Taipan Holdings Pty Ltd v Sutherland Shire Council

[1999] NSWLEC 166

Land and Environment Court

of New South Wales

CITATION:	Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 166
PARTIES	APPLICANT Taipan Holdings Pty Ltd
RESPONDENT Sutherland Shire Council
NUMBER:	10843 of 1998
CORAM:	Bignold J
KEY ISSUES:	Development :- Development - Preliminary determination of any relevant "existing use" entitlement - whether use for a "lawful purpose" - whether use terminated when building demolished and rebuilt.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 106, s 107, s 108.
DATES OF HEARING:	06/24/1999
DATE OF JUDGMENT DELIVERY:	07/15/1999
LEGAL REPRESENTATIVES:	APPLICANT Mr G Newport (Barrister) SOLICITORS: Bowles and Co RESPONDENT: Mr W B Davison (SC) SOLICITORS: Abbott Tout

JUDGMENT:

TABLE OF CONTENTS

A. INTRODUCTION 1-6

B. PRELIMINARY QUESTIONS OF LAW RAISED IN THE
PROCEEDINGS 7-15

C. QUESTIONABLE UTILITY OF A DETERMINATION OF THE
QUESTION OF EXISTING USE 16-22

D. RELEVANT FACTS CONCERNING THE BOATSHED 23-25

E. THE COUNCIL’S LEGAL CONTENTIONS AGAINST ANY
EXISTING USE ENTITLEMENT 26-44

(i) Was the boatshed lawfully erected when it originally came into

existence? 29-37

(ii) Has the Applicant established that the boatshed in whatever
physical condition manifested throughout its lifetime was authorised by the
necessary planning consents? 38-39

(iii) Was the existing use abandoned when the original boatshed was
demolished? 40-44

F. CONCLUSIONS AND ORDERS 45-47

IN THE LAND AND Matter No 10843 of 1998

ENVIRONMENT COURT OF Coram: Bignold J.

NEW SOUTH WALES 15 July 1999

TAIPAN HOLDINGS PTY LIMITED

Applicant

v.

SUTHERLAND SHIRE COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. This is an appeal pursuant to the Environmental Planning and Assessment Act s 97 (the EP&A Act) against the Council’s deemed refusal of development consent to a development application for the reconstruction of an existing boatshed, principally located on an area of land below mean high water mark at Burraneer Bay held from the Crown by Licence granted under the Crown Lands Act 1989, and to a minor extent only, located on the adjoining freehold land situate immediately above mean high water mark known as No 325 Woolooware Road, Cronulla, owned by the Applicant.

2. While the development application was pending in the Council, the Council’s Solicitors wrote to the Applicant’s Solicitors on 16 November 1998 advising that the boatshed was an unlawful structure, having been erected without having obtained the Council’s consent beforehand, and that the Council required the boatshed to be demolished and the resultant materials to be removed from the site. (It is common ground that the boatshed was rebuilt between 23 December 1997 and the end of March 1998, and that the rebuilding did not have the consent of the Council.)

3. The letter also advised as follows:

We are further informed that your client has lodged a development application in an endeavour to regularise the unauthorised erection of the premises.

As you are aware, our client has no power to grant approval retrospectively to development and building works which have already been carried out.

4. Thereafter, on 30 November 1998 , the Applicant filed the present class 1 proceedings against the Council’s deemed refusal of the development application.

At the same time, the Applicant filed class 2 proceedings (No 20203 of 1998), being an appeal pursuant to the EP&A Act s 149F against the Council’s refusal to issue within 40 days of lodging the application, a building certificate in respect of the boatshed building.

5. The two proceedings have been regarded by the parties and the Court as related proceedings, on the basis that both the development application and the application for a building certificate relate to the same boatshed building. It would also appear, that the Applicant regards as necessary in order to “regularise” the unlawful erection of the boatshed building, the obtaining of both the development consent and the building certificate. This approach assumes that development consent and building approval for the already erected boatshed cannot be granted retrospectively and that in these circumstances, the only reasonable alternative is the obtaining of a building certificate in respect of the boatshed already erected and the obtaining of development consent for the prospective use of that boatshed. This same approach is reflected in other pending proceedings in this Court in respect of an unlawfully erected building, which are the subject of my judgment on preliminary questions of law raised in the proceedings - see Ireland v Cessnock City Council NSWLEC 153, unreported 30 June 1999.

