Kruf & Anor v Warringah Shire Council

In 1958 the land was zoned Rural Area under the County of Cumberland Planning Scheme Ordinance. A Caravan Park was a permissible use by consent; but residential buildings as defined in cl.24 of that Ordinance were prohibited. From 7 June 1963 to 2 October 1985 development was controlled by the Warringah Planning Scheme Ordinance which zoned the land Non-Urban 1(a) and permitted motels with consent. Since 2 October 1985 the Warringah Local Environmental Plan 1985 has been in force. That LEP zones the land as Zone No. 1(a) (Non-Urban "A") in which, subject to cl.28A, caravan parks and motels are permissible by consent. However, cl.28A, which came into force as an amendment on 14 November 1986, provided as follows:-

28A. A person shall not, on any land within Zone No. 1(a), carry out development for a purpose specified in Schedule 9A if any means of vehicular or pedestrian access exists between that land and -

(b) any part of any public road (other than a main road) that is within 90 metres of the intersection of that road with a main road."

Caravan Parks and Motels are included in Schedule 9A, Mona Vale Road is a main road.

The Council gave development consent to the use of the land as a caravan park on 8 April 1958 but, apart from a letter dated 2 January 1968 which I will quote in a moment, there is no evidence in the Council records that approval for the use of the land as a motel was ever granted. I am satisfied that the Council's officers have exhaustively searched the Council's archives and records for any such evidence and there is none. No minute, no instrument of consent, no other record of consent to a motel. There is no record of it in the council's register of consents that is kept specially for the purpose of maintaining records of planning consents. Neither the applicants nor their predecessors in title have been able to produce any letter or other instrument of consent by the Council.

There is a brief extract of a minute that records that an application was made on 5 August 1959 by the then owner for permission to convert the "existing structure" on the land "into motel type development" and that it was recommended that "consideration of this application be deferred" until a dispute with the owner over the display of signs was resolved. A form of consent was drawn up, apparently in anticipation, and is still in the Council's files, unsigned and undelivered. I would conclude that, having been deferred without a decision, the application was never disposed of or consent was not given and the unsigned consent document was simply retained. Apart from the absence of any affirmative record of consent having been given, an obstacle to concluding that consent was or may have been given is the fact that under the planning ordinance then in force any such consent would have been invalid because use of the land for residential buildings was prohibited. This makes it more probable than not that no app roval for the use of the site as a motel was granted whilst that ordinance was in force.

Against these negative indications comes the letter of 2nd January, 1968 on which the applicants place great reliance. It is a letter from the Council signed by the Shire Clerk addressed to Mr. K. O'Malley-Jones, 41 East Esplanade, Manly, which reads:-

In reply to your letter of the 6th December, 1967, Council advises that the Caravan Park consent was granted on 8th April, 1958 and later approval was granted for the usage to be extended to Motel/Caravan Park.

As this use has continued up until the present time, no objection is raised to its continuation."

This letter was obviously written in reply to a specific request for an official statement by the Council as to the planning status and permitted development of the land with particular reference to its current and permissible future use as a Motel/Caravan Park. Its terms indicate that the advice given in the letter was intended to be taken as true and correct and to be relied upon by those to whom it came. A note at the end invited personal inquiries of "Mr. Doyle, Town Planning Department" and the initials "BD" appear on the letter beside those of the Shire Clerk who signed it. The inference is that Mr. Doyle was the source of the information contained in the letter and probably its author. As he worked in the Town Planning Department he might be expected to have custody of or immediate access to records of the Council of planning consents and approvals given by the Council, to have obtained the information stated in the letter from those records and to have stated it accurately.

Of course anyone can make a mistake, but the chances of Mr. Doyle not having done so are immeasurably greater than the opposite. True, no record of such consents can now be found, but Mr. Doyle was writing this letter over 20 years ago when they may well have existed and since been destroyed. Mr. Doyle was in a far better position then than the Council's officers are to-day in ascertaining the true history of the matter.

Counsel for the respondent contends that, if Mr. Doyle was not mistaken, then the Council gave a consent that was contrary to the law and invalid; but that is only so if the supposed consent was given before 7 June 1963 when the Warringah Planning Scheme Ordinance came into force permitting motel development. Counsel then submitted that on the evidence it should be found that the residence units on the land were designed and most likely used not for motel purposes but as residential flats and these were prohibited under the last mentioned Ordinance and could not validly have been approved. The answer to this is that the nature of a development approval is not to be confused with actual use. An approval for motel use is still valid if such use is permissible with consent of the Council even though the premises are actually used for an unauthorised or prohibited purpose. The latter may be restrained by injunction or be the subject of prosecution for an offence without affecting the validity of or rights of user flowing from an approval for a permissible use. Counsel for the applicants pointed out that it was a possibility that there were existing use rights which would have entitled the Council to approve, under cl.34 of the County of Cumberland Planning Scheme Ordinance, motel use as an addition to the caravan park but this would depend on the buildings being used for motel purposes when that Ordinance commenced on 27 June 1951, which, while a possibility, has not been proved.

