AUBURN COUNCIL v NEHME

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40294/98 LEC 40241/97 MEAGHER JA HANDLEY JA BEAZLEY JA

AUBURN COUNCIL v EDDIE NEHME PLANNING - old consent to use as squash courts - use prohibited under later planning instrument - use abandoned - whether consent still available - whether s 109B of Environmental Planning and Assessment Act preserved consent

The respondent was the owner of squash courts. Consent had been granted for this use under the County Scheme prior to the commencement of the Auburn Scheme in 1970. The new scheme prohibited use for squash courts. In 1990 the premises were extensively damaged and the use was abandoned. In 1996 the respondent recommenced the use despite Council's refusal of an application for consent. The Council commenced proceedings in the Land and Environment Court to restrain this use by the respondent. The trial Judge found that whilst the existing use had been abandoned, the consent had been preserved by s 109B of the Environmental Planning and Assessment Act as it then stood, and the respondent's use of the land was lawful. The Council appealed on the grounds that the old consent was no longer "in force" and could not be relied upon after the use was abandoned.

HELD : allowing the appeal: (1) A valid consent which has not lapsed and is capable of being implemented cannot be extinguished by abandonment of the use. Auburn MC v Szabo (1971) 67 LGRA 427, 433-4, Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] 1 AC 132 applied. (2) A consent does not extend beyond the life of the planning instrument under which it was granted. Consequently the old consent ceased to have continuing effect on the commencement of the Auburn Planning Scheme Ordinance in 1970 and s 109B of the Environmental Planning and Assessment Act did not apply since the old consent was no longer in force as a consent. (3) Where an existing consent has ceased to have effect under a new planning instrument, continued use for the approved purpose will be protected by existing use provisions. The use of squash courts was lawful under the existing use provisions of the Auburn Planning Scheme Ordinance until their repeal in 1980 and then under s 107 of the Environmental Planning and Assessment Act until the use was abandoned after 1990.

Declare that the use of the property at 44 Kibo Road, Regents Park for the purpose of a squash court or squash centre had been abandoned between 1990 and 1996.

Declare that the use of that property for the purposes of a squash court or squash centre since 1996 is a contravention of the Environmental Planning and Assessment Act.

Proceedings remitted to the Land and Environment Court to determine what, if any, further or other declarations and orders should be made.

Respondent to pay the appellant's costs of the proceedings in the Land and Environment Court to date.

Respondent to have a certificate under the Suitors' Fund Act. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40294/98 LEC 40241/97 MEAGHER JA HANDLEY JA BEAZLEY JA

2 HANDLEY JA: The respondent is the owner of squash courts at 44 Kibo Road, Regents Park currently being used as such. The premises were erected during the 1950s when planning control was provided by the County of Cumberland Planning Scheme Ordinance 1951. There is no direct evidence that consent was ever granted under that Ordinance for the erection of the squash courts, but there is no evidence to the contrary. On 18 September 1970 the Auburn Planning Scheme Ordinance came into force which zoned the subject land "2(a) Residential". Under this zoning use of the land as commercial squash courts was prohibited. 3 The premises were extensively damaged during 1990, and their use as squash courts ceased at that time. In 1996 the respondent, who had acquired the premises in the meantime, applied to the Council for consent to use the premises as commercial squash courts. The Council refused that application, but the respondent renovated the building at a cost of approximately $100,000 and recommenced its use as commercial squash courts. 4 In September 1997 the Council commenced Class 4 proceedings in the Land and Environment Court to restrain the respondent's use of the premises as squash courts, and for any commercial purpose. The Council had the onus of establishing that such use was prohibited, but the respondent the onus of establishing either an existing use, or an existing consent. See Penrith Waste Services Pty Ltd v Penrith Council (1998) 101 LGERA 99, 105-6. It has been common ground that the inference should be drawn that a consent for use as squash courts was granted before 1970. 5 The proceedings were heard by Bignold J who delivered judgment on 15 April 1998 before the commencement on 1 July that year of the Environmental Planning and Assessment (Amendment) Act 1997 [No. 152 of 1997] which extensively amended the principal Act (the Act). These amendments were not retrospective, and the rights of the parties are therefore governed by the Act as it stood when the case was heard and judgment given (the relevant Act). Unless otherwise stated references to provisions of the Act are to provisions in the relevant Act. 6 Bignold J found that the use of the premises as squash courts had been abandoned before 1996 and this finding has not been challenged. However he held that s 109B preserved the inferred consent. The respondent's use of the land was therefore lawful, and the proceedings were dismissed. The Council's appeal turns on the effect of this section which provides: "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". 7 Mr Ayling for the appellant contended that the section had no application because the inferred consent was no longer "in force" within the meaning of subs (1), having been abandoned along with the use it authorised. 8 Section 107, which dates from 1985, protects existing uses for purposes which become prohibited by an environmental planning instrument (Steedman v Baulkham Hills Shire Council [No 2] (1993) 31 NSWLR 562, 579), but this protection will be lost if the use is abandoned. Section 106 which defines existing use provides: "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 4 A of Part 3 or Sections 100 A and 101, have the effect of prohibiting that use. (b) The use of a building, work or land: (i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and (ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse".

