Agostino v Penrith City Council

The Council's position that the land used for the existing use does not extend to the whole of the site

1. The Council says that prior to the grant of the 1992 store consent, there was no lawful use of the site for the purposes of a fruit and vegetable store, and that the 1992 store consent is the primary source of any lawful permission for use for that purpose. The Council accepts that the loading consent was also for the purpose of the fruit and vegetable store.
2. The Council submits that the fact that the legal description of the site and its address is used in the description of the site for which the 1992 store consent was granted is not sufficient to establish that the consent is for, and applies to, the whole of the site. It makes the same submission with respect to the loading consent. In support of this position, the Council relies on the decision of the Court of Appeal in Minister for Planning v Rose Bay Marina Pty Ltd (2003) 126 LGERA 181; [2003] NSWCA 119, in which Hodgson JA made it clear that a determination that there is an existing use of land does not of itself determine the extent of the land on which the existing use was carried out (see [25]).
3. The Council points out that the 'relevant date' is a central part of considering the extent of the land used for the existing use in cll 42(2)(b) and 43(2)(b) of the EPA Regulation 2000, which, in relation to an existing use that is derived from a development consent pursuant to s 4.65(b) of the EPA Act , is "the date when the building, work or land being used for the existing use was first erected, carried out or so used". The Council submits that this means that the relevant date is when the use first commenced lawfully.
4. In that context, the Council says that to determine the extent of the land to which the existing use relates, it is necessary to construe the 1992 store consent. The 1992 store consent, read as a whole, is for the "occupation of an existing building and proposed extension… in accordance with plan dated 14 April 1992". The plan shows the existing building and the proposed extension, as well as an area to be used for carparking and landscaping. Therefore, the use for the purpose of the fruit and vegetable store extended to the car parking in front of the store building. The Council also points out that condition 23 of the 1992 store consent, imposed a limit on the extent of the site that could be used for the sale of fruit and vegetables, and that condition 16 prevented anything from being stored other than within the store. Accordingly, the Council submits that nothing in the 1992 store consent supports a conclusion that the use could lawfully be carried out on the whole of the site, such as in the dwelling or the remainder of the site which then was a farm.
5. The Council submits that the modification to the 1992 store consent did not change the extent of the land approved for the use, even though it changed the definition of floor area, which was limited by condition 23 to 150m2, to exclude areas used "for the bulk storage of produce (whether in a cool room or otherwise) pending display or sale". The Council says that the modified store consent therefore did not change the approved extent of the land that could be lawfully used for the purpose of the fruit and vegetable store.
6. On the grant of the loading consent, the Council agrees that the area to be used for unloading was for the purpose of the fruit and vegetable store. The Council says that this can be inferred by the imposition of condition 7001, which recognises the use for the store, and constrains the unloading area so that it cannot be used for the storage, display, process or sale of goods. As such, by the grant of the loading consent, the extent of the area to be used for the existing use for the fruit and vegetable store is extended to the shaded area on the approved plan in the loading consent. The Council submits that the loading consent shows the area of land of the existing use does not extend to the area occupied by the existing shed, or any other area on the site.
7. The Council also submits that the farm shed consent, which was granted prior to the 1992 store consent, is not for the purpose of the fruit and vegetable store, and could therefore not be an existing use under s 4.65(b) of the EPA Act.
8. Accordingly, the Council submits that neither the 1992 store consent nor the loading consent have ever authorised the use of the whole of the site for the purpose of a fruit and vegetable store, and neither of those consents authorised the use of the existing shed for the purpose of a fruit and vegetable store.

