Australian Posters Pty Ltd v Leichhardt Council

The Council bears the onus of establishing that the development is prohibited. In this case the SREP and the relevant use of the land established the prohibition. As his Honour noted, the council did not have to go further. However, since it sought relief on the basis of an existing consent, it retained the onus of proving the consent and the breach. His Honour correctly acknowledged that thereafter the appellant bore the onus to prove the use had not been contrary to ss 106 and 107 of the Act since the prohibition or that it was carrying out the development in accordance with a consent (s 109B) : at 105

In my opinion, Talbot J's approach to onus was correct. It was for the appellant to prove the consent and compliance with its conditions in order to prove an existing lawful use within ss 106 and 107 of the Act or the carrying out of development in accordance with the consent for the purposes of s 109B. To prove that its actual use complies with the consent, it must prove the terms of the consent. Sedevcic was such a case. In the appellant's proceeding in the Land and Environment Court, it sought a declaration. In so doing it assumed the onus to prove the relevant consents for lot 22: see Jones (at 212): at 106.

In my respectful judgment, the Court of Appeal's decision does not provide any support for the Applicant's submission that the Council, in the present case, bears the onus of proving that the proposed development is prohibited and that the Applicant was prohibited from making its development application.

The question of law raised by the Council is simply whether the proposed advertising structure is prohibited development. There is nothing exceptional in the Council raising this question because it is axiomatic that a valid development consent may only be granted in respect of a permissible purpose of development.

The question raised, in truth, only involves the proper construction of the LEP in order to determine whether or not such development is for a permissible purpose. The Applicant, having made the inevitable concession that the LEP relevantly prohibits such development in Zone No 6(a), that concession necessarily concludes the question. The question of onus of proof is really a false issue in the present context. If the onus is to be properly placed, it must lie, contrary to the Applicant's submission, upon the person seeking the grant of development consent to demonstrate that the proposed development is for a permissible purpose of development (see s 76A) or alternatively is sanctioned by the existing use entitlements conferred by Div 10 of Pt 4 and by the Regulation made thereunder.

Accordingly, for the foregoing reasons, I would answer the first question of law in the affirmative.

D. DOES THE APPEAL SITE HAVE THE BENEFIT OF ANY EXISTING USE ENTITLEMENTS?

I have slightly re-worded the Council's second question to identify the "appeal site" (rather than the "proposed development") as being the true focus and repository of any relevant existing use entitlement.

Two separate issues, being prerequisites of an "existing use", have been debated relevant to the question, namely - (i.) Whether the use of the club premises was relevantly "prohibited" by the City of Sydney Planning Scheme or by the LEP within the meaning of the EP&A Act s 106(a)? (ii.) If issue (i) is answered affirmatively, whether the Applicant has proved that the use of the club has been (a) lawfully commenced and (b) lawfully continued.

It is common ground in the rival arguments that the reference in the City of Sydney Planning Scheme Ordinance to "the purposes authorised by Div 2 or 3 of Pt XIII of the Local Government Act 1919" is a meaningful reference, notwithstanding the fact that the appeal site was not, at the relevant date in 1971, a "public reserve" placed under the care, control and management of a council: see Gameplan v South Sydney City Council (1999) NSWCA 223 where the Court of Appeal approved the approach taken by Cripps CJ in Sydney City Council v Royal Agricultural Society (1985) 56LGRA 443 in holding, at 445

…that the words any purpose authorised by Part XIII of the Act in Column III are descriptive of the purposes which may be undertaken by any person. That is, they are not confined to the activities actually undertaken by local councils.

However, the parties divide on the question of the precise nature of those descriptive purposes - the Applicant arguing that they are public purposes and the Council arguing that they are not confined to public purposes.

Section 106(a) of the EP&A Act provides 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 Div 4A of Pt 3 or Div 4 of this Part, have the effect of prohibiting that use

In the present case, Div 4A of Pt 3 or Div 4 of Pt 4 are not relevant.

