Stone v North Sydney Council

[2000] NSWLEC 88

Reported Decision: 108 LGERA 283

Land and Environment Court

of New South Wales

CITATION:	Stone and Anor V North Sydney Council [2000] NSWLEC 88
PARTIES:	APPLICANT: Stone and Anor RESPONDENT: North Sydney Council
FILE NUMBER(S):	11082 of 1999
CORAM:	Bignold J
KEY ISSUES:	Question of Law :- Meaning of expression "residential flat building which lawfully existed" as at relevant date. Whether lawful "use" must also be established - onus of proof. Burden not discharged.
LEGISLATION CITED:	North Sydney local Environmental Plan 1989 cl 14A(4)
CASES CITED:	North Sydney Local Environmental Plan 1989 cl 14A(4); North Sydney Council v Philip Perrie and Associates Pty Ltd (unreported 14 July 1995 per Talbot J); Teppell Investments Pty Ltd v North Sydney Council (unreported 7 March 1996 per Pearlman CJ)); Taipan Holdings Pty Ltd v Sutherland Shire Council (1999) NSWLEC 166; North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 71LGRA 432 at 435; South Sydney Municipal Council v James (1977) 35 LGRA 432
DATES OF HEARING:	02/05/00
DATE OF JUDGMENT:	05/03/2000
LEGAL REPRESENTATIVES:	APPLICANT: Ms S Duggan, Barrister SOLICITORS: N/A RESPONDENT: Mr D R Parry, Barrister SOLICITORS: Mallesons

JUDGMENT:

IN THE LAND AND Matter No . 11082 of 1999

ENVIRONMENT COURT OF Coram : Bignold J.

NEW SOUTH WALES 3 May 2000

T AND M STONE

Applicants

v

NORTH SYDNEY COUNCIL

Respondent

JUDGMENT

Bignold J:

INTRODUCTION

1. This is an appeal pursuant to the Environmental Planning and Assessment Act 1979 s 97 (the EP&A Act) against the Council’s refusal of a development application for the re-development of an existing two storey building situate at No 8 Hayes Street, Neutral Bay (the development site) so as to create three residential units or apartments, by virtue of converting the ground floor from one unit into two units and by alteration and additions to that that building at first and second floor levels so as to create one larger unit.

2. The reasons for the Council’s determination as notified to the Applicant included the following:

The proposed development is prohibited under cl 14A of the North Sydney Local Environmental Plan 1989.

3. Soon after the present proceedings were commenced, the Council filed a draft Statement of Issues which included the following “ Legal Issue ”:

Whether the proposed development is prohibited by operation of clause 14A of the North Sydney Local Environmental Plan 1989.

4. However, this question was not fixed for determination as a preliminary question.

5. Instead, at the same time that the proceedings were fixed for hearing by a Judge, the Council filed a statement of the following legal issue —

Whether the building presently existing on the land, the subject of this appeal, constitutes an existing residential flat building within the meaning of cl 14A(4) of the North Sydney Local Environmental Plan 1989.

B. A DISCRETE QUESTION ARISES FOR ADJUDICATION

6. At the commencement of the hearing, the Council invited the Court in the interests of efficiency and economy, to discretely determine the question whether the existing building erected on the development site was relevantly a “residential flat building” within the meaning of cl 14A(4) of the LEP.

7. In considering the Council’s request, it was common ground between the parties that unless the proposed development fell within the ambit of cl 14A(4) of the LEP, it would be absolutely forbidden by cl 14A(1)(a) of the LEP. Subclause (4) is in the form of a definitional provision, which if satisfied, creates an express exception to the prohibition contained in s 14A(1)(a) of the LEP.

8. It was common ground that it was the Applicant which sought to bring her case within the ambit of cl 14A(4) of the LEP to establish the relevant facts.

9. When it became apparent that the Council’s case that the proposed development did not fall within the ambit of cl 14A(4) of the LEP was based upon two separate foundations—(i) that the existing building was not relevantly “lawfully in existence as a residential flat building” at the relevant date; and (ii) that the proposed alterations did not fulfil the statutory requirements imposed by cl 14A(4)(d) and (e) of the LEP, the Applicant properly demurred on the ground that the second mentioned foundation for the Council’s case had not been raised by its formulation of the question of law in its filed Statement of Issues. Accordingly, it was agreed between the parties that the Court should limit its inquiry (in the first instance) to the question whether the existing building fell within the defined term “existing residential flat building” in cl 14A(4) of the LEP.

10. If that question were determined in favour of the Council’s contention that it did not fall within the definition, it was common ground that the proposed development was absolutely forbidden by force of cl 14A(1)(a) of the LEP and there would be no need to determine whether the proposed building alterations fulfilled the statutory requirements laid down by cl 14A(4) (d) and (e). If, however, the question were determined in favour of the Applicant’s case (ie that the existing building relevantly fell within the statutory definition), it would become necessary to consider the question whether the Council should have leave to raise the separate question.