The land used for the existing use is not the whole of the site

1. The question before the Court concerns the extent of the "building, work or land" that falls within the definition of the "existing use" for purpose of the fruit and vegetable store. Similarly, in exercising the power to grant development consent pursuant to cll 42 or 43 of the EPA Regulation, the Court must determine what is the unit of land "on which the existing use was carried out immediately before the relevant date" or "on which the building or work was erected or carried out immediately before the relevant date".
2. As set out above, the definition of relevant date is contained in cl 39 of the EPA Regulation 2000, and for an existing use that arises from the grant of consent in accordance with s 4.65(b) of the EPA Act, it is "the date when the building, work or land being used for the existing use was first erected, carried out or so used". Consistent with the Council's position, this means that it is the date that it was lawfully "first erected, carried out or so used", that is to say, in accordance with the consent. If the "building, work or land being used" could only have been "erected, carried out or so used" with development consent, then the reference to the same in the definition of "relevant date" must be a reference to the "building, work or land being used" being "erected, carried out or so used" in accordance with that development consent. A second or subsequent "relevant date" might then arise for modifications to a consent or later development consents that extend the building, work or land being used for the existing use to a new area of land.
3. The existing use "immediately before the relevant date" is therefore defined by the terms of the consent, including the approved plans and any conditions of consent. It is not informed by what might have actually occurred on the site after the use commenced. Nor is it informed by the manner in which an unlawful use operated before the development consent was granted.
4. I accept the Council's position that the first development consent that authorised the use for the purpose of the fruit and vegetable store was the 1992 store consent. The mere fact that the whole of the deposited plan allotment is referred to in the determination of the 1992 store consent is not sufficient to establish that the whole site is the land to which the existing use applies in accordance with s 4.65(b) of the EPA Act, or on which the existing use was carried out in accordance with cll 42 and 43 of the EPA Regulation 2000. Instead, I accept the Council's position that to determine the extent of the land to which the existing use applies and "on which the existing use was carried out immediately before the relevant date", it is necessary to construe the consents that apply to the site, including by having regard to the approved plans and the conditions of consent. As set out by Pearlman CJ of LEC in Scully v Leichhardt Council, the land on which the existing use was carried out on the relevant date can be an area less than the deposited plan allotment upon which the building is erected.
5. As pointed out by the Council, the 1992 store consent is for the "occupation of an existing building and proposed extension for the sale of fruit and vegetables… in accordance with plan dated 14 April 1992". I consider that the plan shows the area to be used for the purpose of the fruit and vegetable store is the existing building, the proposed extension, the area for car parking, the area for vehicle manoeuvring and the areas for landscaping. Conditions 16 and 23 constrained the areas that could be used for storage (condition 16) and the total floor space that could be used for the sale of goods and storage (condition 23). Therefore, I accept the Council's submission that there is nothing in the 1992 store consent that extends the approved use beyond those areas, or that holds in reserve some other part of the site for the purpose of the store.
6. The evidence is instead that the dwelling house and the other areas of the site used for horticulture were separate and independent uses on the site. The dwelling is shown on the approved plan as "existing BV dwelling" and the buildings associated with the farm use are not shown, apart from the words on the driveway that state "gravel driveway to farm". That these other areas of the site were used for separate and independent uses is supported by the SEE, which acknowledges the use of the site for the residential dwelling and for horticulture, and then goes on to state that only a small proportion of the site is proposed to be occupied by the fruit and vegetable store, ancillary parking and driveway facilities, and that a "significant proportion of the subject land can be utilised for horticulture and residential purposes." Accordingly, even in the development application for the fruit and vegetable store it was clear that there was no intention to use other parts of the site for the purpose of the fruit and vegetable store, other than those proposed for the store building itself and the parking and driveway facilities.
7. I also accept the Council's submission that the modification of the 1992 store consent did not change the extent of the land approved for the use. The change in the definition of floor area in condition 23 of the 1992 store consent did not actually cause any additional area on the site to be approved for use for the purpose of a fruit and vegetable store beyond that which was already approved.
8. The loading consent authorised the construction of the covered area for unloading for the purpose of the fruit and vegetable store. In doing so, it allowed an additional area of the site to be used for the purpose of a use that is now an existing use within the meaning of s 4.65(b) of the EPA Act. The "relevant date" with respect to that use is the date when the roof over the unloading area was constructed, and the area for the use for the purpose of the fruit and vegetable store is the unloading area shaded on the approved plan, as well as the driveway accessing that area from the front of the site denoted as "existing driveway". The "existing dwelling" and "existing colourbond shed" are depicted on the approved plan, but there is nothing on the approved plan or in the development consent or the conditions that indicates that the consent allows the use of the existing shed or any other area on the site for the purpose of the fruit and vegetable store, or holds any other part of the site in reserve for the purpose of the fruit and vegetable store. Instead, there remained other independent uses of the site, including the area around which the driveway borders, which remained an independent use for horticulture.
9. I also accept the Council's position that there is nothing in the farm shed consent that authorises use of the shed for the purpose of a fruit and vegetable store. This is considered in more detail further below. Nevertheless, even if the farm shed consent could be considered as being for the purpose of the fruit and vegetable store (contrary to my finding further below), the farm shed consent authorised only the construction and use of the shed itself. The plan approved by the farm shed building permit separately depicted the existing shop and the existing house, and there is nothing in the consent or the building permit that suggests that the shed consent authorises the use of the whole of the site for the purpose of a fruit and vegetable store.
10. As such, there is nothing in the 1992 store consent, the modified store consent, the loading consent or the farm shed consent that supports a conclusion that the use for the fruit and vegetable store could lawfully be carried out on the whole of the site, such as in the dwelling house or the other areas of the site used for horticulture.
11. I therefore conclude that, contrary to the position of Mr Agostino, the land "for which development consent was granted" pursuant to s 4.65(b), and, for the purpose of cll 42 or 43 of the EPA Regulation 2000, "on which the existing use was carried out immediately before the relevant date" or "on which the building or work was erected or carried out immediately before the relevant date" does not extend to the whole of the site.

