Gorczynski v Perera & Dee & Ors

The proposed use of the premises is described as:- Real estate office 6 The council granted consent to the use application by Notice of Determination on 27 July 2001, subject to conditions ("the use consent").

Consent granted for the construction of a garage 7 By application for development consent No. D/2001/48 dated 24 January 2001 ("the garage application") the first respondents made application to the council pursuant to s 78A of the Environmental Planning and Assessment Act 1979 (the "EP&A Act") to erect a garage at the rear of No. 80. The description of works contained in the garage application is as follows:- Demolition of existing garage and the erection of new garage.

The proposed use is described as follows:- Garage and storage area. 8 On 27 July 2001 the council granted development consent No. D/2001/48, ("the garage consent") subject to conditions.

Planning instruments 9 The consents were granted pursuant to the provisions of the Leichhardt Local Environmental Plan 2000 ("the LEP") which is applicable to No. 78 and No. 80 (together referred to as "the site"). The site is zoned Residential 2(b)2 under the provisions of the LEP. The zoning table applicable to the Residential 2(b)2 zone prescribes development which is allowed without development consent (item 2) and development which is allowed only with consent (item 3). Pursuant to item 4 of the zoning table all other development is prohibited. 10 Development for the purpose of a real estate agency is not exempt development in accordance with item 2 and does not fall within the types of development listed in item 3. Accordingly such use would be prohibited within the Residential Zone but for the application of cl 23(6) of the LEP which creates an exception allowing commercial use of non-residential buildings in the Residential Zone with consent in particular circumstances. Clause 23(6) of the LEP provides:- 23(6) Commercial use of non-residential buildings in the Residential Zone Consent may be granted to the use of a building or part of a building situated within the Residential Zone for any use allowed only with development consent in the Business Zone, and the alteration of the building so that it can be so used, if: (a) the whole or part of the building was constructed for a non-residential use, and (b) the building is capable of being substantially retained, which means the building must be structurally capable of conversion while meeting building, health, amenity and other environmental planning requirements, without the need for the replacement of most of the structure, and (c) the consent authority is satisfied that the amenity of the locality will not be adversely affected.

The applicant's challenges to the use consent 11 The applicant submits that the council had no power to grant the use consent because the development is prohibited unless the provisions of cl 23(6) are satisfied. The applicant submits the provisions of cl 23(6)(a) have not been satisfied because the whole or part of No. 80 was not constructed for a non-residential use. Relying on the history of the construction of No. 78 and No. 80 the applicant submits that No. 80 was constructed for the purpose of a residence. 12 Additionally, the applicant submits the provisions of cl 23(6)(b) had not been satisfied since the building does not meet building requirements of the Building Code of Australia (the "BCA"). The applicant had adduced evidence from which it submits the Court would find that No. 80 did not comply with building, health, amenity and other environmental planning requirements 13 The applicant submits the matters referred to in cl 23(6)(a) and cl 23(6)(b) are jurisdictional facts, the satisfaction of which are a prerequisite to the grant of consent. 14 The respondents deny the applicant's claims as follows:

(a) The respondents dispute the claim that the satisfaction of the matters referred to in cl 23(6)(a) and cl 23(6)(b) constitute jurisdictional facts and submit that they are each matters of subjective assessment for the council.

(b) As to cl 23(6)(a) the respondents raise matters of fact and law. As to matters of fact, they contend that the evidence establishes that part of the building was constructed for non-residential use. As to a matter of law, the respondents submit that such clause does not require an interpretation that the building be originally constructed for non-residential use. The respondents submit that the council is entitled to have regard to the state of the building when the application for development was made, and is not required to have regard to the use of the building at the date of its original construction.

(c) In respect of cl 23(6)(b) the respondents submit that the use consent concerned a change of user only and did not require any physical alteration to the building. Accordingly, cl 23(6)(b) which requires the council to be satisfied that "the building is capable of being substantially retained" is satisfied at the outset. It follows that since no question of conversion of the structure arises, there is no need for council to consider the matters referred to in such sub paragraph.