Accordingly, the first issue to be determined is whether the use of the club premises was relevantly prohibited by the City of Sydney Planning Scheme Ordinance when it commenced on 16 July 1971 and by the LEP when it commenced on 12 April 1979. Because the appeal site was zoned in the same manner, with the same relevant controls being imposed by both planning instruments, the answer must be the same in the case of both instruments. However, since the club premises were in existence prior to the commencement of the City of Sydney Planning Scheme Ordinance, I shall consider the question by reference to that Ordinance, recognising that the same conclusion will be sustainable by reference to the LEP.

The parties are agreed upon which of the purposes authorised by Div 2 or 3 of Pt XIII are relevant to the present case, namely, the purposes enumerated in s 348 and s 350 which appear in Div 2. There are no relevant purposes within Div 3 because that Division is confined to public baths and bathing.

Section 348 and s 350 were at the relevant time in the following terms: 348. (1) The Council may provide, control, and manage grounds for public health, recreation, convenience, enjoyment, or other public purpose of the like nature, including - (a) parks; (b) children's playgrounds, drill-grounds, sports grounds; (c) gardens. (2) Such children's playgrounds, drill-grounds, sports grounds, and gardens may be provided either in public reserves or on other lands of the Council. 350. In any public reserve under its care, control or management the Council may provide, control, and manage - (a) musical entertainments; (b) chairs for hire to the public; (c) public refreshment rooms; (d) buildings for public entertainments conducted or authorised by the Council; (e) public entertainments; (f) boat sheds for the hire of boats to the public; (g) boats for hire to the public; (h) grandstands, pavilions, seats, shelter sheds, picnic kiosks, privies, and other buildings for the convenience of the public.

In my opinion, the only purposes enumerated in s 348 and s 350 that could be of possible relevance to the use of the Police Boys Club, having regard to then relevant objects of the Federation that I have earlier recited, are the following purposes recited in s 348 -

public health, recreation, convenience, enjoyment or other public purpose of the like nature .

However, the crucial question in the competing arguments is whether the adjective " public " governs each of the nouns contained in the expression. In my judgment, the syntax of the expression unquestionably requires an affirmative answer, the repetition of the adjective " public " in the end expression " or other public purpose of the like nature " putting the issue beyond doubt.

Accordingly, the relevant purposes are, in my judgment,.public health, public recreation, public convenience, public enjoyment etc.

This interpretation of the expression appearing in s 348 accords with the construction given by the High Court of Australia to the almost identical expression contained in the definition of "public reserve" in the Local Government Act 1919: see Storey v North Sydney Municipal Council (1970) 123 CLR 574 - see especially at 577 per McTiernan J. It also accords with the judgment of Perrignon J in Perrin v Peters (1983) 48LGRA 123 at 125 (reversed on appeal, but on other grounds).

Having established that the relevant purposes are public purposes, the next question to be determined is whether the purposes of the Police Boys Club, as relevantly enumerated in the objects of the Federation's Memorandum of Association are relevantly for the purpose(s) of public recreation.

The Applicant, relying upon the decisions of the High Court of Australia in Randwick Corporation v Rutledge (1959) 102 CLR 54 and Storey v North Sydney Municipal Council (1970) 123 CLR 574 and the decision of the NSW Court of Appeal in Waverley Municipal Council v Attorney General (1979) 40 LGRA 419, submitted that the purposes of the NSW Police Citizens' Boys Club were not relevantly purposes of public recreation because the Club premises were not "open to the public generally as of right". Rather, the express objects and purposes of the Federation were to advance the recreational and cultural interests of youths, particularly disadvantaged youths, and these objects, like the objects of the Boy Scouts' Association considered in Storey did not qualify the use of the existing club premises as a use for the purposes of "public recreation".

The Council's competing submission, which is severely weakened by my holding that the relevant purposes are public purposes, nonetheless is to the effect that the objects of the Federation are properly to be regarded as being for the purposes of public recreation and hence the use of the club premises was for the purposes of public recreation.

In my judgment, the Applicant's argument is correct. Accordingly, I would hold that the use of the existing club premises by the Federation for the objects and purposes of the Federation as in force as at the date in 1971 when the City of Sydney Planning Scheme came into force was not a use for the purposes of public recreation and hence, was not a use for "a purpose authorised by Div 2 or 3 of Pt XIII of the Local Government Act 1919".

