Haddad v Council of the City of Ryde

Land and Environment Court (NSW)|2016-08-30

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. LDA2015/335 for use of the site as 'business premises' (the proposal) at 9/3 Reserve Street, West Ryde (the premises) by the Council of the City of Ryde (the Council).
The appeal was subject to mandatory conciliation on 20 April 2016, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 9 June 2016, pursuant to s 34(4) of the LEC Act.

Issue

The Council's contention is that the use of the premises as 'business premises' is prohibited in the R4 zone and the existing premises no longer benefits from existing use rights as a 'doctor's surgery' under Division 10 of the EPA Act, because although existing use rights existed at the time the use was prohibited under the relevant environmental planning instrument, those rights were abandoned by the applicant in 2014.

Background

The chronology of events leading to the development approval of the existing building in 1964 were as follows (from contents of Council's property file for 3 Reserve Street West Ryde, dating from July 1960, exhibit 5):

Letter dated 15 October 1963 from G.L. and G.D. Howe (Dr G.L. Howe) to The Shire Clerk of Ryde Council stating 'We are in the process of purchasing No. 3 Reserve Street West Ryde and are anxious to building up to twelve home units on this site, or the maximum number Council would approve. It is proposed that the ground floor unit on the street frontage should be modified to have professional rooms for our use. Would you kindly put this matter before Council for their approval in principle … it has become urgent for us to plan for new … premises.' (Letter is damaged) (folio 61)
'Application for permission to erect flats or home units Municipality of Ryde' dated 19 November 1963, including, under particulars, '3 Surgeries, Ground floor - Surgeries' (folio 42)
Letter from the architect, Henry L. Divola, to the Town Clerk of Ryde Council dated 19 November 1963. The letter accompanied the application. The reference in the letter is to 'Proposed Flat Development - 3 Reserve Road, West Ryde, with Three Surgeries on Ground Floor' (folio 51)
Architectural plans dated 8 November 1963 by H.L. Divola & Associates for 11 flats and the consulting rooms over 4 levels, showing consulting rooms on the ground floor consisting of 4 consulting rooms, laboratory, toilets and waiting and reception room (folio 45)
Architectural plans dated 15 April 1914 by H.L. Divola & Associates titled 'Amended Sketch of Proposed Development at No 3 Reserve Road West Ryde for Dr G. Howe', for 8 flats and the consulting rooms over 3 split levels, showing consulting rooms of the ground floor in a different configuration to the above plans, consisting of 2 consulting rooms, operating room, laboratory, toilets, waiting and reception (folio 101)
Letter from the architect, Henry L. Divola, to the Town Clerk of Ryde Council dated 17 April, 1964 accompanying the 'further amendment to schemes previously submitted… now complies in all respects with their [technical officers] code of areas etc' (folio 100)
Recommendation to Council that approval be granted to the 'Application for the erection of Flats and Offices' subject to three conditions, with a stamp below 'adopted' Council Meeting 28 April 1964 (folio 64)
Letter from M.L. Donnelly Town Clerk to Mr H.L. Divola dated 29 April 1964 advising that Council resolved that approval be granted to the application subject to the three conditions. The letter includes, 'Would you please note that the above approval refers to your application for a four storey building. It is noted that your recent application for the same property is for a three storey building and this application is at present being given consideration for report to Council.' (folio 69)
Letter from the architect, Henry L. Divola, to the Town Clerk of Ryde Council dated 2 June 1964. The letter accompanied the 'Further Amended Sketch' application. The reference in the letter is to 'Application for erection of a four storey building containing flats and offices for Dr G. Howe, 3 Reserve Street, West Ryde' and referring in the letter to 'Dr Howe's suite of consultation rooms'. The letter states 'the new scheme has all the advantages previously outlined, but is now within the site limits required' (folio 120)
Amended plans referred to in Mr Divola's covering letter, dated 29 May 1964, with no changes to the doctor's surgery from the last amended plan (folio 101) other than the addition of a wc identified as 'public toilet' located adjacent to the stairs access to flats (folio 121)
Town Clerk's recommendation for approval of the amended proposal for the site, dated 7 July 1964 (folio 107) and recommendation for approval, dated 4 August 1964 (folio 106). Both refer to the application as 'Development Application for the erection of flats and a Doctor's Surgery…'
Letter to Mr Divola (signatory not shown on copy) dated 11 August 1964 advising of Council's approval of the amended proposal 'Application to erect flats and Doctor's Surgery' (folio 175)
Building Application approval for the construction of the building dated 25 September 1964 and a certificate of subdivision into 8 strata living units and 1 doctor's surgery dated 17 November 1979 (exhibit 2, p3)

Mr Mantei submits that, despite Ryde Council appearing to have approved the same application twice (firstly for the four storey proposal and secondly for the three storey proposal), the Council is satisfied that the existing building was lawfully granted development consent in 1964. It appears from the wording in the Council's letter at folio 69 of exhibit 5 that the Council may have considered the proposals two different applications.