(d) Alternatively the respondents submit that, if the requirements of cl 23(6)(b) require that the building meet the relevant building, health, amenity and other environmental planning requirements, there is, or will be by virtue of fulfilment of the conditions attached to the use consent substantial compliance and that any non-compliance is de minimus. Historical evidence

15 Much of the historical information in relation to the site tendered at these proceedings was derived from two sources, namely, the Sands (NSW) Directory ("the Sands Directory") and the Wise's Directory of New South Wales. These sources were precursors to modern telephone books in that they listed the postal addresses of most of the buildings in Sydney and its suburbs and the persons living or working at such premises. These directories also provided the trade or profession of each person listed. The Sands Directory was published between 1858 and 1933 usually on an annual basis. Although its format changed during this time it was regularised by the early 1870's. The Wise's Directory was in a similar format to the Sands Directory although it also included an extensive coverage of rural New South Wales. The Wise's Directory was published once every two years from 1886 then annually from approximately 1900. 16 The construction history of the building incorporating No. 78 and No. 80 was also assessed by inspections conducted of the structures. 17 Three experts have provided evidence. Mr Paul Davies, an architectural and heritage consultant, and Mr Paul Clark, a civil engineer, were retained by the applicant. Professor Richard Mackay, a heritage consultant, gave evidence for the council. Sequence of use and occupation 18 The site was originally part of George Johnston's North Annandale grant made on 8 October 1799 and comprising 290 acres. Part of the land was subdivided in 1876 by Robert Johnston (George Johnston's son) and much of the land was thereafter purchased by John Young, including the site. 19 The evidence establishes that a building had been erected on the site which comprised Lot 26 of section 27 of Deposited Plan No. 638 ("Lot 26") containing an area of 24 ¼ perches by 1889. On 25 January 1893 a lease was entered into between the registered proprietor, William Hastie, to Henry Hall, a butcher. A plan of the Metropolitan Water Sewerage and Drainage Board made on 21 February 1889 appears to show a building at the rear of the site, as does its later plan made in 1893. The Rate and Assessment Books for Annandale Council dated 1896 indicate a building on the site which was occupied by Henry Hall. The Sands Directory for that year records Henry Hall occupying such site as a butcher. 20 In approximately 1902 the site was transferred to Rose Hall, wife of Henry Hall, butcher. In or about the same year the experts agree that construction took place on the site. The experts do not however agree upon one matter, namely whether construction was confined to the building known as No. 78 or whether No. 80 was constructed simultaneously. Mr Clark considered that No. 78 was constructed at a different time to No. 80. However, such conclusion was disputed by Professor Mackay who believed that construction of single building upon the site was more likely. 21 Between 1902 and 1920 the experts agree that a butchery was located on the site (which remained as Lot 26 with successive butchers in occupation). Messrs Clark and Davies believe that there was a butcher occupying No. 78 only which comprised of a shop and later a shop with dwelling above whereas No. 80 was a dwelling which later became a shop and dwelling above. Professor Mackay however believed that between 1902 and 1914 a butchery was likely to have been present in two shop fronts known as No. 78 and No. 80, the business premises being divided by the carriageway. 22 The heritage experts agree that further construction took place on Lot 26 in 1914. Mr Davies considered that such work comprised the construction of a new façade and the whole of the upper floor and possibly minor works on the ground floor of Lot 26. Mr Clark believed the work comprised at least construction of the upper floors, together with a façade which was built in stages. Professor Mackay opined that the work involved a rebuild of the shop fronts across the whole of Lot 26, probably with a new façade. In 1914 the rate and valuation books record the entry "shop and shop" at Lot 26. 23 Between 1914 and 1918 it is agreed by the experts that No. 78 was occupied and used as a butchery. Mr Davies believed that No. 80 was occupied by a Ms Dunningham who was a confectioner who traded elsewhere, then by Mr Robertson who traded at No. 80 as a confectioner. Professor Mackay believed that No. 80 was occupied by confectioners who traded as confectioners from No. 80, namely Dunningham and Robertson successively during the period 1914 to 1918. It is also acknowledged that from 1915 No. 78 and No. 80 were first separately rated. 24 As to physical evidence related to construction, the experts agreed that the ground floors of the site were built in more than one construction phase and that most appeared to have been built in approximately 1902. Mr Clark believed that the walls and either side of the carriageway which separate No. 78 and No. 80 were built at different times to each other and to the rest of the building. Mr Davies considered that it was likely that the carriageway wall of No. 80 was reconstructed in approximately 1914. 25 The earliest entry relating to the use of No. 80 in the Sands Directory is that for the year 1915 when the following entry appears for both No. 78 and No. 80:- 78 Willis Robert, butcher 80 Dunningham Mrs Anne, confectr. 26 In respect of the year 1916 the Sands Directory contains the following entry for No. 80:- 80 Hard, Mrs Annie, confectionery 27 For the year 1917 the Sands Directory records the use of No. 80 as follows:- 80 Robertson Robert, confectionery

