Dosan Pty Ltd v Rockdale City Council

Objective of the provision To allow the economic recycling of existing buildings that were constructed for use as shops and which are located within residential zones (1) This clause applies to all land in Zone 2(a1), 2(a), 2(b) or 2(c). (2) Where an existing building was lawfully constructed for use as a shop, a person may, with development consent: (a) use that building as a shop of the same or a different kind or as a commercial premises, or (b) alter, extend or rebuild that building for use as a shop or commercial premises. 117. The council records disclose that on 14 September 1993 the solicitor of the then proprietor of the battery shop wrote to the council to enquire whether there were any consents applying to No. 717. The council responded by letter dated 28 September 1993 to the effect that no consents were recorded, but that it was possible that the premises enjoyed existing use rights. In any case, the council stated that it had no objection to the continued use of the premises for a battery shop, but that a development application would have to be lodged "if the use were to change or expand". The Applicant's Submissions 118. Mr Maston submits that since there is evidence that the battery shop use has been conducted in the premises for at least 54 years without the council ever objecting to it, it can be inferred that the use was lawful, that is, that it either commenced with consent or commenced before a consent was necessary. In Mr Maston's submission, a consent may also be inferred from the presumption of regularity, as was found by Bignold J in Australian Posters v Leichhardt Council (2000) 109 LGERA 343 at 352- 352. 119. As for the dwelling at the rear, Mr Maston submits that continuous use of this part of the building as a dwelling has been shown since at least 1945, meaning that it predates planning control. 120. Mr Maston submits that, because of the two uses taking place in the one building, No. 717 falls into category "mixed use premises", which is defined as follows in Rockdale LEP 2000: mixed use premises means a site on which a building used for a non-residential purpose and one or more dwellings, that may or may not be attached to that building, are situated, whether or not the dwelling or dwellings will be used in conjunction with that non-residential use. 121. Shops, industries and mixed use premises are prohibited in the zone under the provisions of Rockdale LEP 2000. Therefore, either the shop acquired existing use rights in its capacity as a shop, possibly conferring existing use rights on the whole parcel, or the whole building acquired existing use rights in its capacity as a mixed use premises. 122. In reply to the respondent's contention that shops are a permissible use on that particular site by virtue of cl 33 of Rockdale LEP 2000, Mr Maston submits that shops are still a prohibited use in the zone per se and should be regarded as such for existing use purposes since a development application to erect a new shop on the land could not be granted. According to Mr Maston, existing use rights are concerned with prohibitions to the establishment of a whole enterprise, not exceptions for existing buildings. Clause 33 is similar to the provisions of State Environmental Policy No. 4 (SEPP 4), which has never been taken to lift an applicable prohibition on the erection of a shop on land, but merely allows for a change of one kind of shop to another. 123. Alternatively Mr Maston submits that if cl 33 has the effect contended for, that is, if it makes the shop use permissible with consent in a building which previously had existing use rights for the purpose of a shop, it must be "of no force and effect". This is because it would apply limitations to the council's power to grant consent to the continuance or modification of such a use and so would be a derogation from the council's power to consent to such developments under the incorporated provisions. It would also offend s 109(1) which says that an environmental planning instrument cannot require consent to be obtained for a use lawfully conducted before the coming into force of that environmental planning instrument. If cl 33 is of no force and effect, it leaves the land subject to a relevant prohibition, and therefore, still subject to existing use rights. 124. Further alternatively, Mr Maston submits that cl 33 does not apply because the respondent has not proved that the building was constructed for the purpose of a shop, or cl 33 only applies to buildings wholly constructed as shops, and not to a shop such as the subject shop which was in part of a building also used as a dwelling. It is submitted that the purpose of the clause requires a different meaning be attributed to the word "building" from the definition in the local environmental plan which includes a building or part of a building. 125. Mr Maston's final alternative submission is that cl 33 does not purport to allow consent to be granted for the mere continuance of a shop in the same form as it was conducted prior to the coming into force of the planning instrument, but allows for consent to minor variations. Where it provides that consent may be obtained to use the premises for a shop "of the same kind", this means, of the same kind, but not identical. Therefore the clause does not apply to the continuation of an existing use which still relies on s 107 for protection. The Respondent's Submissions 126. Mr Parry submits that this area has ceased to enjoy existing use rights (if it ever had them) because neither of the activities currently conducted thereon are prohibited under the current planning regime. The dwelling use has been permissible since at least 1981 with consent. The shop use is permissible on this particular site pursuant to cl 33 of Rockdale LEP 2000, being located in a building which was lawfully constructed (as Mrs Kay's evidence shows) for the purpose of a shop. 127. According to Mr Parry, because the uses are no longer prohibited they do not fall within the definition of existing uses under s 106, being the lawful use of a premises before the coming into effect of an instrument which has the effect of prohibiting the use. The current instrument does not prohibit either the dwelling use or the battery shop use on this particular site. In response to Mr Maston's argument that the shop use is prohibited per se in the zone, Mr Parry argues that it is not always possible to determine what is prohibited on certain land solely on the basis of the zoning table and what is stated to be generally prohibited in that zone, but one must also have regard to provisions such as cl 33 which in certain circumstances operate to lift the prohibition. 