ASHFIELD MUNICIPAL COUNCIL v L. ARMSTRONG

Court of Appeal (NSW)|2003-12-05|Before: Santow JA, McColl JA, Cowdroy J, Coll JA

CITATION : ASHFIELD MUNICIPAL COUNCIL v L. ARMSTRONG [2003] NSWCA 353 HEARING DATE(S) : 25/09/2003 JUDGMENT DATE : 5 December 2003

JUDGMENT OF : Santow JA at 1; McColl JA at 2; Foster AJA at 3-17 DECISION : The leave sought be granted, the notice of appeal be filed, and that the appeal be dismissed with costs.

CATCHWORDS : Application for leave and, if granted, appeal against the refusal of a development application. LEGISLATION CITED : Environmental Planning & Assessment Act 1979 Environmental Planning & Assessment Regulation 2000 Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 Murphy v Abi-Saab & Ors v (1995) 37 NSWLR 280 at 287 Boles v ESANDA Finance Corporation Limited (1989) 18 NSWLR 666 Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 at 114; 319 Parramatta City Council v Brickworks Limited (1972) 128 CLR 1 CASES CITED : Eaton & Sons Pty Limited v Warringah Shire Council (1972) 129 CLR 270 Norman v Gosford Shire Council (1975) 132 CLR 83 Vaughan-Taylor v David Mitchell-Melcann Pty Limited (1991) 25 NSWLR 580 at 589 Lemworth Pty Limited v Liverpool City Council (2001) 53 NSWLR 371 Starray Pty Limited v Sydney City Council (2002) NSWLEC 48 Salvation Army v Newcastle City Council (2000) 107 LGERA 40 North Sydney Council v Ligon 302 Pty Limited (1996) 185 CLR 470 PARTIES : ASHFIELD MUNICIPAL COUNCIL - Claimant L. ARMSTRONG - Opponent FILE NUMBER(S) : CA 40100/03 COUNSEL : Mr I. Hemmings - Claimant Mr A. Galasso - Opponent SOLICITORS : Pike & Pike - Claimant Christopher Balomatis - Opponent

LOWER COURT Land & Environment Court JURISDICTION : LOWER COURT 10133/01 FILE NUMBER(S) : LOWER COURT Cowdroy J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40100/03 LEC 10133/01