Summary of Expert Findings 28 The consensus of the experts may be summarised by concluding that there was originally a building located at the rear of Lot 26. In approximately 1902 construction took place at the front of Lot 26 but the experts are divided in their opinion whether such building comprised one or two shop fronts or a shop front and a residence. 29 In 1914 a new façade and first floor were added to the existing building erected on Lot 26. From 1916 the Sands Directory suggests that separate trading was taking place from No. 78 and No. 80. Accordingly, No. 80 has been used for commercial purposes as least from that date.

Preliminary matter for determination: whether clause 23(6)(a) and (b) constitute jurisdictional facts. 30 Before considering each of the grounds of the challenge specified above an issue arises concerning the interpretation of the provisions of cl 23(6) of the LEP. That is, whether such provisions each constitute a jurisdictional fact (otherwise known as "collateral facts" or "condition precedent") or whether the existence or otherwise of such facts is intended to be a matter for the subjective assessment by the council in the exercise of its statutory power. In the former case, the Court is entitled to determine objectively whether such facts exist. If it is found that these factors were not satisfied council will have lacked the power to exercise the grant of consent. In the latter case the council as primary decision-maker is empowered to determine such matters and the Court in this instance would only have power to determine the reasonableness of the decision concerning the existence or otherwise of the facts in accordance with the principles established in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223. The Court is entitled to consider whether the council, when granting consent, has acted within power if the existence of such power is challenged: see Corporation of the City of Enfield v Development Assessment Commission & Anor (1999) 199 CLR 135 at p. 154-155. 31 In Timbarra Protection Coalition Inc v Ross Mining NL & Ors (1999) 46 NSWLR 55 the New South Wales Court of Appeal considered the relationship of the two competing approaches and in doing so Spigelman CJ reviewed numerous authorities (see pp 63-67). Whilst Timbarra related to the interpretation of a statutory requirement, there is no reason why the same principles are not equally pertinent to the interpretation of the provisions of a local environmental plan. 32 In Timbarra, at p 65 [44] Spigelman CJ stated the distinction between jurisdictional fact and subjective assessment as follows:- The authorities suggest that an important, and usually determinative, indication of parliamentary intention, is whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision-maker or, in some other way, necessarily arises in the course of the consideration by that decision-maker of the exercise of such a power. Such a factual reference is unlikely to be a jurisdictional fact. The conclusion is likely to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power.

33 Sub-clause 23(6)(a) requires the council to be satisfied of matters of fact; 23(6)(b) involves fact and assessment; and 23(6)(c) is concerned with matters of pure assessment. 34 Had each of the criteria contained in sub-cl (a), (b) and (c) of cl 23(6) of the LEP required only the determination of pure fact, such process could be classified as one of jurisdictional fact. However where the criteria involves not only a factual determination but also the satisfaction of matters involving the judgment of the decision-maker then such matters comprise "matters which arise for its [council's] decision in the exercise of its general jurisdiction …" (see the observation of Sir Frederick Jordan in Ex Parte Mullen; Re Hood (1935) 35 SR (NSW) 289 at 298). 35 The provisions of cl 23(6) of the LEP thus empower the council to grant consent for the business use of a building or part thereof within a residential zone and the alteration of the building for that purpose provided three criteria are satisfied as set out in sub-par (a), (b) and (c). The exercise of Council's power to grant such use is contained in the statutory formulation of that power or "necessarily arises in the course of the consideration by that decision-maker of the exercise of such a power" per Spigelman CJ at p 65. 36 The decision making process concerning the satisfaction or otherwise of sub-cl (a), (b) and (c) of cl 23(6) is a manifestation of the exercise of the power bestowed upon council by that clause. It could not be said that such process constitutes an act which is separate and distinct from the exercise of the council's power bestowed upon it by cl 23(6). Nor could it be found that "the process of construction leads to the conclusion that parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts …" (per Spigelman CJ in Timbarra at p 64 [40]). 37 Accordingly, the LEP requires the determination of both fact and of judgment on the part of the decision-maker in the exercise of the power bestowed by cl 23(6). The determination comprises an integral part of the exercise of that power. As such the council's determination of the satisfaction of relevant criteria is not a matter of jurisdictional fact but rather determination of matters incidental to the exercise of the power to grant consent under cl 23(6). Consequence of finding as to jurisdictional facts 38 As a result of the Court's finding that the provisions of cl 23(6) require council to be satisfied subjectively of the requirements of sub-par (a), (b) and (c) the Court is not required to make a determination concerning the correctness of the factual matters contained therein. Accordingly it is not necessary for the Court to determine, as a matter of fact, whether No. 80 was constructed wholly or partly for non-residential use. It is also unnecessary for the Court to make any finding in respect of the submission of the respondents that the Court is entitled to construe such clause as pertaining to the state of the building as it exists at the time of the application, rather than of the building as originally constructed. Further, the Court is not required to determine whether, as a matter of fact, the building complied with the requirements of the relevant building codes, nor to adjudicate upon the submissions raised by the respondents that the provisions of cl 23(6)(b) had no application in any event because no physical conversion of the building was proposed.