The proposal

The proposal seeks approval for the use of the existing medical consulting rooms as 'business premises', consistent with the definition of 'business premises' in the Standard Instrument - Principal Local Environment Plan (Standard Instrument LEP), as follows: Business premises means a building or place at or on which: (a) an occupation, profession or trade (other than an industry) is carried on for the provision of services directly to members of the public on a regular basis
Council's contention that there is not sufficient information to approve the proposal (because the proposal seeks consent for use as a business premises without any detail of what the premises are to be used for and, as such, any specific impacts of such a use are unable to be ascertained) is addressed to Council's satisfaction by the imposition of condition 20 on the consent, which states: Condition 20 Further Consent for Specific Use. A separate development application is to be submitted and approved by Council for the specific type of business premises and hours of operation of the business premises prior to operation of the premises.
The applicant does not oppose the imposition of condition 20 on any consent.

Planning framework

The Council submits that the consent was granted pursuant to the County of Cumberland Planning Scheme Ordinance (CCPSO) Part III (a schedule of the Local Government Act 1951). The site was zoned 1. Living Area under the CCPSO and a 'commercial premises' was permitted with consent.
The relevant definition of existing use at s 106(a) of the EPA Act is as follows: 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 4 of this Part, have the effect of prohibiting that use
The Council submits that environmental planning instrument which created the prohibition of the use was the Ryde Planning Scheme Ordinance (RPSO), which came into force on 1 June 1979. Although 'professional consulting rooms' was a permissible use in the relevant zone, (c5) Residential, under the RPSO, the existing doctor's surgery was not caught by the definition of 'professional consulting rooms' as it required the rooms to be attached to or within the curtilage of a dwelling house.
The existing consent is preserved, pursuant to s 109B of the EPA Act. A use is presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months, at sub-s 107(3) of EPA Act.
The Environmental Planning and Assessment Regulation 2000 (EPA Regulation) includes the following relevant clauses: 39 Definitions In this Part: relevant date means: (a) in relation to an existing use referred to in section 106 (a) of the Act - the date on which an environmental planning instrument having the effect of prohibiting the existing use first comes into force 41 Certain development allowed (cf clause 39 of EP&A Regulation 1994 (1) An existing use may, subject to this Division: (b) be altered or extended, or (e) if it is a commercial use - be changed to another commercial use (including a commercial use that would otherwise be prohibited under the Act) (2) However, an existing use must not be changed under subclause (1) (e) or (f) unless that change: (a) involves only alterations or additions that are minor in nature, and (b) does not involve an increase of more than 10% in the floor space of the premises associated with the existing use, and (c) does not involve the rebuilding of the premises associated with the existing use, and (d) does not involve a significant intensification of that existing use.
The site is zoned R4 High Density Residential pursuant to Ryde Local Environment Plan 2014 (LEP 2014) and 'business premises' is a prohibited use in the zone.
The Standard Instrument LEP definition of business premises is as follows: business premises means a building or place at or on which: (a) an occupation, profession or trade (other than an industry) is carried on for the provision of services directly to members of the public on a regular basis, or (b) a service is provided directly to members of the public on a regular basis, and includes a funeral home and, without limitation, premises such as banks, post offices, hairdressers, dry cleaners, travel agencies, internet access facilities, betting agencies and the like, but does not include an entertainment facility, home business, home occupation, home occupation (sex services), medical centre, restricted premises, sex services premises or veterinary hospital. Note. Business premises are a type of commercial premises - see the definition of that term in this Dictionary.

Submissions

The Council submits that in order for Dr Haddad to rely on sub-cl 41(1)(b) of the EPA Regulation, I would need to be satisfied that the premises enjoys existing use rights and in order for the application to be made pursuant to sub-cl 41(1)(e) of the EPA Regulation, the premises could be granted development consent for another use, such as 'office premises' or 'retail premises'.

Expert evidence

Ms Rebecca Lockart, Town Planner, prepared a Statement of Evidence (exhibit 2) in relation to the matter. According to Ms Lockart:

the premises was used for the purpose of 'Law Chambers' on or before December 2014, because advertising signage erected in the window of the premises was photographed by a council officer in December 2014. The signage has been removed by October 2015.
The area of the premises is 735.1sqm and unit 9 includes 57sqm of parking under Strata Plan 14201.
The premises are a purpose built doctor's surgery with four rooms, a kitchen, two toilets, a shower, waiting room and entrance area.

