Gorczynski v Perera & Dee & Ors - [2003] NSWLEC 6 - NSWLEC 2003 case summary — Zoe

NSWNSWLEC

Gorczynski v Perera & Dee & Ors

[2003] NSWLEC 6

Land and Environment Court (NSW)|2003-08-15|Before: Cowdroy J, Mr P

View original source

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2003-08-15

Before

Cowdroy J, Mr P

Source

Original judgment source is linked above.

Judgment (35 paragraphs)

[1]

Introduction 1 In these proceedings the applicant challenges two development consents ("the consents") granted by the third respondent ("the council") to the first respondents who became the owners of the property known as No. 80 Booth Street, Annandale ("No. 80") in December 1999. 2 The applicant is the owner of adjoining land known as No. 78 Booth Street, Annandale ("No. 78"). The challenged consents relate to the use of the ground floor of No. 80 and the construction of a garage at the rear of No. 80. Both No. 78 and No. 80 are contained in the same building. The second respondent in these proceedings, Annandale Services Pty Limited, is the tenant of No. 80 and has made a submitting appearance except as to costs. 3 The building on No. 78 and No. 80 comprises a two storey brick structure having ground floor shop frontages to Booth Street, Annandale, and rooms above. The two shops are separated by a carriageway which leads to the land behind the shops. Above the carriageway is a room which forms part of No. 78 thereby joining No. 78 and No. 80. A single storey extension has been erected at the rear of No. 80 which is not connected to the two storey structure. In the rear yard of No. 80 was a brick rendered garage with galvanised iron roof which has recently been demolished.

[2]

Consent granted for the use of No. 80 as a real estate agency 4 Prior to acquisition of No. 80 by the first respondents, these premises had been used for commercial purposes on the ground floor and for residential purposes on the first floor. The council had approved the use of a room on the ground floor for the purpose of a commercial photographic studio. Such use had been extended without permission to the whole of the ground floor. 5 By application for development consent No. D/2001/254 ("the use application") dated 30 April 2001 the first respondents applied to the council for the development of No. 80. The description of works for the proposed development is as follows:- Use of the ground and first floor of the existing premises as a real estate office; and for the erection of associated signage.

[12]

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

[14]

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.

[15]

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.

[17]

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.

[22]

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.

[24]

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.

[25]

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.

[26]

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.

[31]

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.