39 The Court is required, however, to assess whether the council's decision in granting the consents was reasonable within the Wednesbury sense. Whether council's decision was unreasonable 40 To test the reasonableness of council's decision in the Wednesbury sense it is necessary to have regard to the information that was before council when it made its assessment of those matters referrable to cl 23(6) of the LEP.

Reasonableness regarding decision in relation to requirement of LEP cl 23(6)(a) 41 Clause 23(6)(a) does not necessarily require that the whole or part of the building, the subject of the development application, be originally constructed for a non-residential use. If such a narrow construction were adopted, it would lead to the result that no cognisance could ever be given to the fact that an old building may have been renovated or substantially altered to adapt it from one use to another. The question is whether the building at the date of the application before council, was constructed wholly or partially for a non residential use. 42 The land upon which the building comprising No. 78 and No. 80 remained un-subdivided until the registration of deposited plan No. 231539 on 9 December 1966. It is not disputed that at least No. 78 operated as a butcher shop since approximately 1902. The contention is whether No. 80 was constructed separately to No. 78 and if so whether it was constructed for commercial or non-commercial purposes. 43 A statement of environment effects accompanied the application for the change of use of No. 80. In section 2.3.2 entitled "Land Use History" a summary of the Sands Directory prepared by Sue Rosen & Associates, Historians and Heritage Consultants for the years 1915-1933 was incorporated. The extract contained the following:- In summary, the premises at 80 Booth Street appears to have been used as a shop in the period 1915 to 1931, that the use as a shop or commercial premises continued, in all likelihood, until the late 1960's when, in 1968, Council approved its use as a photographic studio and a residence. It has been used for other retail/commercial purposes since 1968. 44 The statement also contained the following (at p. 15):- · Part of the building was constructed for a non-residential use. The property was originally constructed for at least partial non-residential use. As set out in Section 2.3 of this report, records dating back to 1915, (which is believed to be soon after the property was constructed), indicate that premises was used for the sale of confectionary [sic.]. Thus, it is apparent that part of the subject building was constructed for a non-residential use.

45 Prior to council's decision to grant consent for the use application it was provided with a report for a meeting held on Thursday 19 July 2001 entitled "Building and Development Council Meeting" ("the report"). The report noted that the existing premises at No. 80 satisfied the requirements of cl 23(6) because, inter alia:- (a) Part of the building has been constructed and used for non-residential purposes in the past; … 46 The report noted the entries in the Sands Directory and states:- Since 1927 there is evidence that the premises were used as a shop and residence although the accuracy of this data cannot be relied upon. Notwithstanding this comment, the premises have been partially used for commercial purposes as is demonstrated by council's records.

The above information supports that part of the building was constructed for a "non-residential use". 47 Whilst the experts have sought to establish the precise uses of No. 78 and of No. 80 prior to 1915, no consensus has been reached which suggests that the council's conclusion was erroneous, nor can the Court make such finding. Further, in determining whether a decision is Wednesbury unreasonable the Court must consider the evidence before the primary decision maker. It is an established principle of judicial review that a court must not set aside a decision of an administrative tribunal unless a manifest error has been demonstrated: see Wednesbury per Greene MR at p. 228, 230, 233-234; Minister for Aboriginal Affairs v Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at p. 40-41, 72; Caledonian Colleries Ltd & Ors v The Australian Coal and Shale Employees' Federation [No.1] (1929) 42 CLR 358 per Isaacs J at p. 547, 548, 549; Australian Heritage Commission v Mount Isa Mines (1995) 60 FCR 456 per Black CJ at 465.