128. Mr Parry submits that cl 33 of Rockdale LEP 2000 in no way derogates from existing use rights, but merely makes something permissible which was previously prohibited, which an environmental planning instrument is entitled to do. It is the EP&A Act itself which dictates that the creation of existing use rights should depend upon the permission or prohibition of an environmental planning instrument. Clause 33 does not derogate from existing use rights in this instance because no rights arise unless the environmental planning instrument takes the first step of prohibiting the use. 129. In reply to Mr Maston's submission that the building is a mixed use premises and therefore prohibited altogether, Mr Parry accepts that the building falls within the definition of mixed use premises, but contends that "mixed use" cannot constitute an existing use being an amalgam of more than one use. As I understand the submission, s 106 refers to development for "a lawful purpose", whereas a mixed use premises is by definition a building being used for two distinct and possibly unrelated purposes, so that it has to be established that each is prohibited in isolation before existing use rights can be found. 130. In the alternative, Mr Parry submits that to constitute an existing use the mixed use would have to be lawful immediately before the coming into force of a planning instrument and the applicant has adduced no evidence to show that it was. 131. Further in the alternative, it is submitted that even if the applicant is correct in stating that the land is being used for a purpose which is prohibited, being mixed use premises, it is nevertheless also being used for two permissible uses, being a dwelling and a shop and ,therefore, is not subject to a prohibition so as to attract existing use rights. 132. Finally, Mr Parry submits that if I decide against him that this part of the land is in fact relevantly subject to the prohibition against mixed use premises, that there is nevertheless no existing use right because the respondent has not proved that the use was conducted lawfully before the coming into force of Rockdale LEP. If the uses commenced in 1947, as suggested by Mrs Kay's evidence, they required development consent under the General Interim Development Order which commenced in 1946. The respondent has not adduced any evidence of such consent. 133. Mr Parry concedes that the yard of the dwelling of No. 717 might properly be regarded as the curtilage of the dwelling and so part of the same use, but submits that there is no evidence that the other open areas around the building have been involved with any particular use of the building so as to attract existing use rights. Conclusions 134. The first question to be answered in respect of No. 717 is whether the battery shop and dwelling were lawfully commenced. As consent has been required for these uses on the land since 1946, this means the applicant has to show either that the use commenced before that date, or that the uses had consent. 135. Mrs Kay states that her family lived in No. 717 from the time her father purchased the two lots, which she says was 1944, until 1947. This establishes that the premises have been used as a dwelling since before the commencement of planning controls. 136. Of the battery shop use, however, Mrs Kay can only say that it commenced "not later than 1947". This is not sufficient to show that the use predates planning controls. We simply do not know whether the use may have started before this, or whether there was some other related use of the shop which might have qualified it as being subject to an existing use. I find, therefore, that the applicant has not shown that the battery shop use was commenced before it became necessary to obtain a consent for that use. 137. There is no evidence of a consent having been granted to the battery shop use. Mr Maston submits, however, that the presumption of regularity may lead the court to presume that there was a consent to this use, there being no evidence to the contrary. As authority Mr Maston cites, as noted above, Australian Posters v Leichhardt Council (2000) 109 LGERA 343 and the cases referred to therein. 138. The presumption of regularity is a rule of evidence to the effect that when: …an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act. ( Knox County v Ninth National Bank 147 US 91 (1893), cited by Griffith CJ in McLean Bros. & Rigg Ltd v Grice & Anor (1906) 4 CLR 835 at 850, with whom Barton and O'Connor JJ agreed). 139. A possible application of this principle would be to say that proof of use of land for a certain purpose, if that purpose could only be carried out with consent, carried with it a presumption that consent had been obtained. However, a general application of this rule in existing use matters would abrogate the principle that the applicant bears the onus of proving all factual elements required to found the declaration which is being sought (Jones v Sutherland Shire Council (1979) 40 LGRA 323). 