Seribray Pty Ltd v Sutherland Shire Council

[2000] NSWLEC 102

Land and Environment Court

of New South Wales

CITATION:	Seribray Pty Ltd v Sutherland Shire Council [2000] NSWLEC 102
PARTIES:	APPLICANT Seribray Pty Ltd RESPONDENT Sutherland Shire Council
FILE NUMBER(S):	11042 of 1999
CORAM:	Pearlman J
KEY ISSUES:	Question of Law :- SEPP 5 - existing use rights - environmentally sensitive land
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 106 Environmental Planning and Assessment Regulation 1994 Interim Development Order No 30 - Shire of Sutherland State Environmental Planning Policy No 5 Sutherland Shire Local Environmental Plan 1993
CASES CITED:	Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404; Foodbarn Pty Ltd and Ors v Solicitor-General (1975) 32 LGRA 157; The Council of the City of Parramatta v Brickworks Ltd (1972) 128 CLR 1; Woollahra Municipal Council v Hinton (1967) 13 LGRA 417
DATES OF HEARING:	24/05/2000, 30/05/2000
DATE OF JUDGMENT:	05/31/2000
LEGAL REPRESENTATIVES:	APPLICANT Mr P C Tomasetti (Barrister) SOLICITORS Hardings RESPONDENT Mr P J McEwen SC SOLICITORS Sutherland Shire Council

JUDGMENT:

IN THE LAND AND

11042 of 1999

ENVIRONMENT COURT Pearlman J

OF NEW SOUTH WALES 31 May 2000

SERIBRAY PTY LTD

Applicant

v

SUTHERLAND SHIRE COUNCIL

Respondent

JUDGMENT

Introduction

1. A preliminary question of law has arisen in a class 1 appeal relating to a deemed refusal of Sutherland Shire Council (“the council”) to grant development consent to Seribray Pty Ltd (“the applicant”) for a development for aged and disabled persons under State Environmental Planning Policy No 5 (“SEPP 5”).

2. The question is as follows:

Whether consent can be granted to the proposed development on that part of the subject site that is within Zone 7(a) Environmental Protection (Waterways) pursuant to the Sutherland Shire Local Environmental Plan 1993.

3. The land to which the applicant’s development application relates is at Cronulla and comprises lot A in DP 394171, lot 1 in DP 746636, lot 5 in DP 24698 and lot 1 in DP 659336. The last-mentioned lot (which for convenience I will refer to as “lot 1”) is zoned 7(a) Environmental Protection (Waterways) pursuant to the Sutherland Shire Local Environmental Plan 1993 (“LEP 1993”) whilst all the remaining lots are zoned Residential 2(e1). In relation to those remaining lots, development for the purpose of dwelling houses is permissible with consent.

4. SEPP 5 permits development for the purpose of any form of housing for older people or people with a disability despite, in this case, the provisions of LEP 1993. However, pursuant to cl 4 of SEPP 5, its provisions only apply to land on which development for the purpose of dwelling houses is permitted, and it does not apply to land which is described in sch 1 as environmentally sensitive land. The applicant concedes that lot 1 is so described.

The competing arguments

5. The council asserts that development consent cannot be granted to the development application because the development application involves environmentally sensitive land to which SEPP 5 does not apply.

6. In response, the applicant asserts that lot 1 enjoys the benefit of existing use rights for use for residential purposes and that the development application seeks, in respect of lot 1, either an intensification of that existing use, or a change of that existing use from a use for residential purposes as a single dwelling to a use for residential purposes as multi-unit dwellings for aged and disabled persons.

7. The council denies that any existing use rights attach to lot 1.

8. As a consequence of these competing arguments, two issues arise for determination. First, it is necessary to ascertain if existing use rights attach to lot 1. If they do not, then the answer to the preliminary question of law must be in the negative. However, if they do, then the second issue arises, namely, whether the development application may be taken to seek consent for a SEPP 5 development upon the remaining lots and a change or intensification of existing use in respect of lot 1 or whether it seeks consent for a SEPP 5 development for all four lots.

