Armstrong v Ashfield Municipal Council

SOLICITORS Pike Pike & Fenwick

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10133 of 2001

5 February 2003 L. ARMSTRONG Applicant v ASHFIELD MUNICIPAL COUNCIL Respondent Judgment

Facts 1 The Court is required to determine a question of law concerning the extent of an existing use applicable to Lot 1 in Deposited Plan 908000 known as 6 Kensington Road, Summer Hill ("the land"). The land has a site area of approximately 697 m2 and erected thereon is a two-storey dwelling house ("the house") which was constructed in 1886. The house has been used for the purposes of a residential flat building containing four flats. A four car garage located at the rear of the property is used in conjunction with the flats. 2 By development application No. 148/00 lodged with the respondent ("the council") the applicant sought consent for the demolition of the house and the erection of eight one bedroom dwellings with basement car parking for nine vehicles. 3 A question initially arose whether the land attracted existing use rights. This issue was determined by the New South Wales Court of Appeal in favour of the applicant (see Ashfield Municipal Council v Leonard Armstrong & Christina Armstrong [2002] NSWCA 269) which upheld the decision of Talbot J of this Court (LEC 40184/01).

4 Clause 41 of Environmental Planning and Assessment Regulation 2000 ("Regulation 2000") relevantly provides:- 41(1) An existing use may, subject to this Division: (a) be enlarged, expanded or intensified, or (b) be altered or extended, or (c) be rebuilt, or (d) be changed to another use, including a use that would otherwise be prohibited under the Act.

42(1) Development consent is required for any enlargement, expansion or intensification of an existing use.

(2) The enlargement, expansion or intensification: (a) must be for the existing use, or for a changed existing use, but for no other use, and (b) must be carried out only on the land on which the existing use was carried out immediately before the relevant date.

Question of Law 5 The following question of law is now raised for determination:- Whether the existing use of the building on land known as Lot 1 DP 908000, 6 Kensington Road, Summer Hill for the purpose of a residential flat building permits the grant of a development consent to development application 148/00 which proposes basement car parking for nine residents in connection with the proposed conversion/extension of an existing building currently being used as four flats to provide 8 x 1 bedroom flats with basement parking.

For the purpose of these proceedings the council concedes that the existing use rights extend over the entirety of the land. Council's submissions 6 Council submits that cl 41 of Regulation 2000 is limited by the provisions of cl 42(2). Council says that the word "land" contained in cl 41 is therefore to be afforded a limited interpretation as demonstrated by decision of the New South Wales Court of Appeal in Lemworth Pty Limited v Liverpool City Council (2001) 53 NSWLR 371 and by the decisions of this Court in Starray Pty Limited v Sydney City Council [2002] NSWLEC 48 and Salvation Army v Newcastle City Council (2000) 107 LGERA 40. 7 The council therefore claims that upon a proper interpretation of "land" the use of subterranean space beneath land having an existing use does not attract the benefit of the existing use. That is, any expansion of the existing use into subterranean space would be contrary to cl 42 of Regulation 2000.

Applicant's submissions 8 The applicant submits that the word "land" as used in cl 42(2)(b) of Regulation 2000 permits existing use rights to be exercised on the surface of the land and beneath such land and submits, in summary, that the proposed use is merely an extension of the existing use. 9 The applicant submits that the Court is required to consider the actual use of the land. In doing so the Court is to ascertain the "unit" of the existing use. The applicant distinguishes Lemworth on the basis that the existing use was confined to an identifiable portion of a commercial building. The applicant distinguishes Starray and submits that such decision results from the unusual factual circumstances. However, the reasoning of the Chief Judge (at para 23) is relied upon, namely that a practical approach must be adopted when determining the extent of an existing use.

Findings 10 The word "land" is defined in s 4 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") as follows:- 4 "land" includes: (a) the sea or an arm of the sea, (b) a bay, inlet, lagoon, lake or body of water, whether inland or not and whether tidal or non-tidal, and (c) a river, stream or watercourse, whether tidal or non-tidal, and (d) a building erected on the land.

"Land" is not otherwise defined in Regulation 2000. 11 Council submits that s 106 of the EP&A Act creates existing use rights in respect of the surface of the land. Section 106(a) provides: 106 In this Division, "existing use" means (a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4A of Part 3 or Division 4 of this Part, have the effect of prohibiting that use, 12 In order to determine the physical extent of an existing use right it is essential to pay regard to two fundamental considerations. The first consideration requires a practical assessment be made of the facts of each case. The existing use is to be granted a liberal interpretation. Such principles were recognised by the High Court of Australia in The Council of the City of Parramatta v Brickworks Limited (1972-1973) 128 CLR 1. At p. 25 Gibbs J said (in relation to different, but analogous legislation):-

Those clauses are designed to preserve and protect existing rights and ought to be liberally construed and not restricted by dubious implications drawn from words used in other clauses directed to a different subject matter.

A similar observation was made by the High Court in Shire of Perth v O'Keefe and Anor (1963) 110 CLR 529 (see Kitto J at p. 535).