48 Council was entitled to apply cl 23(6) by reference to that state of No. 80 as it existed when the use application was made. That is, were such premises then configured or constructed wholly or partially for a non-residential use? In view of the evidence before council of a partly commercial use of No. 80 since 1915, council's decision that the requirements of cl 23(6)(a) were satisfied was not unreasonable.

Reasonableness regarding decision in relation to clause 23(6)(b) of the LEP 49 It is necessary to determine whether council's decision that the building met the requirements of cl 23(6)(b) was unreasonable in the Wednesbury sense. The Court finds that there is a requirement implicit in the text of cl 23(6)(b) that the building, prior to conversion was capable of meeting the applicable building, health and amenity standards. 50 The statement of environmental effects which accompanied the development application in respect of the change of use referred to the requirement of cl 23(6)(b) of the LEP. It states, inter alia:- The current application does not propose any alterations or additions to the existing structure, including structural changes, partitioning or fitout. Most, if not all, of the ground floor area has been used for commercial purposes in the past. The rear area and first floor area require no modifications for use as real estate offices. The assessment by Leichhardt Council of the earlier DA for the use of the Site as a real estate office in 2000 (D/2000/434) suggests that Council's health and building department had no concerns with the suitability of the building for use as a real estate office. The impacts on amenity are considered minimal, as discussed in Section 5.3.6 of the SEE. In summary, the building can be fully retained, and is eminently suitable for use as a commercial premises. No structural modifications are required to convert the former first floor residential areas for commercial use.

51 The report (see p. 10) for the building and development council meeting held on Thursday 19 July 2001 contained the following relevant statement:- (c) The current application does not propose any alterations or additions to the existing structure, including structural changes, partitioning or fitout. Some minor building works would be required to comply with the BCA requirements in terms of fire protection. The first floor can readily be converted for use as a real estate office. Therefore, the building is capable of being fully retained and capable of conversion for commercial use which complies with relevant building and planning instruments. The report also stated (see p. 11):- The proposed signs are of a minor nature and will generally have minimal impact onto the nearby heritage item and conservation area. The terrace to the east has a fascia sign and signs attached to the front façade of the building. Therefore, these additional signs upon the subject property are of a magnitude which is considered to be acceptable for this streetscape. 52 Having considered the matters, council granted the use consent, subject to conditions. BCA, as follows:- 9. Interim/Final Fire Safety Certificate Prior an Interim/Occupation Certificate being issued by the Principal Certifying Authority, and Leichhardt Council the owner of the building shall furnish to the Principal Certifying Authority a final/interim Fire Safety Certificate with respect to each essential fire safety measure specified in the current Fire Safety Schedule for the building to which the Certificate relates. The Certificate shall state: (a) That each essential fire safety measure has been assessed by a properly qualified person. (b) That each essential fire safety measure was found, when it was assessed, to be capable of performing to a standard not less than that required by the current Fire Safety Schedule for the building to which the certificate is issued. Reason: To ensure the safety of persons in the event of a fire. 10. Emergency Lighting An emergency light complying with AS 2293 (Part 1) must be provided to serve the internal stairway in accordance with the requirements of Part E4 of the Building Code of Australia. Reason: This condition is to ensure the safety of persons in the building in the event of fire. 11. Portable fire extinguishers A portable fire extinguisher and fire blanket must be provided adjacent to the ground floor kitchen area in accordance with Part E1 of the building Code of Australia and are to be maintained in accordance with the AS 2444. Reason: This condition is to ensure the safety of persons in the event of fire and for the suppression of fire ad the prevention of fire. 13. Interim/Final Fire Safety Certificate The owner of the building must certify to Leichhardt Council every year that the essential fire safety measures installed in the building have been inspected and are capable of operating to the required minimum standard. Reason: This condition is to ensure that there is adequate safety of persons in the building in the event of fire and for the prevention of fire, the suppression of fire and the prevention of spread of fire in accordance with the Fire Safety Schedule. 16. Compliance with Building Code of Australia 16.1 All building work (other than work relating to the erection of a temporary building) must be carried out in accordance with the requirements of the Building Code of Australia (as in force on the date the application for the relevant construction certificate or complying development certificate was made). 16.2 This clause does not apply to the extent to which an exemption is in force under clause 80H or 80I, subject to the terms of any condition or requirement referred to in clause 80H(6) or 80I(4). 53 Additional matters were incorporated into the consent which were described as "advisory". They included, for example, certification of a smoke alarm in the building. 54 Council addressed all of the relevant matters specified in such clause, and the conditions so imposed were intended to address them. The Court finds that the council's decision regarding compliance of the requirements of cl 23(6)(b) was not unreasonable in the Wednesbury sense.

