Lemworth Pty Limited v Liverpool City Council

The LEP came into force on 29 August 1997. Pursuant to the provisions of the LEP a brothel is prohibited in areas zoned Business 3(a). However, the use of the first floor by the applicant predated the introduction of the LEP and thus the applicant has the benefit of an existing use as defined in s 106 of the Environmental Planning and Assessment Act 1979 ("the Act").

On 2 August 2000 the applicant lodged Development Application 292/01 ("the development application") seeking consent for the 'alteration and addition to existing commercial premises and use of the ground floor of the premises as a brothel and a shop'.

On 12 October 2000 the applicant instituted this class 1 appeal against the deemed refusal of the development application claiming that the existing use rights applicable to the first floor extended to the ground floor.

8. The development application was refused by the council on 16 January 2001. Statutory provisions

106 In this Division, existing use means:- (a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4A of Part 3 or Division 4 of this Part, have the effect of prohibiting that use, and (b) the use of a building, work or land: (i) for which development consent was granted before the commencement of provision of an environmental planning instrument having the effect of prohibiting the use...

Section 107(1) and s 109(1) each recognise existing use rights. Section 107(1) provides:- Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use. Section 109(1) is to similar effect although, it relates to existing use rights which arise from a previous consent. The rights provided by s 107(1) and by s 109(1) are qualified by s 107(2) and s 109(2) respectively. The provisions of s 107(2) and s 109(2) are identical and for convenience only the provision of s 107 shall be referred to. Section 107(2)(b) relevantly provides:-

(2) Nothing in subsection (1) authorises: (a) … (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, (c) - (e) …

The Environmental Planning and Assessment Regulations 2000 ("the Regulations") have replaced the Environmental Planning and Assessment Regulations 1994 however the relevant clauses at issue in these proceedings are for all relevant purposes identical.

The applicant submits that the council is empowered to consent to an enlargement, expansion or intensification of an existing use by virtue of cl 42 of the Regulations which provides:- 42. Development consent required for enlargement, expansion and intensification of existing uses (1) Development consent is required for any enlargement, expansion or intensification of an existing use. (2) The enlargement, expansion or intensification: (a) must be for the existing use, or for a changed existing use, but for no other use; and

(b) must be carried out only on the land on which the existing use was carried out immediately before the relevant date.

The applicant submits that pursuant to cl 42 of the Regulations the use for which the consent was obtained on 17 June 1997 is applicable to the whole of 'the land' upon which the building is erected. In support of this submission the applicant relies not only on the permissible first floor use, but also the fact that the carparking area at the rear of the building was made the subject of conditions to the consent. Accordingly the applicant submits cl 42 would enable the council to grant consent to the development application.

The council submits that there are limits to the scope of cl 42 of the Regulations imposed by virtue of s 107(2)(b) of the Act and as a result it cannot grant consent since development of the type proposed is prohibited pursuant to the provisions of the LEP.

The council further submits that the word 'land' used in cl 42(2)(b) takes its meaning from the definition of 'land' contained in s 4 of the Act. Section 4 of the Act defines 'land' as including 'a building erected on the land'. The term 'building' is also defined in s 4 of the Act as including 'part of a building, any structure or part of a structure'.

Accordingly the council submits that term 'land' must in this case apply only to the first floor of the building that is being used in accordance with the applicants existing use and not to the entire building or property (see also Salvation Army v Newcastle City Council (2000) 107 LGERA 40).

