Auburn Council v Constanti and Anor

Land and Environment Court (NSW)|2000-09-05|Before: Pearlman J

CITATION : Auburn Council v Constanti and Anor [2000] NSWLEC 194 APPLICANT Auburn Council PARTIES : RESPONDENTS Constanti and Anor FILE NUMBER(S) : 40199 of 1999 CORAM: Pearlman J KEY ISSUES: Injunctions and Declarations :- existing use rights - service station - new access point to diesel bowsers - is it a use - abandonment - enlargement expansion or intensification - whether consents still in force Auburn Planning Scheme Ordinance 1970 cl 26 County of Cumberland Planning Scheme Ordinance 1951 cl 32 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 106(a), s 107, s 109B Environmental Planning and Assessment Regulation 1994 cl 40 Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 Auburn Council v Nehme (1999) 106 LGERA 19; House of Peace Pty Ltd and Anor v Bankstown City Council (2000) 106 LGERA 440; CASES CITED: Shire of Perth v O'Keefe and Anor (1964) 110 CLR 529; South Sydney City Council v Houlakis and Anor (1996) 92 LGERA 401; Steedman and Anor v Baulkham Hills Shire Council [No 2] (1993) 31 NSWLR 562 DATES OF HEARING: 15/05/00, 16/05/00, 31/07/00, 01/08/00 DATE OF JUDGMENT: 09/05/2000

APPLICANT Mr S N Griffiths (Solicitor) SOLICITORS Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENTS Mr T S Hale SC [with Mr D S Weinberger (Barrister) on 15/05/00 and 16/05/00] SOLICITORS M D Nikolaidis & Co

IN THE LAND AND 40199 of 1999 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 5 September 2000

AUBURN COUNCIL Applicant v CON CONSTANTI and GEORGE CONSTANTI Respondents

In these proceedings, Auburn Council seeks an injunction restraining the respondents, Mr Con Constanti and Mr George Constanti, from using certain land for the purpose of a driveway permitting access to and egress from the service station at 134 John Street Lidcombe.

Lots 79 to 82 DP 13524 are parcels of land known collectively as 134 John Street, Lidcombe ("the site"). The site is located on the corner of John Street and Calool Street. Erected upon the site is a Caltex service station, owned and operated by the respondents.

The service station is oriented towards John Street, and petrol bowsers are located under a canopy fronting John Street. On the Calool Street side of the service station building there is another canopy over some diesel bowsers. There are two driveway crossings in the kerb at John Street, one being an entrance near the intersection of John Street and Calool Street, and one being an egress further along John Street to the north east. There is also a driveway crossing in the kerb in Calool Street, close to its intersection with John Street, which I will call "the first Calool Street crossing".

This case, however, turns in particular upon the past and present uses of other parts of the site. Between the rear of the service station building and the western boundary of the site is an area which I will call "the rear section". A fence and gate extend across the rear section from south west to south east, parallel to Calool Street. At the south west corner of the site, there is a driveway crossing in the kerb ("the second Calool Street crossing") leading to an unmade part of the rear section which extends from Calool Street to the fence I have just described.

There is no dispute that vehicles which intend to use the diesel bowsers under the canopy on the Calool Street side of the service station building, including trucks in particular, enter the site via the second Calool Street driveway, cross over the unmade part, drive under the canopy and exit via the first Calool Street driveway. It is that activity which is the subject of the dispute between the parties, and I shall refer to it as "the impugned activity".

Attached is a plan which delineates what I have just described. Depicted upon that plan is a brick fence near the canopy over the diesel bowsers. That fence has been removed, and the fence across the rear section has been moved further towards the north, bringing it into alignment with the corner of the building. By this means, the vehicle access and ingress I have described has been made possible. Before the removal of that brick fence, the second Calool Street crossing facilitated vehicular access only to the rear section across the south west section of the site.