Alternative findings to applicant's challenge 55 The Court has found that compliance with cl 23(6)(a) and (b) of the LEP do not constitute jurisdictional facts. In view of the detailed evidence that has been heard the Court considers that it is appropriate to state its hypothetical findings had compliance with such clauses constituted a matter of jurisdictional fact.

Expert evidence 56 Mr Paul Clark (civil engineer) provided evidence for the applicant that there were various non-compliances with the requirements of the BCA in respect of the building at No. 80. Mr Clark considered that such matters, namely structural deterioration due to loss of mortar in joints and damage to the western wall caused by footing movement were largely the result of the age of the building. Mr Clark considered the dividing wall in the adjoining roof space between No. 78 and No. 80 created significant problems in relation to ability to resist the spread of fire. Mr Clark said that the former garage would not comply with various requirements of the BCA. Mr Clark drew attention to the fact that the stormwater drainage in the courtyard of No. 80 did not comply with the requirements of the council or of the BCA. Additionally he noted that a sewer did not lie entirely within the easement of the drainage and accordingly a section located beneath the garage would be inaccessible to the owner of No. 78. 57 For the first respondents, Mr Nicholas Mitchell (structural and civil engineer), provided evidence in relation to the matters observed by Mr Clark. As to the external surfaces, Mr Mitchell noted that there was some movement and cracking to the building known as No. 78 and No. 80. As to the internal alleged defects, he noted differential movements between ceiling panels and walled sections which he considered to be slight. In the addition to the rear of No. 80 he observed moderate differential movements between ceiling panels and walled sections. Mr Mitchell disposed in his affidavit sworn 7 June 2002:- 10. It is my opinion that the structure of No. 80 is currently in a stable and serviceable condition. The general condition of the building is sound and the classification of damage to AS2870 would be category 2 to 3 slight to moderate. 58 Mr Mitchell continued: 11. The various defects noted are considered to be part of normal building maintenance for a building of this age and type , they are defects which should be repaired in due course to prevent further deterioration of the building, but in my opinion, in no way do they affect the safety of the occupants or overall stability of the building. 12. With respect to the requirements of the Leichhardt Council LEP Clause 23(6), in my opinion, the use of the building as a Real Estate office would not require the replacement of most of the structure. The walls, floors and roofs could be substantially retained with minimal structural alteration required to make the building suitable for office use. 59 Mr Mitchell viewed a video recording of investigations of the sewer line servicing No. 78 and No. 80. He observed some misalignment between pipe segments but concluded that there were no major defects in the sewer system. Mr Mitchell also examined the condition of the stormwater and reviewed video recordings of the stormwater line. He concluded that the stormwater line showed that maintenance was required due to misalignment between pipe segments, roots, soil and a major break in the pipe. 60 Mr Mitchell concluded that the maintenance of the sewer was not unusual considering its age and type. He added that it is normally the responsibility of both owners to maintain the common sewer drainage line.

Findings: use consent 61 In respect of cl 23(6)(a), the Court finds that No. 78 and No. 80 prior to 1914 comprised one building. That is, in the absence of any subdivision of the land upon which the building was erected the building was indivisible. Whether a portion of the building, now known as No. 80, was built at the same time as No. 78, or at a later time is immaterial, since there was only one building. 62 The expert opinion is so divided upon the history prior to 1914 of the building that no finding can be made that No. 80 was constructed at a later date to No. 78. The experts agree that there was substantial building work undertaken in 1914 to the existing building. Up to that date the building comprised at least, in part, commercial premises. Such work included the provision of new facades, and the upper stories to the building. Such work has remained substantially in tact. The report for the building and development council meeting on Thursday 19 July 2001 records that during the assessment of a development proposal of 19 May 1988 (DA 124/88) the following observations were made:- The subject building and its pair at 78 have original fully glazed shopfronts at ground floor level. Given the character of the ground floor façade it is considered that the front room is not suitable for residential use. 63 Accordingly, at least as at 1988 the council was satisfied that at least part of No. 78 and of No. 80, that is, part of the whole building, was used for non-residential purposes. Council records also establish as follows: The above demonstrates that the site has a history of being partially used and constructed for non-residential use that can be traced back as far 1968 using Council records. 64 Council in its report had adopted the view that it should consider, for the purpose of cl 23(6)(a) whether, for the application of cl 23(6), the building had been constructed for such purposes at a date prior to consideration of the application before it. It did not regard it necessary to revert to the original construction to establish compliance with cl 23(6)(a). 65 The Court concurs with the council's approach. Accordingly the Court would have determined, as a jurisdictional fact, that the provision of cl 23(6)(a) had been satisfied. 66 With respect to cl 23(6)(b), the Court would have found, had the facts been jurisdictional facts, that the clause was satisfied since the building was capable of being "substantially retained". No physical work to the structure of the building was proposed and accordingly the explanation which follows after the words "retained" becomes otiose. Alternatively, even if such finding should have been incorrect, the Court would find that the conditions attaching to the consent adequately addressed all matters of "building, health, amenity and other environmental planning requirements" and that any other matters which were not the subject of the conditions were so trivial to be of no consequence.

