St Jude Property Investments v Wollongong City Council
[2012] NSWLEC 1188
•17 July 2012
Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: St Jude Property Investments v Wollongong City Council [2012] NSWLEC 1188 Hearing dates: 17 July 2012 Decision date: 17 July 2012 Jurisdiction: Class 1 Before: Morris C Decision: Appeal Upheld
Catchwords: Consent Orders, existing use rights Legislation Cited: Environmental Planning and Assessment Act 1979;
Environmental Planning and Assessment Regulation 2000
Wollongong Local Environmental Plan 2009;Cases Cited: Drummoyne Municipal Council v Cavallaro [1982] 46 LGRA 416 Category: Principal judgment Parties: St Jude Property Investments (Applicant)
Wollongong City Council (Respondent)Representation: Mr M Fraser (Applicant)
Solicitors
Mr J Reilly (Respondent)
File Number(s): 10348 of 2012
Judgment
St Jude Property Investments (SJPI) sought consent from Wollongong City Council to carry out alterations to part of an existing building and parking area. The purpose of the works is to fit-out the building so it can operate as a car wash facility.
The council refused consent on the basis that the use was prohibited and SJPI had not demonstrated the site benefited from existing use rights. SJPI has now provided evidence that satisfies the council that existing use rights do apply to the site. The parties are seeking consent orders from the Court.
Background and the proposal
From the evidence provided to the Court in Exhibit B, it is apparent that the use of part of the site as a service station commenced in 1924. That use expanded over adjoining land in 1967 with further additions authorised by the council in 1970 and 1977. The site is currently used for the purposes of a service station including sale of petrol and oils, vehicle service and car repairs and convenience store and had included, up until 2010, the sale of automotive spare parts. The uses operate independently however share driveways and parking spaces and remain within the use categorised as a service station.
Consent is being sought to carry out alterations to the building so that the area currently used for the sale of automotive spare parts is adapted for use a carwash. The works include the construction of customer amenities comprising a reception/waiting area, cafe and toilets, staff amenities, storage areas, office and three awning fascia signs.
The site and its context
The service station site is located on the south-western corner of Crown and Staff Streets Wollongong and comprises four adjoining allotments. The application relates to the use of that part of the building erected on Los 2 and 3 in DP 8682. The petrol sales and car repair uses will continue to operate within the adjoining buildings on adjoining allotments and those uses, as a whole constitute the use of the land as a service station.
A dwelling house adjoins the site to its south, a church to its west and there are a number of medical uses in its vicinity including Wollongong Hospital to the east.
The planning controls
The site is zoned SP1 Special Activities under the provisions of Wollongong Local Environmental Plan 2009. A service station is prohibited in that zone. That use is defined in the Dictionary to that plan as follows:
service station means a building or place used for the sale by retail of fuels and lubricants for motor vehicles, whether or not the building or place is also used for any one or more of the following:
(a) the ancillary sale by retail of spare parts and accessories for motor vehicles,
(b) the cleaning of motor vehicles,
(c) installation of accessories,
(d) inspecting, repairing and servicing of motor vehicles (other than body building, panel beating, spray painting, or chassis restoration),
(e) the ancillary retail selling or hiring of general merchandise or services or both.
The provisions of Division 10 of Part 4 of the Environmental Planning and Assessment Act 1979 (the Act) are relevant to existing use rights. Section 108 defines an existing use as follows:
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.
Part 5 of the Environmental Planning and Assessment Regulation 2000 (the Regulation) relates to existing uses and provides for, relevant to the application, the need to obtain consent for alterations to an exiting use (cl 43).
The application is seeking to carry out alterations to part of the building to which the parties agree existing use rights apply.
Clause 41 imposes restrictions on existing uses and of relevance to the application are the following provisions:
(1) An existing use may, subject to this Division:
(b) be altered or extended, or......
Clause 43 of the Regulation requires that consent must be obtained for alterations or extensions to an existing use and in particular subclause (2) is relevant to the application and states:
(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.
The evidence
The applicant has provided evidence of approvals that apply to the land and has demonstrated that the use has not been abandoned since the time consent was granted. The council no longer contests the existing use rights issue. That evidence was tendered as Exhibit B. The Court accepts the findings of the council that existing use rights apply to the use of the site as a service station.
Mr Fraser for the applicant submits that the provisions of Section 107 of the Act and Clause 43 of the Regulation provide for the carrying out of alterations and additions to the service station use and that the use of the site will continue to be for that use as, importantly, the sale of petrol will continue. What will change is the cessation of the ancillary sale of spare parts and the substitution of the carwash use being the "cleaning of motor vehicles". As the cleaning of motor vehicles is contemplated in the definition of service station, separate consent for that use is not required. That view is consistent with the views expressed in Drummoyne Municipal Council v Cavallaro [1982] 46 LGRA 416.
The council raises no merit issues in relation to the application and has provided the Court with a copy of a report to its Independent Hearing and Assessment Panel (Exhibit 1). That report includes an assessment of the application in accordance with the provisions of s 79C of the Act and finds, apart from the issue of the existing use rights, that the application would be worthy of consent.
Conclusion and findings
From the evidence provided I am satisfied that the site as a whole enjoys existing use rights as a service station and that the works for which consent is sought can be approved pursuant to clause 43 of the Regulation. I am also satisfied that the matters which have to be considered if that consent is to be granted merit approval and that there are no reasons why the Consent Orders should not be made.
In regard to conditions, I note that the council seeks to impose a condition requiring the consolidation of all allotments over which the service station use is conducted. This is an important condition and one that must be imposed as it ensures the sale of petrol and the carwash use remain within the use of the land as a service station and not as a separate and distinct use. Accordingly, the consent must relate to the whole of the land.
By consent, the Orders of the Court are:
(1) The appeal is upheld.
(2) Development Application 2011/877 for the fit-out and use of part of an existing building erected on Lots 1, 2 and 3 DP 8862 and Lot A in DP 397517, otherwise known as 421-423 Crown Street, Wollongong, for the purpose of a car wash facility as part of the service station use of the land, is approved, subject to the conditions contained at Annexure A to these Orders.
(3) The exhibits, other than exhibit A, are returned.
__________________________
Sue Morris
Commissioner of the Court
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Amendments
30 August 2012 - typographical error - Development Application number changed from 2011/477 to 2011/877
Amended paragraphs: Order 2
Decision last updated: 17 July 2012
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