In my opinion, the letter of 2 January 1968 is a very strong piece of evidence that prior to that date the Council did in fact give its approval to an extension of the use of the land as a caravan park to its use as a motel/caravan park and, on the presumption that such an authority and its officers would act with due regularity, that the approval was valid when given. The absence to-day of confirmatory records and the doubts that have been raised as to the basis upon which such an approval might lawfully have been given are not sufficient, in my opinion, to outweigh the evidentiary force of that letter. On the basis of that letter, I find as a fact that the approval described therein was in fact given by the Council, was validly given, was in force at the date of the letter and has continued to be in force since.

It follows that even if approval could not be or was not granted for the development currently sought, the land would have the benefit of existing use rights to continue as a motel/caravan park. Notwithstanding this, the applicants wish to make their position secure by seeking a fresh development approval for "development as a caravan park and motel".

Their immediate obstacle is cl.28A of the Warringah LEP which in terms prohibits both forms of development because the land has access to Mona Vale Road. The applicants contend that cl.28A imposes a development standard which is unreasonable and unnecessary in the circumstance of the case and seek consent notwithstanding non-compliance: State Environmental Planning Policy No.1, cls. 6, 7. Counsel have referred to numerous cases on the question, notably, Warringah Shire Council v. K.V.M. Investments Pty. Limited (1981) 45 L.G.R.A. 425; and Woollahra Municipal Council v. Carr (1985) 62 L.G.R.A. 263. In my opinion, cl.28A is a clear case of a provision that is not a development standard within the meaning of the legislation. Flexible though the definition of "development standard" in s.4(1) of the Environmental Planning and Assessment Act, 1979 may be, it is not possible sensibly to say that an absolute prohibition on a form of development in a specified locality or under specified conditions is setting a standa rd for that form of development. It is saying that there shall be no such development, not that there may be such development only if it complies with certain requirements or standards. In terms of the definition, there cannot be "requirements specified or standards fixed in respect of an aspect of that development" when there may not be any such development. In my opinion, both K.V.M. Investments and Carr support the conclusion that cl.28A is not setting development standards in the relevant sense. In my opinion it was not open to the Council and is not open to the Court to use SEPP No.1 to allow consent to be given in disregard of the prohibition in cl.28A. It is not necessary to consider an alternative argument for the respondent based on the decision of Cripps J. in Claude Neon Limited v. Rockdale Municipal Council (No. 10545/84, 10 September 1985) that the power to waive a restriction under SEPP No.1 should not be exercised if the effect is to nullify and virtually repeal the provision in question, as wo uld be the case here if consent was given.

In the event that the Court took the view that the land had existing use rights under s.106 of the Act only for a caravan park and not for a motel, the applicants sought consent to a change of that existing use (caravan park) to another use (caravan park and motel) pursuant to s.108(1)(b) of the Act and Regulation 54.

For the Council it was submitted that there was no power under Regulation 54 to add a non-conforming use to a continuing existing use because that involved no change of the existing use to anything else. That had been the view of Cripps J. in Caltex Oil (Australia) Pty. Ltd. v. Canterbury Municipal Council (1983) L.G.R.A. l, which the Council submitted was the correct view. However, McClelland C.J. took the opposite view in Food Plus Pty. Ltd. v. Warringah Shire Council (1983) 50 L.G.R.A. 76; and Cripps J. decided, in the interests of uniformity and comity, to follow that view in Golden Fleece Petroleum v. Rockdale Municipal Council (1984) 52 L.G.R.A. 202 at p.209; and adhered to that decision in Caltex Oil (Australia) Pty. Limited v. Warringah Shire Council (No. 10490/87, 19 October 1988) when asked to depart from it. I was informed by counsel that an appeal to the Court of Appeal is pending against the last mentioned decision. As a judge of co-ordinate jurisdiction I would follow the more recent decisions a nd hold that there is power under Regulation 54 to consent to a change of use from caravan park to caravan park and motel if there were existing use rights only for a caravan park. However, I have found that the land has the benefit of existing use rights for both desired uses at present with the result that there is no change involved and no necessity for the application of s.108(a)(b) or Regulation 54.

If I had been of the view that it was open to grant consent to the present development application a number of conditions would have been attached but, subject thereto, I would have granted consent. The Council tendered in Ex. 15 suggested conditions of approval which, subject to the comments I am about to make as to some of them, were in my view justified by the evidence and would have been made part of the Court's order. Many of the proposed conditions were accepted by the applicant. I will comment on those that were not. The references are to Exhibit 15.