Does the existing shed have consent for use for the purpose of the fruit and vegetable store?

1. As the development application concerns only those areas of land used for the existing use in the 1992 store consent and the loading consent, and the area of land in the farm shed consent, I am required to determine whether the area of land used for the existing use includes the existing shed. Having not accepted Mr Agostino's position that the existing use for the purpose of the fruit and vegetable store extends to the whole of the site, I now consider the construction of the farm shed consent and whether it, or any of the later development consents, authorises the use of the existing shed for the purpose of a fruit and vegetable store such that it is an existing use for that purpose applying to that area of land.
2. In considering the farm shed consent, it is common ground that consent cannot be granted for a use that is prohibited in the zone, or for a use that is permissible without development consent (see Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147 at [31]).
3. The zoning table at the time of the grant of the farm shed consent was as follows (LEP 201 cl 9): 2 Without development consent Agriculture (other than intensive livestock keeping establishments). 3 Only with development consent Any purpose, other than a purpose included in Item 2 or 4 of the matter relating to this zone. 4 Prohibited Boarding houses; caravan parks; commercial premises; extractive industries; industries (other than rural and home industries); junkyards; liquid fuel depots; motor showrooms; offensive or hazardous industries; residential flat buildings; rural exhibition grounds; shops (other than convenience stores, general stores and produce stores); transport terminals.
4. Further, as I earlier described, in Agostino v Penrith City Council the Court of Appeal determined that the exception to the general prohibition on fruit and vegetable stores created by cl 41 of the LEP 201 meant that any store which didn't meet the description of having "a maximum floor area of 150m2" is prohibited (see Agostino v Penrith City Council at [44]).

Applicant's submissions on the farm shed consent

1. Mr Agostino submits that, applying the principle of regularity such that the farm shed consent was granted for a purpose that was permissible with consent, the Court can infer that the proper characterisation of the use authorised by farm shed consent was the original fruit and vegetable store.
2. The applicant makes this submission on a number of grounds. Firstly, he points out that the store already existed on the site at the time of the grant of the farm shed consent, although it existed without development consent at that time.
3. Secondly, Mr Agostino says that the purpose of the use of the farm shed was, in fact, for the storage of produce grown on the site prior to its display and sale in the fruit and vegetable store. It was the only area with cool rooms suitable for the storage of produce pending their sale.
4. Thirdly, Mr Agostino submits that there was no prohibition on the use for the purpose of the fruit and vegetable store by the size of the farm shed (which exceeds 150m2) because the storage of produce grown on the site was distinct from the storage of "goods and merchandise" which was subject to the limit on floor area. The submission is that the Council distinguished between the storage of produce grown on the property and the storage of goods and merchandise not grown on the property, which can be discerned by the express terms used by the Council in the farm shed consent and the 1992 store consent. Whereas condition 2 of the farm shed consent permitted the "storage of produce grown on the property", by contrast, condition 23 of the 1992 store consent limited the area used for "storage of goods and merchandise". Mr Agostino submits that the inclusion of areas used for "storage of goods and merchandise" within the floor area maximum in cl 41 of the LEP 201 did not include areas used for the storage of produce grown on the site, and that this is reflected in the deliberate choice of words in condition 2 of the farm shed consent.
5. Fourthly, Mr Agostino points out that the grant of the farm shed consent could not be for the purpose of the agriculture use of the site as such development was permissible without development consent.
6. Mr Agostino accepts that the farm shed consent does not authorise the use of the existing shed for the purpose of storage of produce not grown on the site, and seeks consent for the "enlargement, expansion or intensification" of the fruit and vegetable store use so as to permit the storage of produce not grown on the site in the existing shed.