140. In Jones v Sutherland Shire Council, Huntley JA said (at 327): Where a person seeks a declaration, he has to prove all the facts which are necessary to enable that declaration to be obtained. This means that he takes upon himself to prove all the conditions necessary to be established, including matters which he could require the other party to prove, if he were the defendant. … In any event, in my opinion, a court should refrain from making a declaration as to the existence of a fact, when there is no evidence one way or other of the fact. … 141. All of the decisions to which I have been referred in which the presumption of regularity was applied in relation to a development consent are judgements of Bignold J. Most of those decisions can be distinguished from the current case on the basis that the actions in question which were said to give rise to the presumption were performed by a public authority and depended for their validity upon development consent having been granted. In this case the only parties who have acted as if development consent obtained are the proprietors of the shop themselves. 142. The judgment which contains the most extensive discussion concerning the presumption is Manicaland Pty Ltd v Strathfield Council (NSWLEC, 12 December 1997, unreported). This is also the only case referred to in which the presumption of regularity was decisive in establishing that a necessary consent had been obtained 143. In Manicaland the pivotal question was whether consent had been granted in 1962 to the Housing Commission of NSW to construct certain buildings as public housing. The applicant could not produce evidence of a development consent having been granted. It could, however, point to actions which were taken by the Housing Commission in exercise of its statutory power, namely, the construction and use of the buildings as public housing, which depended for their regularity upon consent having been granted. 144. It was recognised (at pars [3]-[4]) that the applicant bore the onus of proving that development consent had been granted, but was assisted in discharging this onus by the presumption of regularity, which was ultimately determinative, there being no evidence to show whether consent was granted or not. 145. In that case Bignold J cited the formulation of the presumption of regularity in Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 (at 164). That statement is limited in its application to public authorities: Where a public official or authority purports to exercise a power or to do an act in the course of his duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled (per McHugh JA). 146. Bignold J also refers to the fact that the actor in question was a public body as an "important" factor in the decision, though he does not go so far as to say that it is determinative: (s)ome facts are clear, namely that the buildings were erected in 1962 and the use for residential purposes commenced in September 1962 and has continued thereafter for nearly 35 years. It is also an important fact that the person responsible for that erection and that use is a public body, the Commission, executing its statutory duties under the Housing Act 1912. Based upon these undisputed facts the presumption of regularity, in my judgement, operates to presume that in carrying out this development the Commission had "obeyed the law" (Dillon v Gange) and "fulfilled the necessary conditions" (Minister of Natural Resources) by obtaining the requisite development consent from the County Council. 147. The other cases where the presumption of regularity has been applied so as to infer the necessary consents are also cases where public authorities have taken subsequent steps upon the understanding that a consent obtained. 148. In P Bartol and Associates Pty Ltd v Randwick City Council (NSWLEC, 26 April 1996, unreported) the Court was asked to infer that consent had been granted to the commencement of a restaurant use, where subsequent consents to modification had been granted and which could only have been lawful if there was a prior consent. Bignold J stated that although the presumption of regularity applied, it was rebutted by evidence suggesting that consent had not been granted. 149. In Australian Posters, Bignold J was prepared to infer, in the absence of direct evidence, that a certain building had been constructed with development consent. There was strong circumstantial evidence of a consent having been granted in that case. Bignold J said, however, that the applicants were also assisted by the presumption of regularity (at 353). That was an unusual case in that the local council had leased the land in question to the NSW Federation of Police Citizens' Boys Clubs on condition that it build a Police Citizens' Boys Club on the land. The Council had subsequently sold the land to the Federation and there had been a change of council boundaries. The successor council had granted three consents in respect of the subject site, on the "acknowledged basis" that the land enjoyed the benefit of existing use rights. 150. The only case referred to which did not share the public authority characteristic was Auburn Council v Nehme (NSWLEC, 19 March 1998, unreported) which concerned the question of existing use rights pertaining to a squash court. The use had commenced on the land in the 1950s. In that case, as in the present case, the only parties who had acted on the assumption that a consent had been granted were the persons who had used the land. Bignold J found that the granting of consent could be inferred pursuant to the presumption of regularity. He did not expound upon the basis for this conclusion. I do not give great weight to this finding as it was purely obiter, the council not having put the question of lawful commencement in issue in that case. 151. The presumption of regularity is clearly not a principle limited to the actions of public authorities. There have been other cases where the presumption has been applied to the actions of private persons. Dillon v Gange (1941) 64 CLR 253 (which is also referred to by Bignold J in Manicaland) was a personal injury suit in which the appellant was injured by a taxi cab owned but not driven by the respondent. A by-law of the City of Melbourne provided that no owner of a taxi cab should entrust his cab to any person to drive except in the capacity of servant. It was found that the presumption of regularity operated in favour of a finding that the respondent had obeyed the by-law, although in the event the presumption was rebutted. 