Existing use rights

9. The expression “existing use” is relevantly defined in s 106(a) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) as follows:

(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 4A of Part 3 or Division 4 of this Part, have the effect of prohibiting that use …

10. On 5 March 1976, Interim Development Order No 30 - Shire of Sutherland (“IDO 30”) was made. Under its provisions, lot 1 was zoned 7(a) Waterways, and development for residential purposes was prohibited, whilst development for the purposes, amongst others, of swimming enclosures and watercraft landing facilities was permissible with consent. Accordingly in relation to an inquiry as to whether or not existing use rights attach to lot 1, the relevant date is 5 March 1976. It is also relevant to note that, prior to that date, the planning scheme in force was the County of Cumberland Planning Scheme Ordinance, but it made no specific reference to the zoning of lot 1, and the parties are agreed that lot 1 was unzoned prior to 1976.

11. The history of the use of lot 1 is not entirely clear. However, it is reclaimed land which was the subject of land grant vol 3252 fol 106 dated 8 November 1921. An aerial photograph taken in 1947 shows a boat basin and a boatshed on lot 1, and a dwelling house on the adjoining lot 5 in DP 24698 (which I shall call for convenience “lot 5”). In 1969 lot 1 and lot 5 were purchased by Dr and Mrs Lynch, and at the time of purchase, there existed a dwelling house on lot 5 and a wooden boatshed, boat ramp and boat basin on lot 1. In 1974, approval was granted to a brick pool house entirely on lot 5 and a swimming pool largely on lot 1 although a part extended into lot 5.

12. In the light of these facts, the council concedes that lot 1 was, prior to the coming into force of IDO 30 in 1976, used for a lawful purpose. The issue between the parties is the proper characterisation of that purpose. The council contends that lot 1 was being used for the purpose of boating, swimming and associated recreational activities, an independent use which was ancillary to the residential use of lot 5, and that independent use was not prohibited by IDO 30, and was then and has remained throughout subsequent planning instruments a use permissible with consent. The applicant contends that lot 1 and lot 5 (and perhaps further lots extending back to Gunnamatta Road) comprised one planning unit which was used for the dominant purpose of a residential dwelling, and that the use of the boating and swimming facilities on lot 1 was subservient to that dominant purpose.

13. The applicable legal principles are not in doubt. Where a part of particular premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used ( Foodbarn Pty Ltd and Ors v Solicitor-General (1975) 32 LGRA 157 at 161). However, a use which is ancillary to another use may nevertheless be an independent use - it is a question of fact and degree in the all the circumstances of the case ( Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404 at 409). Furthermore, it is legitimate in an inquiry about existing uses to have regard to the premises in question from a practical point of view as one piece of land or one planning unit and to disregard separate titles and conveyancing details ( The Council of the City of Parramatta v Brickworks Ltd (1972) 128 CLR 1 at 23).

14. The application of these principles is illustrated in a useful way in the following passage from the decision of Meagher JA in Baulkham Hills v O’Donnell at p 409 - 410:

When a resident uses his land to park his motor car at his house, he is no doubt not conducting an independent use of car parking; when an employer installs at his factory a canteen for his workers, no doubt he is not conducting an independent use of running a restaurant; when the Clarks grew vegetables for their table they were not conducting an independent use of vegetable growing. But when one use of the land is by reason of its nature and extent capable of being an independent use it is not deprived of that quality because it is “ancillary to” or related to, or interdependent with, another use. If a book publisher opens a sales room at his publishing house to sell his products, the selling of books is an independent use although ancillary to the use of publishing. The series of cases dealing with dual uses … illustrate the point: they show that a “convenience store” and a petrol station are two independent uses, although the former is clearly ancillary to the latter.