The Council's submissions on the farm shed consent

1. The Council's position is that the farm shed consent was not granted for the purpose of the fruit and vegetable store and is therefore not an existing use under s 4.65(b) of the EPA Act. Indeed, this was a position accepted by the applicant in its Statement of Facts and Contentions in Reply (see Ex 1 Tab 7 p 8, at [1(o)]). The Council points out that there is nothing in the consent or the conditions that indicates that the purpose of the use was for a fruit and vegetable store.
2. The Council submits that, contrary to the applicant's position, the initial definition of "floor area" in the LEP 201 makes no distinction between storage of "goods and merchandise" and storage of produce, and such a distinction was only introduced upon the amendment to cl 41 by LEP 201 (Amendment No. 8) on 19 December 1997. The Council says that "goods and merchandise" must therefore include produce, or anything that was intended for sale at the fruit and vegetable store. The Council submits that the consent could therefore not have been a lawful consent for the purpose of a fruit and vegetable store, as the shed did not comply with the maximum floor space of 150m2 as defined at the time of consent as being "the whole of the area used for the display, sale and storage of goods and merchandise".
3. The Council says that the purpose of the farm shed consent could have been for any innominate permissible use, including "bulk store", which at that time was defined by the Environmental Planning and Assessment Model Provisions 1980 in s 4 as follows: bulk store means a building or place used for the bulk storage of goods, where the goods stored or to be stored are not required for use in a shop or commercial premises on the same parcel of land or on adjoining land in the same ownership.
4. Nevertheless, the Council says that it could have been any innominate permissible use, and that the onus is on the applicant to establish the purpose of the use for which the consent was granted.
5. The Council also submits that neither the 1992 store consent, nor the loading consent, grant consent for a use of the existing shed for the purpose of the fruit and vegetable store. Similarly, it submits that the modification of the 1992 store consent, although changing the definition of "floor space" to align with LEP 201 (Amendment No. 8), did not modify the 1992 store consent to include any other areas approved for the purpose of the fruit and vegetable store.

The existing shed does not have consent for use as a fruit and vegetable store

1. As distinct from legal proceedings for a declaration on the existence, scope and purpose of an existing use, the present proceedings require me only to make a finding as to whether the proposed development is permissible with development consent. As set out earlier, the permissibility of the proposed development relies on there being an existing use of a building or land for the purpose of the fruit and vegetable store and, by Mr Agostino's reliance on cll 42 or 43 of the EPA Regulation 2000, is constrained to the land "on which the existing use was carried out immediately before the relevant date" or "on which the building or work was erected or carried out immediately before the relevant date" pursuant to those clauses. For it to be permissible to enlarge or expand the existing use of the fruit and vegetable store into the existing shed, the existing shed must be a building for which development consent was granted for that purpose and must form part of the land "on which the existing use was carried out immediately before the relevant date" in accordance with the consent (as per cl 42). Therefore, in construing the farm shed consent, I need not determine the precise use for which the farm shed was approved, I need only determine whether the use was for the purpose of a fruit and vegetable store. For the reasons that follow, I do not so find.
2. Firstly, there is nothing in the consent that suggests that the purpose of the use was the fruit and vegetable store. Instead, the consent is for the construction of a "farm shed" and its purpose is for storage. What can be stored in the farm shed is limited by a condition of consent, which is "the parking of farm vehicles and equipment and for storage of produce grown on the property". There is nothing that links that storage to the fruit and vegetable store. Even if, in fact, the produce grown on the site was later moved to the fruit and vegetable store for sale, that does not mean that the farm shed consent was for the purpose of the fruit and vegetable store.
3. Secondly, the farm shed consent predates the consent for the use of a building and area of land for the purpose of a fruit and vegetable store. At the time the farm shed consent was granted, there was no development consent for a store for the sale of fruit and vegetables. Whilst a shop operated on the site without development consent, in the absence of consent for the same there was no lawful place from which fruit and vegetables could be sold. I cannot accept that the farm shed consent was for the purpose of a fruit and vegetable store when, at the time, there was no lawful place from which there could be the sale of fruit and vegetables.
4. Thirdly, the floor area of the shed approved by the farm shed consent exceeded the floor area permissible for a fruit and vegetable store, under the definition of floor area that was in place at time of the grant of consent. The shed shown on the approved plans for the farm shed building permit, which approved the construction of the existing shed the subject of the farm shed consent, has a floor area of 228.5m2. This exceeds the limit of 150m2 on "the area used for the display, sale and storage of goods and merchandise, whether or not any part of the floor area is external to any building". I do not accept the submission made on behalf of Mr Agostino that the use of the words "storage of goods and merchandise" within the definition of floor area excludes the storage of produce pending its sale at the store. Such an exclusion was introduced by LEP 201 (Amendment No. 8) but did not exist at the time the consent was granted. "Goods" can be broadly defined and includes agricultural goods, and "goods and merchandise" would include anything that was sold at the fruit and vegetable store. Consistent with the decision of the Court of Appeal in Agostino v Penrith City Council, the floor area of the size approved in the farm shed consent meant that its use for the purpose of a fruit and vegetable store was prohibited.
5. Fourthly, it would be contrary to the 1992 store consent for the existing shed to be used for storage for the purpose of the fruit and vegetable store. The 1992 store consent includes condition 16, which states that "All materials and goods associated with the use are to be contained within the building at all times. In this regard all goods for sale or display are to be contained within the building".
6. Further, neither the 1992 store consent nor the loading consent authorised the use of the existing shed for the purpose of the fruit and vegetable store.
7. Therefore, I am not persuaded that the farm shed consent authorised the use of the existing shed for the purpose of a fruit and vegetable store.

