foundations and services, whatever that might be. I am satisfied that Mr Armstrong was able to apply for development of the site in accordance with the existing use of a residential flat building with its associated garaging, in the way that he did and that the Council has power to grant that consent.”

Lemnian also submits that the unlawful works do not affect the existing use, and relies on the decision of Bignold J in Taipan Holdings Pty Ltd v Sutherland Shire Council, in which His Honour found that the existing use for the purpose of a boatshed continued notwithstanding the demolition of the boatshed and its rebuilding at a size and in a location different to that of the existing use.
The decision of Bignold J in Taipan Holdings Pty Ltd v Sutherland Shire Council can be distinguished because the existing use did not derive from a development consent, and His Honour found that the demolition and rebuilding of the boatshed constituted a “rebuilding” rather than an expansion or intensification of the existing use.
I do not accept that either of the Ashfield Municipal Council v Armstrong decisions can be taken as authority for the proposition that consent is not required for an expansion of the use into the extended part of the building.
The 2002 Ashfield Municipal Council v Armstrong decision concerned whether, in making a declaration as to whether the use of a building was an existing use within the meaning of s 106, the declaration should specify “four flats” as a component part of use for the purpose of a residential flat building. The Court determined that the declaration should not be confined to the physical characteristics of the building in circumstances where a 1953 approval for the continued use (from which the existing use derived) was not so confined. The decision does not consider whether consent is required for the expansion of the use beyond the building footprint approved in the development consent where the approved plans form part of that consent and the existing use is derived from that consent.
The 2003 Ashfield Municipal Council v L Armstrong decision in fact supports the position that consent for expansion of the use is required. It concerned whether there was power to grant consent to the basement given that the subterranean space had not previously been used for the existing use. The Court determined that there was such power, and did not disturb the finding of the primary judge that the proposal for the use of the subterranean space constituted an intensification of the existing use. That finding is in paragraph 20 of Armstrong v Ashfield Municipal Council (2002) 124 LGERA 183; [2002] NSWLEC 237 quoted at [34] of Ashfield Municipal Council v L Armstrong [2003] NSWCA 353 as follows:

“In these circumstances the Court determines that the proposed development constitutes merely an enlargement, expansion or intensification of the existing use which is carried out on “land” which is the subject of the existing use. Accordingly the development of the land for the purposes of a residential flat building and car park which utilises the subterranean space beneath that land constitutes an intensification of the existing lawful use. Such use is authorised by cl 41(1) of Regulation 2000.” [emphasis added]

The effect of the Court of Appeal decision was then to confirm that the restriction in cl 42(2)(b) of the EPA Regulations that the expanded or intensified use “must be carried out only on the land on which the existing use was carried out immediately before the relevant date” does not restrict the expansion or intensification to the surface area of the land. Applying these two decisions to the present proceedings, consent is required for the “enlargement or expansion or intensification” of the existing use due to the building extending beyond that of the building footprint in the existing consent, but given that the existing use applies to the whole of the land the restriction in cl 42(2)(b) does not restrict that “enlargement or expansion or intensification” to the building footprint approved in the existing consent.
I am therefore of the view that consent is required for the expansion of the use to the extended southern portion of the building, as well as for the alterations.