Against that background, the competing claims may be summarised. The council claims:

(1) The second Calool Street crossing and the unmade section (which I will collectively call "the south west section of the site") are being used for the purpose of a service station, or alternatively, for the purpose of a driveway. The site is zoned Residential 'A' under the Auburn Planning Scheme Ordinance 1970 ("the Auburn PSO"), and in that zone, use for the purpose of a service station is prohibited. Use for the purpose of a driveway is an innominate use permissible with consent, but no consent has been obtained. Accordingly, the applicants are in breach of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"); (2) No existing use rights apply in relation to the south west section of the site; (3) In the alternative, if there are existing use rights, the use has been abandoned, or it has been enlarged, expanded or intensified, and a development consent is necessary. 8. In response, the respondents assert that:

(1) What is taking place on the south west section of the site is not a "use"; (2) Even if it is a "use", the respondents have the benefit of existing use rights in respect of it; (3) In the alternative, if no existing use rights are found to exist, the activity is subservient to the use of the whole of the site as a service station. Is the activity a "use"?

The first issue which arises is whether the impugned activity is a use. Mr Hale SC, appearing for the respondents, relied upon Shire of Perth v O'Keefe and Anor (1964) 110 CLR 529 at 535, to submit that a use is characterised by identifying the purpose for which the particular land is being used, or, put another way, by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the land at the material date. Accordingly, he submitted, the driving of vehicles on to the south west section of the site is not a use for any purpose, and cannot constitute the foundation for the injunction which the council seeks.

I reject this submission for the reason that it misconceives the impugned activity. That activity is not simply the driving of vehicles on to or across the south west section of the site, it is the use of the south west section of the site for the purposes of a driveway or for the purpose of a service station. In my opinion, the council is correct in its characterisation of the use to which the south west section of the site is being put. It must accordingly follow that the respondents are in breach of the EP&A Act, unless they can show that the use of the south west section of the site is in conformity with development consents that have been granted, or that the use is an existing use of which the respondents have the benefit.

The history of the site and the development consents

A service station has existed upon the site since the 1920's, and in 1928 it was called "Coleman's Garage". When the County of Cumberland Planning Scheme Ordinance came into force on 27 June 1951, the site was zoned as "a living area" , but cl 32 operated to permit the continued use of the site for its existing use as a service station.

On 20 June 1956, pursuant to the County of Cumberland Planning Scheme Ordinance, the council granted a development consent in respect of the site ("the 1956 consent"). The actual development consent has not been produced, but there are three items of evidence from which its terms may be identified. The first is a memorandum from the chief town planner of the council to the deputy town clerk dated 12 July 1985. It is expressly refers to "lots 79-82" and describes the use permitted by the 1956 consent as being "the repair of motor vehicles" . The second item is a letter from the council to Mr J Temperton dated 18 July 1985, which refers to "No. 134 John Street, Lidcombe" and which states that "the approval granted by Council in 1956 permits the repair of motor vehicles on the property in conjunction with the use of the property as a Service Station". Lastly, in a letter to the Ombudsman dated 16 December 1985 responding to a complaint about unauthorised use of land, the council stated that the 1956 approval authorised the use of the lots 79 - 82 as a service station.

In 1961 Caltex Oil (Australia) Pty Ltd applied for approval to demolish the existing service station buildings and to erect a new service station in their place. In a letter to Caltex dated 22 September 1961, the council furnished its consent ("the 1961 consent") subject to the concurrence of the Department of Main Roads, the Police Traffic Branch and the Cumberland County Council. On 6 November 1961, the Cumberland County Council notified the council that it had no objection to the proposed development. On 28 September 1961, the Police Department furnished its concurrence upon the proviso that a list of requirements would be met. So far as relevant those requirements were: 4. Excluding the vehicular crossings, a dwarf wall to be constructed along the property alignments so as to enclose the whole open area of the service station.

Two vehicular crossings may be constructed on John Street. The most southerly crossing to be an entrance crossing and to be not closer than 20 feet to Calool Street. The most northerly crossing to be an exit crossing and to be as near as practicable to the northern boundary of the property but separate and distinct from any other crossing leading to adjoining property.

Two vehicular crossings may be constructed on Calool Street. The most westerly crossing to be an entrance crossing and to be as near as practicable to the western boundary of the property but separate and distinct from any other crossing leading to the adjoining property. The most easterly crossing to be an exit crossing and to be not closer than 20 feet to John Street.