It follows that the City of Sydney Planning Scheme Ordinance had "the effect of prohibiting that use" within the meaning of the EP&A Act s 106(a). That prohibitory effect was perpetuated by the LEP when it came into force in 1979 and applied to the appeal site the same zoning controls as those that had applied to it between 1971 and 1979 by the City of Sydney Planning Scheme Ordinance.

In reaching these conclusions, I have had regard to the objects and purposes of the Federation as they were in force in 1971 and 1979 respectively, noting that subsequent to 1979, those objects have been broadened and are no longer confined to the advancement of the recreational and cultural interests of male youths. However, these subsequent changes in the objects of the Federation and in the identity of the Federation itself, are not relevant to the question whether the use of the existing club premises was relevantly prohibited by the relevant planning instruments that successively applied to the appeal site as at the two relevant dates in 1971 and 1979 that I have earlier identified.

This conclusion brings me to consider the next question, namely whether the use of the existing club premises was relevantly for a "lawful purpose" within the meaning of the EP&A Act s 106(a). In the present case, "lawful purpose" comprehends both the erection and use of the club premises.

This question is not directly answered by the agreed facts and neither party has produced any relevant development consent. This is hardly surprising since the Applicant is obviously not the owner of the appeal site (although doubtless it could have made appropriate enquiries of the Federation) and the Council was not the relevant council administering town planning controls in respect of the appeal site in the period during which the existing premises came into existence (ie subsequent to November 1964 when the 50 year lease term began and December 1969 when the City Council sold the appeal site to the Federation). During the relevant period 1964 - 1969, the relevant planning controls were imposed by virtue of the operation of the County of Cumberland Planning Scheme and the City of Sydney Council was the relevant consent authority. The Council has not obtained the relevant files of the City of Sydney Council pertaining to the appeal site during that period.

Notwithstanding the absence of direct evidence, the Applicant has submitted that the Court would comfortably infer from the relevant facts that the requisite development consent was granted for the erection and use of the club premises. To recapitulate, the relevant facts are: (i.) The appeal site was within the Living Area Zone under the County Scheme and the development of the club premises was for a permissible purpose in terms of that Scheme. (ii.) The Federation was bound by lease obligations to erect the club premises "in accordance with plans and specifications approved by the lessor" (the lessor being the Council of the City of Sydney which was also the relevant consent authority in terms of the County Scheme for determining any development application made in respect of the appeal site). (iii.) The club premises were built some time after November 1964 and before December 1969 when the City of Sydney Council sold the appeal site to the Federation. (iv.) The club premises have continued in existence since they were erected and the Federation has remained the owner of the appeal site. (v.) In its previous consideration of development applications made in respect of the existing club premises, the Council, once in 1986 and twice in 1988, in granting development consents did so on the acknowledged basis that the existing club premises enjoyed the benefit of "existing use" entitlements under the EP&A Act.

Founding itself upon these undisputed facts, the Applicant submits that the Court will infer that the requisite development consent was granted for the erection and use of the club premises.

The Applicant submitted that the Court would be assisted in drawing this inference by applying the presumption of regularity. Reference was made in the Applicant's submissions to my decision in P Bartol and Associates Pty Ltd v Randwick City Council (unreported 26 April 1996), where I recognised that there may be scope for the presumption of regularity to establish the grant of a requisite development consent in a case where no direct evidence was available for reasons such as incomplete Council records etc.

In the subsequent decisions of Manicaland Pty Ltd v Strathfield Council, (unreported 12 December 1997) and Auburn Council v Nehme (unreported 15 April 1998 reversed on appeal, but on other grounds), I applied to the presumption of regularity, in holding that the requisite development consent had in each case been granted, though there was no direct evidence of the existence of such consent.

In the present case, there is nothing in the evidence that could operate to displace or rebut that presumption and there is a ready explanation for the absence of direct evidence, namely that the Council has not obtained, or searched, the relevant file pertaining to the appeal site held by the Council of the City of Sydney when it was the relevant consent authority for determining any development application made in respect of the appeal site.

Accordingly, I am satisfied that the use of the existing club premises which was relevantly prohibited in 1971 by the City of Sydney Planning Scheme Ordinance (and which prohibition was perpetuated in 1979 by the LEP) was relevantly for a "lawful purpose" within the meaning of s 106(a) of the EP&A Act.