The proposal incorporates an intensification or expansion of the existing use

Both Clarence and Lemnian submit that there is no intensification of the use given that the existing consent imposed no conditions restricting the number of patrons or the trading hours. They say that the decision in SouthSydney City Council v Houlakis and Teakdale Pty Ltd (1996) 92 LGERA 401, in which the Court of Appeal found that where the consent permitted certain hours of trading an increase in hours constituted an ‘intensification’, supports their submission that where there is no such restriction there can be no intensification.
The Council submits that the extension of the built form into the southern portion and its subsequent use creates an enlargement, expansion or intensification of the existing use. The Council says that whilst the subject application is framed as one seeking internal alterations of a building (in accordance with cl 43), the effect of the application is one that also seeks the enlargement, expansion, and intensification of the existing use by taking on the increase in gross floor area for various aspects such as the ballroom and kitchen.
The Council relies on Berowra RSL Community and Bowling Club Pty Ltd v Hornsby Shire Council (2000) 114 LGERA 345, in which Pearlman J refers to and expands upon the principles in SouthSydney City Council v Houlakis and Teakdale Pty Ltd. Her Honour referred to the three terms of “enlargement, expansion or intensification" of an existing use as embodying a “notion of increase” (at [40]). Accordingly, she determined that a larger clubhouse would result in an “enlargement, expansion or intensification” of the existing use.
The Council submits that in the present application, the increase of various internal areas, whether use of the southern portion is sought or not, of the building represents intensification of the existing use by increasing the number of patrons which the subject premises can cater for. It says that intensification is also reflected in the increased capacity of the kitchen, and that this higher patron capacity is reflected by the necessity of having a higher number of off-street car parking spaces required.
The Council submits that when the Court contrasts the lawful existing use, by reference to the size and scale of the dining areas, members lounge, the kitchen and the number of car parking spaces, with the proposal before it, by reference to the larger ballroom, kitchen, higher number car parking spaces, there is clearly an "increase".
I accept the Council’s submissions. The assessment of whether there is an “enlargement, expansion or intensification” of an existing use is not simply concerned with whether there was a numerical restriction on the number of patrons or trading hours under the existing use. The extension of the building increases capacity of the building which allows more patrons to utilise the building, and the increased capacity of the kitchen depicted in the present proceedings creates a capacity to cater for events or patron numbers much larger than that contemplated by the existing consent. This is consistent with the “notion of increase” and is therefore an intensification of the use.
This is supported by the evidence of Mr Daintry and Mr McDonald, who agree in their joint report that the unauthorised works has resulted in an increased intensity of use. Given that the proposal only seeks to reduce the capacity of the function room and retains the capacity created through the unlawful works, the development application incorporates an enlargement, expansion or intensification of the existing use.

Consent for the “enlargement, expansion or intensification” is required

Therefore, it is necessary in what is proposed to obtain consent for the “enlargement, expansion or intensification” of the existing use, including an extension of the use to the southern portion of the building. Without obtaining consent for that use, it would not be appropriate to grant consent to the alterations and additions that Clarence sought to confine the application to in the hearing. In considering whether consent should be granted, an assessment of the impact of the enlargement, expansion or intensification is required, and not just of the alterations.
Clarence and Lemnian both made it clear, through their respective counsel, that if I determined that consent for intensification or expansion of the use was required, then that is what they seek. They invited me, in the event that I found consent pursuant to cl 42 of the EPA Regulations was required, to allow the application to be amended to rely on cl 42. Accordingly, I grant leave to Lemnian to amend the application accordingly. However, no amendments to the plans are required to reflect this given that they already depict the proposed use of the building and the Council has already treated the development application as one that incorporates the “enlargement, expansion or intensification” of the existing use (in the event that I was against it on there being a separate and independent use for the purpose of a function centre, as I am).

Can the impacts of the expansion or intensification be managed?

What is proposed in the development application, that is, the internal alterations described in the Statement of Environmental Effects and the enlargement, expansion or intensification of the existing use, remains to be assessed under s 79C of the EPA Act. The Council contends in the Statement of Facts and Contentions that the “intensity of the development sought to be approved is inappropriate for the subject site and should be refused on its merits”. Principally the Council says that there are adverse acoustic impacts on the neighbouring residents, and inadequate car parking to accommodate the number of patrons intended to be in attendance.
Given that what is proposed is of a similar character and extent to what is currently occurring on the premises, the impact of the current operation is relevant in evaluating the likely impacts of the proposal. This was made clear by Preston CJ in Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 at [38]:

“The experience of impacts of the past use could be relevant in evaluating, first, the likely impacts of a prospective use for which consent is sought of the same or similar character, extent, intensity and other features as the past use, secondly, the acceptability of the likely impacts and thirdly, if likely impacts are considered to be unacceptable, the appropriate measures that ought to be adopted to mitigate the likely impacts to an acceptable level. Past use would, therefore, be of relevance but it is for proper planning reasons, not because the past use happened to be unlawful.”