SANTOW JA McCOLL JA FOSTER AJA

Friday, 5 December, 2003 ASHFIELD MUNICIPAL COUNCIL v ARMSTRONG Judgment 1 SANTOW JA: I agree with Foster AJA. 2 McCOLL JA: I agree with Foster AJA. 3 FOSTER AJA: This is an application for leave and, if leave be granted, to appeal against a decision given by Cowdroy J on 5 February 2003 in the Land & Environment Court of New South Wales. His Honour had for determination a question of law raised by the present claimant, Ashfield Municipal Council ("the Council"), in Class 1 proceedings brought by the opponent, L. Armstrong ("Mr Armstrong"), being an appeal against the refusal by the claimant of a development application made by him to it for alterations and additions to premises of which he and his wife were proprietors, being Lot 1, DP 908000, 6 Kensington Road, Summer Hill. 4 The question of law posed for his Honour's determination was:- " 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 proposed 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." 5 For the purpose of the proceedings, the Council had conceded that the existing use rights in question extended over the entirety of the land, so described, upon which the building was erected. There was also no dispute that those rights also existed in respect of four garages, associated with the building and erected on the subject land. 6 His Honour, after considering the relevant statutory and regulatory provisions, to which reference will be made later and also relevant authorities, answered the question in the affirmative. It is against this answer that the Council seeks to appeal in these proceedings. Leave is required because his Honour's decision was interlocutory in nature. 7 In order to consider certain arguments that have been raised in this application, it is necessary to set out some preliminary matters. 8 The building in question had been first erected on the land in 1886 and, over the ensuing years had undergone alterations and additions. At the time of the relevant development application it was divided into four flats. Under the Ashfield Local Environment Plan 1985 (NSW) ("the LEP"), which had been gazetted on 20 December 1985, the premises were situated in Zone No. 2(a), which was a residential zone. As a result, the use of the land for the purposes of residential flat buildings had been prohibited. This was the situation at the time when the relevant development application was made by Mr Armstrong. Consequently he was obliged to rely upon "existing use" rights in respect of the premises, in order to found his application. This application sought consent for the demolition of the house and for the erection of eight one bedroom dwellings on the land with basement car parking for nine vehicles. Such a use of the land was clearly prohibited under the zoning and could only be supported by the opponent's having "existing use" rights or privileges under the relevant statutory and regulatory provisions. 9 On 13 July 2001 the Council, in the course of the Class 1 proceedings, was granted leave to amend its statement of issues to raise the following further issues. "18.(a) Whether the use of the existing building is an 'existing use' within the meaning of s 106 Environmental Planning and Assessment Act 1979 . (b) If the answer to (a) is in the negative, whether the proposed development is prohibited." 10 As a result of this amendment, the opponent took Class 4 proceedings, which were commenced on 5 October 2001. In those proceedings he sought a declaration in the following terms:- "A declaration that the use of land known as lot 1 in DP 908000, 6 Kensington Road, Summer Hill is an 'existing use' for the purpose of a residential flat building under the provisions of the Environmental Planning and Assessment Act 1979." 11 There is nothing before the Court to indicate why this procedure was adopted rather than the opponent's seeking to have these issues decided as a preliminary question of law in the Class 1 proceedings. It appears that either procedure was apt to raise the question for determination. If the issue were to be decided in favour of the Council, then, the development application could not succeed and the Class 1 proceedings would necessarily have to be decided in favour of the Council. 12 On 9 October 2001 the Registrar of the Land & Environment Court made an order that the Class 4 proceedings instituted by the opponent be listed for hearing at the same time as the Class 1 proceedings. However, on 29 October 2001 the further hearing of the Class 1 proceedings was stood over until the determination of the Class 4 proceedings. There is nothing in the present proceedings to indicate why this course was followed. However, it was, no doubt, seen as a sensible course, which could save time and cost. 13 The Class 4 proceedings required, apparently, not inconsiderable evidence as to the use of the building from 1986 and also relevant consents that had been given, under prior legislation, to alterations, additions and the like. The proceedings were heard by Talbot J on 29 October, 20 November and 7 December, 2001. His Honour in a reserved judgment, reported in 119 LGERA 384, found in favour of the opponent and made the following declaration:- "Declaration that the use of the building on land known as lot 1, DP 908000, 6 Kensington Road, Summer Hill for the purpose of multiple occupancy residential accommodation including a residential flat building is an existing use within the meaning of s 106 of the EP&A Act." 14 The Council appealed against this decision. The appeal was heard by a Court consisting of Mason P, Handley JA and Davies AJA. The appeal was heard on 30 July, 1 August and 23 August, 2002. The Court allowed the appeal to the extent of setting aside the declaration made by Talbot J and substituting a declaration that: "The use of the building on land known as Lot 1 in DP 908000, 6 Kensington Road, Summer Hill for the purpose of a residential flat building is an existing use within the meaning of s 106 of the Environmental Planning & Assessment Act 1979." ( Ashfield Municipal Council v Armstrong [2002] NSWCA 269) 15 The result was, this hurdle having been surmounted, that Mr Armstrong was able to proceed with his Class 1 appeal in respect of the refusal of the development application. Although the material before the Court does not make it entirely clear, I am prepared to assume that these proceedings were assigned to Cowdroy J for hearing and that, thereafter, the Council raised in those proceedings the question of law referred to above. The raising of this question in the proceedings did not produce a Class 4 application for its determination. It appears that Cowdroy J was asked by the parties to determine it as a preliminary question of law in the Class 1 proceedings. Had he determined it in favour of the Council, it, also, would have brought the proceedings and the development application, in its present form, to an end. As already indicated, the decision of Cowdroy J was unfavourable to the Council and it has sought leave to bring the present appeal. The appeal has been fully argued before this Court, but the question of whether leave should be granted is very much a live question. 