B. PRELIMINARY QUESTIONS OF LAW RAISED IN THE PROCEEDINGS

7. On the first callover in the proceedings, the Court was informed that the Council wished to raise questions of law. It was directed to file and serve a statement raising the questions of law.

8. On 15 January 1999, the Council filed in Court a statement raising the following questions of law:

1. Whether the Court has power to grant retrospective development consent for the erection of the boatshed?

2. Whether the Court has power to grant development consent for the use of the boatshed which has not received the required development consent for its erection?

3. Whether the Court has power to grant development consent to use the boatshed assuming it has no power to grant retrospective development consent to erect the boatshed?

4. Whether the development is prohibited?

9. Subsequently, the Applicant, on 9 April 1999, filed in Court a statement raising the following questions of law:

1. Whether the proposed use of the subject site as a boatshed and watercraft storage is permissible with consent in the 7A Environmental Protection (Waterways) Zone in Sutherland LEP 1993?

2. If the answer to 1 is in the negative:-

- Whether the subject site has the benefit of existing use rights?

10. On the same day, the Registrar gave directions for the filing of affidavits in respect of “ existing use rights ” and the hearing in respect of the Applicant’s questions of law (which I assume have entirely superseded or supplanted the questions of law, earlier raised by the Council in the proceedings).

11. Upon the commencement of the hearing, Counsel for the Applicant informed the Court that Question 1 no longer required to be answered (it apparently being commonly accepted by the parties that a judgment of Talbot J had decided that development for the purpose of a boatshed was a prohibited purpose within Zone No 7(a) “Environmental Protection (Waterways)” designated by Sutherland Local Environmental Plan 1993 (LEP)).

12. This left for determination the Applicant’s second question, namely whether the subject site (which I take to be the site of the boatshed that has recently been rebuilt) “has the benefit of existing use rights”.

13. Senior Counsel for the Council immediately objected to my embarking upon a consideration of the question on the ground that the question did not in truth, raise any question of law. Rather, the question raised a question of fact.

13. However, no objection was raised by the Council to my hearing the whole case by first determining the question of any existing use entitlement as a preliminary finding of fact.

14. With the consent of both parties, I agreed to determine the question of whether there was any relevant “existing use” entitlement, as a preliminary issue. The practical reason for so proceeding was the common assumption that if the question be answered in the affirmative, the appeal would proceed to a determination on the planning merits but that if the question be determined in the negative, the appeal would be terminated forthwith with a similar prospect for the related class 2 proceedings.

C. QUESTIONABLE UTILITY OF A DETERMINATION OF THE QUESTION OF EXISTING USE

16. However, upon reflection, it is difficult to see what utility can be served by determining the question in the present context of a development appeal, because if the Applicant obtains a favourable determination (namely that existing use entitlements apply to, or pertain to, or inhere in, the boatshed building that has already been rebuilt) that determination cannot legally lead to any positive result in the proceedings because there is simply nothing in the existing use provisions of the EP&A Act (including the Regulation made thereunder) which enables or authorises the grant of development consent for the use of a building for its existing use. This is, no doubt, because the EP&A Act s 107(1) itself authorises “the continuance of an existing use”, “existing use” being defined by s 106 as relevantly meaning:

(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 …., have the effect of prohibiting that use”.

17. As I have earlier noted, it is common ground that the LEP relevantly prohibited the use of the boatshed for that purpose, that LEP having come into force on 12 November 1993. As will be seen, earlier planning controls exerted a similar prohibition.

18. The EP&A Act s 108 enables regulations to be made for or with respect to “existing uses” and in particular, for or with respect to the matters expressly enumerated in s (1)(a), s (1)(b) and s (1)(c).

19. The Environmental Planning and Assessment Regulation 1994 (the Regulation) contains in Pt 5 further detailed provisions relating to “existing uses”. Not surprising, there is no provision in the Regulation which replicates or modifies the authorisation conferred by s 107(1) for the “continuance of an existing use”.

20. Accordingly, a finding as sought by the Applicant that the rebuilt boatshed is an “existing use”, though no doubt of significance to the Applicant, will not assist the Applicant in the present class 1 proceedings if the development consent that it is seeking therein is, as I think the Applicant (and its advisers) conceived it to be, for the prospective use of the boatshed. In this respect, the present case is fundamentally different from the facts in Ireland because there, the prospective use for which development consent was sought in respect of the unlawfully erected building, was for a purpose that was a permissible purpose of development (subject to the obtaining of development consent) whereas here, the purpose is for a prohibited purpose, so that no question can arise of development consent authorising that purpose.