Before considering the acoustic and parking impacts of the proposal, and whether there are measures to mitigate those impacts, it is useful to consider the submissions made and evidence given by the local residents in the proceedings.

Resident objectors

The assessment of the development application involved notification in accordance with the Canterbury Development Control Plan 2012 (DCP 2012). Seven submissions were received (5 in objection) including a petition objecting to the application with 17 signatures. There was also a petition in support of the development application with 77 signatures.
At the commencement of the site inspection, three of those who lodged written objections with the Council on the application gave evidence and made submissions. The evidence was given by and on behalf of residents who have been adversely affected by the current operations of Lemnian and Clarence at the club. Mr Fotis gave evidence on behalf of his parents and other residents. His parents are residents of Adelaide Street, which is to the rear of the club. The properties on the north-western side of Albert Street, from 1 to 17 Albert Street, share their rear boundary with that of the club premises. His primary concern is that the works undertaken have resulted in a change of use from a registered club to a function centre, which is a prohibited use. His evidence is that this has caused functions of up to 600 guests to take place on the weekends up to 3am in a residential area, which he says is unacceptable. Mr Fotis’ evidence was that prior to the unauthorised works there was less noise disturbance caused by the operation of the club, and he submits that the premises should be reverted back to a registered club as the dominant use.

Further, I make the following findings in relation to the remaining conditions in dispute:

There is no requirement for a trial period in relation to the operation of the club beyond 9:30pm and up to 11:30pm. The conditions of consent that address the acoustic impact of the proposal, which are outlined above, are sufficient to ensure that there is no adverse impact caused by operating between 9:30pm to 12midnight. It will be the responsibility of Lemnian and Clarence (and any future licensee or operator) to ensure compliance with the conditions of consent, and the responsibility of the Council to enforce compliance.

There is no requirement for the consent to be limited to 2 years. There is no basis for doing so given my findings regarding the existing use rights, the appropriateness of the site for the proposal and the adequacy of the conditions of consent to manage the impact of the proposal.

At least one security guard is to be patrolling the car park when there are functions scheduled for the auditorium, but there is no requirement for that number to increase based on the number of patrons. Instead, how the security for those events will be managed is to be addressed in the Plan of Management, which may include a ratio of security guards to function guests.

There is no requirement for a traffic controller, given that there is adequate parking on site and valet parking operators will be in place in the event that expected attendance at the club exceeds 400 persons.

There is no requirement for there to be a limit on the number of functions that are held in the auditorium. It is the responsibility of Lemnian and Clarence (and any future licensee or operator) to ensure that the use of the premises remains one for the purpose of clubhouse, and that functions are held in accordance with the conditions of consent. However, the number of functions that are held where the total number of persons on the premises is expected to exceed 400 should be limited to 29 (maximum 3 per month) in accordance with the draft Plan of Management.

What works are required to be completed prior to the issue of a building certificate?