16 Mr Armstrong contends that leave should be refused because the Council should be estopped from raising the point of law, on the basis of the principles expounded in Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589. The same submission had been made to Cowdroy J but his Honour had not found it necessary to decide the question as he found in favour of Mr Armstrong on the substantive issue before him. 17 The opponent's basic submission is that, pursuant to the Anshun principles, the Council should have been estopped from relying upon the point of law as it both could have and should have been raised in the proceedings before Talbot J and in the subsequent appeal. It was, at all relevant times, plain that the development application, the subject of the Class 1 proceedings, sought permission for the construction of an underground car park. It was the Council's contention that it was not possible, as a matter of law, having regard to the terms of the declaration of existing use, for it to grant permission for a subterranean development on the subject land. It was the opponent's contention that there was no reason why this question could not have been raised in the Class 4 proceedings. The Council's response was that it was not reasonable that it should have been required to do so and that, consequently, it was not subject to an Anshun estoppel. 18 The principles relating to this estoppel have been considered in a number of cases. In Murphy v Abi-Saab & Ors (1995) 37 NSWLR 280 at 287, Gleeson CJ referred to it in the following way:- "In Anshun , the High Court applied a principle enunciated as long ago as 1843, by Wigram V-C, in Henderson v Henderson (1843) 3 Hare 100 at 115; 67 ER 313 at 313. The Court requires parties to a litigation to bring forward their whole case and will not permit a party to reserve a claim and propound it later when it could and should have been propounded in the original proceedings." 19 The judgments in the High Court in Anshun are lengthy. I do not propose to refer to them directly in these reasons. They were considered by Samuels JA in Boles v ESANDA Finance Corporation Limited (1989) 18 NSWLR 666 and it is convenient to have regard to his Honour's exposition. He pointed out (at 669) that it was accepted in the High Court that reliance should be placed on the statement of Sir James Wigram VC, in Henderson v Henderson (1843) (3 Hare 100; 67 ER 313 at 115; 319): "…where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." 20 His Honour then referred, in some detail, to the course of reasoning in the High Court, relating to the conceptual bases of the rule, as appearing in other authorities: "In this situation we would prefer to say that there will be no estoppel…..unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings eg expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few." 21 Samuels JA also referred to the following passage from Anshun (at 603),namely: "It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment." 22 I consider that the passages relied upon by Samuels JA in Boles are equally applicable in the present case. I consider that the opponent has made out a case that the claimant should be estopped from asserting any argument based upon the legal point raised before Cowdroy J, because it could and should have been raised in the earlier proceedings before Talbot J. 23 The claimant seeks to meet this problem by asserting that the proceedings before Talbot J and those before Cowdroy J were, in effect, different in kind, with the result that it was not appropriate for the present point of law to have been raised in the earlier proceedings. It is argued that the earlier proceedings were apt for the ascertainment of whether there was, in fact, an existing use and the second to determine whether the existing use, if so found, was capable of supporting the opponent's development application. With respect, I consider that this is an artificial argument. Both points, if successfully raised, would have been an answer to the Class 1 proceedings and the opponent's development application. I am not persuaded that there was any impediment to their being disposed of in the one proceedings before Talbot J. 24 In my opinion, therefore, the claimant is estopped from relying upon the point of law raised and argued before Cowdroy J. I am satisfied, with respect, that his Honour should have so held. This is sufficient to dispose of the present application. However, I consider it appropriate that I should, also, determine the substantive question in the appeal from the decision of Cowdroy J. 25 The argument before his Honour concerned that part of the development application which sought permission for the creation of basement car parking for nine residents of the proposed new residential flat building. The claimant submitted that the effect of the relevant statutory and regulatory provisions, when read with certain decided cases, was to deprive it of any power to grant the permission sought. It is necessary, in the first place, to set out the relevant provisions. 26 "Existing use" is defined in s 106(a) of the Environmental Planning & Assessment Act 1979 ("the Act") as follows:- "In this Division, existing use means (a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4A of Part 3 or Division 4 of this Part, have the effect of prohibiting that use…." 27 Under the heading "continuance of and limitations on existing use" s 107, relevantly, provides as follows:- "(1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use. (2) Nothing in subsection (1) authorises: (a) any alteration or extension to or rebuilding of a building or work, or (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or (c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of any existing use,…….