152. There must be some limit to the application of the principle, however, in existing use cases where the law casts upon the applicant the obligation of proving all factual elements required to found the declaration which is being sought (Jones v Sutherland Shire Council noted above, at 327). Lawful commencement is an important matter to be proved if existing use rights are to be established. If the fact of the use having been commenced led to a presumption that consent was granted, the onus would almost always be cast back onto the party resisting the assertion of existing use rights to disprove lawful commencement. 153. I would not, therefore, be willing to find that a presumption that a consent has been granted arises merely because occupants have used the land in a manner which required consent. Something more is required to give rise to the presumption. I would limit the application of the presumption of regularity as found in Australian Posters and its predecessor cases to closely analogous situations. That is, to cases where there is no direct evidence of a consent having been granted and a public official or public authority has subsequently done an act or exercised a power which depended for its validity upon a prior consent having been granted. Those are not the circumstances of this case. 154. There can therefore be no question of an existing use right arising on the battery shop premises. This means that it is not necessary to consider the interesting question raised by counsel as to the effect of cl 33 of Rockdale LEP 2000: whether shops have relevantly ceased to be prohibited on the land, or whether the general prohibition preserves the existing use right and cl 33 purports to derogate therefrom. 155. The dwelling use, however, was lawfully commenced and became prohibited with the coming into force of Rockdale Planning Scheme Ordinance, under which the land was zoned 4(c) Local Industrial. Therefore, existing use rights arose on the portion of the land devoted to the dwelling use. However, the dwelling use subsequently became permissible on 4 December 1981 when the land was zoned Residential 2(b2), and continues to be permissible up to the present day. 156. In disputing the question of existing use rights on No. 717, both parties proceeded on the assumption that if either of the uses on the land had become relevantly permissible, existing use rights ceased to apply. 157. Although the point was not argued, it is worth pausing to consider whether this assumption is supported by the EP&A Act. Of course, an existing use right if it remains will cease to have much of its value when the use becomes permissible again, because the user could rely on either the existing use right or permissibility under the planning instrument for continuance of the use. It is in any case clear that the planning instrument which makes the use permissible cannot require further consent to be obtained for the continuation of the use if it was previously lawful as an existing use (see s 109). If the existing use right does remain, however, it will have relevance in cases such as the present where the user seeks approval to change the use to a prohibited use. 158. The following considerations appear to me to suggest that the existing use is preserved. 159. It may be arguable that as the primary purpose of existing use rights is to provide an exception to a current prohibition, it is axiomatic that land ceases to enjoy existing use rights when that prohibition is lifted by a subsequent instrument. It is clear, however, in this, as in many other cases, that the capacity of existing use rights to pave the way for other prohibited uses pursuant to s 108 of the Act and the regulations may often be their most valuable attribute. This is a benefit which is expressly provided by the Act and the regulations. It is an existing right, meaning that the court should apply the principle of statutory construction "that statutory provisions designed to protect and preserve existing use rights should be as liberally construed as the language in its context allows" (Dorrestijn v South Australian Planning Commission (1984) 59 ALJR 105, 54 LGRA 99 at 105, per Mason ACJ, Deane and Dawson JJ). 160. The Act expressly provides only one way in which existing use rights may be lost, that is, by a condition in a consent requiring surrender of existing use rights, as authorised by s 80A(1)(b). Section 107(2)(e) provides that the protection of 107(1) is not extended to a use which has been abandoned, but does not provide that it ceases to be an existing use. Nowhere in the Act is it expressly stated that when a use becomes permissible under a later planning instrument it ceases to be an existing use under the Act. It cannot therefore be said that the existing use is "extinguished" by the coming into force of such an instrument. It may be, however, that the use for some other reason ceases to fall within the definition of existing use under s 106. 