Subsumed in my findings on the development application for the premises is my consideration of the ‘notional development application’ for the southern extension of the building, which is before me in Clarence and Lemnian’s request for the issue of a partial building certificate.
The Council submits that a partial building certificate should not be issued in circumstances where the remainder of the premises, which were also the subject of unauthorised works, are not proposed to be dealt with by the building certificate. The fact that there are unauthorised works not proposed to be covered by the building certificate is not a sufficient reason to refuse a building certificate for another part of the premises. By way of analogy, one may issue a building certificate for an additional room added to a dwelling notwithstanding that none is sought for works carried out to the dwelling that were unauthorised. The building certificate simply provides protection from the Council making an order or taking proceedings for the making of an order or injunction requiring the building to be repaired, demolished, altered, added to or rebuilt (see s 149E of the EPA Act). Without a building certificate for the remainder of the premises, it remains open for the Council to pursue enforcement action regarding those non-compliances and the unauthorised works.
Given my findings in relation to the development application (and by extension the notional development application), it is appropriate for me to direct the issue of the partial building certificate upon certain action being taken to ensure that that southern portion of the building is compliant with the BCA. Those actions are largely agreed by Mr Rosello and Mr Grove, except for an item regarding the external wall plans and another concerning limiting egress from the auditorium. Given that the first item appears to relate to the sufficiency of the plan only, I do not propose to make any orders in that regard. The second item was dealt with in the above consideration of the merits of the development application. I also decline to make an order in accordance with item 12 of the agreed items given that the parties have agreed on a condition that the area marked as a smoking room be used for storage purposes only. The orders below otherwise reflect the agreement between Mr Rosello and Mr Grove regarding the works required to the southern extension of the building to achieve BCA compliance.
In 2017/37468, the Court orders that:

Within 60 days of the date of these orders, in relation to the area above the dotted line in Annexure A, the applicant must:

Obtain certification from a suitably qualified professional engineer that all structure load bearing elements associated with the roof, supporting elements and external walls of the southern extension of the building are structurally adequate in accordance with Part B of the BCA.

Obtain certification from a suitably qualified professional engineer that all floor and wall lining materials comply with Clause 1.10 of the BCA including verification (in the form of a statutory declaration) of the floor and wall lining material referred to in the certificate and that which is actually installed.

Remove any floor and wall lining materials that do not achieve compliance in accordance with (b) above.

Have the stormwater and roof water disposal certified by a suitably qualified professional engineer that it complies with AS 3500 and Part 6.4 of Canterbury DCP 2012.

Install the necessary infrastructure to ensure that stormwater is conveyed from the site and into Council’s stormwater system in accordance with AUS-SPEC Specification D5 “Stormwater Drainage Design”, AS/NZS3500.3 and Part 6.4 of Canterbury Council’s DCP 2012.

Have any existing component of the stormwater system that is to be retained checked and certified by a Licensed Plumber or qualified practicing Civil Engineer to be in good condition and operating satisfactorily. If any component of the existing system is not in good condition and /or not operating satisfactorily, it must be upgraded.

Obtain certification from a suitably qualified professional engineer that all works have been carried out in accordance with the approved plan(s), relevant codes and standards.

Obtain certification that the kitchen achieves compliance with the Australian/ANZ Food premises Code and AS 4674-2004.

Fit the existing exit door near the stage with panic bars and compliant door furniture in accordance with clause NSW D2.21 of the BCA.

Arrange for the double doors from the kitchen to have both leafs operable and fitted with panic bars and compliant door furniture in accordance with clause NSW D2.21 of the BCA.

Obtain certification that the mechanical ventilation system serving the auditorium meets the requirements of Clause F4.5 of the BCA and AS1668.2-2015.

Obtain certification from a suitably qualified professional engineer that the mechanical exhaust system installed with the kitchen meets the requirements of Clause F4.12 of the BCA and AS1668.2-2015.

Obtain certification from a suitably qualified professional engineer that the mechanical ventilation/exhaust system serving the WC within the kitchen complies with Clause F4.9 of the BCA and AS 1668.2- 2015.

Obtain certification from a suitably qualified professional engineer that the kitchen exhaust hood complies with F4.12 of the BCA and AS 1668.2- 15.