11. In agreeing to the Council’s request that the Court determine the question whether the existing building erected on the development site was relevantly an “existing residential flat building” the Applicant obtained the Council’s agreement that there would be no cross-examination of the parties’ experts who had expressed opinions on the question, and that the evidence supporting the competing cases would be admitted subject to ultimate relevance, which in turn depended upon the proper interpretation of cl 14A(4), it being noted that there was a significant divergence in the competing interpretations advanced by the parties. It was the Council’s interpretation that the expression “a residential flat building which lawfully existed at the date of lodgment of the development application….” involved the consideration of the lawfulness both of the physical existence of the building as a residential flat building and of the use of the building for that purpose, whereas on the Applicant’s interpretation, the question of “use” of the building was said to be wholly irrelevant.

C. THE PROPER INTERPRETATION OF CL 14A(4) OF THE LEP

12. In quest of the proper interpretation of cl 14A(4), it is, in my opinion, a matter of considerable significance that the subclause was added to cl 14A some eight years after that clause had been originally enacted. Subclause (4) was added to the clause by the North Sydney Local Environmental Plan 1989 (Amendment No 48) which came into force on 27 June 1997 (Amendment No 48) vide Government Gazette No 68 of that date.

13. Amendment No 48 includes the following express aims (vide cl 2):
(b) to clarify the meaning of erection of residential flat buildings in zone No 2(c) (Residential C)…;
(c) to provide for development associated with existing residential flat building in zone No 2(c) (Residential “C”).

14. Subclause (4) provides as follows:
(4) For the purposes only of subclause (1)(a), but not otherwise, the erection of a residential flat building does not include the making of alterations and additions to an existing residential flat building where the alterations and additions:
(a) do not cause any material loss of views from other properties or public places; and
(b) do not cause any material overshadowing of other properties or public places; and
(c) do not cause any material loss of privacy to other properties; and
(d) do not increase the number of storeys of the existing residential flat building, except where an additional storey to a 2 storey residential flat building is compatible with the height and scale of buildings on adjoining land; and
(e) do not decrease the landscaped area of the existing residential flat building below the 60% requirement under Clause 13A, or do not decrease the landscaped area (where the existing landscaped area is below the 60% requirement).

In this subclause, existing residential flat building means a residential flat building which lawfully existed at the date of lodgment of the development application seeking consent for alterations and additions allowed by the operation of this subclause.

15. Prior to Amendment No 48 , cl 14A of the LEP (which came into force on 22 December 1989—some six weeks after the LEP had been originally made) provided as follows:

(1) A residential flat building shall not be erected on land in Zone No. 2(c) if:

(a) any principal building on adjoining land is less than 3 storeys measured vertically above any point at natural ground level; or

(b) well-founded objections, in the opinion of the Council, have been raised by persons likely to be affected by the proposed residential flat building; or

(c) attached dwellings could reasonably be erected on the site in a manner which would enable the occupants of those dwellings to enjoy reasonable sunshine and privacy.

(2) A residential flat building shall not be erected on land in Zone No. 2(c) if the building has more than 3 storeys measured vertically above any point at natural ground level.

16. The meaning and effect of the original form of cl 14A of the LEP has been considered in a number of decisions. Two unreported decisions of this Court are particularly relevant. The first was the decision of Talbot J in North Sydney Council v Philip Perrie and Associates Pty Ltd (unreported 14 July 1995) and the second was the decision of Pearlman CJ in Teppell Investments Pty Ltd v North Sydney Council (unreported 7 March 1996).

17. In Philip Perrie, Talbot J had to decide whether cl 14A(1) relevantly prohibited the use of an existing residential flat building. The developer contended that it did in order that it could claim the benefit of “existing use entitlements” conferred by the EP&A Act s 106, s 107 and s 108 to authorise the proposed erection of a new residential flat building in replacement of the existing residential flat building which was proposed to be demolished.

18. The Council contended that cl 14A did not have this effect since it only prohibited the erection of a residential flat building, not the use of a residential flat building.

19. In accepting the Council’s argument, Talbot J said (at pp 3 - 4):

The use of the building and the land at the relevant date was for the lawful purpose of a residential flat building. No erection had commenced nor was it contemplated by any pending application at that time. Clause 14A had nothing to say about the use of the existing building immediately before the coming into force of the LEP. It could not therefore have the effect of prohibiting that use. The purpose of cl 14A is to forbid future building of the type specified. There is nothing to stop the present building being used as a residential flat building. Arguably no changes could be made to the present building which would amount to the erection of a building. Whilever the building remains in the form in which it existed in 1989, at the relevant date, the use as a residential flat building can continue without consent. For that reason alone it does not fall within the definition of existing use.

Clause 14A therefore has effect and prohibits the erection of the new building.

20. Accordingly, his Honour made a declaration that the proposed development “ is prohibited development under the North Sydney Local Environmental Plan 1989”.

