Brinara Pty Ltd v Gosford City Council

[11]

5 Existing use rights are provided for under s 106 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) which defines an existing use as the use of a building for a lawful purpose immediately before that use was prohibited under an environmental planning instrument. Section 107(2) imposes limits on the expansion of an existing use. The making of regulations concerning the carrying out of alterations or extensions to a building being used for an existing use, the change of an existing use to another use and the enlargement or expansion of an existing use are provided for under s 108. Clause 41 of the EP&A Regulation (cl 41(1)(e) and cl 41(1)(f) were added, and cl 41(1)(d) amended after 2005 ) states: (1) An existing use may, subject to this Division: (a) be enlarged, expanded or intensified, or (b) be altered or extended, or (c) be rebuilt, or (d) be changed to another use, but only if that other use is a use that may be carried out with or without development consent under the Act, or (e) if it is a commercial use - be changed to another commercial use (including a commercial use that would otherwise be prohibited under the Act), or (f) if it is a light industrial use - be changed to another light industrial use or a commercial use (including a light industrial use or commercial use that would otherwise be prohibited under the Act). (2) However, an existing use must not be changed under subclause (1) (e) or (f) unless that change: (a) involves only alterations or additions that are minor in nature, and (b) does not involve an increase of more than 10% in the floor space of the premises associated with the existing use, and (c) does not involve the rebuilding of the premises associated with the existing use, and (d) does not involve a significant intensification of that existing use, and (e) relates only to premises that have a floor space of less than 1,000 square metres. (3) In this clause: commercial use means the use of a building, work or land for the purpose of office premises, business premises or retail premises (as those terms are defined in the Standard Instrument (Local Environmental Plans) Order 2006). light industrial use means the use of a building, work or land for the purpose of light industry (within the meaning of the Standard Instrument (Local Environmental Plans) Order 2006). 6 It is agreed between the parties that if cl 41(1)(e) applies then cl 41(2) is not satisfied by the 2008 DA. It is also agreed that the use of the premises relies on existing use rights and that use is now defined by the 2005 consent.

[15]

A development consent that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the development application, subject to section 109M. The distinction must be made between the grant of a consent for a building for commercial premises and the authorisation of its use for specified purposes. The consent was for a building being commercial premises and the uses authorised were retail uses. This supports a finding that the 2005 consent was for a commercial use. (iii) is the proposed development in the 2008 DA another commercial use? The proposed development in the 2008 DA is to add storage units under the existing building, a business use as defined under s 41(3) of the Regulation which adopts the definition from the Standard Instrument (Local Environmental Plans) Order 2006. That proposal is a change of the commercial use of various retail uses to another commercial use being a business use to which cl 41(1)(e) applies. Finding 12 The extensive case law on the correct approach to the characterisation of existing uses was referred to in the parties' submissions. The Applicant's submissions at par 17 referred to a large number of authorities to support the statement that it is well settled law that where an existing use derives its validity from a development consent, the terms of the consent define the use. As identified in MM & SW Enterprises Pty Ltd v Strathfield Council [2010] NSWLEC 8 at [81]-[82] the lawful purpose which can be relied on to underpin existing use rights is the terms and conditions stipulated in a development consent. In this case that is the 2005 consent. 13 The parties essentially agreed that the characterisation of the existing use which the Applicant seeks to vary in its 2008 DA is determined by the construction of the 2005 consent. The principles which apply to the construction of development consents must therefore be considered. Unlike cases such as MM & SW Enterprises the use of the premises continues in accordance with the plans approved in the 2005 consent.

[17]

17 The Applicant emphasised that the description of the proposed development as commercial premises on the first page of the consent together with the operation of Condition 4 in conjunction with Condition 6 and the plans approved therein suggest the proper characterisation of the genus of development is commercial premises. The building and operation of storage units the subject of the 2008 DA fall within the definition of commercial premises in IDO 122 as in force at the time DA 25760/2004 was approved. Accordingly cl 41(1)(e) does not apply as there is no change of commercial use from that approved by the Council in 2005 to another commercial use in the 2008 DA. I agree with that construction of the 2005 consent in light of the approach to construction of development consents identified in ACR Trading and House of Peace and the various authorities confirming that a liberal interpretation is warranted in the case of existing use rights. That conclusion is confirmed in particular by the operation of Condition 4, informed by Reading, that in order to obtain the Council's consent for a change of use a development application is not needed, simply an application. 18 That the commercial premises can have within them various uses which may change over time, with the consent of the Council according to Condition 4 of the 2005 consent, does not reduce the existing use rights of the Applicant as defined by that consent to the individual uses that may be conducted within the building. It follows that I do not accept the Council's argument that the 2008 DA is for a change of use from a retail use to a business use as identified above in par 11(iii). All those uses occur under the broader genus of the development being commercial premises. 19 I have trouble understanding the relevance of the distinction made in the Council's submissions (par 11(ii)) between the granting of consent in 2005 for a building for commercial premises and separately the authorisation of the use of that building by virtue of s 81A of the EP&A Act. There appears to be little impact on the construction of the 2005 consent if that submission is accepted in any event. If anything, if the individual uses were not approved under the 2005 consent but rather were authorised by virtue of s 81A of the EP&A Act that would appear to support the Applicant's construction of the 2005 consent that it was for a commercial premises, within which could be several uses. 20 It is unnecessary that I express a view on whether more than one subclause of cl 41(1) can apply, the first subquestion raised by the Council. It may well be possible that that be the case but regardless of whether it is, it is still necessary to determine whether cl 41(1)(e) applies, as I have done in favour of the Applicant. Conclusion 21 The question of law before me is answered to the effect that cl 41(1)(e) of the EP&A Regulation does not apply to the Applicant's development application No 35344/2008.

Brinara Pty Ltd v Gosford City Council - [2010] NSWLEC 25 - NSWLEC 2010 case summary — Zoe

At a glance

Court

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Before

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Judgment (18 paragraphs)

Parties

Cases Cited (6)

Cited By (3)