Obtain a fire safety certificate as identified under clause 170 of the Environmental Planning & Assessment Regulation 2000 that certifies each essential fire safety measure is compliance with the standard of performance identified in the table below:

Proposed Essential Fire or other Safety Measures for the part of the building covered by the Building Certificate

Column 1

Minimum standard of performance, ie. BCA clause and/or Australian Standard number I year/

Column 2

Emergency lighting

BCA Clauses E4.2 & E4.4

AS/NZS2293.1-2005

Exit signs

BCA Clauses E4.5, E4.6 & E4.8, AS/NZS2293.1-2005

Fire hydrant system

BCA Clause E1.3, AS2419.1-2005

Fire hose reel system

BCA Clause E1.4, AS2441-2005

Shutdown of mechanical air handling systems

BCA Clause E2.2, Table E2.2a, E2.2b and AS/NZ 1668.1-1998

Paths of travel, stairways, passageways or ramps

BCA Section D & clause 186 EP&A Regs 2000

Portable fire extinguishers

BCA Clause E1.6, AS2444-1995

Fire alarm

NSW BCA Specification E2.2a, AS 1670.1 - 2004.

Construct a sanitary compartment within the kitchen that complies with clause F2.5 of the BCA.

Obtain certification from a suitably qualified maintenance contractor that the cooling tower complies with F2.7 and AS/NZ 36661.

Obtain certification that the damp proofing of the external walls and floor construction of auditorium and kitchen area satisfies the requirements of clause F1.9 and F1.1 0 of the BCA.

Obtain certification from a suitably licenced person that the roof covering and installation complies with Clause F1.5 of the BCA and AS 1562.1.

Obtain certification that the relevant requirements of section J of the BCA have been satisfied.

Within 7 days of compliance with order 1, the applicant is to file and serve documentation that demonstrates compliance with order 1 including copies of all certification obtained pursuant to the order.

Within 14 days of receipt of the documentation referred to in order 2, the first respondent is to file and serve written advice as to whether any additional information is required to satisfy the first respondent that the work required by order 1 has been carried out.

The first respondent is to issue a building certificate for the southern extension of the building at 42-44 Albert Street, Belmore, identified as the area of the building above the line in Annexure A, within 7 days of being satisfied that the work required by order 1 has been carried out.

Until such time as the building certificate is issued, liberty to restore is granted on 2 days notice.

Directions to be complied with prior to the grant of development consent

Prior to orders being made to grant development consent, the landscape plan and the Plan of Management are to be revised and the conditions finalised to reflect my findings. The Plan of Management can then be incorporated expressly as a condition of consent and reproduced as an annexure to those conditions (see Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 and Amazonia Hotels Pty Ltd v Council of the City of Sydney [2014] NSWLEC 1247).
In 2017/156256, the Court directs that:

The applicant file and serve a landscape plan by 7 March 2018 that shows:

Planting in the areas shaded pink on the sketch annexed and marked B, which includes super advanced size canopy trees where appropriate,

600mm wide low-level landscaping in the strips marked green on the sketch annexed and marked B (consistent with Table 2.2 of AS2890.1) with confirmation from a suitably qualified traffic engineer that provision of such planting will not reduce the 135 available car parking spaces, and

A 2.1m high lapped and capped timber fence along the southern boundary adjacent to the Adelaide Street properties.

The applicant and second respondent are to prepare, and confer with the Council to achieve agreement on, a final Plan of Management that is to be filed and served by 7 March 2018 that revises the Plan of Management in accordance with my findings, removes references to development consent 518/2013 and specifies:

The requirements for drum entertainment groups, including that there will be no drumming outside the premises, all drumming is to conclude by 8pm, and all drumming performances are limited to 15 minutes.

How the inaudibility criterion will be adhered to following the closure of the clubhouse at midnight.

How security personnel will be utilised to reduce the noise of patrons and vehicles in the car park throughout the evening.

That the farewell of the bridal party at wedding events occurs within the auditorium, with guests to remain in the auditorium during the farewell until such time as the departure of the bride and groom from the site.

That there will be no drumming outside the premises, all drumming is to conclude by 8pm, and all drumming performances limited to 15 minutes.