Condition 3 called for landscaping plans to be submitted with any building application. The applicants thought it was unnecessary but, having regard to the rural nature of the area and the land's proximity to Mona Vale Road, I would adopt condition 3.

Conditions 5 and 6 to 9 call for fire protection measures to be taken in relation to the residence units on the second storey of the amenities building. The applicants accepted the need but asked for postponement of 6, 7 and 8 due to summer holiday bookings already made. In my opinion fire protection is too important a safety measure for the public to be postponed and I would have adopted the Council's proposal that the units be vacated until building approval was given and the work completed. Conditions 11(a) and (b) were directed to the same subject with respect to the three single storey residence units and I would not have allowed for undue delay. In the case of condition 11(a) the applicants agreed with the advice of their own expert that the non-combustible material at the dividing wall be extended to the ceiling and I would have amended that condition accordingly.

Condition 12 required the entrance to be widened to 8m. The applicants objected but I agree with the Council.

Condition 20 required no signs to be displayed without a separate approval and the applicants wanted this limited to new signs. There was no evidence of existing objectionable signs but the condition would have been allowed to stand in case there were any.

Three controversial topics remain to be dealt with in the conditions. The Council was very concerned about each of them.

The first was the use being made of the residence units. The Council complained that they were designed with cooking and kitchen and other facilities for use as and were being used, not as motel units, but as residential flats which was a prohibited use and also objectionable as low standard housing. Under the LEP 1985 motel means "a building or buildings (other than a hotel boarding house or residential flat building) substantially used for the overnight accommodation of travellers and the vehicles used by them whether or not the building or buildings are also used in the provision of meals to those travellers or the general public". A residential flat building means "a building containing two or more dwellings" and a dwelling means "a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile". The Council particularly objected to the units being fitted up with cooking and kitchen facilities and conditions 10 and 11((c), required th em to be removed. Condition 15 provided that the motel units were to be used substantially for the overnight accommodation of travellers and not for long-stay residential occupation.

On the evidence I am satisfied that the applicants in the past and at present have not consistently used the motel units for overnight accommodation of travellers. Many occupancies have not been for overnight stay but for extended terms of residence some indefinite, some extending over months, others over weeks. The provision of kitchen facilities is made because the applicants do not provide a breakfast or other food service. Nor do they provide a daily cleaning service. The rooms are serviced twice per week. The occupants live in the units and cook and care for themselves for as long as they stay and pay a weekly charge. Condition 18 would require the proprietor to provide a daily room cleaning service and make available a breakfast service either in a central dining area or direct to the individual units.

The applicants object to all of the conditions just mentioned, 10, 11(c), 15 and 18 but profess that, whatever past use has been made of the 5 units from time to time, they now seek development approval for a legitimate motel operation and will fashion the use of the units accordingly if they get consent for a motel use in addition to the caravan park. In my opinion, having regard to the facilities contained in these units and their suitability to be used as flats and the definition of motel in the LEP the Council was justified in requiring and the Court should support the imposition of conditions designed to ensure that the units are not only in conformity with their professed purpose but do not readily lend themselves to use for a prohibited purpose before consent is given.

Condition 13 proposes that the applicants demonstrate by provision of detail that stormwater can be adequately disposed of on the site by absorption trenches. At present stormwater is either channelled to or allowed to run with the slope of the land to discharge straight on to the rear neighbour's property. The Council's view is that stormwater should either be contained on the site or piped through to a stormwater drain. The neighbour has declined to give a drainage easement for these purposes so the applicants simply discharge it on to his land. The applicants do not think absorption trenches would work. The Council's experts disagree. I prefer the view of the Council's experts and would have required this condition to be included.

Condition 19 had regard to sewage disposal. Clause 45 of the LEP 1985 provides that the Council shall not grant consent unless satisfied that adequate provision has been made for the disposal of sewage. The Council's Engineers are not satisfied. If the stormwater is to be disposed of by absorption trenches there would not be enough area to accommodate those as well as sewage, which includes sullage, effluent from sinks, bathrooms, showers, laundries, that may be disposed of by sullage trenches, if there was room for them, (none being allowed under cabins or caravans) or by the Council's tanker removal service collecting it regularly from storage tanks on the land. The applicants claim that their present system works. The Council objects that, firstly, they do not know that as there is no proof of its performance in peak periods and, secondly, the system only works at the expense of the neighbour's land where the stormwater is discharged because the septic system on the land leaves no room for stormwater absor ption trenches. I accept the Council's witnesses and point of view on this subject . I think it is up to the applicants to provide satisfactory expert proof to cover the whole area of the caravan park and motel units as to the adequacy of both stormwater and sewage disposal and to do so before consent is given. Maybe it can be demonstrated that no tanker service plus absorption trench system is needed; but that is not presently the case. Condition 19 presupposes that the tanker service is required. I would have amended this condition to provide that, unless the applicants satisfied the Council within a limited period that sewage from the site could adequately be disposed of by the existing system and, as well, stormwater from the site could be disposed of without being discharged on to the land at the rear, sewage be disposed of by the tanker system as proposed by condition 19.