21. It follows, that if the true ambit of the pending development appeal is the seeking of development consent for the prospective use of the unlawfully erected building, a determination that the boatshed has the benefit of being an “existing use” will not advance the Applicant’s appeal one iota. Rather, it would mean that the appeal is misconceived inasmuch as development consent for the prospective use of the unlawfully erected boatshed:

(i.) cannot be granted because “boatshed” use has been a prohibited purpose of development since November 1993 in terms of the LEP; and

(ii.) is in any event, legally unnecessary because the “continuance” of that use is expressly authorised by the EP&A Act s 107(1).

22. However, notwithstanding the foregoing observations, there are two countervailing considerations which satisfy me that I should nonetheless proceed to determine the question whether the use of the boatshed is relevantly an “existing use” within the meaning the EP&A Act s 106(1)(a) and s 107(1). Those considerations are:

(i.) it may be that the Applicant would wish to argue, assuming a determination is made that the use of the boatshed is relevantly an “existing use”, that development consent may still be obtained for the “rebuilding” of the former boatshed in terms of cl 42 of the Regulation (or for its “alteration” or “extension” in terms of cl 41 of the Regulation) notwithstanding that the rebuilt or extended boatshed has already come into existence (in circumstances presently to be noted); and

(ii.) the “existing use” question is clearly in issue between the parties and a determination on that question would be consistent with the mandate provided by the Land and Environment Court Act 1979 s 22

…that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of these matters may be avoided .

D. RELEVANT FACTS CONCERNING THE BOATSHED

23. Affidavit evidence of relevant facts was adduced by both parties. None of the deponents were cross-examined.

24. The evidence, which does not contain any essential conflict, establishes the following relevant primary facts:

(i.) Waterfront structures which adjoin No 325 Woollooware Road, Cronulla, include an area of reclamation, a boatshed and launching ramp, have been continuously in existence, in one form or another, since shortly after the Lands Department granted a Permissive Occupancy (PO) in 1920 to an application “to erect a boatshed and weekend dwelling combined skids, landing and bath”. The area granted comprised “about eight perches”. (It is to be noted eight perches is equivalent to some 200 m2.)

(ii.) A Permissive Occupancy (later (ie after the Crown Lands Act 1989 came into force) this form of tenure was to be replaced by a Licence) has existed in respect of the waterfront structures continuously since the original grant of the PO in 1920, the history being as follows:

(i) PO originally granted to Mr Gillow in 1920;

(ii) PO transferred to Mr and Mrs Williams in 1949;

(iii) PO transferred to Dragon Holdings Pty Ltd in 1976;

(iv) PO transferred (as a licence) to Taipan Holdings Pty Ltd in 1992.

(v) Licence granted to Taipan Holdings Pty Ltd in 1998.

(iii) The precise area of waterfront land occupied pursuant to the PO as originally granted (and as successively translated to the present time)has changed from time to time, as has the precise nature of the waterfront structures.

For example, in 1976 when an inspection of the waterfront structures and occupied land was conducted by the Department of Lands preparatory to transferring the PO to Dragon Holdings Pty Ltd, it was noted in respect of the occupation below mean high water mark that “ (I)t differs considerably from the purpose of the Permissive Occupancy but substantially conforms to the diagram prepared by Mr Loder in 1920 ”. (Mr Loder held the position as Cumberland Ranger in the Department of Lands in 1920 when he inspected the site of the proposed PO. The Report of the November 1976 Inspection also noted:
With regard to the inclusion of the dwelling in the Permissive Occupancy purpose the structure is no longer used for residence and is best described as a recreation room with extended roof over part of the reclamation .

The Department of Lands on 17 January 1977 advised the Council of the results of the November 1976 inspection of the PO and stated “as the structures have been in existence for approximately 50 years, it is intended to amend the Permissive Occupancy accordingly”.

The Council responded to this advice by raising no objection to the PO being amended subject to

(i) the boatshed not being used for residential occupation;

(ii) the building being painted a colour which blends in with the natural foreshore environment to Council’s satisfaction.