Under the heading " Regulations respecting existing use " s 108 provides, so far as relevant:- "(1) The regulations may make provision for or with respect to existing use and, in particular, for or with respect to: (a) the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and (b) the change of an existing use to another use, and (c) the enlargement or expansion or intensification of an existing use. (2) The provisions (in this section referred to as the incorporated provisions ) of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument. (3) An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force…….." 28 The incorporated provisions are found in Part 5 of the Environmental Planning & Assessment Regulation 2000, Clauses 40, 41 and 42. These provide as follows:- " Object of Part 40. The object of this Part is to regulate existing uses under section 108(1) of the Act. Certain development allowed 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.

(2) A use to which an existing use is changed is itself taken to be an existing use for the purposes of the Act and may, subject to this Division, be changed to another use. Development consent required for enlargement, expansion and intensification of existing uses 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." Development consent required for alteration or extension of buildings and works 43. (1) Development consent is required for any alteration or extension of a building or work used for an existing use. (2) The alteration or extension: (a) must be for the existing use of the building or work, or for a changed existing use, but for no other use, and (b) must be erected or carried out only on the land on which the building or work was erected or carried out immediately before the relevant date." 29 It may be noted that the reference in s 107(2)(b) to the area of land "actually, physically and lawfully used immediately before the coming into operation of the instrument" was introduced by way of amendment in 1985 "so as to cut down the effect of" certain High Court decisions, Parramatta City Council v Brickworks Limited (1972) 128 CLR 1, Eaton & Sons Pty Limited v Warringah Shire Council (1972) 129 CLR 270 and Norman v Gosford Shire Council (1975) 132 CLR 83. (See per Meagher JA, Vaughan-Taylor v David Mitchell-Melcann Pty Limited (1991) 25 NSWLR 580 at 589 and per Priestley JA at 587). However, subject to one argument to which I shall make reference below, this restrictive wording in relation to the use of land has no relevance in the present case because of the concession made by the claimant that the existing use for the purpose of a residential flat building covered the whole of the area of land referred to in the development application. 30 It was the contention of the Council, however, both before Cowdroy J and before this Court, that the word "land" in s 107(2)(b) of the Act and in Clause 42(2)(b) of Regulation 2000 should be given a restricted meaning. It was submitted, as indicated in the judgment of Cowdroy J, "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." Consequently, it would be contrary to Clause 42(2)(b) for consent to be given to any development involving the expansion of an existing use into the subterranean space beneath the surface of the land involved in the existing use. The claimant had to accept, of course, that the existing use inevitably involved some intrusion into the subterranean space beneath the present building and, presumably, the associated garages because of the existence of underground foundations and services to those buildings. The submission was modified to take these facts into account, with the result that, in the appeal, the Council submitted that a proper interpretation of the word "land" where it appeared in the provisions referred to above, embraced the surface of the land and only such sub-surface areas as were necessarily involved with the foundations and services to the existing buildings. Reliance was placed for this submission upon the decision of the Court of Appeal in Lemworth Pty Limited v Liverpool City Council, (2001) 53 NSWLR 371 and to decisions of the Land and Environment Court in Starray Pty Limited v Sydney City Council (2002) NSWLEC 48 and Salvation Army v Newcastle City Council (2000) 107 LGERA 40. 31 Cowdroy J noted the opponent's argument as being "that the word 'land', as used in Clause 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." 32 Cowdroy J considered a number of decided cases including those to which reference has been made above. He also considered the definition of "land" in s 4 of the Environmental Planning & Assessment Act 1979 which is as follows:- " 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." 33 In this appeal the Court was also referred to the definition of "building" in s 4 which provides that "building includes part of a building and any structure or part of a structure." 34 His Honour, after distinguishing the cases relied upon by the Council and making reference to other authority, reached his decision in the following paragraphs of his judgment:- "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." 35 His Honour, consequently, answered the preliminary point of law in the affirmative. It is convenient, at this stage, to refer to one submission made by the claimant, for the purpose of disposing of it. It was submitted on behalf of the Council that in the first sentence of paragraph 19, had introduced a new test, unsupported by any previous authority, being a test of "inconsistency". In my view, a proper reading of this paragraph indicates that his Honour was not proposing or introducing any novel test. The first sentence must be read with the next two sentences. In these his Honour is indicating his findings that the sub-stratum of the land subject to the existing use is part of the "unit" of land over which the existing use operates. In the first sentence, he is merely indicating that the circumstances disclose no use of that sub-stratum which would prevent it forming part of that "unit". I should add that the concept of a "unit" of land is well established by the cases to which his Honour made reference. 36 It may be accepted that, as the claimant argues, the crucial question in this case was what was the relevant "land" for the purpose of the existing use which had been declared. What land was involved in the existing use of a residential flat building with associated garages? Although it was conceded by the claimant that the existing use applied to the whole of the land in the curtilage of the existing building, namely the whole of the land in the relevant lot, it was asserted that this use did not extend into the sub-surface land, at least not so far as would be needed to cover excavation for the construction of the desired basement car parking. 37 The main decision relied upon to support this submission was the decision of this Court in Lemworth Pty Limited v Liverpool City Council (2001) 53 NSWLR 371. In this case the building involved was a two storey commercial building standing upon land with a street frontage, in Liverpool. Development consent had previously been granted for a brothel on the first floor of the premises. Shortly after this consent was granted, development for the purpose of a brothel became a prohibited use under the Local Environmental Plan. This meant that the use of the first floor for this purpose constituted an "existing use" within the meaning of the Act. Some three years after this zoning prohibition had occurred, the appellant lodged a development application with the Council, seeking consent to the alteration of and addition to the existing premises and for the use of the ground floor of the premises for the purposes of a brothel. This application was refused by the Council. There was an appeal to the Land and Environment Court, in which a question of law was formulated for the trial judge, as follows:- "Whether Clause 40 (Clause 42 of the Environmental Planning and Assessment Regulation 2000) of the Environmental Planning and Assessment Regulation 1994 would permit development consent to be granted for the enlargement, expansion and/or intensification of the existing use of the first floor of the premises at 239 Northumberland Street Liverpool so as to include the ground floor of the premises at 233-239 Northumberland Street, Liverpool?"