The respondents accordingly claim that the use of the whole of the site, that is, lots 79 - 82 including the south west section, for the purpose of a service station is authorised by both the 1956 consent and the 1961 consent. They claim that they are using the site in conformity with those consents.

The council claims that neither the 1956 consent nor the 1961 consent authorised any activity upon the south west section. This claim cannot be sustained. The letters to which I have referred relating to the 1956 consent unambiguously speak of all the lots 79 to 82 inclusive, that is, the whole of the site, including the rear section. The council's letter to Caltex dated 22 September 1961, notifying it of the 1961 consent subject to relevant concurrences, expressly related to lots 79 - 82, that is, the whole of the site including the south west section. The formal notification of the 1961 consent on 10 November 1961 contains a similar reference to the whole of the site, and so does the subsequent correspondence between the council and the Cumberland County Council. Furthermore, a map of the proposed development dated 6 October 1961 was tendered. (It is not clear that this map accompanied the development application, but the parties treated it as being the map upon which consent was given, and I am content to so treat it.). The map shows that most of the new service station building was to be oriented towards John Street, but, in relation to the south west section, the map shows a portion marked "future crossing" , and it also shows the location of a 500 gallon " slop oil tank". The remainder of the rear section is marked "untreated area" but it also shows, located on the western boundary, a structure marked "WB and GI garage to remain" which appears to be an old shed to which further reference will be made. In my opinion, the map supports a finding that the whole of the site was the subject of the 1961 consent.

The reference on the map to "future crossing" must, I think, be taken to refer to an intention not to include the rebuilding of the second Calool Street crossing in the course of erecting the new service station, but to rebuild it in the future, bearing in mind, or course, that the second Calool Street crossing was expressly contemplated by the conditions of the 1956 consent to which I have referred and indeed, according to the evidence of Mr George Coleman, was in existence in the early years of the service station use. Similarly, the reference to "untreated area" must, I think, be taken as meaning that no new work was contemplated upon the rear section.

Accordingly, I make the express finding that the land the subject of both the 1956 consent and the 1961 consent was the whole of the site, including the south west section, and the use which was authorised by each of those consents was for the purpose of a service station and the repair of motor vehicles.

That finding is not displaced by two matters to which the Court's attention was drawn by Mr Griffiths, appearing for the council. The first is a letter dated 18 February 1975 written by Caltex to the council in response to letters from the council complaining about derelict sheds on the site. In that letter, Caltex stated that the land upon which the sheds were standing, presumably a reference to the old shed on the rear section, was not included in the lease arrangement between Caltex and Mr Coleman, and that land was the responsibility of Mr Coleman. But that letter indicates, and Mr George Coleman's evidence confirms, that he and his brother operated the service station, and whatever the precise arrangements with Caltex were, they do not derogate, in my opinion, from a finding that the Coleman brothers were entitled to operate a service station upon the whole site.

The second matter referred to by Mr Griffiths is the contents of two registered leases between Mr Joseph Ray Coleman as lessor and Caltex Oil (Australia) Pty Ltd in respect of the land described in three certificates of title (which relate to each of the four lots 79 to 82 inclusive). Those leases, H923196 and Q115761, contain terms which Mr Griffiths asserted as indicating that the rear section of the site was not part of the service station use. Clause 16 of H923196 (corresponding to cl 15 of Q115761) provided that the lessor, Mr Coleman, would enter into a licence agreement with Caltex permitting him, Mr Coleman, to conduct the business on the site at his own profit. Clause 20 of H923196 (corresponding to cl 19 of Q115761) granted to Mr Coleman "the right and license to use the sheds at the rear of the demised premises for storage purposes" and to have access to those sheds "from Calool Street as shall be defined by the fence which shall be erected by the Lessee". In my opinion, these terms do not indicate that the service station use was confined to the front part of the site and excluded the rear section. The subject of each lease was the four lots comprising the whole of the site, and Mr Coleman as licensee was entitled to carry out the service station use on the whole of the leased property. The reference to storage use of the sheds and access defined by a fence may have some bearing upon how the rear section was actually used, a matter to which I later return, but it cannot have the effect, in my opinion, of excluding the rear section from each lease and from the service station use.

