By summons dated 11 July 2019, Lismore City Council (the Council) commenced civil enforcement proceedings under s 9.45 of the Environmental Planning and Assessment Act 1979 (EP&A Act) in relation to the use of the premises at Lot 32 of Section 11 in DP 2613, 71 Union Street, Lismore (the Premises). Leave was granted on 23 March 2021 for the Council to file an Amended Summons (Amended Summons). The Council seeks declarations and orders relating to alleged prohibited residential use of the Premises and the construction of a deck and installation of a stove at the Premises without development consent in breach of ss 4.2 and 4.3 of the EP&A Act.
The First Respondent, Dajoco Investments Pty Ltd (Dajoco), is the registered proprietor of the Premises. The Second Respondent, Mr Darren Coyne, is the sole director, secretary and shareholder of Dajoco. Mr Coyne occupies the Premises pursuant to a lease from Dajoco.
The Council initially sought additional orders in relation to a carport and spa, however, prior to the commencement of the hearing some disputed works were removed from the Premises and the Council sought leave to amend its case to delete reference to such works. The Amended Summons only concerns the residential use, the deck and stove.
[2]
Background
The Premises comprises of a single-storey brick building. The Premises was constructed by the Council in 1964 as a baby health centre. In 2003, the Council sold the Premises.
On 17 December 2003, the Council granted development consent for change of use of the Premises to a Commercial Office (Media Consultancy) (the 2003 DC).
Dajoco acquired the Premises on 12 June 2012.
Mr Coyne has occupied the Premises pursuant to a lease from Dajoco since 2007. During this period, he has carried out a use of the land in accordance with the 2003 DC. It is not disputed that during this period Mr Coyne has also resided at the Premises.
The Premises are located on a lot which is 12m wide and 50m long, with an area of approximately 130sqm. Along its short boundary it adjoins Union Street to the south west and backs an unformed road to the north east. The neighbouring lots comprise of a post office and an opportunity shop. The front of the Premises is set back from Union Street by 6m. It has an area of 17.5sqm and is 4.4m above ground height at highest point.
The Premises are on land zoned "B1 Neighbourhood Centre" under the Lismore Local Environment Plan 2012 (the LEP). The Premises are also located within the "Flood Planning Area" as prescribed by cl 6.3 of the LEP.
Chapter 8 of the Lismore Development Control Plan (the DCP) adopted 12 June 2007, "Flood Prone Lands" designates the Premises as a "High Flood Risk Area" in Lismore Flood Hazard Categories - Map 1.
Mr Coyne is a well-regarded experienced journalist and editor, now working predominately in the Northern Rivers Region of New South Wales. He is presently employed as a journalist for the Koori Mail, Australia's national Aboriginal and Torres Strait Islander newspaper. In his 26-year career he has undertaken many and varied media roles servicing the Northern Rivers Region including writing and editing for local news media both in print and online, for an advertising agency, and as a media consultant. Mr Coyne continues to pursue his professional endeavours from the Premises.
In his 12 years inhabiting the Premises Mr Coyne has been an active member of the Lismore community. He is the President of a Landcare group which operates from the Premises. The group has regenerated a site adjacent to the Premises' north east boundary.
[3]
Layout - Media Consultancy consent
The 2003 DC approved a floor plan dated 21 October 2003 and the plan identifies the following areas within the building:
1. An "entry area" with a basin and an adjoining separate toilet, accessible from the Union Street side of the building by a ramp;
2. A "reception area/office" behind the entry area; and
3. Three "consulting rooms", two at the rear of the building, and one on the west side of the reception area/office with an adjoining bathroom. The western consulting room can be accessed from outside by a set of stairs.
The western consulting room depicts a built-in kitchenette comprising of a sink, bench and cabinet beneath a smaller hanging wall cabinet along the eastern wall. These facilities are the same as was indicated in corresponding plans dated February 1964 for the baby health centre in which the room is labelled "test feed room". A section of the kitchen from 1964 also shows a tiled splashback and a "position for sterilizer and stovette". The kitchenette now has installed in the area for the sterilizer and stovette a built-in oven and stove.
The "Statement of Environmental Effects for the Change of Use pertaining to the former Baby Health Centre at 71 Union Street" made in relation to the 2003 application states:
With three permanent staff, the size and scope of the business would be in keeping with the surrounding area. For the most part office hours would also be similar, with occasional exceptions.
The Business is a media consultancy which would holding meetings with clients on-site. One of the rooms will be used as a meeting room. Otherwise premises would operate as a normal office, with desks and computers and a small reception area.
[4]
2019 consent
In about April 2019, the Council granted development consent for a "Takeaway food and drink premises" permitting a portable coffee cart, table and chairs at the front setback of the Premises.
[5]
The deck
A deck with a roof over it has been constructed at the rear of the building adjacent to the north west wall. Mr Coyne lodged an application for a Building Information Certificate on 3 March 2020 which has not been determined.