21. The decision in Philip Perrie was followed by the Chief Judge in Teppell Investments Pty Ltd where it was similarly held (at p 3) that cl 14A “prohibits only the erection of a residential flat building, so that existing use rights under s 107 of the Environmental Planning and Assessment Act 1979 do not attach to the property”.

22. The ultimate issue to be determined in Teppell Inventions was whether certain development works undertaken on land upon which was erected a residential flat building relevantly had infringed the prohibition contained in cl 14A of the LEP.

23. In determining this question, the Chief Judge accepted the Council’s argument that the word “erected” in cl 14A had the extended definition as provided by the following provision contained in the EP&A Act, s 4(2):
(2) A reference in this Act to—

……….

(c) the erection of a building includes a reference to the rebuilding of, the making of structural alterations to, or the enlargement or extension of a building or the planning or relocating of a building on land—

24. The Chief Judge so held in the face of the developer’s argument (at p 4) that—

the application of the extended definition would have a draconian effect as cl 14A would consequently operate to prevent any work whatsoever on a residential flat building on land where that clause now prohibited erection of such a building

25. The argument continued that “ residential flat buildings would fall into disrepair because maintenance would be prohibited ”.

26. The Chief Judge did not think the result would be as “harsh” as suggested by the developer’s argument. She continued (at p 4):

The effect of applying the extended definition in s 4(2) to construe cl 14A is that cl 14A would prohibit, amongst other things, the rebuilding of, the making of structural alterations to, or the enlargement or extension of a residential flat building. I do not think that applying the extended definition to cl 14A would operate to prohibit essential minor maintenance of the existing structure such as replacement of damaged roof tiles or window frames.

27. Having regard to these decisions and the legislative history of cl 14A of the LEP, it is apparent that subclause (4) was added to cl 14A in order to provide relief against possible harsh and unintended planning controls operating in respect of existing residential flat buildings on lands upon which “ the erection of a residential flat building ” was absolutely prohibited by cl 14A(1)(a) of the LEP.

28. The two cases I have referred to had clearly exposed the inherent unfairness in the effect of cl 14A of the LEP, in its original form in relation to the owners of existing residential flat buildings.

29. What was the unfairness that the cases had exposed? Firstly, by prohibiting only the erection of a residential flat building, but not the use of a residential flat building, the LEP deprived existing residential flat buildings of available “existing use” entitlements which are founded on the “prohibiting effect” of an environmental planning instrument on the “use of” a building etc—vide s 106(a) of the EP&A Act.

30. Although cl 14A does not prevent the “use” of an existing residential flat building and that use may continue by force of s 109(1) of the EP&A Act, that express authorisation expressly excludes—

any alteration or extension to or rebuilding of a building or work : vide s 109(2)(a) .

(The exclusion of such development is to be understood on the basis that development consent for such development might otherwise be obtained.)

31. However, the cases established that an alteration of an existing residential flat building was relevantly “the erection of a residential flat building” (because of the application of the extended meaning of that expression in s 4(2) of the EP&A Act) and therefore, any building alteration (including arguably “maintenance and replacement” building work) fell within the prohibition wrought by cl 14A(1)(a) of the LEP.

32. Faced with such exposed unfairness, it is reasonable to infer that the clear intent of Amendment No 48 was to relieve against these unfair and discriminatory consequences for the owners of existing residential flat buildings erected upon lands upon which in terms of cl 14A(1)(a) the erection of a residential flat building was absolutely forbidden. (Such consequences, in my judgment, are self evidently indefensible in terms of logic, fairness or policy considerations.) The inference is supported by the express aims of Amendment No 48.

33. Having identified the clear mischief in cl 14A, it is quite a simple task to discern the remedy provided by Amendment No 48 and to accordingly arrive at the proper interpretation of cl 14A(4) of the LEP.

34. In my judgment, the proper interpretation of the defined term “existing residential flat building” is a building that lawfully exists (at the relevant date) as a residential flat building. Qualifications or criteria for that lawful existence, in my judgment, necessarily involve two distinct, but related elements, namely—
(i.) lawful physical being as a residential flat building; and
(ii.) lawful use as a residential flat building.

35. In so concluding, I am unable to accept the Applicant’s argument (which did not address the implications of the legislative history of cl 14A) that “use” as a residential flat building is wholly irrelevant to the defined term. In my judgment, the relief or remedy provided by cl 14A(4) simply does not meaningfully address buildings that are not being used as a residential flat building, since such a building would not require relief against the prohibiting effect of cl 14A(1)(a). Nor is it to be supposed that the relief was intended to be available to buildings that were being unlawfully used as a residential flat building: see the EP&A Act s 109 and 109A. The mischief to which cl 14A(4) provides the remedy is the situation where a building is lawfully in existence and where it is being lawfully used as a residential flat building in circumstances where there is no existing legal entitlement to carry out alterations etc to the building (including necessary works or building repair maintenance or replacement).