On 18 September 1970, the Auburn PSO came into force and in effect supplanted the County of Cumberland Planning Scheme Ordinance. Clause 26 of the Auburn PSO operated to preserve the continuance of existing uses, and relevantly provided as follows: 26(1) Notwithstanding the provisions of Part III but subject to the provisions of Part II of this Ordinance, an existing building or an existing work may be maintained and may be used for its existing use and an existing use of land may be continued notwithstanding that such existing use is for a purpose for which buildings or works may not be erected or used or for which land may not be used under Part III of this Ordinance in respect of the zone in which such existing building or existing work or such land is situated. (2) Where, in accordance with subclause (1) of this clause, an existing building or an existing work may be maintained and used for its existing use or an existing use of land may be continued, and such use is permissible by virtue of a consent granted under the County of Cumberland Planning Scheme Ordinance, such consent and any conditions attached thereto may be enforced as if it were a consent granted under this Ordinance, or such conditions were attached to a consent so granted.

Accordingly, the use of the site authorised by the 1956 consent and the 1961 consent was preserved by the operation of cl 26 of the Auburn PSO, so that the use could be continued and enforced as though it was a consent granted under the Auburn PSO.

That position pertained until 1980. On 1 September 1980 the EP&A Act came into force. It contained s 107(1), which provides that nothing in the EP&A Act or an environmental planning instrument prevents the continuance of an existing use. The term "existing use" was relevantly defined in s 106(a) in its original form as follows: 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 having the effect of prohibiting that use …
There have been subsequent amendments to s 106(a), but, as s 106(a) applied in its original form from 1 September 1980, the use of the site for the purpose of a service station was preserved as an existing use, although the Auburn PSO had come into force and prohibited that use (cf Auburn Council v Nehme (1999) 106 LGERA 19 at 22).

However, the operation of s 107 was, and still is, limited by s 107(2). That subsection has in effect remained unchanged except for the addition of a subsection referring to the enlargement, expansion or intensification of an existing use. In its current form, s 107(2) provides as follows: (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 an existing use, or (d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in s 80A(1)(b), or (e) the continuance of the use therein mentioned where that use is abandoned. Clause 40 of the Environmental Planning and Assessment Regulation 1994 provides that development consent is required for any enlargement, expansion or intensification of an existing use.

Accordingly, s 107 applies to permit the continuance of the existing use of the site for the purpose of a service station, unless that use has been abandoned. The council claims that, so far as concerns the south west section of the site, the use has been abandoned. In the alternative, the council claims that the use of the south west section of the site constitutes an enlargement, expansion or intensification of the existing use of the site for the purpose of a service station, and accordingly it is not authorised by s 107, but requires development consent.

I turn, then, to consider the question of abandonment.

In 1964, when Caltex erected the new service station pursuant to the 1961 consent, the rear section contained the following structures;

(a) the second Calool Street crossing; (b) the fence across the rear section running parallel to Calool Street; (c) an old shed on the western boundary of the site; (d) an underground waste and oil storage tank; and (e) a small fibro shed immediately adjacent to the rear wall of the service station building. 28. I am satisfied that, over the years from 1961 until the present time, the whole of the rear section, including the structures upon it, were used for purposes integral to and part of the service station use.

Mr George Coleman and Mr Norman Coleman gave evidence that, from about 1928 until the site was sold the respondents in 1980, the rear section was used for the storage of motor vehicles and trucks left for the purpose of repairs. That use is borne out by a 1978 aerial photograph which shows vehicles standing on the rear section.

Between 1971 and 1979, the council made several complaints about the state of the condition of the rear section. It complained that discarded mechanical parts, empty drums, old mufflers and air cleaners, exhaust pipes and tyre wheels had accumulated as waste rubbish. By 1979, the council's complaint had extended to derelict car bodies as well as the other material I have described, and it also complained about the dilapidated condition of the old shed. I reject the submission of Mr Griffiths that these complaints, especially in relation to waste rubbish and the dilapidated condition of the old shed, indicate that the use of the rear section had been abandoned. Instead, I take these complaints, which were based on council officers' observations, as showing that the rear section was being used for waste disposal of the detritus of the service station, a use that was an integral part of the service station use.