A copy of the Lands Department plan showing the nature of the waterfront structures as they existed in 1976 is annexed hereto and marked “A” .
When the PO was transferred (in the form of a licence) in 1992 to the Applicant, the Lands Department prepared a further plan of the waterfront structure as they existed in 1992. A copy of the plan is annexed hereto and marked “ B ” . That plan indicates the aggregated waterfront area occupied by waterfront structures to be some 150 m2 made up as follows:

Part boatshed 18.4 m2

Part awning 16.8 m2

Reclamation 65.8 m2

Landings 20 0m2

Slipway 18.6 m2

Part Recreation Room 8.4 n2

It is to be noted that the combined area of waterfront land occupied by those parts of the boatshed, recreation room and awning which existed below mean high water mark was some 44 m2 and that these structures were built on part of the reclaimed waterfront land. (Other parts (approximately 50% in total) of the boatshed, recreation room and awning were erected on the adjoining freehold land).

The current licence held by the Applicant in respect of the waterfront structures is that which commenced on 19 March 1998 just after the boatshed and recreation room and awning had been rebuilt. In its rebuilt form, the boatshed (including its covered verandah) occupies a greater area of waterfront land and a lesser area of freehold land than had the former structures. This is reflected in the Lands Department’s Plan of the area, the subject of the current License held by the Applicant which shows the rebuilt boatshed (including the covered verandah) as occupying some 82 m2 of waterfront land. (This compares with the 44 m2 occupied by the former boatshed and allied structures.)

The 1992 and 1998 plans enable a visual comparison between those parts of the boatshed structure that were erected on land below mean high water mark and those erected on freehold land above mean high water mark. As I have earlier noted, some 50% of the former boatshed and allied structures was erected on the freehold land whereas only some 20% of the rebuilt building appears to be erected on the freehold land. A copy of the 1998 Lands Department plan is annexed hereto and marked “C”.

Finally, it is to be noted that according to the sketch plan prepared by Wallis and Moore Pty Ltd showing the waterfront structures as at 15 April 1998, (ie just after the boatshed building had been rebuilt) the area occupied below mean high water mark was said to be 177 m. This may be usefully compared with the area of eight perches (ie 200 m2) granted in the original PO.

(v) Mrs Atwell who has lived at the adjoining premises, No 323 Woolooware Road for the past 64 years, (since she was aged 14) gave evidence that a boatshed has been in existence at the adjoining premises at all times during that period. This evidence is corroborated by the affidavit of Mr Jones who has resided in the adjoining premises at No 327A Woolooware Road for the past 48 years.

(vi) Town planning controls applying to the Sutherland Shire have been in force continuously since 12 July 1946 in the following successive forms:-

(a) Town and Country Planning (General Interim Development) Ordinance (Ordinance 105) which came into force on 12 July 1946;

(b) the County of Cumberland Planning Scheme Ordinance (the County Scheme) which came into force on 27 June 1951;

(c) Interim Development Order No 30 - Shire of Sutherland (IDO 30) which came into force in 5 March 1976;

(d) Sutherland Planning Scheme which came into force on 24 April 1980;

(e) Sutherland Local Environmental Plan 1992 which came into force on 27 March 1992; and

(f) the LEP, which came into force on 12 November 1993.

(vii) According to the town planning controls, development for the purpose of a boatshed of land below mean high water mark first became absolutely prohibited when IDO 30 came into force on 5 March 1976 and included the waterways of the Shire within Zone 7(a) “Waterways”. Prior thereto, it is doubtful whether any planning controls applied to the Crown land situate below mean high water mark. Even if they did, the boatshed building, having come in existence at least 64 years ago (Mrs Atwell’s evidence) would have qualified as an “existing building” under both Ordinance 105 and the County Scheme. Under the County Scheme cl 33 authorised “an existing building” to be “altered, enlarged, rebuilt, extended or added to by the erection of new buildings” without the necessity of development consent.

(viii) According to searches made of the Council’s records, no application for development consent under any of the successive planning controls, or for building approval under the Local Government Act 1919 Pt XI has been made in respect of the waterfront structures, the subject of the original PO or subsequent PO, or licences granted by the Department of Lands in respect of the waterfront occupation of the Crown lands at Burraneer Bay.

(ix) On 23 August 1982, the Council granted building approval pursuant to the Local Government Act 1919 Part XI to a building application for the erection of a dwelling-house on the freehold land known as No 325 Woolooware Road, Cronulla. That building approval was subject to a number of conditions, including the following two conditions pertaining to the boatshed:

15. The existing boatshed below high water mark, not being adapted or used for residential occupation.

16. The existing boatshed being painted a colour which blends in with the material foreshore.

(x) In 1992, the Applicant acquired the freehold land ( No 325 Woolooware Road, Cronulla) and obtained the grant of a license from the Lands Department in respect of the waterfront structures which included a boatshed. The premises were leased from 1992 to March 1996. The tenants used the boatshed for the storage of two jet skis and trailer, life jackets and wetsuits. From April 1996, Jason Caughlan, a Director of the Applicant, has occupied the premises as his family home. He has used the boatshed for storing game fishing equipment; two kayaks, a smaller dinghy, life jackets and boating equipment used in respect of a 21 foot speedboat which is moored on the sliprails adjacent to the boatshed.

