Although reference is made in [27] to the words used in cl 42(2)(b), the exercise then undertaken by them is to consider the building erected pursuant to the 2005 development consent, its components, its present use and the use made of the curtilage of that building.
21 There seems little doubt that the Commissioners were diverted from addressing the terms of the clause by the manner in which the parties approached the arguments before them. So much appears from [33] of the judgment where they wrote:
"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."
It was to those competing propositions that the Commissioners then addressed themselves.
22 The failure to address the existing use at the relevant date does, itself, involve an error of law. However, having regard to the manner in which the matter was argued, I will proceed upon the assumption, common to both the parties and the Commissioners, that the use of the Site authorised by the 2005 development consent was the appropriate focus of consideration for the purpose of considering cl 42(2)(b) of the Regulation.
The decision of the Commissioners
23 Having identified the competing factual propositions advanced by the parties, succinctly summarised in [33], they identified three cases considered "relevant to our determination in this regard." They had earlier identified at [5] the issue for their determination as being "whether a proper consideration of the statutory regime restricts the present permitted use to merely the car park area and the existing used floor pan area … or whether … a less constrained position applies". The statutory regime to which reference was there made was the EPA Act and the Regulation.
24 The three cases to which the Commissioners referred as being relevant to the determination of the essential issue identified at [33] of the judgment were Salvation Army v Newcastle City Council [2000] NSWLEC 36; (2000) 107 LGERA 40; Lemworth Pty Ltd v Liverpool City Council [2001] NSWCA 389; (2001) 53 NSWLR 371 and Ashfield Municipal Council v Armstrong [2003] NSWCA 353. Having considered the decision of the Court of Appeal in Ashfield Municipal Council v Armstrong, the Commissioners indicated that they were not "satisfied that that is the position in this case". They continued at [36]:
"36 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 the 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."
25 The conclusion on the issue is expressed in [38] in the following terms:
"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."
26 It is the determination reflected in these paragraphs of the judgment that, in essence, found Brinara's appeal. It contends that the interpretation of the EPA Act and cl 42 of the Regulation and the application of those facts found by the Commissioners, founds a decision on a question of law and error on that question is demonstrated.
A question of law is involved
27 Although the Council, in its submissions, does not separately identify the issues in the manner I have earlier indicated them to be, I think it is implicit in its submissions that it has done so. In order to address an appeal instituted under s 56A of the Court Act, it is necessary to determine that there has been a decision by a Commissioner or Commissioners on a question of law. It is only after the identification of such a question in the decision of the Commissioners that one turns to a consideration of error.
28 The different statutory formulations of a right to appeal in which that right is predicated upon the existence of "a question of law" has been the subject of consideration in a number of decisions of the Court of Appeal in recent years. In Walker Corporation v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1, Basten JA (Beazley and Young JJA agreeing) considered the scope of an appeal under s 57 of the Court Act. That section contains provisions relevantly similar to those found in s 56A(1). His Honour said:
"[20] As has been explained in a number of recent decisions, jurisdiction of the kind presently in question falls into one of three categories, namely an appeal where:
"(a) identification of a question of law is a precondition to engaging the Court's jurisdiction but is not a limitation on that jurisdiction, once engaged;
(b) the question of law is not a mere precondition to ground an appeal but is the sole subject matter of the appeal, and
(c) it is the decision of the Tribunal on a question of law which is the subject matter of the appeal."
[21] In common with many such provisions in this State, the present case falls into the last category [case citation omitted] … ".
29 Further elucidation of the scope of the appeal afforded by s 56A is to be found in the judgments of the Court of Appeal in B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2009) 74 NSWLR 481. In that case Allsop P wrote:
"[70] It is to be noted, as Basten JA did in Roads and Traffic Authority of New South Wales v Peak [2007] NSWCA 66 at [139], that the language of the Land and Environment Court Act , s57(1) is like that of the Government and Related Employees Appeal Tribunal Act 1980 (NSW) ("the GREAT Act" ), s54 such that it was the underlying decision from whose decision the appeal lies, and not the appeal itself, which must be "on a question of law" : see Metropolitan Water Sewerage and Drainage Board v Histon [1982] 2 NSWLR 720 at 725 (Samuels JA)."