The garage consent (Consent D/2001/48) 67 The first respondents became aware that the existing garage had been built without council approval. An expert report prepared in relation to the structural integrity of the existing garage revealed certain defects. Accordingly, the first respondents sought consent to demolish the existing structure and to replace it with another structure. Simultaneously the council issued an order pursuant to s 121B of the EP&A Act requiring the demolition of the existing garage. 68 At its meeting of 17 May 2001 the council resolved that the application for development consent be deferred for consideration in conjunction with the use application. A report prepared for the building and development council meeting on Thursday 19 July 2001 records that the garage consent had been "reassessed having regard to the change of use application". The change of use application was that referred to above, namely the use consent. 69 Such report referred to the history of the site and to certain litigation that had taken place in this jurisdiction which are not relevant for the present purposes. The report noted that the proposed structure was permissible with consent in the zone provided its use was ancillary or incidental to a lawful use of the site. The report stated:- The use of the garage is appropriately dealt with as part of the application before its erection. 70 The report of council observed that a sewer line ran beneath the existing garage. In this respect the report noted as follows:- The application proposes to construct a concrete casing around the existing sewer line in the area below the new garage. The existing pipes which service both 78 and 80 Booth Street are understood to be clay pipes and their condition is unknown. The applicant has subsequently advised that they intend to excavate around and expose the pipes during construction to allow inspection. Sections of pipe found to be damaged will then be replaced as needed with new sections prior to encasing as part of the construction process. 71 The report demonstrates that the council had considered the objection of the applicant in respect of the sewerage line and other issues raised by him. The report shows that great care had been taken by the council officer to address all issues relevant to a proper assessment of the development application pursuant to s 79C of the EP&A Act. 72 Council duly granted consent, subject to numerous conditions.

Challenges to the garage consent 73 The applicant makes the following challenges to the validity of the consent:

(a) The applicant claims that the use of the garage at No. 80 constitutes prohibited development in the residential zone under the LEP since it was granted for the same purpose as that of the principal use of No. 80 which is a prohibited use. (b) The applicant submits that the operation of cl 23(6) is predicated upon the existence of a building at the date of the application for development. That is, there is no power in council to approve a new structure. The applicant relies upon the text of cl 23(6) which refers to the circumstance of the change of use of a building, and if necessary, its conversion. The applicant further submits that council did not purport to rely upon cl 23(6).

Findings: garage consent 74 Council expressly assessed the application for the new garage "having regard to the change of use application". The council expressly noted:- The proposed structure is permissible with consent in the zone provided its use is ancillary or incidental to a lawful use of the site. 75 Clause 7 of the LEP contains general provisions relating to development of land and cl 23(6) enables a commercial use of non-residential buildings in a residential zone, thus providing an exception to development in the Residential Zone. Accordingly, a valid grant of consent to use the building for commercial purposes in the Residential Zone would permit the incidental use of a garage, used in conjunction with the business. That is, the whole allotment is entitled to the benefit of the use: see Steedman v Baulkham Hills Shire Council [No. 1] [1991] 87 LGRA 26 at 27. Although a real estate use is not a permissible use as provided by cl 18 of the LEP in the Residential Zone, it becomes permissible by virtue of the operation of cl 23(6). 76 Additionally, council possessed power pursuant to cl 7(2) of the LEP to grant consent for the erection of a building and the use thereof for the purpose of dwellings. A garage can be used for the purpose of dwellings. Accordingly, cl 7(2) provides an additional source of power to support the grant of the garage use: see Johns v Australian Securities Commission (1993) 178 CLR 408 at 426: Minister for Urban Affairs and Planning v Rosemount Estates (1996) 91 LGERA 31 at 85-86; J & J O'Brien v South Sydney City Council (2002) 121 LGERA 223 at 230-231. Having granted the use consent council was therefore empowered to proceed to grant consent in respect of the garage consent.