36. The Applicant’s argument conceded that cl 14A(4) would not be available to an unlawfully erected building. It would be anomalous if it were to be available to an unlawfully used building. Yet this is the logical result of the Applicant’s argument that “use” of the building is wholly irrelevant to cl 14A(4).

37. So much is, I think, clear from a consideration of the legislative history of cl 14A, understood in the light of the relevant case law on cl 14A in its original form and prior to the enactment of Amendment No 48.

38. The Applicant argued that since the prohibition contained in cl 14A(1) of the LEP is directed only to “erection” of a residential flat building, the question of “the use” of a residential building (and more particularly the lawfulness of that use) could not have been intended as being relevant to the definition of “existing residential flat building”.

39. In my opinion, this argument overlooks the mischief created by cl 14A in its original form and the remedy provided by Amendment No 48 that I have earlier expounded. The argument also creates an acutely anomalous result in the context of planning law of an entitlement being available to an unlawful use of a lawfully erected building.

40. However, even if the construction of the defined term were to be undertaken without the very clear assistance provided by the legislative history of cl 14A, in the light of the relevant case law, I would not accept the Applicant’s argument that the question of the “use” of (or more particularly, the lawfulness of the use of) the residential flat building was irrelevant to the defined term. There are two reasons for this conclusion—
(i.) Under the EP&A Act, the question of “lawfulness” of development is generally focussed on the lawfulness of “the use” rather than the lawfulness of the physical existence of the building: see for example the definition of “existing use” in s 106 of the EP&A Act: see also s 109 and 109A. Also see Taipan Holdings Pty Ltd v Sutherland Shire Council (1999) NSWLEC 166.

(ii.) The “existence” of a residential flat building, as a matter of ordinary language, and more particularly in a town planning context, necessarily involves both (a) physical existence as such a building and (b) the commensurate use of that building.

41. In a town planning context, the conjunction of “built form” (or design) and of “use” is conventionally encountered. This conjunction is found in the context of cl 14A when regard is had to the following terms defined by the LEP:

residential flat building means a building containing 2 or more buildings but does not include a building elsewhere defined in this clause.

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.

42. The Applicant’s argument fastened upon the disjunctive aspects of “ use ” and “ construction ” in the definition of “ dwelling ”. However, this is merely a necessary comprehensiveness of the definition because it is obvious that a physical building that is not constructed as a dwelling may nonetheless be “ used as a separate domicile ” and the converse is equally true. This point is well made in the following extract from the judgment of Mahoney JA in North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 71LGRA 432 at 435:

Thus, a building constructed of units each of which is in design adapted for use for the relevant residential purposes might be used, for example, as a doctor’s surgery or a professional office but such use would not, in my opinion, be use as a residential flat building.

43. His Honour immediately proceeds to observe that “ there are legislative provisions under which the categorisation of a building is to be made according merely to the physical structure of it ”. He cites a South Australian case as perhaps illustrating the point. A similar illustration may be provided by the definition of “ dwelling-house ” considered by the Court of Appeal in South Sydney Municipal Council v James (1977) 35 LGRA 432.

44. However, be this as it may, it is clear, in my judgment that the reference in cl 14A(4) of the LEP to a “residential flat building which lawfully existed” (at the relevant date) is intended as a reference to a residential flat building having both a lawful physical existence as such, and a lawful use as such.

45. It follows, in my judgment, that the Applicant must establish that as at the date when it made its development application (1 November 1989) the building erected on the development site “lawfully existed as a residential flat building” and that condition or status required proof of—(i) lawfulness of the building as a residential flat building; and (ii) lawfulness of the use of that building as a residential flat building.

46. One further matter concerning the proper interpretation of cl 14A(4) must be considered. It concerns the word “lawful” in the expression “a residential flat building which lawfully existed….”. The question is simply this—

Is “ lawfulness ” to be considered by reference to the law generally, or is it to be confined to planning law in particular?

47. If the latter, what is the true content of planning law? In particular, does it include the Local Government Act 1919 ?

48. These fundamental questions concerning the interpretation of cl 14A(4) of the LEP were not touched upon by the parties’ competing arguments. Rather, they proceeded upon the common assumption that “lawfulness” included lawfulness under the Local Government Act.

49. It was because of this common assumption that the parties garnered evidence concerning the approval in 1923 given under the Local Government act 1919 to the erection of a building on the development site.

50. With some reluctance, I am prepared to adopt the parties’ common assumption that the Local Government Act 1919 is relevant in the present case to the question of the “lawful existence” of the building erected on the development site, which came into existence some little time after approval under the Local Government Act 1919 had been granted by the Council in 1923 to the erection of a building on the development site.

