Nixon v Wyong S.C

[1999] NSWLEC 46

Land and Environment Court

of New South Wales

CITATION:

Nixon -V- Wyong S.C. [1999] NSWLEC 46

PARTIES

Appellant:
Belinda Nixon

Respondent:
Wyong Shire Council

NUMBER:

20103 of 1998

CORAM:

Talbot J

KEY ISSUES:

:- Construction & Interpretation - existing use

Evidence - relevance of existing use

LEGISLATION CITED:

Construction & Interpretation - existing use

Evidence - relevance of existing use

DATES OF HEARING:

03/05/1999

DATE OF JUDGMENT DELIVERY:

03/10/1999

LEGAL REPRESENTATIVES:

Appellant:
Mr M W Anderson (Barrister)

Solicitors:
N J Papallo & Co.

Respondent:
Mr P C Tomasetti (Barrister)

Solicitors:
Catherine Lancaster
Wyong Shire Council

JUDGMENT:
IN THE LAND AND MATTER No. 20103 of 1998
ENVIRONMENT COURT CORAM: Talbot J
OF NEW SOUTH WALES DECISION DATE: 10 March 1999

BELINDA NIXON
Appellant


v

WYONG SHIRE COUNCIL
Respondent

REASONS FOR JUDGMENT

1. This is an appeal by way of Notice of Motion against the decision of Assessor Watts, as he then was, pursuant to s 56A of the Land and Environment Court Act.

Background to the appeal

2. On 10 November 1998 Assessor Watts dismissed an appeal under s 180 of the Local Government Act 1993 (the LG Act) and confirmed Order No. 30 made under s 124 of the LG Act issued by the council on 26 May 1998.

3. Building Application No. 1339/74 had been lodged with the council on 6 May 1974 and the council approved additions to a dwelling house already erected on the land subject to a condition:-

Subject to the additions not being used for separate occupation.

4. Building Application No. 1339/74 was accompanied by a plan that showed an existing dwelling with the proposed additions consisting of seven additional rooms to be physically connected by means of a carport. The carport has never been built.

5. By Order No. 30 the council ordered the appellant, as the owner of the land, “… to comply with building approval No. 1339/74 and not use the additions for separate occupation”.

6. The building comprising the existing building is now in a separate and distinct occupation to the separate building erected as an addition in accordance with the approval given to Building Application No. 1339/74.

7. The only formal evidence before Assessor Watts regarding the occupation of the premises is contained in a statement of evidence by consultant planner C J Oliver as follows:-

In fact the premises were owned by the mother of the applicant for the additions, despite the building application identifying the applicant and owner as the same person. Once the additions were completed (with the exception of the carport) in 1974 they were occupied by the owners (sic) son and family. Such occupation has since resorted to unrelated persons.

8. When the building application was approved in 1974, Wyong Planning Scheme Ordinance (the PSO), proclaimed on 24 April 1968, was in force and contained the following definition of a dwelling house:-

“Dwelling-house” means a building intended for use as a dwelling for a single family, together with such out-buildings as are ordinarily used therewith, and includes a dwelling in a row of two or more dwellings attached to each other, such as are commonly known as semi-detached or terrace buildings.

9. A dwelling house was a purpose for which a building could be erected or carried out or used without the consent of the council under the PSO.

10. By amendments made during 1976, the following definitions were included in the PSO:-

“Dwelling” means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.

“Dwelling-house” means a building containing one but not more than one dwelling.

“Residential flat building” means a building or group of buildings containing two or more dwellings.

11. A residential flat building was a purpose for which buildings or works may not be erected or carried out or used following the 1976 amendment.

12. Wyong LEP 1991 applied from 15 February 1991 and contains the following definition:-

“detached dual occupancy” means two dwelling-houses on one allotment of land

13. A detached dual occupancy may be carried out only with development consent.

The competing arguments on appeal

14. The applicant/appellant contends that the building has the benefit of existing use rights and that Assessor Watts fell into error when he failed to make a determination in regard to the existence of the existing use rights and then to determine the appeal on the basis that those rights existed. Alternatively, if the Assessor did make a determination in regard to the existing use rights, he failed to give any or sufficient reasons for his conclusion.

15. On the other hand, the respondent says that in the course of argument in relation to the admissibility of evidence, the Assessor decided that the question of existing use rights was not relevant to this determination and gave his reasons when rejecting the evidence in that regard. In any event the question of the existence of the existing use rights was irrelevant and a failure to determine the issue could not vitiate the Assessor’s decision.