The land on which the existing use was carried out at the relevant date

1. The use as approved by the modified store consent and the loading consent, is an existing use for the purpose of a fruit and vegetable store, within the meaning of s 4.65(b) of the EPA Act. The extent of that existing use is limited by the terms of those consents. It does not extend to the existing shed, which is outside the scope of those consents and was erected pursuant to the farm shed consent.
2. Similarly, the land "on which the existing use was carried out immediately before the relevant date" for the purpose of cl 42, and the land "on which the building or work was erected or carried out immediately before the relevant date" for the purpose of cl 43, is limited by the terms of the 1992 store consent and the loading consent, and does not extend to the existing shed.
3. The relevant date for the purpose of the 1992 store consent is the date on which the store extension, parking area and landscaping were complete. The land on which the existing use was carried out immediately before that date is the area that includes the building as extended, the area for car parking, the area for vehicle manoeuvring and the landscaped areas. The modification of the 1992 store consent did not change the extent of the land on which the existing use was carried out.
4. The relevant date for the purpose of the loading consent is the date on which the colourbond roof over the unloading area at the rear of the store was constructed or when the area was first used following the grant of consent. The land on which the existing use was carried out immediately before that date is therefore the area depicted in the plan for the loading area, and the access driveway to that area (see Figure 3 above at [35]).
5. The other parts of the site are being used for separate and independent uses. The fact that, in practice, some produce resulting from the horticultural use was sold in the fruit and vegetable store does not mean that those two uses did not retain their independence, in the same way that independence exists for horticultural uses located offsite that deliver their goods to a fruit and vegetable store for sale. The fact that the development consents concern only part of the site, and the site contains other separate and independent uses, means that the circumstances of this case are distinct from the circumstances considered by Preston CJ in Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council.
6. There is, therefore, power to grant development consent for the alterations and additions to the fruit and vegetable store, as the areas in which those alterations and additions are sought are within the land on which the existing use was carried out at the relevant date. This includes the extension to the front of the existing store, the construction of the bull nosed verandah on the western elevation, and the internal alterations to provide additional storage and expanded loading dock. However, there is no power to grant development consent for the enlargement, expansion or intensification of the existing use into the existing shed pursuant to cl 42 of the EPA Regulation 2000.

The outcome of the appeal

1. Pursuant to s 4.16(4) of the EPA Act, the Court has the power to grant consent to the development for which consent was sought, except for a specific part or aspect of that development. The Court also has power to impose conditions of consent, including conditions that modify details of the development the subject of the development application (s 4.17(1)(g) of the EPA Act).
2. There are no contentions raised by the Council with respect to the merits of the development application. Based on the Amended Statement of Environmental Effects dated 10 February 2022, I have considered the matters arising pursuant to s 4.15(1) of the EPA Act and I am satisfied that the appropriate outcome for the appeal is the grant of development consent for that part of the development application comprising the store extension, verandah and additional storage area.
3. That part of the development application that concerns the use of the existing shed for the fruit and vegetable store must be refused, as development for the purpose of the fruit and vegetable store is prohibited on the site and the existing shed falls outside of the land used for the existing use. Although the impact of using the existing shed for the storage of produce for the purpose of the fruit and vegetable store may be de minimis, its use for that purpose is not a matter about which there is any discretion for the determination of the development application. There is no power to grant development consent to that aspect of the development application pursuant to cll 42 or 43 of the EPA Regulation 2000.
4. Consistent with the decision in Butler Street Community Network Incorporated v Northern Region Joint Regional Planning Panel (2017) 226 LGERA 213; [2017] NSWLEC 51, the power that arises under s 4.16(4) of the EPA Act allows the Court to grant a valid consent in relation to only part of a development application, without any requirement for the applicant to amend the development application (see [34]-[46]).
5. The Court orders that: 1. The appeal is upheld. 2. The development application DA21/0432 is determined by the grant of consent for alterations and additions to the existing fruit and vegetable store at 312 Third Avenue, Llandilo (the land) subject to the conditions in Annexure A, except for the enlargement, expansion and intensification of the use of the fruit and vegetable store into the existing metal farm shed on the land.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 May 2022