51. My reluctance is based upon the fact that in Taipan (a case involving an “existing use” in terms of the EP&A Act s 106) I held (i) that it was settled law that the expression “lawful purpose” appearing in the definition of “existing use” in the EP&A Act s 106 means “lawful in terms of planning law” and (ii) the provisions of Part XI of the Local Government Act 1919 which required Council approval to be obtained before a building is erected, were not relevantly a “planning law”.

52. My reasons for so concluding were stated at par 34 - 36 (inclusive) as follows:

Firstly, Part XI of the 1919 Act dealt with matters of Building Regulation . Part XII of the Act was headed Town Planning but was confined to land subdivision and the opening of new roads. Historically, the 1919 Act was not perceived to contain a body of general town planning law until Part XIIA was added to the Act in 1945. An apt historical perspective is contained in Chapter 1 of J G Starke’s Law of Town and County Planning in New South Wales (1966). The relationship between Parts XII and XIIA of the Act was touched upon by Sugerman J in Shell Company of Australia v Randwick Municipal Council (1959) 4 LGRA 348 at 359. Moreover, in the history of this Court, the provisions of Part XI of the Local Government Act 1919 relating to building regulation have never been equated to town planning laws and the two laws have been treated as dealing with different subject matters and covering different fields.

Secondly, as I have earlier noted, the boatshed qualified as an existing building and the use of the boatshed qualified as an existing use under the successive town planning controls in force prior to the commencement of the EP&A Act. Thereafter, the use qualified as an existing use (subject to the question of whether it was for a lawful purpose) and the concept of existing building was not perpetuated. (Instead the EP&A Act focussed attention on existing use and the Regulation maintained that focus by referring to a building used for an existing use). In terms of the definitions of existing use adopted by Ordinance 105 and the County Scheme, there was no express mention of lawful purpose of the existing use, and the Courts when interpreting existing use provisions did not import into the concept any implied requirement of lawfulness: see Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1.

Thirdly, it is to be noted the phrase for a lawful purpose qualifies use and not the erection of the building in which that use is carried on.

53. The decision in Taipan of course, is not determinative of the question of the proper construction of the defined term “ existing residential flat building ” in cl 14A(4) of the LEP.

54. Not only was Taipan concerned with the interpretation of the expression “lawful purpose” appearing in the definition of “existing use” in the EP&A Act s 106, but my reasons and conclusion that the Local Government Act 1919 Pt XI was not relevantly a “planning law” were founded upon the major premise that decided authority had already established that “lawfulness” meant lawfulness in terms of planning law.

55. Although the relevant expression “lawfully existed” in cl 14A(4) appears in a statutory instrument in pari materia, it is arguable that neither the major premise relied upon in Taipan, nor the reasoning and conclusion in Taipan applies to the construction of the expression “lawfully existed” in cl 14A(4) of the LEP.

56. Since the question was not focussed upon in the present case, it is preferable that I express no opinion on the relevance or application of the reasoning and conclusion in Taipan to the question posed in the present case. This is especially so, given the fact that the parties’ common assumption is that the Local Government Act 1919 is a relevant law for the purpose of determining whether the existing building on the development site relevantly “lawfully existed” (at the relevant date) as a residential flat building.

57. Thus, in this case, the Court’s interpretive function (which is never, as a matter of principle, limited to simply choosing between the parties’ competing constructions) can be properly and fairly discharged by simply assuming the correctness of the parties’ common assumption. However, by so proceeding I prefer to expressly reserve the correctness of that common assumption.

58. Having determined the proper interpretation of the defined term “existing residential flat building”, it remains to consider the evidence that has been adduced to determine whether it establishes the requisite facts—(i) that the existing building lawfully exists as a residential flat building; and (ii) that that building is lawfully used as a residential flat building.

D. THE EVIDENCE AS TO THE LAWFUL EXISTENCE OF THE RESIDENTIAL FLAT BUILDING

59. The Applicant’s principal evidence is the opinion expressed by Mr Graham Brooks, an Architect and Heritage Consultant, in his written report Exhibit B. His brief asked him, inter alia, whether the existing building on the development site “was erected as a building containing multiple dwellings” (p 3 of his Report).

60. His opinion, based upon historical research he had caused to be undertaken, was that “the building was erected in 1925 as two flats and has generally been occupied by separate people” (p 3 of his Report).

61. In the Appendix to his Report, Mr Brooks provides comprehensive detail of the source documents that were researched and contains a summary of his findings, based upon these sources.

62. Additionally, his summary of findings includes the following, based upon his inspection of the building (which I infer occurred in late 1999 or early this year):

The physical evidence of the extant building is that it was constructed as two dwellings, one on each floor, and has always been occupied as two dwellings. There are two distinct entry doors opening off a common side porch. The detailing of the stair and its handrail clearly indicate that it was part of the original building.

63. The Appendix to his Report records the following conclusions:

· The site has always been held in single ownership.

· The extant building is the first building erected on the subject site, in c1925.