161. The definition of an existing use is as follows: 106 Definition of "existing use" 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 4A of Part 3 or Division 4 of this Part, have the effect of prohibiting that use, … 162. The phrase "the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument..." is somewhat ambiguous. It could be taken to mean that a use is only an existing use at the point in time before the prohibiting instrument comes into force. This interpretation, however, would lead to the absurd result that the protection of s 107(1) was useless, because it only applied before the use became prohibited. Instead, it is usually taken to mean "the purpose for which the building work or land was lawfully used... " at the relevant date. A present category of use is thus defined by reference to a past event. On one reading, if one can identify, in respect of certain land, a lawful use to which the land had been put before an instrument came into force which had the effect of prohibiting that use, that use would for ever after be an "existing use" of that land for the purposes of Pt 4 Div 10, no matter what permissions or prohibitions had been imposed by subsequent instruments. 163. The definition does not explicitly require that the use must still be a prohibited one at the date upon which its existing use status is being asserted. 164. Section 107 then goes on to state that except as expressly provided "nothing in this Act or an environmental planning instrument prevents the continuance of an existing use". This section does not suggest that the existing use loses its status as an existing use when a planning instrument no longer purports to prevent that continuance. Put another way, if nothing in an environmental planning instrument prevents the continuance of an existing use, then an existing use may remain an existing use notwithstanding the coming into force of an environmental planning instrument which may make such use permissible. 165. I turn now to those considerations which seem to me to suggest that a use of land loses its protection as an existing use upon coming into force of an environmental planning instrument which has the effect of making such use permissible. 166. Existing uses are created pursuant to s 106 upon the coming into force of an environmental planning instrument which has the effect of prohibiting the use. It is the coming into force of an environmental planning instrument which makes a particular use an existing use. The creation of an existing use is dependent upon the planning instrument. There seems to be no reason, therefore, why a planning instrument could not operate conversely, so as to make a particular use no longer a prohibited use. Since the creation of an existing use is dependent upon a prohibition in a planning instrument, so too can a planning instrument remove the prohibition. 167. Neither would such a step appear to derogate from the incorporated provisions contrary to s 108(3). If a particular use is no longer by definition an existing use then the incorporated provisions simply do not apply thereto. The incorporated provisions would still be taken to be incorporated in every environmental planning instrument. But the incorporated provisions can and would only continue to operate on existing uses as defined in s 106. 168. A further consideration is s 109. That section operates to allow the continuance without obtaining consent (or further consent if it already has consent) of a use which, upon the commencement of a planning instrument, could only be continued with consent. On its terms, this section must apply as much to uses which were lawful only by virtue of s 107 as well as to uses which commenced with consent or without the necessity for consent. It would be anomalous if the existing use could, at the same time, be controlled by both s 107 and s 108 on the one hand and by s 109 on the other hand, with different consequences. It seems to me that the scheme of Pt 4 Div 10 of the EP&A Act is to allow a use to fall within either the former or the latter. 169. It is also useful to consider the underlying purpose of existing use rights, which is to prevent the hardship which would otherwise be caused to some users of land by the imposition of a new prohibition. Kirby P in Boyts (at 51) described existing use rights as "a transitional derogation designed, for a time only, to cushion the impact of new general planning laws upon private owners with established use of their land". If existing use rights are properly seen as "transitional" in nature, there is little planning law or private law justification for continuing to recognise them after the prohibition which ushered them in has been lifted. At that point, the owner of the subject land is in the same position as all landowners conducting lawful uses and there seems to be no policy reason why he or she should enjoy superior protection. 170. If we consider also the effect of s108 and the regulations, the possibility of obtaining consent to change an existing prohibited use to another prohibited uses has benefits both for the owner, who may continue to take advantage of the existing use without being constrained to continue activities which may have ceased to be viable in the area; and the public, because it facilitates the transition from less to more desirable prohibited uses. It is much less plausible that the legislature would have intended that on all land which had at some time enjoyed the benefit of an existing use, the owner should ever after be able to change a permissible use to a prohibited use. The latter interpretation would have private, but no public, benefits. Such an outcome would be highly detrimental to the orderly enforcement of planning controls in the State. 171. The considerations which suggest that a use of land can lose its status on an existing use by becoming a permissible use seem to me to be persuasive. I am thus inclined to the view, for those reasons, that an existing use can no longer be an existing use upon coming into force of an environmental planning instrument which has the effect of making such use permissible (albeit with consent). In such a case the use would no longer satisfy the definition in s 106. 