The respondents purchased the site in 1980. According to Mr Con Constanti, they have used the rear section for the storage of motor vehicles and trucks, and have regularly carried out repairs on trucks there as they were too large to be accommodated within the service station building. In giving oral evidence Mr Constanti explained what he meant by the use of the word "storage", which was that vehicles were placed on the rear section whilst awaiting the supply of parts so that repairs could be carried out.

The fibro shed has been used, according to Mr Constanti's oral evidence, for storage and for small mechanical repairs. The underground waste oil tank is also still used for the storage and collection of waste oil. The waste oil is pumped out once every eight weeks by means of a waste oil tanker which enters the site via the second Calool Street crossing.

In early 1985, the respondents entered into an arrangement with Mr John Templeton, who was a wholesale car salesman. The arrangement provided that vehicles under the control of Mr Templeton would be delivered to the rear section for mechanical repair, cleaning and detailing, and for ultimate transportation to various car sale yards. According to Mr Constanti's evidence, some of the work on the vehicles was conducted on the rear section, and some of it in the service station building. Mr Constanti said, in giving oral evidence, that these vehicles were transported to and from the site from time to time by articulated car transport trucks.

Dr M J Parker, who is a neighbouring resident, saw trucks making those deliveries of vehicles. During the period from about 1988 to 1992, she also observed a commercial air/water compressor located in the rear section from which a hose was run through to the service station building to clean the engines of cars. She also observed vehicles being driven to an oil sump located in the rear section.

All these activities on the rear section involved, of course, vehicle access to the rear section via the south west section of the site. Until 1998, when the brick fence was removed, the only access to the rear section was, as I have set out, across the second Calool Street crossing, and through the gate in the fence that ran parallel to Calool Street.

I find from this evidence that the use for the purpose of a service station of the whole of the rear section, including the south west section of the site, has not been abandoned, and that, accordingly, s 107 applies to permit the continuance of that existing use. I acknowledge that the use of the rear section, in comparison to the use of the service station building and the petrol and diesel bowsers, is a minor use, but it is not to be ignored simply because it is a minor use ( Steedman and Anor v Baulkham Hills Shire Council [No 2] (1993) 31 NSWLR 562 at 575).

In making that finding, I have not ignored the evidence of Mr L S Whitelaw, a person who lived about a quarter of a mile from the site during the years 1952 to 1986. In his affidavit, he said that he had observed that the "vacant area of land" (meaning the rear section) was "not used for any purpose whatsoever". He said, in cross examination, that he had made that observation by walking past or driving past over those years, but it is an observation that is contrary to all other evidence, and I therefore place no weight upon it.

I have also considered whether the terms of the leases to which I have earlier referred indicate an abandonment of the use of the rear section for the purpose of the service station, since they refer to the use of the "sheds" for storage purposes. This reference does not, of itself, establish abandonment, and, even if it indicates that the parties to the leases intended the old shed to be used for storage, it does not establish that it was so used, or that the whole of the rear section was exclusively used for storage purposes. I have accordingly placed no weight on the terms of these leases in determining the question of abandonment.

I should add that there was evidence that the rear section may have been used from time to time between 1961 and the present date for uses other than those directly connected with the service station. For example, Mr Constanti observed old and dusty panel beating equipment and parts in the old shed at the time when he purchased the site, and he inferred that the old shed had been formerly used for a panel beating business. (That shed was demolished in about 1985). Mr Constanti also conceded in cross examination that he permitted trucks and other heavy vehicles to park on the rear section in circumstances where no other parking was available to them elsewhere. However, the question with which I am presently concerned is to determine whether or not the existing use of the site for the purpose of a service station has been abandoned, and I put aside these other uses as irrelevant to that question.

The next question for determination is whether the existing use of the site for the purpose of a service station has been enlarged, expanded or intensified by reason of the impugned activity.

Evidence was given by neighbours about the impugned activity and what had preceded it. Mr T R Doyle, for example, gave evidence that, until the brick fence was removed, trucks entering the site for the purpose of using the diesel bowsers would gain access via the first Calool Street crossing and would reverse to correctly position themselves to fill from the bowsers. Mr J Scarvelis said that, after filling up, trucks would reverse out of the site on to John Street. They both confirmed the impugned activity as I have described it.