The question was answered in the negative by the trial judge. 38 The appellant had contended that the use for which consent had been granted was applicable to the whole of the land on which the building was erected. The Council submitted that the "land" in respect of which the consent had been granted, was only the first floor of the building and not the whole of the building or property. There was no evidence that any part of the building or property had been held "in reserve" for the use of a brothel. (See eg Vaughan-Taylor v David Mitchell-Melcan). The trial judge referred to Salvation Army v Newcastle City Council (2000) 107 LGERA 40, where a conclusion had been reached that the whole of the land involved in the case could not benefit from an existing use when that use was conducted only on a portion of the land. He held that in the absence of proof that the ground floor was held in reserve for the use, the subject of the consent, it was not possible for the use to be extended from the first floor to the ground floor. The Council had no power to consent to such an extension. He said that parliament had intended to contain the enlargement of existing uses to the confines of the "land" which had the benefit of the use. 39 In the appeal it was submitted that pursuant to Clause 42, the appropriate land was either the whole of the block of land on which the building was situated or the foot print of the land beneath the building, with the result that, in either case, the ground floor was relevantly part of the land, in which circumstances there was power in the Council to permit an extension of the existing use into that floor. For the Council it was contended that the ground floor could not be "the land on which the existing use was carried out", as required by Clause 42. Reliance was placed upon the fact that "land", pursuant to the definitions in the Act, could mean not only "a building erected on the land", but also "part of the building" (s.4). The Council also relied upon the Salvation Army case for the submission that, the use was being conducted on only a small portion of the "land" if that were taken to be the whole of the building or the building together with the property upon which it stood. Consequently, that small portion, being the first floor, was the relevant land and extension of the use beyond it was not permissible. 40 This submission was upheld. The unit of land in respect of which the relevant consent had been granted, could only be described as the first floor of the building. Extension of the use beyond this area was not permissible. 41 Counsel for Mr Armstrong, in the present appeal, submits that the decision in Lemworth can readily be based on that part of the definition of "land" in s 4 of the Act which refers to "land" including a "building", when read with the definition of "building" which includes "a part of the building". In Lemworth consent had been given in respect of "a part of the building" which, therefore, relevantly became "the land in respect of which the existing use was carried out immediately before the relevant date" pursuant to Clause 42(2)(b). I accept this submission. The trial judge considered that Lemworth was readily distinguishable from the present case. I agree. In my view, it provides no warrant for regarding the sub-surface area of the land in the present case as not being part of the "unit", in respect of which the existing use was declared. 42 The only other case which, in my opinion, would appear to warrant consideration is the first instance decision of Starray Pty Limited v Sydney City Council (2002) NSWLEC 48. Cowdroy J, in my opinion, correctly referred to the case as one involving "a unique circumstance". His Honour discussed the decision in the following terms:- "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." 43 Plainly, this case is very remote from the present one, where the declared "existing use" is for the purpose of a residential flat building, to be carried out in respect of the whole of the land at the relevant address. There is nothing in Starray which, in my view, could require that the declared existing use in the present case related, in effect, only to the surface of the land. 44 The definition of "land" in the Act has been set out above. It is, of course, an inclusionary definition. In North Sydney Council v Ligon 302 Pty Limited (1996) 185 CLR 470 the High Court said (at page 481) that the definition "speaks only of land as a topographical entity, not as a bundle of rights." This statement was relied upon by the claimant, but for my part, I cannot see how it advances the Council's case. One does not have to be concerned with the distinction between topography and bundles of rights to arrive at a basically common sense conclusion that "land" unless very special considerations to the contrary apply, means not only the surface of the land but also the supporting sub-soil. 45 In the present case "the existing use" has been declared in respect of the whole of the relevant land. There is simply no occasion, in my view, for restricting that use to the surface areas or such distance below the surface as might equate with the area occupied by the existing foundations and services, whatever that might be. I am satisfied that Mr Armstrong was able to apply for development of the site in accordance with the existing use of a residential flat building with its associated garaging, in the way that he did and that the Council has power to grant that consent. Whether it does so, of course, depends upon the outcome of the current Class 1 proceedings. 46 Although the decision that I reached in relation to the question of Anshun estoppel could lead to the refusal of leave to appeal, I consider that, in all the circumstances, the appropriate orders in this case are that the leave sought be granted, the notice of appeal be filed, and that the appeal be dismissed with costs. I so propose. ***********************

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