This brings me to the final question, namely whether the "existing use" of the appeal site for the purposes of the Police Citizens Boys Club has relevantly continued since it was lawfully commenced. Again, there is no evidence adduced by the Council that would suggest that it has not continued. Indeed, by tendering the Council's file in respect of the appeal site (Exhibit G) the Council has in fact adduced evidence that indicates continuance of the use, which in any event, may be legitimately inferred by the presumption of continuance.

That file which was created on 12 March 1979 (ie one month before the LEP came into force) and is a current file with the latest official endorsement being recorded on 29 November 1999. Its contents unequivocally attest to the continuing use of the existing Club premises during the period covered by the file.

The EP&A Act s107(1) relevantly provides that "nothing in this Act ….prevents the continuance of an existing use", such entitlement being expressed to not apply in the case where "that use is abandoned": subsection (2)(e). However, it is to be noted that the onus of proving abandonment lies on the Council except where the statutory presumption of abandonment provided by s 107(3) applies in which case the onus shifts to the person asserting non-abandonment: see Hudak v Waverley Municipal Council (1990) 70 LGRA 130 at 138 per Hope AJA.

In the present case, there has been no suggestion by the Council that there has been any abandonment of the existing use of the club premises and the presumption of continuance applies.

It follows from the foregoing reasons, that the Applicant has established to my satisfaction, the following facts: (i.) the erection of the club premises occurred at some time between 1964 and 1969; (ii.) the erection of the club premises was supported by the grant of the requisite development consent under the County of Cumberland Planning Scheme; (iii.) following the erection of the club premises, they were lawfully used for the purpose for which development consent had been granted and were being so used when the City of Sydney Planning Scheme Ordinance came into force in July 1971; (iv.) since the use of the existing club premises for the approved purpose was not for the purpose of "public recreation" within the meaning of the relevant planning controls governing development of the appeal site, that use, being for a lawful purpose, was relevantly prohibited by the City of Sydney Planning Scheme Ordinance, (that prohibition being perpetuated in 1979 when the LEP came into force); and (v.) the use of the club premises for that lawful purpose has continued to the present time.

In these circumstances, I would hold that the Applicant has established that the appeal site enjoys the benefit of the existing use entitlements conferred by the EP&A Act Div 10 of Pt 4 and the Regulations made thereunder, which entitlements prima facie sanction the grant of development consent to the Applicant's development application despite the prohibitory effect of s 76B of the EP&A Act..

It follows that the second question of law must be answered in the affirmative.

For all of the foregoing reasons, I make the following orders -

1. The questions of law raised by the Council be answered as follows:

Question 1 Whether the development sought by development application 105/98 is a prohibited use within the Open Space 6(a) Zone under the LEP. Answer: Yes

Question 2 Whether the proposed development has the benefit of the existing use rights provisions of Division 10 Part 4 of the Environmental Planning & Assessment Act 1979. Answer: Yes 2.

Exhibits (other than Exhibit A), be returned. 3. Proceedings be remitted to the Registrar's callover for the purpose of listing for hearing.

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

32. This interpretation of the expression appearing in s 348 accords with the construction given by the High Court of Australia to the almost identical expression contained in the definition of "public reserve" in the Local Government Act 1919: see Storey v North Sydney Municipal Council [1970] HCA 44; (1970) 123 CLR 574--see especially at 577 per McTiernan J. It also accords with the judgment of Perrignon J in Perrin v Peters (1983) 48LGRA 123 at 125 (reversed on appeal, but on other grounds).

33. Having established that the relevant purposes are public purposes, the next question to be determined is whether the purposes of the Police Boys Club, as relevantly enumerated in the objects of the Federation's Memorandum of Association are relevantly for the purpose(s) of public recreation.

34. The Applicant, relying upon the decisions of the High Court of Australia in Randwick Corporation v Rutledge [1959] HCA 63; (1959) 102 CLR 54 and Storey v North Sydney Municipal Council (1970) [1970] HCA 44; 123 CLR 574 and the decision of the NSW Court of Appeal in Waverley Municipal Council v Attorney General (1979) 40 LGRA 419, submitted that the purposes of the NSW Police Citizens' Boys Club were not relevantly purposes of public recreation because the Club premises were not "open to the public generally as of right". Rather, the express objects and purposes of the Federation were to advance the recreational and cultural interests of youths, particularly disadvantaged youths, and these objects, like the objects of the Boy Scouts' Association considered in Storey did not qualify the use of the existing club premises as a use for the purposes of "public recreation".