The management of smokers (including staff and patrons) and where smoking areas will be located, ensuring that they are located away from residences to the south and south west.

How patron behaviour will be managed, including the management of patron arrival and departure.

How the number of persons on the premises will be recorded and managed.

How good relations with neighbours will be maintained.

How noise will be managed, including measures to be taken to ensure that there will not be a breach of the noise criterion after midnight caused by patrons exiting the premises following the conclusion of trading hours.

How external areas will be used and managed.

The management of functions, parties and other bookings.

The parking of vehicles, including the operation of valet parking where numbers are expected to exceed 400 persons on the premises.

The registering of complaints and how they will be dealt with.

The cleaning of the premises and the disposal of waste.

The parties confer and file agreed conditions of development consent by 14 March 2018 that include the conditions agreed between the parties at the hearing, reflect my findings and include the following:

That development is to be carried out in accordance with the landscape plan filed in accordance with order (1).

That the premises are to be operated in accordance with the Plan of Management.

That the maximum number of persons who can attend the premises is 588.

The requirement for valet parking to be provided free of charge in the event that the club expects more than 400 persons in attendance at the premises.

The requirement for the following works to be carried out, in accordance with the recommendations of the acoustic experts regarding the mechanical plant equipment, namely:

The two discharge ducts from the air conditioning condensers are to be internally lined on all four sides for the whole of its length with 75 mm thick glasswool insulation (density 32 kg/m3) faced with perforated metal.

The existing penetrations to the walls of the air conditioning condenser plantroom are to be sealed with sheet metal.

The internal side of the air conditioning condenser plantroom walls is to be lined with 50 mm thick glasswool insulation (density 32 kg/m3).

Air intake acoustic louvres are to be inserted in the walls of the air conditioning condenser plantroom, either on the south western or north western sides of the plantroom. The acoustic louvres are to achieve an equal or better insertion loss as the NAPSilentflo 600 S-line louvre.

A 1 metre parapet is to be constructed on the south eastern and south western sides of the roof in the vicinity of the plant area, as shown in Appendix C to the joint expert report of the acoustic experts filed on 4 September 2017 (exhibit 5).

Sealed time clocks are to be installed to control the operation of mechanical plant to 11:30pm.

The requirement for the following works to be carried out, in accordance with the recommendation of the acoustic expert regarding the amplified music:

The sub-woofer speakers are to be lifted and placed on 10 mm thick rubber matting (such as Regupol 6010) such that the subwoofers are not touching the timber support that currently supports the speakers.

A box, constructed from 19mm plywood, be built, wholly under the stage, from the floor to the underside of the stage, to enclose the rear of each sub-woofer speaker.

A new permanent sound lock be constructed outside the south eastern ballroom fire exit, with the following specifications:

• The walls of the sound lock are to be constructed from two layers of 9 mm fibre cement sheet on the outside of 90 mm timber studs, with two layers of 16 mm fire-rated plasterboard on the inside of the sound lock and 90 mm thick glasswool insulation between the studs.
• The ceiling of the sound lock is to be constructed from two layers of 16 mm fire-rated plasterboard with 90 mm thick glasswool insulation fitted between the ceiling joists.
• The roof of the sound lock is to be constructed from two layers of 9 mm fibre cement sheet with corrugated sheet metal above.
• The new sound lock door is to face south west such that patrons exiting through the sound Jock in an emergency must change direction by 90 degrees.
• The new sound lock door is to be constructed from 40 mm solid core timber and fitted with acoustic seals.