However, on the view I have formed, the appeal in relation to the application for development consent will be dismissed and that application refused. The applicants will be left with their existing use rights for the operation of the caravan park and motel so far as the planning laws are concerned and are entitled to have their rights in this respect declared by the Court.

As to the appeal with respect to the application for a certificate under s.317AE, there was a wide divergence of views as to what the Council was entitled to require under that section. Counsel for the applicants insisted that the considerations justifying refusal of a certificate are now extremely limited and did not exist here. He relied on subsections (2), (5) and (6) which read as follows:-

" (2) The council shall issue a building certificate if, following an inspection under section 317AD, it appears that at the date of the inspection -

(a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council -

(i)to make an order under section 317B in relation to the building or part;

(ii) to take proceedings for an order or injunction requiring the demolition, alteration, addition or rebuilding of or to the building or part; or

(iii) to take proceedings in relation to any encroachment by the building or part onto land vested in or under the control of the council; or

(b) there is such a matter but, in the circumstances, the council does not propose to do any of the things referred to in paragraph (a)(i), (ii) or (iii).

(5) The council shall not refuse to issue or delay the issue of a building certificate by virtue of the existence of a matter which would not entitle the council to do any of the things referred to in subsection (2)(a)(i), (ii) or (iii).

(6) Nothing in this section prevents the council from informing the applicant of the work that would need to be done before the council could issue a building certificate or from deferring its determination of the application until the applicant has had an opportunity to do that work."

It was submitted that the Court should issue the Building Certificate if it is satisfied that there are present no circumstances referred to in subsection (2). On this basis it was submitted that of the grounds of refusal set out above, grounds 1 and 2 are irrelevant as the section is concerned only with buildings on the land, not land usage as such (see s.317B), grounds 3 and 4 are likewise irrelevant as Ordinance 71 (Caravan Parks and Movable Dwellings) covers such matters and ground 7 is a matter for development consent. That left only grounds 5 and 6 both of which the applicants accepted except as to the hydrants mentioned in 6 which are not required and not now insisted on by the Council. It was submitted that these residuary matters could properly be dealt with under subsection (6) above if necessary. For the Council it was submitted that no conditional certificate could be given as all deficiencies had to be made good before the Certificate issued. The Council pressed all grounds of objection except as to the hydrants in ground 6 and insisted that the structural changes to the motel units to make them not suitable for residential flats should be made before any certificate issued. The applicants called an expert in building to say that, in regard to the requirements of s.317AE, there was in his view no reason for withholding a certificate under that section.

In my opinion, the submissions of the applicants as to the operation of s.317AE are correct. Under s.317B, the Council may order demolition of a dilapidated or unsightly building or one erected or altered without the Council's approval. Neither is proposed here nor is there any claim by the Council that there is any matter that would entitle it to make such an order or take any of the proceedings mentioned in subsection (2)(a)(ii) of s.317AE. Even if there was, subsection (3) would require the Council to issue the certificate if it did not propose to take any of the actions referred to in para. (a) and the Council did not inform the Court of any such proposal by it in this case. Subsection (5) denies to the Council any right to refuse or delay the issue of a certificate on grounds that would not entitle the Council to take any of such actions. It would seem to me, therefore, that there simply are no grounds or, if there were any, none are put forward in respect of the present application to justify refusal of a certificate under the section. The applicants are entitled to the appropriate order.

For the above reasons the orders of the Court are:-

2. Direct the respondent Council to issue to the applicants a building certificate pursuant to s.317AE and in accordance with s.317AF of the Local Government Act, 1919 in respect of the buildings erected on the land referred to in the application made to the respondent by the applicant's solicitor, T.H. Walker & Co., by letter dated 8 September 1988 being the land known as lot 162, No. 319 Mona Vale Road, Mona Vale.

1. Order that it be declared that the use of the land known as lot 162, No. 319 Mona Vale Road, Mona Vale, and the buildings erected thereon immediately before the coming into force of the Warringah Local Environmental Plan 1985 for the purposes of a caravan park and motel was a use to which the respondent Council lawfully consented and constituted an existing use within the meaning of s.106 of the Environmental Planning and Assessment Act, 1979 and for the purposes of ss.107 and 108 of that Act.

2. Appeal otherwise dismissed and application for development consent dated 7 August 1987 for development of the above land refused.

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