(xi) In August 1997, Mr Caughlan observed that a large tree branch had fallen upon the boatshed roof causing considerable damage to the roof. He sought advice from builders for the repair of the roof and was informed that the roof frame was damaged by termites. A report from a Pest Controller obtained by Mr Caughlan stated that the boatshed was “severely damaged by termites” and recommended that he obtain engineering and building advice to ensure the safety of the building. In early December 1997, Mr Caughlan obtained written advice from a builder advising of extensive termite damage to “all walls, flooring and roof framing”.

On 23 December 1997, Mr Caughlan instructed a builder to carry out “ necessary repairs and reconstruction of the boatshed ”. He was in attendance and observed extensive termite infestation and damage. The structure was virtually demolished. Thereafter, Mr Caughlan caused the boatshed to be reconstructed resulting in the following changes to the former boatshed:

(a) An minor increase in the floor area and foot print; and

(b) An alteration to the roof form. The existing gable and with a skillion attachment was altered to a larger gable roof; and

(c) An existing timber floor, which was termite infested, was replaced with concrete. The majority of the floor was concrete but a small segment of timber was replaced with concrete; and

(d) The front verandah was added; and

(e) Alterations were made to the window and door openings and locations.

Mr Caughlan, in causing the work to be done, believed that he did not require consent or approval.
His intention, on learning of the extent of the termite damage, was to rebuild the boatshed so that he might continue to use it for the purpose of storing his boating equipment etc.

25. On the basis of the foregoing primary facts, I make the following ultimate findings by way of inference:

(i.) Prior to its demolition and replacement by the rebuilt structure between December 1997 and March 1998, a boatshed has been continuously in existence as part of a number of waterfront structures occupying the bed and waters of Burraneer Bay and the subject of the PO originally granted in 1920 (and continuously in force thereafter) since some time after 1920 and before 1935 (when Mrs Atwell first observed it) when it originally came into existence.

(ii.) The boatshed predated the commencement in July 1946 of relevant town planning controls, which controls in their successive forms did not prohibit boatshed development of the Crown land comprising Burraneer Bay until 1976 when IDO 30 - came into force on 5 March 1976.

(iii.) Prior to 1976, the relevant town planning controls did not require development consent for the existence of the boatshed or for its alteration, extension, rebuilding etc. In terms of the successive planning controls in force prior to the commencement on 1 September 1980 of the EP&A Act, the boatshed qualified as “an existing building” and its use as a boatshed qualified as an “existing use”. After 1976, any alteration, extension or rebuilding of the boatshed required development consent as an alteration, extension or rebuilding of a building being used for an existing use.

(iv.) The boatshed as it existed in 1976, when IDO 30 came into force, continued to so exist until it was demolished and rebuilt in the period December 1997 to March 1998.

(v.) What physically occurred to, and in relation to, the boatshed in that three month period qualifies as a “rebuilding” of the building for “its existing use” within the meaning of cl 42 of the Regulation but no “development consent” as required by that clause, was obtained for such rebuilding.

(vi.) In causing the boatshed to be rebuilt, the Applicant intended to continue the use of the boatshed for its existing use.

E. THE COUNCIL’S LEGAL CONTENTIONS AGAINST ANY EXISTING USE ENTITLEMENT

26. The Council advanced three arguments in support of its contention that there are no relevant existing use entitlements in favour of the boatshed:

(i.) It has not been shown that the boatshed, as originally erected, was erected with the necessary approval of the Council.

(ii.) It has not been shown that the boatshed, in all of its manifestations up to the time of its demolition and rebuilding, had been lawfully erected.

(iii.) By demolishing the boatshed, any relevant existing use had been abandoned.

27. The first two Council arguments raise the question whether it has been shown by the Applicant (who bears the onus of proof) that the boatshed building was used for a “lawful purpose” within the meaning of the EP&A Act s 106(a). The third argument raises the question whether the existing use has been abandoned within the meaning of the EP&A Act s 107(2)(e).

28. I shall consider these arguments seriatim.

(i) Was the boatshed lawfully erected when it originally came into existence?

