Solomon v Wingecarribee Shire Council

[2024] NSWLEC 1594

Land and Environment Court

New South Wales

Medium Neutral Citation:

Solomon v Wingecarribee Shire Council [2024] NSWLEC 1594

Hearing dates:

23 September 2024

Date of orders:

25 September 2024

Decision date:

25 September 2024

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The Applicant is to pay the Respondent’s reasonable costs thrown away as agreed or assessed in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 as a result of the amendment of the application.

(2) The appeal is upheld.

(3) Development Application No. 24/0371 for alterations an additions to an existing house to convert it to a single dwelling, and the construction of two multi-dwelling residences (to reduce five dwellings to three dwellings), and related landscaping, at 23 Merrigang Street, Bowral, is determined by the grant of consent, subject to the conditions of consent in Annexure A.

(4) The exhibits, other than exhibits 1 and A, are returned.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to covert five dwellings to three dwellings – multi-dwelling housing is a prohibited use in the R2 Low Density Residential zone under the Wingecarribee Local Environmental Plan 2010 – the use of the site is an existing use within the meaning of s 4.65 of the Environmental Planning and Assessment Act 1979

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.65, 4.66, 8.7, 8.15(3)

Land and Environment Court Act 1979, ss 34, 39(2)

Local Government Act1919

Bowral Local Environmental Plan No. 1

Bowral Planning Scheme Ordinance

Environmental Planning and Assessment Regulation 2021, ss 38, 166

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.1, 6.6

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Wingecarribee Local Environmental Plan 1989, cll 5, 18

Wingecarribee Local Environmental Plan 2010, cll 4.3, 4.4, 5.10

Category:

Principal judgment

Parties:

David Solomon (Applicant)
Wingecarribee Shire Council (Respondent)

Representation:

Counsel:
J McKelvey (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/426486

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 24/0371 for alterations and additions to convert five dwellings to three dwellings (the proposal), at 23 Merrigang Street, Bowral (the site), by Wingecarribee Shire Council (the Council).

2. The appeal was subject to conciliation on 27 March 2024, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.

The application is amended

3. The applicant, by Notice of Motion heard on 23 September 2024, sought to amend the application to rely on amended plans and documents listed under an annexure to the Notion of Motion (see condition 1 of the Conditions of Consent at Annexure A). The granting of the Notion of Motion was not opposed by the Council.

4. The Court, exercising the functions of the Council as the relevant consent authority under s 39(2) of the LEC Act, approved the amendment of the application pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), including an order that the applicant pay the Council’s reasonable costs thrown away as a result of the amendment of the application, as agreed or assessed, under s 8.15(3) of the EPA Act.

Issues

5. The Council submitted that the merit contentions particularised in the Statement of Facts and Contentions (Ex 1) are no longer pressed following the amendment of the application. The Council takes a neutral position on whether the existing use of the site is an existing use within the meaning of s 4.65 of the EPA Act, noting that it is a jurisdiction precondition of which the Court must be satisfied before granting consent to the application.

The site and the proposal

6. The site contains a single storey house constructed c 1877 (Ex A, tab 5) currently in use as three residential dwellings, and a brick duplex constructed c 1968 in the southern portion of the site currently in use as two residential dwellings. All five dwellings are entered at ground level.

7. The site has an area of 1,695m². The site is located at the junction of Merrigang and Bendooley Streets and there is currently vehicular access to the site from both streets.

8. The proposal is for alterations and additions to the single storey house to return it to a single dwelling, demolition of the existing duplex and construction of a new two storey building over a basement on the southern portion of the site containing two residential dwellings. Vehicular access to the site is via a driveway accessed from Merrigang Street. The basement carpark is accessed via a car lift.

Planning framework and jurisdictional pre-conditions to the grant of consent

9. Division 4.11 ‘Existing uses’ of the EPA Act is relevant to the proposal. Sections 4.65(a), and 4.66(1), (2)(e) and (3), are in the following terms:

4.65 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 this Division, have the effect of prohibiting that use, and

4.66 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—

(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.

10. Section 166 of the EPA Regulation is in the following terms:

166 Rebuilding of buildings and works

(1) Development consent is required for any rebuilding of a building or work used for an existing use.

(2) The rebuilding must be—

(a) for the existing use of the building or work and for no other use, and

(b) carried out only on the land on which the building or work was erected or carried out immediately before the relevant day.

11. The site is within the Sydney Drinking Water Catchment and so Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies to the proposal, at s 6.1. I accept the Council’s submission and the evidence of the stormwater experts (Ex 7) that the considerations under s 6.6(1)(b)-(g) and the pre-conditions to the grant of consent (2)(b) of SEPP B&C have been satisfied by the proposal.

12. I accept the Council’s submission that the land is suitable for the development, as it has been used for a residential purpose at least since c 1877, pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021.

13. The site is zoned R2 Low Density Residential pursuant to Wingecarribee Local Environmental Plan 2010 (LEP 2010), which commenced on 16 June 2010. The objectives of the R2 zone, to which regard must be had, are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

14. Multi-dwelling housing is prohibited in the R2 zone.

15. There are no height of buildings or floor space ratio development standards that apply to the site under cll 4.3 and 4.4 of LEP 2010.