Consideration

There is no dispute between the parties that the premises benefited from existing use rights as a doctor's surgery at the time the RPSO came into force in 1979 and prohibited that use in the applicable zone. The Council contends that the existing use as a doctor's surgery was abandoned by Dr Haddad in 2014, when there was an unauthorised change of use to office premises.
Dr Haddad holds a current Medicare Provider Number (provider number) for the premises at 9/3 Reserve Street, West Ryde. The current provider number has been used by Dr Haddad since 5 May 1995 (letter from Medicare dated 25 June 2016, exhibit C, tab 12 p1). Importantly, a provider number uniquely identifies the medical practitioner and the location from which a service is rendered (exhibit C, tab 12 p2). A medical practitioner must have a different provider number for each premises from which they practise.
Dr Haddad provided an email dated 22 July 2016 from a pathology service provider with the subject heading 'Referral Audit', which includes the total number of individual tests requested by Dr Haddad, from 2007 to the present, using his current provider number for 9/3 Reserve Street, West Ryde (exhibit C, tab 13). Dr Haddad sent 349 referrals to the pathology service during the period '2013 - present'.
I am satisfied that Dr Haddad has established, on the basis of the evidence provided, that the use of the premises as a doctor's surgery has not been abandoned.
Council submits that the use for which consent was granted in 1964 was for a doctor's surgery. The use was variously referred to in documentation at the time the application was being considered by Council as 'professional rooms', 'surgeries', 'three surgeries', 'consulting rooms', 'offices' and 'doctor's surgery'. I accept Council's submission that the 'genus test' of characterisation is not relevant to this matter, as the existing use flows from an existing development consent (Botany Bay City Council v Workmate Abrasives Pty Ltd (2004) 138 LGERA 120 [14]). Clearly the purpose of the premises as approved was to provide accommodation for up to three doctors at any one time to carry out medical consultations with patients. However, nothing turns on characterising the existing use differently to Council's submission that it is a doctor's surgery, as the premises have the benefit of existing use rights and so the application for a change of use to 'business premises' is permissible pursuant to sub-cl 41(1)(e) of the EPA Regulations.
The proposal is to change the existing use from a doctor's surgery to business premises, as the existing use is a commercial use, and a commercial use can be changed to another commercial use, including a commercial use that would otherwise be prohibited under the EPA Act, under sub-cl 41(1)(e) of the EPA Regulations, subject to the limitations at sub-cl 41(2).
The definition of 'business premises' in the Standard Instrument LEP includes two alternative descriptions of the use, at (a) and (b), quoted above. The existing use most closely resembles the description in (a), 'an occupation, profession or trade (other than an industry) is carried on for the provision of services directly to members of the public on a regular basis'. The Council submits that the description of the use in (b) excludes medical centres, which is the equivalent of the 1964 approved use for a doctor's surgery. As the application is for a change of use, there is no reason why the applicant may not apply for a change of use consistent with the description in (b), but notwithstanding this, it is my understanding from Dr Haddad's submissions that he wants to use, or for others to use, the premises for professional consulting rooms, but not necessarily for medical consulting rooms.
I am satisfied that the change of use of the premises to business premises for the provision of professional or similar services directly to members of the public and subject to the limitations that any alterations and additions are minor in nature and do not involve a significant intensification of the existing use, is acceptable, as the proposal will not result in any additional environmental impacts. The future use of the premises as a business premises and any proposed minor alterations and additions are to be the subject of a future development application, as imposed by condition 20 of the conditions of consent at Annexure 'A'.

Conclusion

I am satisfied that, pursuant to sub-cl 41(1)(e) of the EPA Regulations, the proposal to change the existing use from a doctor's surgery to business premises, consistent with the definition of business premises in the Standard Instrument LEP at (a) 'an occupation, profession or trade (other than industry) is carried on for the provision of services directly to members of the public on a regular basis', is acceptable, subject to the limitations in sub-cl 41(2) of the EPA Regulations.

Orders

The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. LDA2015/335 for use of 9/3 Reserve Street, West Ryde, as 'business premises' is approved, subject to the conditions of consent at Annexure 'A'. 3. The exhibits, other than exhibits 1, 3 and A, are returned.

Susan O'Neill Commissioner of the Court 150353.16 - Annexure A (32.8 KB, pdf)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 September 2016

(2004) 138 LGERA 120

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Judgment (12 paragraphs)

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