9 Section 106(a) was enacted by the Environmental Planning and Assessment (Amendment) Act 1985 [No 228 of 1985] with effect from 3 February 1986 and has been twice amended in minor respects. Section 106(b) was enacted by the Environmental Planning and Assessment Amendment Act 1996 [No 44 of 1996] with effect from 1 September 1980 (Schedule 10 cl 6 and Schedule 11 cl 12). 10 Section 107, read with s 106(a), protected uses in existence immediately before the commencement of an environmental planning instrument which prohibited that use whether that existing use had its origin in a consent or otherwise. The section, read with s 106(b), also protected a use which was not in existence at the relevant date but commenced later pursuant to an existing consent which became protected from lapse within one year after the relevant date. 11 Prior to 1992 s 107 therefore protected existing uses, for purposes subsequently prohibited, which had their origin in a consent, but only as existing uses. An existing consent could only be relied upon after the use became prohibited so long as the existing use it originally authorised continued. 12 There are a number of difficulties in the application of s 107. Section 106(a) only applies to consents granted after 1 September 1980. Its reference to the "coming into force" of an environmental planning instrument "which would, but for … have the effect of prohibiting that use" is expressed in the present tense, and cannot refer to the coming into force of a deemed environmental planning instrument before the commencement of the Act. Moreover Division 4A of Part 3 and s 100A were not in the original Act, but date from 1989 and 1985 respectively. Section 106(b) refers to a "development consent" which is defined in s 4 as a "consent under Division 1 of Part 4 to carry out development". It cannot apply to consents granted before the commencement of the Act. This would not matter if such consents were deemed to have been granted under the Act, but the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 [No 205 of 1979] in Schedule 3 clause 7(1) merely provided that existing consents shall continue in full force and effect. Clause 7(2) and (3) created exceptions but only for the purposes of ss 99 and 103 which are not presently relevant. 13 Section 106(a) in the original Act covered uses which existed at its commencement. Section 106(b) simply referred to a consent, and as this was not defined in s 4 existing consents, preserved by Act No 205 of 1979, were included. Section 106(a) in the original Act therefore applied to the use of the subject premises as squash courts which existed when it commenced, and s 107 protected the continuance of that use. 14 Section 106(a), as substituted in 1985, did not apply in terms to the existing use of this land for squash courts after the Auburn Scheme took effect in 1970. Section 106(b), in its various forms, has never applied to this use which existed at the commencement of that Auburn Scheme, and did not commence later pursuant to an existing consent protected from lapse. 15 Section 109B was added by the Environmental Planning and Assessment (Miscellaneous Amendments) Act 1992 [No 90 of 1992], Schedule 1 Part 9 with effect from 1 September 1980. The Minister's Second Reading Speech and the relevant explanatory material both suggest that the section had merely declaratory effect. It authorises "the carrying out of development in accordance with a consent". Development is defined in s 4 as follows: "Development, in relation to land, means: (a) the erection of a building on that land, (b) the carrying out of a work in, on, over or under that land, (c) the use of that land or of a building or work on that land, and (d) the subdivision of that land, but does not include any development of a class or description prescribed by the Regulations for the purposes of this definition". 16 No relevant Regulations have been made. One view of s 109B is that it only applies to some types of development. The only reference to "carrying out" in the definition of development is in par (b) which covers the type of development referred to in the relevant explanatory material. One might naturally refer to the erection of a building or the making of a subdivision as carrying out development, but we would not normally refer to the continuance of a use in this way. However s 76, the key enforcement section in the Act, simply prohibits the carrying out of development. The Act was passed against the background of earlier legislation controlling interim development which was held in Vumbaca v Baulkham Hills Shire Council (1979) 141 CLR 614 and earlier cases to prohibit a change of use but not its continuance. On the other hand, s 76 read with the definition of development clearly applies to any use of land. In