32 There is, in our view also the fact that, although the construction certificate plans note the retaining wall at its present location and do not refer to any batters or secondary retaining walls, the construction certificate plans for the structures note that wall as being completed and therefore it is not able to be transported into the development consent by those construction certificate plans. As we have earlier noted, it is not constructed in accordance with anything that is provided for in the bulk earthworks construction certificate plans and therefore cannot be regarded as incorporated in the development consent as a consequence of that construction certificate.
33 The competing propositions that are put to us, as we have earlier noted, is that the applicant says that the whole of the site has the benefit of a commercial use, whilst the council puts the proposition that that use is confined to the car park and the upper commercial floor pan area.
34 Although we have been given a number of authorities to consider, there are three cases that we consider are relevant to our determination in this regard. The first of them is that relied upon by the applicant, being the decision of the Court of Appeal in Ashfield Municipal Council v Armstrong [2003] NSWCA 353 (relying on the terms of the judgment of Foster AJA with whom Santow and McColl JJA agreed, and the cases of Lemworth Pty Limited v Liverpool City Council [2001] NSWCA 389, and Salvation Army v Newcastle City Council [2000] NSWLEC 36, being those relied on primarily on the matters we consider relevant by the council.
35 We turn first to the Armstrong case. It concerned a property in Ashfield upon which had been erected, in the late nineteenth century prior to the advent of development consents in the modern accepted form, a residential flat building with associated parking. The applicant in those original proceedings, in the first instance, had applied to the council for permission to reconstruct the residential flat building but to do so with basement car parking (that not having been incorporated in the nineteenth century structure). The decision of the Court of Appeal, critically in those proceedings, arises from the decision of Foster AJA in para 45 where, in summary, he indicated that, under those circumstances, the existing use could not be confined to the surface of the land and that the existing use should be construed as including the use of the land below the surface, and that as a consequence of that the existing use that arose, as we have noted, under circumstances where there were not statutory planning controls of the nature that now apply, would not act to constrain subsurface development.
36 We are not satisfied that that is the position in this case. We are satisfied that the modern statutory planning framework, within which development consents are given and are constrained or confined, are those that gave rise to the decisions of the Court of Appeal in Lemworth and the decision of this Court in Salvation Army. Each of those held, as we understand them, that a consent that was given in confined or defined terms, confined the use of the land to which that consent applied to the space, volume or area that was defined in that development consent. We are satisfied that, contra to the position advanced concerning Armstrong, we are constrained in these circumstances by the terms of the development consent that exists over the land and that the commercial use that is envisaged by that development consent is confined to the parking area and the floor pan at the upper level, and that anything else is merely ancillary to or supportive of but not permitted to be used for commercial purposes.
37 We are fortified in that regard by the fact that there would be, in this case, if it were to occur, a development consent given, a requirement for an easement over a downhill property for the purposes of draining stormwater. The position that is advanced to us on behalf of the applicant would have that easement adopting a commercial flavour or use if one were to adopt the totality, in an unconstrained and unrestricted sense, of the reasoning pressed on us arising out of Armstrong. We do not think that Armstrong can apply in the present planning circumstances except to the extremely limited extent that there may be existing developments with existing uses that pre-date the modern planning scheme.
38 As a consequence, we are satisfied that, on the statutory basis, we are unable to grant the development consent based on the non-satisfaction of the provisions of cl 42 of the Regulation in that we cannot be satisfied that the enlargement, expansion or intensification of the use is only being carried out on the land for which the existing use is permitted.