16. The site is within the Bowral Heritage Conservation Area (Bowral HCA) (Heritage Map Sheet HER_007C of LEP 2010). Clause 5.10 of LEP 2010 applies to the proposal. I accept the agreement of the heritage experts (Ex 5) that the proposal (as amended) is an appropriate heritage response to the collective heritage significance of the Bowral HCA, subject to the imposition of a condition of consent that the roof is to be a light grey colour (condition 37, Conditions of Consent at Annexure A). I am satisfied that the effect of the proposal on the heritage significance of the Bowral HCA is acceptable, pursuant to cl 5.10(4) of LEP 2010.

Expert evidence

17. The applicant relied on the expert evidence of Scott Barwick (planning), Jennifer Hill (heritage), Thomas Yang (traffic) and Daniel Holland (stormwater).

18. The Council relied on the expert evidence of Andre Vernez (planning), Lisa Trueman (heritage), Paul Corbett (traffic) and Oscar Garratt (stormwater).

The existing use of the site is an existing use within the meaning of s 4.65 of the EPA Act

19. I am satisfied, on the basis of all of the evidence before me, that the existing use of the site is an existing use within the meaning of s 4.65 of the EPA Act and that the existing use is appropriately characterised as multi-dwelling housing (within the defined meaning of multi-dwelling housing in the Dictionary of LEP 2010).

20. The existing use of the site for multi-dwelling housing is presumed, pursuant to s 4.66(3) of the EPA Act, as there is no evidence before me to establish that the use has been abandoned. Furthermore, the unchallenged evidence in a letter provided by the managing agents of the units, who have managed the units since 13 August 2007, is that the property has been leased as five separate units during their time as managing agents (Ex B, tab 8).

21. I accept the agreement of the planning experts on the following facts (Ex 3, par 17):

• There was a dwelling on the land prior to planning controls and the commencement of the Local Government Act1919.

• Building Application No 50/1967, repairs to existing flats, 3 kitchens and dining spaces, 3 bedrooms, 3 bathrooms, contained predominantly with the original building, was approved 9 June 1967 when the Bowral Planning Scheme Ordinance was in force.

• Building Application 142/1968, construction of two new brick flats, was approved 18 November 1968 when the Bowral Planning Scheme Ordinance was in force.

• Subdivision Application D7174, strata subdivision of 5 existing flats, was granted consent on 30 October 1974 when the Bowral Local Environmental Plan No. 1 was in force.

• Building Application 91/525 for works to the dwellings for required building upgrades to satisfy the conditions of Subdivision Consent D7174, granted consent on 7 January 1992 when Wingecarribee Local Environmental Plan 1989 (LEP 1989) was in force.

22. The original house was divided into three flats sometime between its construction in c 1877 and the lodging of Building Application No. 50/1967 in 1967. It is unknown when the use of the original house as three flats commenced and so it has not been demonstrated whether the use of the original house as three flats was lawful or unlawful at the time the application for repairs to the three flats was lodged in 1967. The granting of consent of Building Application 142/1968, for two new brick flats (in addition to the original house extant on the site) on 18 November 1968, under the Bowral Scheme Ordinance, is an approval for development that can be characterised as cluster housing, or multi-dwelling housing, on the site, regardless of whether the use of the original house as three flats was lawful or not.

23. I accept the agreement of the planning experts that the existing use was consistent with the definition of “cluster housing” and the requirements of cl 18 of LEP 1989, when the Building Application 91/525 was granted consent. Under LEP 1989, the site was zoned 2(a) (Ex 1, par 25). Cluster housing was defined under cl 5 of LEP 1989 as “cluster housing means development carried out in accordance with clause 18”. Clause 18 was in the following terms:

18 Cluster housing

(1) This clause applies to land within Zone No 2 (a), 2 (a1), 2 (a2), 2 (b) or 2 (c).

(2) A person shall not erect a dwelling-house which forms part of a cluster except with the consent of the council.

(3) Nothing in this plan prevents the erection, with the consent of the council, of more than one dwelling-house on an allotment, portion or parcel of land if the dwelling-houses form part of a cluster.

(4) For the purposes of this clause, dwelling-houses form part of a cluster if:

…

(b) rights to use and enjoy land in or in the vicinity of the curtilage of the dwelling-houses is common to all the occupiers of the dwelling-houses.

24. I accept the agreement of the parties that the use of the site as five residential flats, characterised as cluster housing within the meaning of cl 18, was a permissible use under LEP 1989.

25. I accept the agreement of the parties that the use of the site as multi-dwelling housing became a prohibited use when LEP 2010 commenced, on 16 June 2010.

26. Based on the agreed facts above at [21], I am satisfied that there were at least three lawful residential flats on the site immediately prior to the commencement of LEP 2010. I am satisfied that the use of the site, immediately prior to the commencement of LEP 2010, can be characterised as multi-dwelling housing within the dictionary meaning of LEP 2010.

Orders

27. The orders of the Court are:

1. The Applicant is to pay the Respondent’s reasonable costs thrown away as agreed or assessed in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 as a result of the amendment of the application.

2. The appeal is upheld.

3. Development Application No. 24/0371 for alterations and additions to an existing house to convert it to a single dwelling, and the construction of two multi-dwelling residences (to reduce five dwellings to three dwellings), and related landscaping, at 23 Merrigang Street, Bowral, is determined by the grant of consent, subject to the conditions of consent in Annexure A.

4. The exhibits, other than exhibits 1 and A, are returned.

Susan O’Neill

Commissioner of the Court

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Annexure A 

Decision last updated: 25 September 2024