· It was constructed as two dwellings, one on each floor, and known as Noorlah Flats . Based on our knowledge of Sydney architecture during the early 20th century, this model of accommodation was a typical architectural form around the Lower North Shore and elsewhere in Sydney. Such buildings often contained two or four flats, constructed over two storeys.

· It was occupied by two separate people and possibly their families from the date of initial occupation, in 1926, until documentary records cease publication in 1933. The relatively rapid changes of occupancy indicate that the building was erected as accommodation for tenants rather than property owners.

· Until the introduction of the Strata Title Act, in the 1960s, the only other form of multiple occupancy ownership structure available for small blocks of flats, was Company Title, where individual occupants owned shares in the overall property. This does not seem to have been the case in this building.

In our opinion the building was erected in 1925 as two flats and has generally been occupied by separate people.

64. It is to be noted at once that Mr Brooks expresses no opinion on the questions of the lawfulness of (i) the erection of the building on the development site; and (ii) the use of the building as a residential flat building.

65. It is to these two issues concerning “lawfulness” that the Council’s evidence is principally directed. Thus, Mr Richard MacKay, Heritage Consultant, in his Report (Exhibit 6), in answer to his brief to advise whether the existing building was “built as a residence or as flats” after setting forth the voluminous documentary material that he had referenced, expresses the following opinion:

Having regard to all of the above (ie the source documents researched by him) we have been unable to locate any official North Sydney Municipal Council record of the property at 8 Hayes Street, Neutral Bay ever being approved for use as flats. Officially, the Council records the site as being a residence.

66. Additionally, the Council’s evidence included statements prepared by Ms Leonie Mason, Senior Librarian, ( Exhibits 2 and 3 ) which record that she conducted a search of the several documentary sources held in the Council’s Archives spanning the period from 1922 to 1994 in quest of information concerning the development site. That search yielded a number of references to the development site as follows (being noted in chronological order):

(i.) In the Register of Buildings 1923, reference to a building application for a building described as “ Residence ” which was approved by the Council on 14 September 1923.

(ii.) In the Register of Buildings 1950, reference to a building application for a building described as “ Garage ”.

(iii.) In the Register of Buildings 1969, reference to a building application for a building described as “ Additions Residence ” approved by the Council on 18 September 1969 (but which apparently subsequently lapsed).

(iv.) In the Index to Development Applications 1981/1986, reference to a development application “ for the use of existing ground floor of a two storey duplex…as a theatrical agency ”.

(v.) In the Valuation List for the Municipality of North Sydney, Warringah Ward 1922-1924, reference to Valuation No 3193 in respect of the development site—shown not to be occupied and having the same unimproved and improved values of 725 pounds with a notation in the “ Remarks ” column of the List to “ House ” “ 1916 pounds ”.

(vi.) In the Valuation List for the Municipality of North Sydney, Warringah Ward 1925-1927, reference to Valuation No 3193 where the nature of the occupation is shown to be “ Res ” and there are assigned different amounts for the unimproved and improved values of the land.

67. The Council also tendered its official file relating to the development site that records matters spanning the period January 1985 to July 1996 which reveals, inter alia, the following facts:
(i.) On 22 January 1985 the Council was advised by letter from a resident in Kurraba Road, Neutral Bay that the development site “was being used as a courier business”.
(ii.) On 19 April 1985, two members of the Council’s Town Planning Staff conducted an inspection of the premises on the development site to investigate the alleged unlawful use of the premises. The inspection revealed that the existing building comprised two units and that unit 1 located on the ground floor, was being used as a theatrical agency and that unit 2, on the first floor, was being used for residential purposes.
(iii.) On 1 May 1985, the Council wrote advising the operator of the theatrical agency that the premises were being used as a theatrical agency and that although such use was permissible with Council’s consent, no such consent appeared to have been granted. The operator was required to terminate the unauthorised use within 60 days and in default, it was advised that the Council would consider taking legal proceedings in this Court to restrain the unlawful use.
(iv.) On 31 May 1985, the Solicitors for the theatrical agency wrote to the Council confirming advice that the Council would hold in abeyance the contemplated legal proceedings pending the outcome of a development application proposed to be made by the theatrical agency for the use of the premises.
(v.) On 17 July 1985, a development application was lodged with the Council seeking consent for use of the ground floor of the existing building for the agency use that was already in existence.
(vi.) On 25 July 1985, the consent of the then owners of the existing building erected on the development site was given to the theatrical agency’s development application.
(vii.) On 14 November 1985, the Council notified the theatrical agency that it had refused consent to its development application.
(viii.) In its decision refusing development consent, the Council resolved to take legal action to restrain the unauthorised use of the premises as a theatrical agency.
(ix.) On 15 April 1986, an inspection by the Council’s planning officer revealed that the ground floor of the existing building erected on the development site continued to be used for commercial purposes.
(x.) On 1 May 1986, the Council’s Solicitors wrote to the theatrical agency advising that the unauthorised commercial use of the ground floor was continuing and advising that if such use continued after 60 days, the Council would commence proceedings in this Court to restrain the unlawful use. On the same day, the Council’s Solicitors sent a copy of that letter to the then owners of the development site, advising that it might be necessary to join them in the contemplated legal proceedings.
(xi.) On 28 April 1986, the Theatrical Agency appealed to this Court pursuant to the EP&A Act, s 97 against the Council’s refusal of the development application.
(xii.) On 18 June 1986, this Court made consent orders allowing the Theatrical Agency’s appeal and granting development consent “for the use of premises at suite 1, 8 Hayes Street, Neutral Bay for a theatrical agency for a period of 3 months from the date hereof or until the gazettal of the Local Environmental Plan certified on 3 April 1986 relating to the land bounded by Hayes Street, Kurraba Road and Manns Avenue whichever be the later”.
(xiii.) The Local Environmental Plan referred to in the Court’s consent order was a draft plan which proposed to rezone the land to which it applied (including the development site) from its current Business Neighbourhood (3(f1)) Zoning under Interim Development Order No 60 (IDO No 60 which came into force on 29 August 1975) to a Residential zoning, never was gazetted, with the consequence that the Business Neighbourhood Zoning of the subject land (including the development site) continued in force until 3 November 1989 when the LEP came into force and replaced, inter alia, IDO No 60.
(xiv.) In terms of the Business Neighbourhood Zoning under IDO No 60, development for “residential flat buildings” was prohibited development (such development being permissible only where it was “attached to shops or certain designated commercial purposes”).