[6]
Compliance action by the Council
In August 2017, the Council sent Dajoco a letter seeking its cooperation "in resolving complaints" in relation to the construction of the deck, among other things. In January 2018, the Council sent a letter to Dajoco to "follow up on possible non-compliance with the provisions of NSW legislation" in relation to the residential use of the Premises.
On 31 October 2017 and 1 December 2017, Council Officer Mr Graeme Bailey inspected the Premises and took photographs.
On 12 March 2018, the Council issued the Respondents with a Notice of Intention to give an Order under s 9.34 of the EP&A Act to cease the issue of the structure as "residential accommodation" or any habitable purpose, and to demolish/remove all unapproved internal and external modifications to the structure, including the verandah and the internal modifications including cooking facilities.
Further correspondence was exchanged between the Council and Mr Coyne. In May 2018, a meeting took place on the Premises between the Council representatives and Mr Coyne.
On 4 July 2018, the Council issued the Respondents with a Notice of Intention to give an Order to inspect the property under s 9.34 of the EP&A Act. On 8 August 2018, Mr Coyne made representations to the Council in response to the notice via email.
On 14 August 2018, the Council issued an Order to Dajoco to be complied with within 180 days to:
1. To cease the use of the structure (building) as "residential accommodation" or any habitable purpose (Item 1, Table Sch 5) and
2. To demolish and remove all unapproved internal and external modifications to the structure (building) and return it back to a form that is consistent with an approved plan associated with DA 2003/887 (Item 3, Table Sch 5).
On 7 February 2019, a Notice of Entry was issued by the Council to Dajoco. On 9 April 2020, a Council Officer inspected the deck and the Premises.
By its solicitor the Council sent two letters in March and May 2019 putting the Respondents on notice that the Council would commence proceedings.
The Council commenced proceedings on 12 July 2019. On 9 April 2020, Mr Bailey carried out a further inspection in which he took photographs of the kitchen and deck.
[7]
Issues for determination
The deck - the issues for determination are whether:
1. The deck as constructed was exempt development pursuant to the provisions of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the SEPP). If so, the Council is not entitled to the relief it seeks.
2. If the deck was not exempt development and was, therefore, development that required development consent, whether, in the exercise of the Court's discretion, the Council should obtain the relief it seeks.
The stove - the issues for determination are whether:
1. The installation of the stove in the kitchen of the building was development that required development consent, if not, the Council is not entitled to the relief it seeks.
2. If the installation of the stove was development that required development consent which was not obtained, whether, in the exercise of the Court's discretion, the Council should obtain the relief it seeks.
The residential use - the issues for determination are whether:
1. Mr Coyne is using the Premises and Dajoco permitting the use of the Premises for residential purposes and, if so:
1. Is such a use one that is ancillary to the commercial use of the premises as caretaker accommodation and therefore, not a separate use for planning purposes? If so, the Council is not entitled to the relief it seeks.
2. Is such a use a separate and independent use such that it is a prohibited use in the zone?
1. If the residential use is a prohibited use whether, in the exercise of the Court's discretion, the Council should obtain the relief it seeks.
In addition to the matters that the Council is required to establish in order to obtain the relief it seeks the Respondents raised an issue as to whether the proceedings should be dismissed as an abuse of process pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (UCPR). It is submitted that the Council's Summons as amended does not disclose a cause of action and that if it does, the proceedings have been brought for the improper purpose of targeting the Respondents.
[8]
Legislative provisions
In relation to the deck, the EP&A Act provides:
4.1 Development that does not need consent (cf previous s 76)
(1) General If an environmental planning instrument provides that specified development may be carried out without the need for development consent, a person may carry the development out, in accordance with the instrument, on land to which the provision applies.
…
4.2 Development that needs consent (cf previous s 76A)
(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless -
(a) such a consent has been obtained and is in force, and
(b) the development is carried out in accordance with the consent and the instrument.
Maximum penalty - Tier 1 monetary penalty.
(2) For the purposes of subsection (1), development consent may be obtained -
(a) by the making of a determination by a consent authority to grant development consent, or
(b) in the case of complying development, by the issue of a complying development certificate.
…
The SEPP provides:
Subdivision 6 Balconies, decks, patios, pergolas, terraces and verandahs
2.11 Specified development
The following development is specified for this code -
(a) the construction or installation of a balcony, deck, patio, pergola, terrace or verandah, whether free standing or attached to the ground floor level of a building, or roofed or unroofed, if it is not constructed or installed on or in a heritage item or a draft heritage item or on land in a foreshore area,
(b) the replacement of a deck if the deck is not higher than 1m above ground level (existing).