North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470, 477 the High Court said that existing uses constitute development under the Act and at 478 they said that "any use of land is development". There is therefore no scope for a reading down of the expression "the carrying out of development" in s 109B to exclude the continuance of a use. 17 The remaining question is whether the inferred consent in this case is "in force" for the purposes of s 109B. Mr Ayling submitted that in this case the inferred consent had been abandoned along with the use. Section 109B 2(b) provides that the section "does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent". The lapsing of a consent, which is provided for in s 99, occurs after the period fixed by the consent unless relevant work is physically commenced in the meantime or the relevant use is actually commenced (s 99(4), (4A)). The revocation and modification of consents is provided for in ss 102 and 103. The modification procedure must be initiated by a person entitled to act upon the consent, and the power to revoke a consent is exercisable only by the Director-General. Consents may be surrendered when a condition to that effect is imposed on the grant of a new consent (s 91(3)(6), (7)), and s 91 (3)(d) authorises the imposition of a condition which limits the life of a consent, (compare Newbury Council v Secretary of State for the Environment [1981] AC 578). There is no other express restriction or qualification on the effective life of a consent, and none of these sections is presently relevant. Section 104 requires a council to keep a register of consents, which is to be open to public inspection, but it does not provide for abandonments to be registered. 18 The question is whether abandonment is a further means of extinguishing a consent although it is not expressly authorised by the Act. The courts earlier held that an existing use could be abandoned although there was no provision to that effect in the legislation. See Hartley v Minister of Housing [1970] 1 QB 413 CA, 421, and compare Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138, 144. The effect of a consent was considered by Hope J in Auburn MC v Szabo (1971) 67 LGRA 427, 433-4 where he said: "I do not think that if a consent has been given by a Council under the provisions of the County of Cumberland Planning Scheme Ordinance a later consent for a different use operates in any way to determine or revoke the earlier consent. Apart from the provisions of cl 41 (5) there are no limitations to be found in that Ordinance on the temporal operation of a consent. That sub clause requires that a development the subject of a consent … must be substantially commenced within two years of the date of consent, and that if it is not so substantially commenced, the consent is to be void unless the Council extends that period. … if then a consent, not expressed to be for a limited period, has been granted which does not become void by reason of cl 41(5), that consent continues indefinitely in operation … In these circumstances it seems to me that [despite] the granting by a Council of a consent for a different use from that approved by an earlier consent … the early use can continue, or if it ceases can be recommenced at any later date, and it can be continued or so recommenced by authority of the original consent, so long as the … Ordinance remains in force in respect of the land … A development approval does not enure only for the benefit of the applicant. It enures for the benefit of all future owners or occupiers … On the view I have taken of the relevant provisions of the … Ordinance, those consents continued to be effective whether or not at any particular time in the future they were being availed of, subject only to the operation of cl 41(5) of the Ordinance, and subject also to the continued operation of the Ordinance itself in respect of the land". 19 This reasoning applies with equal force to the Act which contains similar provisions dealing with consents, and demonstrates that a consent cannot be extinguished by abandonment. 20 In Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] 1 AC 132 (Pioneer Aggregates) the House of Lords reached similar conclusions and for similar reasons. At pp 139-142 Lord Scarman said: "If the board is right, a valid planning permission can be abandoned by the conduct of a landowner or occupier … ; and the effect of the party's conduct will be to bind all persons interested in the land now or hereafter whether or not they have notice of the abandonment. The planning permission would be entered in a public register; but not so its abandonment. Nor would it be possible by inspection of the land to discover whether the permission had been abandoned, for the absence of implementation of a planning permission is no evidence that a valid permission