E. FACTUAL CONCLUSIONS

68. On the basis of the evidence (which I have just summarised) has the Applicant established that the residential flat building on the development site relevantly ‘lawfully existed” on 1 November 1999, being the date upon which the Applicant’s development application, the subject of the present proceedings, was lodged with the Council?

69. In my assessment of the evidence, the Applicant has not established either that the existing building relevantly lawfully existed as a residential flat building or that it was relevantly lawfully used as a residential flat building.

70. As to its lawful existence and in particular, its coming into physical existence, the evidence establishes that the building came into existence in 1925 and that its physical existence, in terms of built form and building layout at that time, probably accords with its current existence. In other words, it probably came into existence as a residential duplex building.

71. However, was that coming into existence lawful? In my judgment, the documentary evidence strongly indicates that the only relevant approval granted by the Council in respect of the development site was the approval granted on 14 September 1923 for a building described as a “Residence”. Such a description, in my judgment, is fundamentally inconsistent with the description “Duplex residential building” or duplex flat building or “flats”. The records from the Council’s Building Register 1923 provide examples of other buildings being described as “flats”.

72. The inference, in my judgment, is irresistible that the building approval granted by the Council in 1923, was for the erection of a building as a residence (or dwelling-house) in contradistinction to “flats” etc.

73. At the time the approval was granted in 1923, the Local Government Act 1919 s 306(1) provided as follows:

A building shall not be erected or used in contravention of the provisions made by or under this Act.

74. Section 311 provided as follows:

A building shall not be erected or altered unless the approval of the Council is obtained therefor beforehand.

75. Section 310 relevantly provided as follows:

…..every building hereafter erected….shall be erected to the satisfaction of the council—

(a) in conformity with this Act and the ordinances; and

(b) in conformity with the application, plans and specifications in respect of which the council has given its approval for the erection of the building.

76. At the time the 1923 approval was granted, Ordinance 71 made under the Local Government Act 1919 was in force (vide Government Gazette No 167 of 11 November 1921). It contained comprehensive provisions dealing with building matters. In addition to its General Provisions contained in Pt II, it contained special provisions in respect of Dwelling-Houses (Pt III), Residential Flat Buildings (Pt IV), Commercial Buildings (Pt V), and Hotels, Hostels and Lodging Houses (Pt VI).

77. Clause 4 contained in the General Provisions of Pt II specified the form in which an application for building approval was to be made and the documents (plans and specifications) required to accompany that application.

78. Paragraph (b) stated as follows:

The application shall describe the building to show the purpose for which the building is to be used.

79. In my judgment, when regard is had to the relevant provisions of the Local Government Act 1919 and to Ordinance 71 made thereunder, the record contained in the Council’s Building Register 1923 of approval granted in respect of the development site provides a powerful indication that the building that the Council had approved on 14 September 1923 was a “ residence ” and not a “ duplex residential flat building ”.

80. In the light of this documentary evidence (which incidentally, indicates that no final inspection of the approved residence was ever conducted by the Council’s servant—this fact has significance in relation to cl 83 of Ordinance 71) it would appear more probable than not that if the existing building was originally built in the built form and layout it presently manifests (ie as a duplex residential building), as Mr Brooks opined, it was not built with the requisite approval under the Local Government Act 1919, and that in any event, the approval granted by the Council on 14 September 1923 for a building described as a “residence” did not authorise the building of a duplex residential building.

81. It follows that the Applicant has not established that the existing residential building was lawfully built as a residential flat building.