The existing use argument

16. The appellant contends that when the additional building was completed in 1974, because its use in conjunction with the existing building was for the dwelling of a single family, it could be used for that purpose without further consent. This argument ignores the failure to build the carport shown in the approved plan which, if built, would have made a physical connection between the two buildings. It also ignores the acknowledged separate occupation by the mother on the one hand with a separate set of facilities to the other members of the family who resided in the second building.

17. The appellant further suggested in argument that the additions could be regarded as an outbuilding contemplated by the definition.

18. The appellant’s argument relies, principally, on the family relationship between the occupants at that time notwithstanding that it appears the physical occupation of the two buildings was separate.

19. After 1976 the appellant asserts each of the buildings could be described as capable of being physically used as a separate domicile. They therefore fitted the definition of residential flat building and hence were non-conforming.

20. It is acknowledged that by 1991 there was no family relationship between the occupants who were by then independently occupying the separate buildings.

21. After 1991 the buildings were subject to a requirement for development consent as detached dual occupancy yet no consent has been obtained for that use. The appellant submits however that no consent is required relying on the continuing non-conforming use from 1976.

22. The argument relies upon acceptance of principle which is not in accordance with authority.

23. An existing use is to be characterised by practical consideration of the actual use at the relevant time, not limited to reliance upon particular statutory definitions or by confinement to narrow categories ( Hudak v Waverley Municipal Council (1990) 70 LGRA 130 at 135). Furthermore, the use must be for a lawful planning purpose.

24. If the use in 1976 is to be properly regarded as being the conjunctive use of the buildings for the accommodation of one family, that is not the use which has continued. Once the filial connection was broken, whenever that was, an essential ingredient of the use changed.

25. If the use in 1976 is to be properly regarded as being a separate occupation of the two buildings, then it was being used at that time contrary to the conditions of the 1974 approval. Furthermore, it would have comprised the use of two buildings which, taken together, did not fall within the definition of a dwelling house in the PSO.

26. The issue is not the continued existence of the buildings.

27. The council’s order is directed at the use of the buildings contrary to the conditions of the approval.

28. There is an obvious internal conflict in the appellant’s argument to support an existing use which relies upon:-

a) a use carried on in breach of a condition of approval

b) the use as a dwelling house which presumably did not require planning consent at the date of its commencement but which subsequently changed in a material respect

c) the use as a residential flat building which was inconsistent with the approved use for a single dwelling house.

29. An essential ingredient of the use relied upon in 1974 to make it lawful was removed after 1976 and before 1991.

30. Even accepting the whole of the facts claimed by the appellant, it was not open for the Assessor to determine that the recipient of the order is entitled to rely on existing use rights.

The relevance of existing use rights

31. There are no set criteria which require existing uses to be considered before an order can be issued pursuant to s 124.

32. At its highest, the proof of an existing use would be a matter that could be taken into account. Mr Tomasetti, who appeared for the council, accepted this.

33. An existing use could not necessarily preclude the issue of an order.

34. The purpose of the council making the order was to bring the present use into compliance with a condition of approval given under the previous Local Government Act.

35. There is no contention that the approval has been superseded, subsumed or is no longer in force for some other reason.

36. It does not matter whether the Assessor regarded the buildings as a single dwelling house, a residential flat building or a detached dual occupancy because the fact remains that the lawfulness of the buildings and their use is dependent upon compliance with the approval given in 1974.

37. The compliance or non-compliance with particular statutory definitions are merely facts which the Assessor might have taken into account. Existing use rights are in the same category.

38. In passing, I should say that the Court agrees with Mr Tomasetti that the only reason the buildings do not comply with the present definition of a dwelling house is because the additions are being illegally used in contravention of the building approval.

39. However, a failure to determine whether the building complied with the requirements of a planning instrument before issuing an order is not necessarily an error of law. Likewise, neither is a failure to determine whether there were existing use rights. They were not essential matters to be taken into account.

40. If the Assessor had regard to either of those matters and decided to disallow the notice on that basis, he would not have fallen into error. That is because they could be relevant as a matter of fact in the particular circumstances of the case.

41. Accordingly there may be no error of law if the Assessor failed to determine whether there were existing use rights.

42. His determination reflects a decision not to recognise existing use rights as a relevant issue. It was not imperative for the Assessor to deal with and make a specific finding in respect of every evidentiary matter placed before him. He was entitled to disregard irrelevant matters or any issues not essential to his decision.

43. Although a great deal of the evidence in the written statement provided by the appellant’s consultant town planner was rejected by the Assessor in response to objection that it was speculative, argumentative or beyond his expertise, it is clear from the transcript that the respondent also squarely raised, at that time, the issue of the credibility of the argument relating to the existence of the alleged existing use rights and their relevance.