Mr Doyle, Mr Scarvelis, Dr Parker and Mr V V Tipaldo each gave evidence about the impacts of the entry of vehicles through the south west section of the site. They pointed to the increased impact of dust, noise and pollution, and they expressed concerns about the safety of Calool Street. But this evidence is of no assistance in the determination of the present question. There is a difference between the impact of a use and the enlargement, expansion or intensification of a use ( South Sydney City Council v Houlakis and Anor (1996) 92 LGERA 401 at 405).

Mr Griffiths sought to show that there had been an enlargement, expansion or intensification of the existing use by reason of the use of the second Calool Street crossing. There were formerly, he submitted, three crossings to the site, and now there are four crossings. But that submission does not accord with the evidence. During the whole of the time the site has been used for a service station, the second Calool Street crossing has been used for access to the rear section.

The only evidence relevant to a change of the existing use as a consequence of the impugned activity came from Dr Parker. In her affidavit, by reference to what had occurred on the site since the brick fence had been removed and the impugned activity was made possible, she stated that she had observed an increase of traffic flow to the service station, particularly by heavy vehicles, amounting to an increase of "approximately 500 fold". In cross examination, she conceded that this estimation was in fact a typographical error, and she meant to say that the increase was approximately 50 fold. She also said that she had observed a "particular increase in the number of large companies which now send their vehicles to the service station" and she went on to say that "[t]he larger trucks started using the service station more frequently once the brick wall was removed and the cyclone fence set back further towards the service station building".

I cannot accept this evidence as establishing an enlargement, expansion or intensification of the existing use. Even accepting a correction of the estimate of increased traffic flow to 50 fold, it seems an exaggeration, but in any event Dr Parker's estimation of increased use of the site is no more than an impressionistic observation. She conceded in cross examination that she had made no detailed study of the site, and that she was simply relying on her observations when she was walking by or using the backyard at her next door property. No detail has been furnished by Dr Parker or anyone else from which the Court could safely infer that there has been an increase in the use of the site since the brick fence was removed, and nor could such an inference be safely drawn simply because it is now easier to access the diesel bowsers than before.

What has changed is the physical manoeuvring upon the site. But the existing use of the site has not changed. In South Sydney v Houlakis at p 404, Clarke JA said that the words "enlargement, expansion or intensification" embody a "notion of increase" and the words should be given a wide rather than narrow construction. Even with that statement in mind, I can find no evidence to support a conclusion that, by reason of the impugned activity, there has been any enlargement, expansion or intensification of the existing use of the site as a service station.

The operation of s 109B of the EP&A Act is a relevant consideration in this case. It provides as follows: 109B(1) Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force. (2) This section: (a) applies to consents lawfully granted before or after the commencement of this Act, and (b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and (c) has effect despite anything to the contrary in section 107 or 109. (3) This section is taken to have commenced on the commencement of this Act.

The first matter to be noticed in connection with this case is that s 109B has effect despite anything to the contrary in s 107. If, contrary to the findings I have made, the existing use of the site for the purpose of a service station has been abandoned, or the existing use has been enlarged, expanded or intensified, then s 107 would not operate to preserve the existing use, and thus would not operate to authorise the impugned activity. However, if s 109B applies to the 1956 consent and the 1961 consent, then a use of the site pursuant to those consents would authorise the impugned activity, despite any abandonment or enlargement, expansion or intensification.

The question, then, is whether s 109B applies - are the 1956 consent and the 1961 consent "in force" for the purpose of s 109B? I think that they are, for the following reasons. Those consents were granted pursuant to the County of Cumberland Planning Scheme Ordinance. As I have earlier pointed out, they were preserved by the operation of cl 26(2) of the Auburn PSO, which provided that, where a use was permissible by virtue of a consent granted under the County of Cumberland Planning Scheme Ordinance, such consent would be enforced as if it were a consent granted under the Auburn PSO.

Clause 26(2) was repealed by an order made by the Minister for Planning and Environment pursuant to cl 2(2) of sch 3 of the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979. That repeal came into effect on 26 September 1980. However, s 109B takes effect, pursuant to subs (3), as from the commencement of the EP&A Act, which was 1 September 1980. Accordingly, as at the time when s 109B took effect, the 1956 consent and the 1961 consent continued in force under the Auburn PSO by virtue of the transitional provision in cl 26(2) which was not repealed until some three weeks later. Therefore, s 109B operates to preserve those conents.