172. For the above reasons I find that neither the dwelling nor the battery shop, taken in isolation, have existing use rights. 173. I next turn to Mr Maston's submission that the premises as a whole are properly described a mixed use premises as that concept is defined under the current local environmental plan; that mixed use premises are prohibited under this plan and have for this reason acquired existing use rights. 174. As discussed above (at par [66]), it is a settled principle that the scope of uses protected by provisions such as s 107 or 109 are not to be determined by reference to categories listed in the zoning instruments "but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date" (Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-535). It is quite irrelevant to my mind that a later planning instrument has created a category of use which is much broader than any which would be referred to in ordinary terminology, and which by definition comprises two or more unrelated purposes occurring on the same land. Before the coming into force of Rockdale LEP 2000, it would never have occurred to anybody to describe this as the use to which the premises were being put. They were being used, simply, for a battery shop in one part and a dwelling in another. The battery shop part could not have become an existing use because it was not, in any case lawful. The dwelling was not, and did not become an existing use, because it is not subject to any relevant prohibition. Whole of the Land The Applicant's Submissions 175. Mr Maston for the applicant submits that, as lots 5 and 6 have been in single ownership at all material times and have been used without regard to the property boundary between them, they should be regarded as a single parcel of land for existing use purposes. 176. It is submitted that Lemworth Pty Ltd v Liverpool City Council (2001) 113 LGERA 8, in which it was held that use of the first floor of a building for a brothel did not confer existing use rights on the car park or the ground floor of the building, should not be followed in that it is inconsistent with the decision of the Court of Appeal in South Sydney City Council v Houlakis & Teakdale Pty Ltd (1996) 92 LGERA 401. In the latter case Clarke JA said that the words "enlargement, expansion or intensification" in the Regulation embodied the "notion of increase" and that the words should be given a wide rather than narrow construction. Mr Maston also submits that Cowdroy J in Lemworth failed to consider the effect of s 107(2)(b) of the EP& Act, which sets the boundary of the actual existing use, in conjunction with s 108 and the regulations which allow the area of that use to be expanded with consent. 177. Mr Maston submits that the Court should instead follow Steedman v Baulkham Hills Shire Council [No. 1] (1991) 87 LGERA 26 at 27, in which it was held that existing use rights for the purposes of an extractive industry may attach to land not physically used for that purpose if the whole land is rightly regarded as a unit; and Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 in which it was suggested that ordinarily on small urban allotments the whole parcel of land will be treated as one for existing use purposes. 178. Contrary to the respondent's submission that the six occupancies make it impossible to regard the land as a single unit, the applicant cites Baulkham Hills Shire Council v O'Donnell (1990) 69 LGERA 404 for the proposition that there is no limit to the number of uses, including existing uses, which may subsist on one unit or parcel of land. 179. Mr Maston asserts that the small size of the land in the present case and the fact that buildings straddle the internal property boundary should lead to a finding that whatever existing uses have been found encompass the whole allotment. The Respondent's Submissions 180. Mr Parry, for the respondent, submits that the recent statements of principle in Salvation Army v Newcastle City Council (2000) 107 LGERA 40 and Lemworth v Liverpool City Council offer the correct approach to the extent of existing uses under the current Act and the applicable regulations (which in the present case is the 1994 Regulation). That is, that the entitlement to change a use and to expand the area physically subject to the use is limited to the land on which the existing use was taking place immediately before the coming into force of the relevant prohibition. 181. Therefore, in order to obtain the first declarations which it seeks, the applicant would have to demonstrate that an existing use right for at least one of the established purposes obtained on each constituent part. For example, it would have to show that the plaster warehouse at No. 713 and the mechanic's workshop at No. 711 were in some sense being used for the purpose of a battery shop or a dwelling or a wrought iron manufacturer if those were the existing uses which were found on the land. 182. According to Mr Parry, the fact that there are five different buildings on the land which have at all relevant times been divided into a total of six separate occupancies, must lead to a finding that the existing uses which have been established did not extend beyond the areas which were leased for those purposes. Because of the distinct occupancies, it could not be said that any of the areas was at any time caught up with the use of another area, or held in reserve for that use. It should be found, as in the Salvation Army case, that different areas within a single allotment may be subject to different uses when the allotment is not operated relevantly as a unit. Conclusions 183. In Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 it was held that land which was part of an allotment on which an existing use was conducted, but