13 In North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd and Ors (1989) 67 LGRA 344 (CA), Kirby P summarised the principles relative to existing uses at p. 353 as follows:- 1. Defining the "existing use" depends upon a detailed examination of the facts of each case. Inevitably there will be borderline cases where the characterisation of the use which is protected will be controversial and upon which minds may differ. 2. Nevertheless, the general approach to be taken is one of construing the "use" broadly. It is to be construed liberally such that confining the user to precise activity is not required. What is required is the determination of the appropriate genus which best describes the activities in question. 3. In determining that genus , attention should be focussed on the purpose for which the determination is being made. This is a town planning purpose. It therefore considers the use from the perspective of the impact of the use on the neighbourhood. This is because the regulation of the use within the neighbourhood is the general purpose for which planning law is provided. 14 In Scully v Leichhardt Council (1994) 85 LGERA 109 Pearlman J at p 111 said:-

In my opinion, the inquiry must as a consequence be directed to the particular existing use. What is the nature and extent of the particular existing use? The facts and circumstances which establish the particular use will set the parameters for the "land" which is referred to in cl 41(2). 15 The second consideration requires an analysis whether the proposed use can be properly regarded as part of the same "unit" applicable to the existing use. In Steedman v Baulkham Hills Shire Council [No 1] (1991) 87 LGERA 26, Meagher JA said at p 27: It is also clear enough, on the authority of these cases, that the land subject to the determination should be capable of identification as far as possible in a way which avoids detailed investigation and complicated disputes of fact; that land can be used for a lawful purpose without there being an actual physical use of it; that if the land is rightly regarded as a unit and it is found that part of its area was physically used for the purpose in question it follows that the land was used for that purpose; and that if some part of the land was used for mining or extractive purposes, the fact that the balance of the land was held in reserve and intended for future use does not derogate from the fact that in law the whole of the land was used for mining or extractive purposes. In Salvation Army, Pearlman J made her determination after an assessment of the "unit" which comprised the existing use. 16 There is a clear distinction between the present factual circumstances and those in Salvation Army and in Lemworth. In Salvation Army Pearlman J referred to the observations of Walsh J in Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270; 25 LGRA 369 where His Honour said at p. 278; 376:-

[I]t seems plain that in some cases the physical use for a particular purpose of a small portion of a large holding would not warrant a finding that the whole area was used for that purpose.

Only a small portion of the land was used for the existing use and the remainder was used for an entirely different use. Her Honour therefore held that the benefit of the use did not extend over such remainder. In Lemworth the existing use was confined to certain rooms of a building, the remaining rooms being used for different uses. In Lemworth Stein JA at p. 377 said:- Here it cannot be said that the whole of the land can be regarded as a "unit" for the purpose of the brothel use. Nor can the ground and first floor of the building together be so regarded, leaving aside whether the ground floor was being held in reserve for the brothel use. The unit of land was plainly the first floor, for which development consent was sought and granted for the brothel use. 17 Accordingly neither in Lemworth nor in Salvation Army could it be said that the land or the premises sought to be used had comprised the same "unit" as that of the existing use. These decisions emphasise the need to consider the circumstances of each case to determine the unit of the existing use as a necessary prerequisite to the application of cl 42. 18 In Starray the Court was faced with a unique circumstance. In that decision the subject land was used for a surface level public car park. The applicant sought and obtained approval for the erection of a tower building on the land which incorporated a car park which was restricted for use of the occupants of the building. Having obtained such consent, it then sought development approval for the use of the subterranean land for the purpose of a commercial car park which was a separate use to that of the tower building. Pearlman J determined that the "unit" of land which Starray used for the purpose of a public car park was confined to ground level and that no part of the subterranean strata had been used for that purpose, nor was it held in reserve. Having referred to the observations of Stein JA in Lemworth Her Honour stated five propositions of which three are directly relevant to these proceedings as follows (at para 23):-

(a) An existing use of land refers to land which from a practical point of view should be regarded as one piece of land or a " unit" (pars 37 and 41); (b) A physical use of the land is not necessary - land may be held in reserve (pars 36 and 38); (c) It is necessary to inquire into the facts and circumstances which establish the particular existing use, for that will set the parameters for the "land" (par 30);

19 In the present circumstances the sub-stratum of the land has not been used for any use which is inconsistent with that of the existing use. The proposed use of the sub-stratum is for the purpose which is identical to that of the existing use namely that of a residential flat building and associated car parking. Applying the tests formulated in Steedman and Boyts Radio the proposed use of the "land" may be considered, for practical purposes, to be the same "unit" as that of the existing use.

20 In these circumstances the Court determines that the proposed development constitutes merely an enlargement, expansion or intensification of the existing use which is carried out on "land" which is the subject of the existing use. Accordingly the development of the land for the purposes of a residential flat building and car park which utilises the subterranean space beneath that land constitutes an intensification of the existing lawful use. Such use is authorised by cl 41(1) of Regulation 2000.

Subsidiary Question 21 By way of supplementary submissions the applicant argued that the Court, in the exercise of its discretion, should not permit the present issue to be raised since council had the opportunity to do so in the proceedings before the New South Wales Court of Appeal. In view of the decision reached by the Court it becomes unnecessary to determine the supplementary submission.

Orders 22 The Court answers the preliminary point of law in the affirmative. 23 The Court orders that the exhibits be returned.

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