The new fire exit door from the auditorium is to be constructed with a sound lock and according to the following specifications:

• The new fire exit door from the Ballroom is to be constructed from 40 mm solid core timber and fitted with acoustic seals.
• The walls of the sound lock are to be constructed from two layers of 9 mm fibre cement sheet on the outside of 90 mm timber studs, with two layers of 16 mm fire-rated plasterboard on the inside of the sound lock and 90 mm thick glasswool insulation between the studs.
• The ceiling of the sound lock is to be constructed from two layers of16 mm fire-rated plasterboard with 90 mm thick glasswool insulation fitted between the ceiling joists.
• The roof of the sound lock is to be constructed from two layers of 9 mm fibre cement sheet with corrugated sheet metal above.
• The new sound lock door is to face north east such that patrons exiting through the sound lock in an emergency must change direction by 90 degrees.
• The new sound lock door is to be constructed from 40 nlm solid core timber and fitted with acoustic seals.

The requirement for all emergency and exit doors where music or amplification is provided (auditorium and Lemnian room) to be fitted with reed switches that operate such that, in the event the doors are open, the limiter settings for those areas are automatically reduced to maintain compliance with the noise criteria.

The hours of operation of the club to be limited to 9am to 12 midnight, 7 days per week.

Functions and events within the auditorium space are to be concluded by 11:30pm.

Waste is to be disposed of between the hours of 8am and 9pm.

The requirement for at least one security guard to patrol the car park at all times when a function or event is being held in the auditorium (as per the second respondent’s proposed condition 15).

Vehicles are permitted to deliver or pick up goods, as well as waste and refuse, from the premises between 8am and 9pm Monday to Sunday with no delivery vehicles standing in the street outside those times.

The requirement for a building certificate for the southern extension of the building to be obtained within 6 months of the date of the construction certificate.

The matter is listed for directions on 21 March 2018 at 4:15pm for final orders to be made.

Liberty to restore is granted on 2 days notice.

The exhibits are returned, except for exhibits 12, 14, 18, 19, C1, C6, C7, C10 and C11.

Addendum made on 23 May 2018 for proceedings number 156256/17

In accordance with the terms of my directions in paragraph 201 of my judgment of 21 February 2018, the parties provided me with the final Plan of Management and conditions of consent. Following some delays in the finalisation of the landscape plan, in part due to the lack of specificity in my direction concerning the same, on 16 May 2018 the parties provided the final landscape plan that they agree is consistent with my directions. I am satisfied that the landscape plan dated 11 May 2018 (180144 Issue E by Dapple Designs), the Plan of Management dated 16 April 2018 and the conditions of consent provided on 16 May 2018 accord with the directions made and the findings given in my judgment. As a result and in accordance with those findings, I am therefore satisfied that consent to the development application should be granted subject to conditions of consent. Accordingly I make orders in chambers as follows:

The Court orders that:

The appeal is upheld.

Development consent (number DA 73/2017) is granted for the intensification and expansion of the use of premises at 42-44 Albert Street, Belmore for the purpose of a club house, and for alterations and additions to the club house premises, subject to the conditions in Annexure A.

Exhibits 12 and 14 are returned.

……………………….

Commissioner Gray

Annexure A (157 KB, pdf)

Annexure B (1.01 MB, pdf)

Plan 1 (208 KB, pdf)

Plan 2 (321 KB, pdf)