82. The alternative possibility is that the building was originally built as a two storey residence but soon thereafter was altered so as to produce two flats, without the necessary approval and in breach of the Local Government Act 1919 s 311. If this happened, the conversion would have been simply achieved physically by isolating from the ground floor interior of the building, the staircase providing access to the first floor of the building from the side verandah.

83. For these reasons, the Applicant has not persuaded me, on the available evidence, that the existing building lawfully came into existence in 1925 as a duplex residential flat building.

84. Turning to the separate question of whether the Applicant has established that the residential flat building has been lawfully used for such purposes, the evidence in this respect falls far short of so satisfying me.

85. In one sense, this is hardly a surprising result because the Applicant’s case has proceeded on the basis (which I have earlier rejected) that ‘use” is a wholly irrelevant consideration.

86. The highest that Mr Brooks’ opinion rises, as it will be recalled, was that the building, as two flats has “generally been occupied by separate people”. This obviously guarded opinion is to be understood in the light of Mr Brook’s finding on the documentary evidence that “between 1945 and 1964 the property was owned by Mr and Mrs Alford who actually lived in the premises”, there being “no documentary evidence as to whether they occupied the entire building or only one of the two flats”.

87. This high water mark of the Applicant’s evidence falls very far short of establishing that the existing building has been continuously used as a residential flat building, far less that it has been so used lawfully.

88. In respect of the lawfulness of the use, if it be correct, as I would hold it to be, to consider “lawfulness” of use in terms of planning law, it would require proof that the use of the existing building has continued since before 12 July 1946 (when town planning legislation first applied in NSW) up to the relevant date for the purposes of Cl 14A(4) of the LEP (ie 1 November 1999) since there is no evidence of any development consent for such use ever having been granted. Not only is the evidence wholly lacking on this issue, but the evidence concerning the use of the ground floor of the existing building as a theatrical agency from at least April 1985 until at least June 1986 (but probably extending well beyond that period by virtue of the terms of the consent granted by the Court, by consent in June 1986) is entirely inconsistent with there being a continuance of a lawful use of the existing building as a residential flat building. In this respect, it is the existence of that theatrical agency use that is determinative, and not any question of the abandonment of any prior residential use of the ground floor unit of the building (which in any event was not established by the evidence). Moreover, the fact that that theatrical agency use was commenced unlawfully and continued unlawfully for some 14 months until development consent was granted by the Court’s June 1986 consent orders, has significance in terms of the EP&A Act s 109A which provides as follows:
(1) The use of a building, work or land which was unlawfully commenced is not rendered lawful by the occurrence of any subsequent event except:
(a) the commencement of an environmental planning instrument which permits the use without the necessity for consent under this Act being obtained therefor, or
(b) the granting of development consent to that use.
(2) The continuation of a use of a building, work or land that was unlawfully commenced is, and is taken always to have been, development of the land within the meaning of and for the purposes of any deemed environmental planning instrument applying, or which at any time applied, to or in respect of the building, work or land.

89. By virtue of s 109A(2), the continuation of the unlawful use as a theatrical agency is taken to be development for the purposes of IDO No 60 which at the time was operating as “a deemed environmental planning instrument”. The existence of that development, and its continuation both before and after the grant of the development consent by the Court’s June 1986 consent orders, necessarily involved a change of use from whatever use (including a residential use) that may have preceded it and that change of use necessarily meant that that preceding use had terminated and more importantly that any attempt to revert to that former use, would itself constitute the carrying out of development that required further development consent under the EP&A Act.

90. On the basis of the evidence concerning the use as a theatrical agency of the ground floor of the existing building for a period of at least 14 months (but probably extending far beyond that period), it could not be held, even if it had been shown that the preceding use had been a lawful residential use, that the resumption of that residential use (whenever it occurred prior to the lodging on 1 November 1999 of the Applicant’s present development application) was lawful in the absence of development consent of which there is no evidence.

91. However, this conclusion is but to fasten upon some concrete evidence concerning the use of the existing building. Apart from that evidence, there is a vast period of time when town planning controls applied (ie from 1946 to 1985) where the evidence does not even remotely support a finding that the existing building was being lawfully used as a residential flat building.

92. For those reasons, the Applicant has not established that the existing building was relevantly lawfully used as a residential flat building at the relevant date when the Applicant’s development application was lodged with Council on 1 November 1999.

F. CONCLUSIONS AND ORDERS

93. The Applicant, having failed to establish that the existing building on the development site was relevantly “a residential flat building which lawfully existed” at the relevant date within the meaning of s 14A(4) of the LEP, it follows that the proposed development is absolutely forbidden by the express terms of s 14A(1)(a) of the LEP. Accordingly, the appeal must fail at the threshold.

94. Accordingly, I make the following orders:
1. Appeal be dismissed.
2. Development consent be refused.
3. Exhibits be returned.
4. No answer as to costs.