Invalid conditions 77 The applicant asserts that two conditions or paragraphs contained in the section of the consent under the heading of "Advisory - Important information for the applicant" of the garage are uncertain, within the meaning of that term described by the Court of Appeal in Mison v Randwick Municipal Council (1991) 23 NSWLR 734 and are consequentially invalid. The conditions relate to those set out under the heading "Advisory Important Information for the applicant" forming part of the garage consent. The matters relate to the appointment of a principal certifying authority, and the concrete encasement of the sewer. 78 The principle of uncertainty was succinctly stated by Priestley JA in Mison at p 737 as follows:- Certainly, in my opinion, if the fulfilment of a condition imposed upon a consent will significantly alter the development in respect of which the application was made, there has been no consent to the application. Further however, if the effect of an imposed condition is to leave open the possibility that development carried out in accordance with the consent and the condition will be significantly different from the development for which the application was made, then again, it seems to me that the Council has not granted consent to the application made. 79 The applicant's challenge erroneously categorises the nature of the paragraphs. They do not purport to be conditions of development consent. Those are clearly set out in paragraphs numbered to 27.2 of the garage consent. Instead the paragraphs draw the attention of the property owner to matters which, as a matter of prudence, should be taken into consideration when acting upon the consent. The Mison principle of uncertainty applies to circumstances which do not apply here since the directions are purely advisory.

Manifest unreasonableness 80 The applicant claims that the decision of council to grant the garage consent is manifestly unreasonable. In support of such submission the applicant relies upon various matters including the alleged increased and dangerous use of the right of way on No. 78; the impact on the amenity of the residents in No. 78 above and adjacent to the right of way; the fact that the garage consent authorises the obstruction of access to and easement of the sewer. The applicant has relied upon expert evidence of Mr Paul Clark, Mr Protas and Mr Jason Rudd which relate to the noise of traffic using the right of way, the absence of a turning circle in the rear yard of No. 80, the possibility of increased insurance premiums and the positioning of a convex mirror required as a condition of the consent by council. 81 The council submits that the approval of the garage consent does not and would not lead to an increase in traffic using such access. A garage has existed on the site previously and the right of carriage way provides access to the rear of both No. 78 and the rear of No. 80. As a condition of the garage consent, council required the installation of a convex mirror to improve visibility for the stated reason of assisting in manoeuvring from the site and increasing the safety of drivers and pedestrians. 82 In relation to the use of the right of way and of the positioning of the convex mirror, the assessment of Don Fox Planning Pty Limited and evidence of Mr Graham Pindar and Mr Robert Chambers satisfies the Court that the applicant's claims have no merit. 83 The use of the right of way as a means of access to the garage does not constitute a ground of manifest unreasonableness in the Wednesbury sense. Nor is there any evidence to establish that there would be any adverse impact upon the amenity of the occupants of No. 78 by virtue of the garage consent. 84 The applicant also claims that the need to encase the sewer will cause an obstruction of access thereto. This of itself is not a ground of manifest unreasonableness.

Discretion 85 In view of the findings of the Court, there is no occasion for the Court to consider whether in the exercise of its discretion it should refrain from making any order.

Costs 86 The conduct of these proceedings has incurred all parties in substantial costs. Matters of minutae and of trivia have been elevated to issues of major significance supported by expert evidence. In reply, it was necessary for the respondents to obtain expert evidence. At an early stage of the proceedings the Court required the parties to proceed to mediation as it was apparent that the claims should have been resolved by negotiation. The mediation was unsuccessful. The hearing has been prolonged because of the need for the parties to examine and cross examine expert witnesses on each of the issues. All attempts to have these proceedings settled by negotiation have failed despite the repeated suggestions of the Court that the costs and expense of these proceedings were being magnified out of all proportion. In these circumstances the successful parties are entitled to be compensated by an order for costs in their favour (see Oshlack v Richmond River Council (1998) 193 CLR 72).

Orders 87 The Court orders:

1. The application be dismissed.
2. The applicant pay the costs, including reserved costs, of each of the respondents.
3. The exhibits be returned.

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