does not exist. It is perhaps not surprising that no trace of any such rule can be found in the planning legislation. If there be such a rule, it has been imported into the planning law by judicial decision … Planning control is the creature of statute. … It is a field of law in which the courts should not introduce principles or rules derived from private law unless it be expressly authorised by Parliament or necessary in order to give effect to the purpose of the legislation. … Parliament has provided a comprehensive code of planning control … the clear implication is that only the statute or the terms of the planning permission itself can stop the permission enuring for the benefit of the land and of all persons for the time being interested therein … The provisions in the Town and Country Planning Act 1971 governing the duration, modification, revocation, and termination of planning permission are extensive … Perhaps the most significant common feature of the various procedures is the involvement of public authority, local and central, when [such] questions … arise. … Viewed as a question of principle … the introduction into the planning law of a doctrine of abandonment by election of the land owner (or occupier) cannot, in my judgment, be justified. It would lead to uncertainty and confusion in the law, and there is no need for it. There is nothing in the legislation to encourage the view that the courts should import … such a rule …". 21 He concluded at 145: "There is no principle in the planning law that a valid permission capable of being implemented according to its terms can be abandoned". 22 I find this reasoning both relevant and compelling in its application to the Act in its form relevant to this appeal. It was followed by the Appeal Division in Park Street Properties Ltd v City of South Melbourne [1990] VR 545 in relation to similar legislation. That Court distinguished the later decision of the English Court of Appeal in Cynon Valley B C v Secretary of State for Wales (1986) 85 LGR 36, as depending on the terms of special legislation, and I adopt their reasoning on this point. 23 Mr Ayling, who very properly had referred the Court to Pioneer Aggregates, sought to rely upon some Australian authority to the contrary including Woollahra Municipal Council v T.A.J.J. Investments Pty Ltd (1982) 49 LGRA 123 and Tannous v Canterbury Municipal Council (1984) 52 LGRA 308, 316. The first dealt with the effect of existing use provisions and not with a consent as such. The second contained a dictum of Perignon J that a consent could be abandoned, but his Honour did not have the benefit of argument on this question. The other decisions he referred to were considered, but not followed, by the Appeal Division in Park Street Properties Pty Ltd v The City of South Melbourne. 24 In my judgment there is no general principle of planning law in this State that a valid consent which has not lapsed and is capable of being implemented can be extinguished by abandonment. See also Penrith City Council v Penrith Waste Services Pty Ltd (19/12/95 unrep) per Talbot J at p 35, affirmed but not expressly on this point (1998) 101 LGERA 98. On the contrary, subject to the express provisions of the Act, such a consent remains in force indefinitely. 25 However a consent is not a general licence to carry out development, and in particular is not a general licence to continue to use the land for the authorised purpose. It is a particular licence to carry out development which is conditionally prohibited by a planning instrument. Its function is merely to make lawful development which is prohibited by that instrument without consent. 26 The use of land which is authorised by a valid consent is lawful while the planning instrument under which it was granted remains in force. In the absence of appropriate transitional provisions, the effect of a consent will not extend beyond the life of the planning instrument under which it was granted. The repeal of that planning instrument, and its replacement by another, will, without more, deprive that consent of further effect. 27 Where the new planning instrument absolutely prohibits the use previously authorised by a consent, that consent can have no direct operation on that prohibition. The irrelevance of that consent as a protection against that prohibition will not be affected by a transitional provision which continues that consent in force, or deems it to have been granted under the new planning instrument. The prohibition being absolute the existence of a past consent is an irrelevance. 