Section 107(2)(b) of the Act limits the effect of decisions of the High Court of Australia in Eaton & Sons Pty Ltd v The Council of the Shire of Warringah (1972) 129 CLR 270 and The Council of the City of Parramatta v Brickworks Limited (1972) 128 CLR 1 in which it was determined that land not actually being physically used for the purpose of the existing use but held for that future use could nevertheless enjoy the benefit of such use rights. Even in Eaton & Sons Pty Ltd a qualification to the principle was recognised by Walsh J at 278 when His Honour said:- It seems plain that in some cases the physical use for a particular purpose of a small portion of a large holding would not warrant a finding that the whole area was used for that purpose. 18. In Salvation Army v Newcastle City Council (2000) 107 LGERA 40 Pearlman J was required to consider the effect of the equivalent of cl 42 of the Regulations, and having considered numerous authorities, Her Honour concluded that the whole of the land in that case was not entitled to the benefit of an existing use that was only conducted over a portion of the land parcel. Her Honour found that the whole of the 'land' was in fact used for two separate purposes; a portion under the existing use and the remainder of the land for the purposes of grazing. Each use was held to be a separate and distinctive use even though both were being conducted upon the same 'land' and the existing use rights did not extend to incorporate the land used for a separate purpose.

The definitions of 'land' and 'building' contained in s 4 of the Act demonstrates the intention of Parliament that the term 'land' is to have a special meaning within the context of the Act different to the general meaning the term carries outside this legislative scheme. Accordingly, the term 'land' is not to be afforded a dictionary definition. It can, in the context of the Act and the Regulations, mean land, or a building, or a part of a building depending upon the particular use rights that exist and each case will need to be examined on its merits to determine the appropriate application of cl 42 to its circumstances. The Regulations must be construed in the framework of the planning legislation (see Scully v Leichhardt Council (1993) 85 LGERA 109 at 111).

In the present circumstances the consent was granted for 'the first floor level' of the building. The extension of the use sought by the applicant is in respect of the separate portion of the building over which council retains planning control. It is irrelevant that the consent in respect of the existing use on the first floor encompasses part of the carpark at the rear of the premises since there is no evidence that the ground floor of the building was to be held in reserve. Proof of such fact is essential if it is to be relied upon to justify the extension of such use (see Eaton & Sons Pty Ltd v Warringah Shire Council per Barwick CJ at 274; Salvation Army v Newcastle City Council at 47).

Section 107(2)(b) operates to restrict any extension of an existing use by declaring that the protection afforded by s 107(1) does not authorise any increase in the area of a use. Since the term 'building' as contained by s 4 of the Act includes part of a building, the operation of s 107 of the Act and cl 42 of the Regulations would not permit any increase in the use made of a part of a building under an existing use right. So construed council has no power to consent to such an extension under cl 42 of the Regulations.

The construction of cl 42 urged by the applicant would produce unusual results. For example it would be incongruous that a shop on the ground floor of a residential unit building could be considered as justifying the extension of such use throughout the building erected on the same 'land'. It is clear that, the Parliament intended to contain the enlargement or extension of existing uses only to the confines of the 'land' which as defined in s 4 of the Act had the benefit of the use. In Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 25 NSWLR 580 Mahoney JA observed at 585 that 'the paragraphs of s 109(2) clearly restrict what previously could be done'. Priestley JA considered the effect of s 109(2) of the Act and said that the section was consistent with a 'growing awareness in New South Wales' of the need 'to control changes and possible harm to the environment' (at 588). His Honour continued at 588 to note:- Thus the legislature achieved the result, in my opinion, in cases of use of land pre-dating the commencement of planning controls inconsistent with such use, of restricting the enlargement of such use to situations where a control authority exercised a power to consent to such enlargement after appropriate investigation of any environmental issues.

The limitation upon the extension of existing uses as contained in s 107(2)(b) has substantially altered the concept of 'existing use'. Having regard to the objects and purposes of the Act (see s 33 Interpretation Act 1987) cl 42 of the Regulations does not enable a council to grant consent to the expansion of the existing use in the manner asserted by the applicant.

The question asked of the Court is to be answered as follows:- Clause 40 (clause 42 of the Environmental Planning and Assessment Regulation 2000 ) does not permit development consent to be granted for the enlargement, expansion and/or intensification of the existing use of the first floor of the premises at 233-239 Northumberland Street, Liverpool, so as to include the ground floor of the premises of 233-239 Northumberland Street, Liverpool.

The Court orders that the exhibits be returned.

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