**********

Amendments

24 May 2018 - Addendum added with final orders

Decision last updated: 24 May 2018

Medium Neutral Citation:	Lemnian Association of NSW Maroula Club Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1075
Hearing dates:	18-20 September 2017, 26 October 2017
Date of orders:	24 May 2018
Decision date:	21 February 2018
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The appeal is upheld. (2) Development consent (number DA 73/2017) is granted for the intensification and expansion of the use of premises at 42-44 Albert Street, Belmore for the purpose of a club house, and for alterations and additions to the club house premises, subject to the conditions in Annexure A. (3) Exhibits 12 and 14 are returned.
Catchwords:	DEVELOPMENT APPLICATION – appeal - existing use for the purpose of clubhouse – extent of existing use – characterisation of proposed use – whether proposal is an expansion or intensification of the existing use – impact of the expansion and intensification – whether impact can be managed with conditions of consent – acoustic impact – traffic and parking BUILDING CERTIFICATE – appeal – notional development application – whether the building was for the purpose of a use not covered by the existing use – works required prior to the issue of a building certificate
Legislation Cited:	Building Code of Australia Canterbury Local Environment Plan 2012 Canterbury Planning Scheme Ordinance Environmental Planning and Assessment Act 1979 ss 81A, 96, 106, 107, 108, 109B, 121B, 149E, 149F Environmental Planning and Assessment Regulation 2000 cl 39, 41, 42, 43 Land and Environment Court Act 1979 s 39A Liquor Act 1912 Local Environmental Plan 178 Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 Sch 3 Cl 7 Registered Clubs Act 1976 Canterbury Development Control Plan 2012
Cases Cited:	Ashfield Municipal Council v Armstrong (2002) 122 LGERA 105; [2002] NSWCA 269 Ashfield Municipal Council v L Armstrong [2003] NSWCA 353 Auburn Council v Nehme (1999) 106 LGERA 19; [1999] NSWCA 383 Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 Berowra RSL Community and Bowling Club Pty Ltd v Hornsby Shire Council (2000) 114 LGERA 345 Botany Bay City Council v Workmate Abrasives Pty Ltd (2004) 138 LGERA 120 Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 Cracknell & Lonergan Architects Pty Ltd v Leichhardt Municipal Council (2012) 193 LGERA 151; [2012] NSWLEC 194 Foodbarn Pty Ltd v Solicitor-General for New South Wales (1975) 32 LGRA 157 Harris v Hawkesbury Shire Council (1989) 68 LGRA 183 Ireland v Cessnock City Council [1999] NSWLEC 153 Jojeni Investments Pty Ltd v Mosman Municipal Council (2015) 89 NSWLR 760; [2015] NSWCA 147 Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 MM & SW Enterprises Pty Ltd v Strathfield Council (2010) 172 LGERA 125; [2010] NSWLEC 8 Paynter Dixon Constructions Pty Ltd v Fairfield City Council [2011] NSWLEC 127 Shire of Perth v O'Keefe (1964) 110 CLR 529 South Sydney City Council v Houlakis and Teakdale Pty Ltd (1996) 92 LGERA 401 Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276 TK Commercial Property Holdings Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 144
Category:	Principal judgment
Parties:	Lemnian Association of NSW Maroula Club Ltd (Applicant) Canterbury-Bankstown Council (First Respondent) Clarence Investment Pty Ltd (Second Respondent)
Representation:	Counsel: Mr J T Svehla (Applicant) Mr P Jackson, Solicitor (First Respondent) Mr I Hemmings SC / Ms J Reid (Second Respondent) Solicitors: Soubris & Associates (Applicant) Pikes & Verekers Lawyers (First Respondent) Lionheart Lawyers (Second Respondent)
File Number(s):	2017/156256, 2017/37468
Publication restriction:	No

Proposed Essential Fire or other Safety Measures for the part of the building covered by the Building Certificate Column 1	Minimum standard of performance, ie. BCA clause and/or Australian Standard number I year/ Column 2
Emergency lighting	BCA Clauses E4.2 & E4.4 AS/NZS2293.1-2005
Exit signs	BCA Clauses E4.5, E4.6 & E4.8, AS/NZS2293.1-2005
Fire hydrant system	BCA Clause E1.3, AS2419.1-2005
Fire hose reel system	BCA Clause E1.4, AS2441-2005
Shutdown of mechanical air handling systems	BCA Clause E2.2, Table E2.2a, E2.2b and AS/NZ 1668.1-1998
Paths of travel, stairways, passageways or ramps	BCA Section D & clause 186 EP&A Regs 2000
Portable fire extinguishers	BCA Clause E1.6, AS2444-1995
Fire alarm	NSW BCA Specification E2.2a, AS 1670.1 - 2004.