A similar conclusion was reached by Mason P in House of Peace Pty Ltd and Anor v Bankstown City Council (2000) 106 LGERA 440 at 449 in relation to a consent granted in 1954 under the County of Cumberland Planning Scheme Ordinance, and continued in force by the Bankstown Planning Scheme Ordinance. The conclusion I have reached differs from that reached by Handley JA in Auburn Council v Nehme , which also involved a consent inferred as having been granted under the County of Cumberland Planning Scheme Ordinance in respect of a use which became prohibited under the Auburn PSO. I would, however, distinguish that case on its facts, because it appears that, contrary to his Honour's finding, there were appropriate transitional provisions in force (see par 26 on p 25 of his Honour's decision) and that the date of the Minister's order was not brought to the attention of his Honour.

In summary, I have concluded that the impugned activity, that is, the entry and exit of vehicles to the site via the south west section of the site, is an existing use, which has not been abandoned or enlarged, expanded or intensified, or which, alternatively, is a use authorised by consents in force under s 109B(1) of the EP&A Act. That conclusion requires the dismissal of the council's class 4 application.

I should add that some of the impacts of the existing use, such as dust and tyre marks on Calool Street, could be ameliorated by the sealing of the south west section of the site. It is not appropriate for me to make any order about those impacts, but I accept the residents' concerns in this regard, and I note the respondents' desire to put the south west section of the site into a proper condition. That should be a step which should be explored between the parties.

(1) The application is dismissed. (2) The question of costs is reserved. (3) The exhibits may be returned.

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41. Evidence was given by neighbours about the impugned activity and what had preceded it. Mr T R Doyle, for example, gave evidence that, until the brick fence was removed, trucks entering the site for the purpose of using the diesel bowsers would gain access via the first Calool Street crossing and would reverse to correctly position themselves to fill from the bowsers. Mr J Scarvelis said that, after filling up, trucks would reverse out of the site on to John Street. They both confirmed the impugned activity as I have described it.

42. Mr Doyle, Mr Scarvelis, Dr Parker and Mr V V Tipaldo each gave evidence about the impacts of the entry of vehicles through the south west section of the site. They pointed to the increased impact of dust, noise and pollution, and they expressed concerns about the safety of Calool Street. But this evidence is of no assistance in the determination of the present question. There is a difference between the impact of a use and the enlargement, expansion or intensification of a use (South Sydney City Council v Houlakis and Anor (1996) 92 LGERA 401 at 405).

43. Mr Griffiths sought to show that there had been an enlargement, expansion or intensification of the existing use by reason of the use of the second Calool Street crossing. There were formerly, he submitted, three crossings to the site, and now there are four crossings. But that submission does not accord with the evidence. During the whole of the time the site has been used for a service station, the second Calool Street crossing has been used for access to the rear section.

44. The only evidence relevant to a change of the existing use as a consequence of the impugned activity came from Dr Parker. In her affidavit, by reference to what had occurred on the site since the brick fence had been removed and the impugned activity was made possible, she stated that she had observed an increase of traffic flow to the service station, particularly by heavy vehicles, amounting to an increase of "approximately 500 fold". In cross examination, she conceded that this estimation was in fact a typographical error, and she meant to say that the increase was approximately 50 fold. She also said that she had observed a "particular increase in the number of large companies which now send their vehicles to the service station" and she went on to say that "[t]he larger trucks started using the service station more frequently once the brick wall was removed and the cyclone fence set back further towards the service station building".

45. I cannot accept this evidence as establishing an enlargement, expansion or intensification of the existing use. Even accepting a correction of the estimate of increased traffic flow to 50 fold, it seems an exaggeration, but in any event Dr Parker's estimation of increased use of the site is no more than an impressionistic observation. She conceded in cross examination that she had made no detailed study of the site, and that she was simply relying on her observations when she was walking by or using the backyard at her next door property. No detail has been furnished by Dr Parker or anyone else from which the Court could safely infer that there has been an increase in the use of the site since the brick fence was removed, and nor could such an inference be safely drawn simply because it is now easier to access the diesel bowsers than before.