30 In that same case, Basten JA when referring to the need to identify a "question of law" upon which the appeal is brought by reference to s 199 of the Administrative Decisions Tribunal Act 1997, indicated (at [125]):
"It is not necessary that the answer to the question of law constitutes the ultimate decision of the Tribunal, so long as it is a question material to the decision".
In the present case, the legal principles enunciated in decided cases determining the proper application of the provisions of cl 42(2) of the Regulation or like provisions in Pt 5 of that Regulation were material, indeed fundamental, to the determination in the present case.
31 As my earlier reference to paragraphs [33] and [36] of the judgment below indicates, the decision of the Commissioners turned upon the proper interpretation of cl 42 of the Regulation and its application to the facts that they found. Their position is reflected in [38] where they concluded by expressing satisfaction "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".
32 That last expressed conclusion seems to me to involve a conclusion that, in substance, says, based on the facts as we have found them, the provisions of cl 42 are not engaged. Such a formulation is to my mind a formulation of a question of law or, at the very least, a mixed question of fact and law. That is sufficient to engage the provisions of s 56A(1) of the Court Act. Such a formulation is consistent with the judgment of Mason J (as his honour then was) in Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 where he wrote (at 10):
"Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law."
33 Further, it is noteworthy that in the two decisions of the Court of Appeal cited by the Commissioners, each involved an appeal from this Court on a question of law. In Lemworth Pty Ltd v Liverpool City Council the question, as framed, was whether cl 42 of the Regulation would permit development consent to be granted for the enlargement, expansion and/or intensification of the existing use of first floor premises at a nominated address so as to include the ground floor of those premises. In Ashfield Municipal Council v Armstrong the question of law considered by the Court of Appeal was whether the existing use of the building on land in question for the purposes of residential flat building authorised the grant of consent for the extension of that building for the same purpose, involving its extensive renovation and, importantly for that case, the excavation of the land so as to provide for basement car parking. The relevant statutory provisions for the purpose of that case involved both s 107(2)(b) of the EPA Act and cl 42(2)(b) of the Regulation.
34 In neither of those two cases was it suggested that the questions posed did not involve a question of law. I see no difference in substance between the formulation of questions there identified and a question arising in the present appeal which is, in effect, whether clause 42 of the Regulation permits development consent to be granted for the enlargement, expansion or intensification of the existing use of the land in accordance with the development proposed by Brinara's development application.
35 In light of the authorities to which I have made reference, I am satisfied that the underlying decision, being the decision of the Commissioners, is a decision on a question of law. That question, namely the proper interpretation and application of cl 42 of the Regulation to the proposed development, was clearly material to the decision that they made. So much is apparent from the paragraphs of the judgment below to which I have made reference in [23] and [25].
36 A subsidiary but important element in the determination by the Commissioners involved interpretation of the 2005 development consent. Indeed, the premise upon which the matter appears to have been argued and resolved was that the "existing use" within the meaning of cl 42 of the Regulation was that reflected by the 2005 development consent. That consent was an "instrument" within the meaning of the Interpretation Act 1987 (s 3(1)). The interpretation of an instrument involves a question of law.
Error of law
37 Having identified both ss 107 and 108 together with cl 42 of the Regulation as being necessary to inform their determination, the Commissioners proceeded to identify the "relevant" question by seeking to determine "the dimension on the Site of the approved use arising from the present development consent" (at [26]). They then turned to the plans approved by the 2005 development consent, making reference to the approved plan showing the car parking and commercial footprint, as well as the plan indicating vegetation to the rear of structures erected in accordance with that consent. It was in that context that the concept landscaping plan, to which I have earlier referred, was both identified and reproduced in the judgment.
38 Apart from identifying the plan, the conditions of the 2005 development consent do not appear to have been considered. In particular, those conditions to which I have earlier referred requiring development in accordance with approved plans, indicating approval as part of the development application with a landscape plan, are not mentioned. Condition 25 of the consent made specific provision for the amendment of the landscape plan, requiring removal of Camphor Laurel trees and condition 48 required design of retaining walls by a practising civil/structural engineer if any such wall was greater than 1 metre in height.
39 There was acknowledgment by the Commissioners that any construction certificate issued following their consent became incorporated within it by dint of s 80(12) of the EPA Act. This was relevant to construction of the intermediate floor slab described as the "bracing diaphragm". It was also relevant to the construction of the retaining wall located to the north of the building which retained soil beneath the northern face of the slab upon which the commercial premises stood.