not physically used for the relevant purpose at the date when an existing use came about might, in certain circumstances, be held to have the benefit the existing use. Barwick CJ went so far as to say that it would be a rare case in which "a line can properly be drawn within a suburban allotment confining the existing use of the allotment to the area of physical use" (at 274). However, that case does not simply say that a suburban allotment must always be regarded as subject to a single use. The majority in that case reached its decision after taking into account a multitude of factors including common ownership and occupancy; the purpose for which the land was purchased; legal boundaries and the fencing of lots; and whether the land was kept vacant for future expansion. As Walsh J stated at 278: 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 that in some cases 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. But I am of the opinion that where a relatively small area is held by one owner and none of it has been used in fact for any purpose different from that for which a part of it has been used, it should generally be regarded as being all one parcel for the purpose of determining what land has been put to that use. 184. Eaton pre-dates the EP&A Act, sub-s 107(2)(b) of which provides that nothing in sub-s (1) authorises "any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned". This sub-section does not change the definition of existing use, only the extent of what might be done without obtaining further consent. It is to be noted that although cl 40(1) of the 1994 Regulation specifies that any enlargement, expansion or intensification, must "be carried out only on the land on which the existing use was carried out", it does not contain the "actually physically and lawfully used" limitation. Its effect is that, while the whole of the land in some circumstances might continue to be regarded as having the benefit of an existing use in the broader sense, the proprietor needs consent under the Regulation to expand the actual physical use within that area. 185. The effect of the equivalent sub-s in s 109 of the EP&A Act was described by Priestley JA in Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 25 NSWLR 580 (at 588): that a growing awareness of the need to control the environmental impacts of inappropriate existing development had led to the need to restrict what might be done without obtaining further consent, so that the consent authority would retain the power to decide after appropriate investigation whether any enlargement, expansion or intensification to pre-existing developments should be allowed. Although the concept of what an existing use authorises has changed, the broader concept of the existing use remains relevant to determine what may be done with consent. 186. The broader concept of use (in the Eaton sense) defines the boundaries within which the use may be expanded and changed with consent. In the present case the applicant is seeking consent both to change the use of the land to another prohibited use and expand the use to cover the whole of the land. The principles described in Eaton and related cases continue, therefore, to be relevant. 187. A useful summary of the approach to be taken in determining the extent of a use, which takes into account the earlier cases, is to be found in Steedman v Baulkham Hills Shire Council [No. 1] (1991) 87 LGERA 26 at 27 (per Meagher JA): It is also clear enough on the authority of these cases, that the land subject to the determination should be capable of identification as far as possible in a way which avoids detailed investigation and complicated disputes of fact; that land can be used for a lawful purpose without there being an actual physical use of it; that 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; and that if some part of the land was used for mining or extractive purposes, the fact that the balance of the land was held in reserve and intended for future use does not derogate from the fact that in law the whole of the land was used for mining or extractive purposes. 188. In Salvation Army v Newcastle City Council (2000) 107 LGERA 40, Pearlman J adopted the above principles as a starting-point for determining the extent of existing use rights. In that case a panel beating business which was an existing use had been conducted on a small part of a larger rural holding, while the rest of the land was used for a permissible purpose. The applicant, as in this case, sought to show that the whole holding enjoyed the benefit of the existing use, so that it might be possible for it to obtain consent to change to another prohibited use and extend that prohibited use well beyond the area physically occupied by the panel beating business. 189. One of the determinative factors which led Pearlman J to find that the whole of the land was not being used as one unit for existing use purposes was the fact that the portion of the land on which the existing use was taking place was separately leased to the user, whereas the owner of the land continued to effectively occupy the remainder by putting it to a grazing use. Another important indicator was that the development consent relating to the existing use described the use as taking place within limited parts of the land. The same factors are critical in the present case. (In the result, Pearlman J held that one distinct part of the property was used for the existing use and another part for the purpose of grazing livestock; that there was no evidence that the part which was not used for the existing use was being held in reserve for future expansion; and it followed that the applicant had failed to established existing use rights to the whole of the land.) 190. The correctness of the recent judgement of Cowdroy J in Lemworth Pty Ltd v Liverpool City Council (2001) 113 LGERA 8 was strongly debated in the present case. The factor which made that judgement distinctive was the ruling that the "land" to which an existing use was restricted might be only a single floor of a building and that in such a case the existing use did not extend vertically to other floors in the building (at 12-13). Insofar as the judgement was concerned with the scope of existing uses generally it does not depart from the principles laid down in authorities such as Eaton and Steedman. 