28 A party with the benefit of an existing consent therefore requires further protection against the absolute prohibition in the new planning instrument. This has been given in the past by existing use provisions either in the new planning instrument or in the Act. Such provisions enable existing uses which were lawful, immediately before the new planning instrument came into effect, to be continued. A former consent remains important because it may establish a lawful origin for an existing use, but it will have no further effect under the new planning instrument. In particular it cannot as a mere consent prevent the enforcement of an absolute prohibition on that use in the new planning instrument. 29 All this is implicit, if not explicit, in the reasoning of Hope J in Auburn City Council v Szabo (above) because his Honour was careful to limit the continued operation of a consent "so long as the … Ordinance remains in force in respect of the land", and "subject also to the continued operation of the Ordinance itself in respect of the land". His Honour referred to cl 41(5) of the Ordinance which dealt with the lapsing of a consent, but did not refer to cl 32 which dealt with existing uses, and he did not refer to the effect of a consent granted under a previous planning instrument. There is also nothing in the speech of Lord Scarman in Pioneer Aggregates which deals with the continuing effect of a consent under a planning instrument after its repeal. 30 The continued lawful use of the subject land as squash courts between 1970 and 1980 in the face of the prohibition in the Auburn Ordinance depended on the existing use provisions of that Ordinance, and not on the continued operation of the inferred consent. In September 1980 the existing use provisions in the environmental planning instruments then in force, including the Auburn Ordinance, were repealed by the Minister by order in the Gazette pursuant to the power in Schedule 3 cl 2(2) of the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979. See Steedman v Baulkham Hills S C [No 2] (1993) 31 NSWLR 562, 578-9. Until that repeal the continued uses authorised by those clauses were lawful, and after that repeal they continued to be protected by s 107 in the original Act. Despite the unhappy drafting of the 1985 amendments to s 106, it seems that existing uses continued to be protected after that date because they were then lawful, even though s 106(a), read with s 107, in terms only protected those uses against an absolute prohibition subsequently introduced into an environmental planning instrument. 31 In my judgment therefore the inferred consent ceased to have continuing effect as a consent on the commencement of the Auburn Ordinance in 1970. Thereafter until 1992, when s 109B was added to the Act, the continued lawful use of the squash courts depended, not on that consent, but on the relevant continuing use provisions and the continuance of that use. However after 1980 the continuing use provisions of the Act did not protect a use which had been abandoned after its commencement. 32 It is now possible to determine the effect of s 109B in this case. The section only applies to a consent which is "in force", and in my judgment it has no application to the inferred consent which ceased to be "in force" as a consent on the commencement of the Auburn Ordinance in 1970. It will also be apparent that s 109B has introduced into the Act the principles stated by Hope J in Auburn Council v Szabo (above). The section is directed to the effect of an environmental planning instrument, and of a consent granted under that instrument. It is not directed to the continuing effect of a consent granted under a former environmental planning instrument following its repeal. There may be difficulties in the application of the section to amendments to environmental planning instruments which introduce absolute prohibitions, but these can be left until they arise for decision. 33 In the result therefore s 109B does not assist the respondent. The lawful use of the premises for squash courts depended on the existing use provisions of the Act, but these ceased to be available with the abandonment of the use some time after 1990. The respondent's continuing use is therefore contrary to s 76 of the Act. 34 The following orders should be made: 1. Appeal allowed with costs.

Declare that the use of the property at 44 Kibo Road, Regents Park for the purpose of a squash court or squash centre had been abandoned between 1990 and 1996.

Declare that the use of that property for the purposes of a squash court or squash centre since 1996 is a contravention of the Environmental Planning and Assessment Act.

Proceedings remitted to the Land and Environment Court to determine what, if any, further or other declarations and orders should be made.

Respondent to pay the appellant's costs of the proceedings in the Land and Environment Court to date.

Respondent to have a certificate under the Suitors' Fund Act. 35 BEAZLEY JA: I agree with Handley JA.

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