40 I have earlier quoted from [36] of the judgment below. It seems to me, with respect, that the error of the Commissioners emerges from that paragraph. That error arises from the articulation of principle sought to be deduced from the three decisions to which reference was made. Perhaps the result in each of those cases distracted attention from distillation of the principles.
41 The principles involved in the proper application of cl 42(2) of the Regulation were usefully discussed by Stein JA in Lemworth Pty Ltd v Liverpool City Council. His Honour reviewed several prior decisions, including the decision of Pearlman J in Scully v Leichhardt Council (1994) 85 LGERA 109 where her Honour had rejected a submission that the "land" used in the equivalent provision of cl 42 of the Regulation was restricted to the footprint of the building being used for the existing use. His Honour also referred to the decision of Pearlman J in Salvation Army v Newcastle City Council where her Honour had cited the decision of Meagher JA in Steedman v Baulkham Hills Shire Council [No 1] (1991) 87 LGERA 26. In the latter case, Meagher JA had observed that the correct approach to the determination of existing use rights was properly informed "if the land is rightly regarded as a unit and it is found that part of its area was physically used for the purpose in question it follows that the land was used for that purpose".
42 Stein JA next paid attention to the seminal decisions of the High Court in Parramatta City Council v Brickworks Limited (1972) 128 CLR 1 and Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270. Their continuing relevance to the question presently being considered was acknowledged. His Honour referred to the judgment of Gibbs J in Parramatta City Council v Brickworks where [at 23] it had been observed that an existing use of "land" referred to land which, from a practical point of view, should be regarded as one piece of land and not necessarily within one subdivision or title. Stein JA then continued:
"38 Eaton applied Parramatta City Council v Brickworks to the effect that physical use is not an indispensable element. The judgment of Walsh J is of some assistance. His Honour said (at 278):
'For the practical working out of the provisions of the Ordinance it is important that the area of land which should be regarded as brought by an existing use within the operation of cl 30 should be capable as far as is possible of being identified in a way which avoids detailed investigations and complicated disputes of fact. It is clear, in my opinion, that it will not be possible in all cases to avoid the difficulty of resolving questions of fact and of degree or to avoid the necessity of drawing a line to mark off one area from another within land within the same ownership. It seems plain the physical use for a particular purpose of a small portion of a large holding would not warrant a finding that the whole area was used for that purpose'.
39 In concluding his reasons for judgment Walsh J said (at (279):
'Finally, I think that the fact that in 1955 the appellant applied for an approval for the use of the whole of the land as one unit for a specified purpose and that the respondent granted that approval is a fact which, although not decisive, tends to support the conclusion that the allotment should be treated as one piece of land.'
40 In the subject appeal, the appellant applied for a development approval to use the first floor as a 'unit' for the purpose of a brothel. That is the application which the Council granted. Applying Walsh J's observations in Eaton, referred to above, this is not decisive but it supports the conclusion that the 'land' is confined to the first floor."
43 In Lemworth, Stein JA then applied the observations of Stephen J in Eaton where his Honour said (at 291):
"Where a claimed existing use is of a kind which involves active physical use nice questions of fact and degree may arise when the claimant's land contains some areas of apparently unused land. In many instances commercial and industrial sites will no doubt contain small areas of unused land. Only by first ascertaining the characteristics of the particular purpose of use claimed and comparing that with the evidence concerning the relevant land, regard being had to the absolute and relative sizes, locations and, perhaps, pattern of distribution of unused land, will it be possible to conclude whether all the land should be viewed as one whole, used for the claimed use or, on the contrary, as distinct portions, some of which have not shared in the claimed use."
44 It seems to me that upon this analysis of authority by Stein JA, his Honour was indicating that when identifying "the land on which the existing use was carried out", both a quantative and qualitative assessment is required. This dual assessment will involve the necessity to identify those areas of the land which, in some way, attract or are necessary to the existing use, albeit that they are not at a moment in time actively occupied for that use. Consideration of land identified as being held in reserve for the existing use, including land that is land without which the current use could not be enjoyed, must necessarily be undertaken.
45 So much is supported by the judgment of Hodgson JA in Lemworth where his Honour stated that such land would include those areas "physically and lawfully used … ". His Honour continued (at [74]):