191. There is no inconsistency between the decision in Lemworth and the decision of the Court of Appeal in Houlakis. In the latter case the issue was whether an extension in the trading hours of a hotel was an enlargement, expansion or intensification of the use within the meaning of s 109(2)(c), which requires consent to be obtained for any such enlargement, expansion or intensification. Clarke JA's finding that the concepts should be given a broad rather than a narrow definition actually limits the kind of changes which might be implemented without the requirement for consent. This case makes no comment on the kind of physical expansion which may be consented to if consent is sought. 192. In the present case I have found that the only existing use right arising on the property is for the purpose of a wrought iron factory. The boundary of the area known as No. 709 forms the limit of the actual physical lawful use of the land for that purpose. 193. A consideration of the authorities discussed above means that a declaration that the whole of the land enjoys existing use rights can only be made if I find that whole of the land known as Nos. 709 to 717 was used for the purpose of a wrought iron factory before the coming into force of the relevant prohibition. 194. To state the question in this way is to answer it. The applicant would have to show that the areas which have not been found to have existing use rights on their own account, namely Nos 713, 715, 711 and 717, were in some sense being 'used' for the purpose of a wrought iron factory, in spite of the fact that they have been proved to have quite distinct uses. The applicant has not seriously attempted to do this and that conclusion is not supported by the evidence. A more promising course for the applicant may have been to attempt to show that the whole of the two lots was being put to some kind of composite use, such as that of an industrial estate, but this was neither pleaded nor suggested in argument, and would have presented its own difficulties of proof. 195. In Baulkham Hills Shire Council v O'Donnell (1990) 69 LGERA 404 it was decided that a number of uses, including existing uses, may subsist on one unit or parcel of land. In that case the land was used simultaneously for a riding school and a quarry, with neither of the uses predominating. It was found that the land was operated as one unit, so that both uses applied to the whole of the land. This does not really assist the applicant's case. It may be possible in theory that all of the uses which have been established, existing and other uses, can take place simultaneously on the same land, but in this case the evidence shows to the contrary that they took place on distinct areas of land which were separately leased to different occupants. 196. In the present case the fact that the land has been divided into at least five (and possibly six) separate occupancies for over fifty years is a strong indicator that the land should not be treated as a single unit for existing use purposes. It is, of course, the actual use of the land, rather than the legal terms of occupation which is determinative, but in this case the separate leases clearly have led to a distinct separation of the uses taking place on the land. All of the evidence from witnesses tends to show that the areas which have been separately leased represent the boundaries of the various uses conducted therein. If more than one of the separate portions of the land had been leased by the one party, it might have been easier to show that a second portion was being held in reserve or in some other sense devoted to the same use as the first portion; but where each has been leased separately (there being no evidence to the contrary) it is natural to assume that each tenant has conducted its business within the confines of its allotted area. 197. The terms of the consents which have been tendered also show a clear separation of the uses. In the case of No. 709, the consent indicates that the use is to take place within the building leased for that purpose. One can infer that the land immediately surrounding the building was used for a purpose related to that use, especially the parking of vehicles and the loading and unloading of goods, but for the use to be extended to any of the other buildings on the land or their curtilage would have been outside what was permitted by the consent. 198. Confirming the existing use in this way is entirely consistent with the principles explained by Walsh J in Eaton (noted in par [183] above). The physical use for a particular purpose of a small portion of a larger holding does not warrant a finding that the whole of the building was used for that purpose in a case such as this, where other distinct parts of the holding were used for purposes different from that for which part of it was used. In these circumstances the larger holding should not be regarded as being all one parcel for the purpose of determining what land has been put to that use. 199. I therefore find that the applicant is not entitled to the declarations which it seeks. 200. The orders of the Court are: (1) The application is dismissed. (2) The question of costs is reserved. (3) The exhibits may be returned. I hereby certify that the preceding 200 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd

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