46. What has changed is the physical manoeuvring upon the site. But the existing use of the site has not changed. In South Sydney v Houlakis at p 404, Clarke JA said that the words "enlargement, expansion or intensification" embody a "notion of increase" and the words should be given a wide rather than narrow construction. Even with that statement in mind, I can find no evidence to support a conclusion that, by reason of the impugned activity, there has been any enlargement, expansion or intensification of the existing use of the site as a service station.

47. The operation of s 109B of the EP&A Act is a relevant consideration in this case. It provides as follows:

109B(1) Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force.

(a) applies to consents lawfully granted before or after the commencement of this Act, and

(b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and

(c) has effect despite anything to the contrary in section 107 or 109.

(3) This section is taken to have commenced on the commencement of this Act.

48. The first matter to be noticed in connection with this case is that s 109B has effect despite anything to the contrary in s 107. If, contrary to the findings I have made, the existing use of the site for the purpose of a service station has been abandoned, or the existing use has been enlarged, expanded or intensified, then s 107 would not operate to preserve the existing use, and thus would not operate to authorise the impugned activity. However, if s 109B applies to the 1956 consent and the 1961 consent, then a use of the site pursuant to those consents would authorise the impugned activity, despite any abandonment or enlargement, expansion or intensification.

49. The question, then, is whether s 109B applies - are the 1956 consent and the 1961 consent "in force" for the purpose of s 109B? I think that they are, for the following reasons. Those consents were granted pursuant to the County of Cumberland Planning Scheme Ordinance. As I have earlier pointed out, they were preserved by the operation of cl 26(2) of the Auburn PSO, which provided that, where a use was permissible by virtue of a consent granted under the County of Cumberland Planning Scheme Ordinance, such consent would be enforced as if it were a consent granted under the Auburn PSO.

50. Clause 26(2) was repealed by an order made by the Minister for Planning and Environment pursuant to cl 2(2) of sch 3 of the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979. That repeal came into effect on 26 September 1980. However, s 109B takes effect, pursuant to subs (3), as from the commencement of the EP&A Act, which was 1 September 1980. Accordingly, as at the time when s 109B took effect, the 1956 consent and the 1961 consent continued in force under the Auburn PSO by virtue of the transitional provision in cl 26(2) which was not repealed until some three weeks later. Therefore, s 109B operates to preserve those conents.

51. A similar conclusion was reached by Mason P in House of Peace Pty Ltd and Anor v Bankstown City Council [2000] NSWCA 44; (2000) 106 LGERA 440 at 449 in relation to a consent granted in 1954 under the County of Cumberland Planning Scheme Ordinance, and continued in force by the Bankstown Planning Scheme Ordinance. The conclusion I have reached differs from that reached by Handley JA in Auburn Council v Nehme, which also involved a consent inferred as having been granted under the County of Cumberland Planning Scheme Ordinance in respect of a use which became prohibited under the Auburn PSO. I would, however, distinguish that case on its facts, because it appears that, contrary to his Honour's finding, there were appropriate transitional provisions in force (see par 26 on p 25 of his Honour's decision) and that the date of the Minister's order was not brought to the attention of his Honour.

52. In summary, I have concluded that the impugned activity, that is, the entry and exit of vehicles to the site via the south west section of the site, is an existing use, which has not been abandoned or enlarged, expanded or intensified, or which, alternatively, is a use authorised by consents in force under s 109B(1) of the EP&A Act. That conclusion requires the dismissal of the council's class 4 application.

53. I should add that some of the impacts of the existing use, such as dust and tyre marks on Calool Street, could be ameliorated by the sealing of the south west section of the site. It is not appropriate for me to make any order about those impacts, but I accept the residents' concerns in this regard, and I note the respondents' desire to put the south west section of the site into a proper condition. That should be a step which should be explored between the parties.

Auburn Planning Scheme Ordinance 1970cl 26

County of Cumberland Planning Scheme Ordinance 1951cl 32

Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 1994cl 40

Acts (Planning) Repeal and Amendment Act 1979

(2000) 106 LGERA 440

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