35. The Council's competing submission, which is severely weakened by my holding that the relevant purposes are public purposes, nonetheless is to the effect that the objects of the Federation are properly to be regarded as being for the purposes of public recreation and hence the use of the club premises was for the purposes of public recreation.

36. In my judgment, the Applicant's argument is correct. Accordingly, I would hold that the use of the existing club premises by the Federation for the objects and purposes of the Federation as in force as at the date in 1971 when the City of Sydney Planning Scheme came into force was not a use for the purposes of public recreation and hence, was not a use for "a purpose authorised by Div 2 or 3 of Pt XIII of the Local Government Act 1919".

37. It follows that the City of Sydney Planning Scheme Ordinance had "the effect of prohibiting that use" within the meaning of the EP&A Act s 106(a). That prohibitory effect was perpetuated by the LEP when it came into force in 1979 and applied to the appeal site the same zoning controls as those that had applied to it between 1971 and 1979 by the City of Sydney Planning Scheme Ordinance.

38. In reaching these conclusions, I have had regard to the objects and purposes of the Federation as they were in force in 1971 and 1979 respectively, noting that subsequent to 1979, those objects have been broadened and are no longer confined to the advancement of the recreational and cultural interests of male youths. However, these subsequent changes in the objects of the Federation and in the identity of the Federation itself, are not relevant to the question whether the use of the existing club premises was relevantly prohibited by the relevant planning instruments that successively applied to the appeal site as at the two relevant dates in 1971 and 1979 that I have earlier identified.

39. This conclusion brings me to consider the next question, namely whether the use of the existing club premises was relevantly for a "lawful purpose" within the meaning of the EP&A Act s 106(a). In the present case, "lawful purpose" comprehends both the erection and use of the club premises.

40. This question is not directly answered by the agreed facts and neither party has produced any relevant development consent. This is hardly surprising since the Applicant is obviously not the owner of the appeal site (although doubtless it could have made appropriate enquiries of the Federation) and the Council was not the relevant council administering town planning controls in respect of the appeal site in the period during which the existing premises came into existence (ie subsequent to November 1964 when the 50 year lease term began and December 1969 when the City Council sold the appeal site to the Federation). During the relevant period 1964 - 1969, the relevant planning controls were imposed by virtue of the operation of the County of Cumberland Planning Scheme and the City of Sydney Council was the relevant consent authority. The Council has not obtained the relevant files of the City of Sydney Council pertaining to the appeal site during that period.

41. Notwithstanding the absence of direct evidence, the Applicant has submitted that the Court would comfortably infer from the relevant facts that the requisite development consent was granted for the erection and use of the club premises. To recapitulate, the relevant facts are:

(i.) The appeal site was within the Living Area Zone under the County Scheme and the development of the club premises was for a permissible purpose in terms of that Scheme.

(ii.) The Federation was bound by lease obligations to erect the club premises "in accordance with plans and specifications approved by the lessor" (the lessor being the Council of the City of Sydney which was also the relevant consent authority in terms of the County Scheme for determining any development application made in respect of the appeal site).

(iii.) The club premises were built some time after November 1964 and before December 1969 when the City of Sydney Council sold the appeal site to the Federation.

(iv.) The club premises have continued in existence since they were erected and the Federation has remained the owner of the appeal site.

(v.) In its previous consideration of development applications made in respect of the existing club premises, the Council, once in 1986 and twice in 1988, in granting development consents did so on the acknowledged basis that the existing club premises enjoyed the benefit of "existing use" entitlements under the EP&A Act.

42. Founding itself upon these undisputed facts, the Applicant submits that the Court will infer that the requisite development consent was granted for the erection and use of the club premises.