44. The appellant’s counsel, Mr Anderson was repeatedly asked by the Assessor and Mr Tomasetti to spell out the existing use argument. After Mr Anderson attempted to do so, it becomes clear from the Assessor’s response, that the argument in respect of existing use rights could be put to one side, that he did not accept it.

What the Assessor decided

45. The first several pages of the reserved judgment leave the reader in no doubt about the underlying circumstances as they were understood and accepted by the Assessor. He identified the issue in the appeal as whether the order should be revoked. The matters considered in the evidence were set out as including:-

1. breach of building application,
2. no planning permission for dual-occupancy development,
3. flood liability of land, and
4. non-compliance with dual-occupancy criteria.

46. The submissions made by Mr Anderson on behalf of the appellant and Mr Tomasetti on behalf of the council were identified. This identification process left no doubt that there was a debate about the entitlement of the applicant to rely on the benefit of existing use rights.

47. Having set out the details of the evidence and the submissions, the Assessor indicated that having considered them all, he would confirm the order under s 124 of the LG Act.

48. He held that a requirement to return to the use as a single dwelling house as a consequence of the operation of the condition of building approval given in 1974 was an appropriate subject for an order under s 124 of the Act.

49. That he did not consider existing use rights, if any, to be a relevant matter or at least to have sufficient weight to convince him otherwise, is demonstrated by the finding that the applicant had not placed any evidence before him that would persuade him not to return the use to that approved in 1974.

50. It was also shown that he was not persuaded about the benefit of any existing use rights when he observed that if the applicant seeks to use the property for a use, other than that which has been approved, the proper course would be to apply for planning permission.

51. He also expressed the concern about allowing a higher density of occupation of the land to continue where the property is flood liable.

52. Although it may have been helpful, in the light of subsequent events, for the Assessor to set out more detail of his reasoning process, his ultimate finding is a statement about the facts and of his opinion. In the Court’s view there is no doubt that his conclusions were reasonably open to him as a technical assessor exercising the jurisdiction of an expert, specialist lay tribunal.

53. The appellant does not complain that the Assessor erred at law in failing to consider any matter he was required to consider, but rather that he failed to determine whether existing use rights had accrued. For the reasons I have already explained, this could not have amounted to a crucial error of law vitally material to the outcome of the proceedings to the extent of vitiating the decision of the Assessor.

54. The weight he attributed to each of the matters raised for consideration by the respective parties was a matter exclusively for his judgment, being a question of fact.

55. Even if the Assessor had been required to determine whether existing use rights had accrued, a correct decision by him on facts presented by the appellant would have made no difference to the outcome.

56. On the other hand, if he had held that there were existing use rights, then provided he took them into account, his failure to disallow the order notwithstanding the existing use rights would not have been an error which is “fundamental” or “vital” to the basis of the decision ( Barmuncol Pty Ltd v Maroochy Shire Council 50 LGRA 309 at 313-314).

The rejection of the evidence

57. A substantial part of the evidence relied upon by the appellant was contained in the written statement prepared by the appellant’s town planning consultant.

58. At the request of the respondent I have had the benefit of reading the transcript of the argument relating to the objection taken to parts of the report by Mr Oliver.

59. Although the rules of evidence do not apply in class 2 proceedings, the Court is not bound to accept whatever material is presented in the form or guise of expert evidence.

60. It must have some probative value at least and must, of course, be relevant. The Court has a wide discretion to admit or reject evidence in the form of submission or opinion evidence for which there is no basis or lies outside the field of expertise of the witness.

61. The material excluded was generally Mr Oliver’s opinion about the effect, application or meaning of statutory provisions. Much of it was in the form of submissions and contained conjecture. The Assessor was persuaded that the material in many respects was argumentative. These are reasons which were all reasonably open to the Assessor and accordingly his decision to exercise his discretion by rejecting the evidence should not be interfered with on appeal.

62. In any event there was adequate opportunity to address the issues raised by Mr Oliver in final submissions and significantly this was done in almost every respect.

Conclusion

63. Having regard to the whole of the circumstances, no error of law on the part of the Assessor has been demonstrated. Even if there has been an error, which I do not accept, the error would not have been such to vitiate the decision of the Assessor.

64. No submissions were made in relation to an order for costs. The respondent, as the successful party, is prima facie entitled to the exercise of the Court’s discretion to make an order for costs in its favour. The parties nevertheless will have the opportunity to make any submissions in that regard before an order is made.

Orders

65. The Court makes the following orders:-

1. The appeal is dismissed.

2. The exhibits may be returned.

3. The question of costs is reserved.

I hereby certify that this and the preceding 11 pages are a true and accurate record of the reasons for judgment herein of the Honourable Justice R N Talbot.

Associate