29. I have held that the boatshed originally came into existence many years before the commencement in 1946 of town planning controls in New South Wales. Moreover, it came into existence with the authority of the PO granted in 1920 by the Department of Lands.

30. However, there is no evidence of any consent or approval having been granted by the Council in respect of the boatshed. Does this fact affect the “lawfulness” of the use of the boatshed? (cf Drummoyne Municipal Council v Cavallaro (1982) 46 LGRA 416).

31. Senior Counsel for the Council accepted, as I would understand his submission, that it has been well settled by authority 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: see Sydney City Council v Ke-Su Investments Pty Ltd (No 2) (1983) 51 LGRA 186 per McClelland CJ and Northern Territory Planning Authority v Murray Meats (N T) Pty Ltd (1983) 51 LGRA 158 per the Full Court of the Federal Court.

32. Rather, it was submitted that the provisions of the Local Government Act 1919 and in particular Pt XI thereof, which required Council approval to be obtained before a building is erected, were relevantly to be regarded as a “planning law”.

33. The argument, though novel, is not lacking in force. However, I do not think it should be accepted for at least three reasons.

34. 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.

35. 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.

36. 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.

37. For all the foregoing reasons, I would reject the Council’s argument that the absence of building approval under the Local Government act 1919 Pt XI to the erection of the original boatshed rendered the use of the boatshed to be not for a “lawful purpose” within the meaning of “existing use” as defined in the EP&A Act s 106(a).

(ii) Has the Applicant established that the erection of the boatshed in whatever physical condition manifested throughout its lifetime was authorised by the necessary planning consents?

38. Having established that the boatshed, as originally erected, predated the application of town planning controls, this question directs attention at the legal consequences of possible changes or alterations to the built form of the boatshed throughout its lifetime.

39. In view of my earlier findings (i) that is was not until 5 March 1976 (when IDO 30 came into force) that relevant planning controls required development consent for any alteration or extension etc to the boatshed building and (ii) that the boatshed building remained in the same physical form from 1976 until the time of its demolition, it follows that the boatshed must be regarded as relevantly lawfully erected. It further follows that the use of the boatshed was at all material times “for a lawful purpose” within the meaning of the definitions of “existing use” as contained in, or relevant to, the successive relevant planning controls, including that enacted in the EP&A Act s 106(a).

(iii) Was the existing use abandoned when the original boatshed was demolished?

40. This question directs attention at the legal consequences of the demolition of the boatshed and its rebuilding without the requisite development consent.

41. As I understood the Council’s argument, it was that since the “existing use” in this case was in respect of the boatshed, once that boatshed was demolished (albeit preparatory to its being rebuilt) the existing use thereupon was terminated by virtue of abandonment.

42. In my opinion, this argument must be rejected, fundamentally because it is contrary to long established authority which has established that an “existing use” of a building is not terminated or abandoned when the building is replaced in circumstances when it is intended to continue the existing use in the replacement building: see Cenatiempo v Cumberland County Council (1961) 8 LGRA 81; Panaretos v Rockdale Municipal Council (1965) 12 LGRA 139; Banool Developments Pty Ltd v Woollahra Municipal Council (1972) 2 NSWLR 353.

43. In the last mentioned case, the following passage at 366 in the joint judgment of Kerr CJ and Jacobs JA, in my opinion provides a total rebuttal of the Council’s argument:

A building, as the facts in the present case show, may be burned down and convenience or financial considerations may dictate that it should not be rebuilt for some considerable time, or it may become vacant and not be able, for financial or other reasons, to be re-let for the existing purpose for a long time . The meaning we attribute to the words continue and continuance would permit the existing use to be resorted to again when circumstances make this possible, though such resort would not be permissible at all under the alternative meaning contended for.

44. For the foregoing reasons, I would hold that the demolition of the boatshed preparatory to its rebuilding, did not terminate the existing use of the boatshed and did not constitute an abandonment of that use.

F. CONCLUSIONS AND ORDERS

45. For the foregoing reasons, I hold that the use of the boatshed prior to its demolition and rebuilding between December 1997 and March 1998 was relevantly an “existing use” within the meaning of s 106 of the EP&A Act and that that use was not terminated or abandoned when the boatshed was demolished and rebuilt.

46. Accordingly, I would answer the preliminary question in the affirmative.

47. The proceedings are stood over for mention before me in 14 days to determine how they are to be concluded.

Annexure A

Annexure B

Annexure C