43. The Applicant submitted that the Court would be assisted in drawing this inference by applying the presumption of regularity. Reference was made in the Applicant's submissions to my decision in P Bartol and Associates Pty Ltd v Randwick City Council (unreported 26 April 1996), where I recognised that there may be scope for the presumption of regularity to establish the grant of a requisite development consent in a case where no direct evidence was available for reasons such as incomplete Council records etc.

44. In the subsequent decisions of Manicaland Pty Ltd v Strathfield Council, (unreported 12 December 1997) and Auburn Council v Nehme (unreported 15 April 1998 reversed on appeal, but on other grounds), I applied to the presumption of regularity, in holding that the requisite development consent had in each case been granted, though there was no direct evidence of the existence of such consent.

45. In the present case, there is nothing in the evidence that could operate to displace or rebut that presumption and there is a ready explanation for the absence of direct evidence, namely that the Council has not obtained, or searched, the relevant file pertaining to the appeal site held by the Council of the City of Sydney when it was the relevant consent authority for determining any development application made in respect of the appeal site.

46. Accordingly, I am satisfied that the use of the existing club premises which was relevantly prohibited in 1971 by the City of Sydney Planning Scheme Ordinance (and which prohibition was perpetuated in 1979 by the LEP) was relevantly for a "lawful purpose" within the meaning of s 106(a) of the EP&A Act.

47. This brings me to the final question, namely whether the "existing use" of the appeal site for the purposes of the Police Citizens Boys Club has relevantly continued since it was lawfully commenced. Again, there is no evidence adduced by the Council that would suggest that it has not continued. Indeed, by tendering the Council's file in respect of the appeal site (Exhibit G) the Council has in fact adduced evidence that indicates continuance of the use, which in any event, may be legitimately inferred by the presumption of continuance.

48. That file which was created on 12 March 1979 (ie one month before the LEP came into force) and is a current file with the latest official endorsement being recorded on 29 November 1999. Its contents unequivocally attest to the continuing use of the existing Club premises during the period covered by the file.

49. The EP&A Act s107(1) relevantly provides that "nothing in this Act ....prevents the continuance of an existing use", such entitlement being expressed to not apply in the case where "that use is abandoned": subsection (2)(e). However, it is to be noted that the onus of proving abandonment lies on the Council except where the statutory presumption of abandonment provided by s 107(3) applies in which case the onus shifts to the person asserting non-abandonment: see Hudak v Waverley Municipal Council (1990) 70 LGRA 130 at 138 per Hope AJA.

50. In the present case, there has been no suggestion by the Council that there has been any abandonment of the existing use of the club premises and the presumption of continuance applies.

51. It follows from the foregoing reasons, that the Applicant has established to my satisfaction, the following facts:

(i.) the erection of the club premises occurred at some time between 1964 and 1969;

(ii.) the erection of the club premises was supported by the grant of the requisite development consent under the County of Cumberland Planning Scheme;

(iii.) following the erection of the club premises, they were lawfully used for the purpose for which development consent had been granted and were being so used when the City of Sydney Planning Scheme Ordinance came into force in July 1971;

(iv.) since the use of the existing club premises for the approved purpose was not for the purpose of "public recreation" within the meaning of the relevant planning controls governing development of the appeal site, that use, being for a lawful purpose, was relevantly prohibited by the City of Sydney Planning Scheme Ordinance, (that prohibition being perpetuated in 1979 when the LEP came into force); and

(v.) the use of the club premises for that lawful purpose has continued to the present time.

52. In these circumstances, I would hold that the Applicant has established that the appeal site enjoys the benefit of the existing use entitlements conferred by the EP&A Act Div 10 of Pt 4 and the Regulations made thereunder, which entitlements prima facie sanction the grant of development consent to the Applicant's development application despite the prohibitory effect of s 76B of the EP&A Act..

53. It follows that the second question of law must be answered in the affirmative.

54. For all of the foregoing reasons, I make the following orders--

1. The questions of law raised by the Council be answered as follows:

Whether the development sought by development application 105/98 is a prohibited use within the Open Space 6(a) Zone under the LEP.

Whether the proposed development has the benefit of the existing use rights provisions of Division 10 Part 4 of the Environmental Planning & Assessment Act 1979.

3. Proceedings be remitted to the Registrar's callover for the purpose of listing for hearing.