15. Here the nature of the use of lot 1 prior to 1976 was clearly recreational. According to Mrs Lynch’s evidence, the swimming pool, brick pool house, boathouse and boat basin were used by her husband, herself and their three young children for recreational purposes. She stated that her children used the “whole of the property” (by which I infer that she meant both lot 1 and lot 5), for “living and playing”. She said that the property, comprising both lot 1 and lot 5, was used as “our family home”. On this evidence, it is not to be supposed that lot 1 was used by Dr and Mrs Lynch and their family for an independent use of boating and swimming. Simply to state that proposition reveals its absurdity. I am satisfied that the use of lot 1 for boating, swimming and related uses was a use which was in 1976 subservient to the dominant use of lot 1 and lot 5 for residential purposes.

16. I conclude that, immediately prior to the coming into force of IDO 30, lot 1 and lot 5 were properly regarded as one planning unit used as a whole for a residential purpose, and that, in accordance with the definition in s 106(a), existing use rights for use for that purpose attach to lot 1.

17. I should at this stage mention Woollahra Municipal Council v Hinton (1967) 13 LGRA 417. Mr McEwen SC, appearing for the council, cited that case as authority for the proposition that characterisation of the existing use in this case as being for residential purposes was too broad a definition, and that a narrower definition is required which would lead to a characterisation of the use of lot 1 as being for boating and related purposes. However, Woollahra v Hinton is a quite different case. The issue there was whether the use of certain land as a dwelling house before the relevant date constituted an existing use for residential purposes which would permit the use of that land after the relevant date for the purpose of a residential flat building. The issue here is whether the use of lot 1 for boating and related purposes is an independent, although ancillary use, or whether it is a use which is subservient to the dominant use for the whole of lot 1 and lot 5 for residential purposes.

18. My conclusion that existing use rights attach to lot 1 does not conclude the matter, as I have earlier pointed out. The second issue arises - that is, what is to be properly regarded as the development for which consent was sought.

The development for which consent was sought

19. Mr Tomasetti, appearing for the applicant, claimed that the development application in effect sought consent for a SEPP 5 development upon the lots other than lot 1, and that, in respect of lot 1, it sought consent under the provisions of the Environmental Planning and Assessment Regulation 1994 (“the Regulation”) for an intensification of the existing use, or alternatively, a change of the existing use from a use for residential purposes for a single dwelling to a use for residential purposes for multi unit dwellings.

20. I have carefully considered the evidence concerning the development for which consent was sought, and I can find no evidence to support Mr Tomasetti’s contention. An affidavit of Ms M D Laidlaw, who is the consultant planner from the council, discloses that the development application sought consent for a development comprising 22 self contained dwellings pursuant to the provisions of SEPP 5 upon the four lots which I have earlier described, which include lot 1. That evidence is corroborated by the plans, which were tendered as ex 1 and each of which is entitled “SEPP 5 housing development”. Plan numbered DA04C is a lower floor plan, but it delineates the whole of the proposed development. It expressly refers to all four lots, including lot 1, as “the site area”, and lot 1 is not differentiated in any way although it is apparent that the only work to be carried out on lot 1 is the construction of a new path.

21. Having regard to these matters, I agree with Mr McEwen’s submission that the development application comes forward as a unified application for consent to a SEPP 5 development on all four lots.

22. I take it, then, that Mr Tomasetti was claiming that the Court on appeal could nevertheless grant development consent to the proposed development on all four lots, because intensification or a change of an existing use is permissible with consent pursuant to cl 40 and cl 43 of the Regulation.

23. In my opinion, the Court has no power to treat the development application as though it sought consent under cl 40 and cl 43 of the Regulation. It does not seek any such consent. Rather it seeks consent for a SEPP 5 development on all four lots. To treat the development application in the manner which the applicant claims would be a contravention of s 80(1) of the EP&A Act which empowers a consent authority (and the Court on appeal) to grant consent only to the development for which consent was sought.

The answer to the preliminary question of law

24. In accordance with the foregoing, I answer the question of law in the negative; that is, consent cannot be granted to the proposed development on lot 1.

25. I invite the parties, in the hearing which is currently proceeding before me, to make submissions as to the further conduct and ultimate disposal of the class 1 appeal.