2.12 Development standards
(1) The standards specified for the development specified in clause 2.11(a) are that the development must -
(a) (Repealed)
(b) have an area of not more than 25m2, and
(c) not cause the total floor area of all such structures on the lot to be more than -
(i) for a lot larger than 300m2 - 15% of the ground floor area of the dwelling on the lot, or
(ii) for a lot 300m2 or less - 25m2, and
(d) not have an enclosing wall higher than 1.4m, and
(e) be located behind the building line of any road frontage, and
(f) be located at a distance from each lot boundary of at least -
(i) for development carried out in Zone RU1, RU2, RU3, RU4, RU6 or R5 - 5m, or
(ii) for development carried out in any other zone - 900mm, and
(g) (Repealed)
(h) to the extent it is comprised of metal components - be constructed of low reflective, factory pre-coloured materials, and
(i) have a floor height not more than 1m above ground level (existing), and
(j) if it is a roofed structure attached to a dwelling - not extend above the roof gutter line of the dwelling, and
(j1) be no higher than 3m at its highest point above ground level (existing), and
(k) if it is connected to a fascia - be connected in accordance with a professional engineer's specifications, and
(l) be constructed or installed so that any roofwater is disposed of into an existing stormwater drainage system, and
(m) not interfere with the functioning of existing drainage fixtures or flow paths, and
(n) if it is located on bush fire prone land and is less than 5m from a dwelling - be constructed of non-combustible material, and
(o) if it is constructed or installed in a heritage conservation area or a draft heritage conservation area - be located behind the building line of any road frontage.
(2) The standards specified for the development specified in clause 2.11(b) are that the development must -
(a) use equivalent or improved quality materials, and
(b) not change the size or height of the existing deck.
[9]
Evidence
Mr Bailey swore a number of affidavits in the proceedings. He was cross-examined on those affidavits. The evidence of Mr Bailey relating to the deck can be summarised as follows:
1. The floor of the deck is approximately 105mm from finished ground level. The measurement of the floor height of the deck was taken by tape measure and, it is, at best, an approximation. He is unaware as to whether the deck, when constructed, did not comply with the floor height requirements. To render the finished ground level compliant with the development standard would require, at most, a "bucket of soil"
2. The deck is a roofed structure and:
1. Is attached to the dwelling above the existing gutter line;
2. Has a roof height of 3950mm above finished ground level.
Mr Townend, the Respondents' town planner, deposed in his affidavit of 19 August 2020, that he determined that the deck was not exempt development as the roof height of the deck was 0.9m higher than the standard for exempt development of 3m.
[10]
The Council's submissions
The Council submits that the deck does not meet the mandatory development standards provided for in the SEPP in so far as it does not comply with the development standards in cl 2.12(1) in the following respects:
1. The deck has a floor level in excess of the 1m provided for in cl 2.12(1)(i);
2. The deck roof is attached to the existing building above the gutter line contrary to the standard in cl 1.12(1)(u); and
3. The deck roof has a height in excess of the 3m provided for in cl 2.12(1)(j1).
These development standards must all be met in order for the deck to qualify as exempt development under the SEPP. As there is no dispute that the deck roof exceeds the height specified in cl 2.12(1)(j1) the deck is not exempt development.
Where the development standards are not met the development is unable to qualify as exempt development and must be either complying development for which a complying development certificate is required, or it is development that requires development consent. As the Respondents have not obtained a complying development certificate nor a development consent the construction of the deck is not authorised.
[11]
The Respondents' submissions
The Respondents, by their agent, cross-examined Mr Bailey. On the basis of Mr Bailey's evidence the Court would not be satisfied that the Council had discharged its onus to establish that the non-compliance with the floor level development standard had not been complied with at the time of construction of the deck. As Mr Bailey accepted in cross-examination that the area of non-compliance was small (no more than a bucket of soil) the ground level may have changed since construction. Further, Mr Bailey's mode of measuring the height of the deck was unreliable as he only took two points of reference and then made assumptions which were unreasonable.
The Respondents, however, focused their criticism on the floor level of the deck. In the Respondents' supplementary submissions at [33] they conceded that the "overhang roof" is not exempt development and offered to obtain a building information certificate to "bring the roof/awning" into compliance.
[12]
Findings
The provisions of cl 2.12(1) of the SEPP set out the standards, which if observed, will render the deck exempt development. From a reading of those provisions the deck is to be treated as a single entity, not divided into a floor level and a roof level. The provisions make it plain that for the deck to be exempt it must meet all of the standards prescribed and if it does not the whole of the structure that comprises what is referred to as a deck is not exempt development.
In this case, the deck comprises all of its elements. It is agreed that the roof of the deck exceeds the height nominated in the SEPP. As a consequence, the whole of the deck and all of its component parts are taken outside the characterisation of exempt development.
I accept the Respondents' submissions that there is insufficient evidence to satisfy me on the balance of probabilities that the floor level of the deck was not in conformity with the development standard at the time of construction, for the reasons outlined at [38] above. However, such a finding is insufficient to overcome a finding that the whole of the deck does not meet the requirements of the SEPP and therefore, cannot be considered exempt development for the purposes of the EP&A Act.
For those reasons, I find that the deck as constructed is not exempt development for the purposes of the EP&A Act. As a consequence of this finding it follows, as was agreed between the parties, that the deck would be development that required development consent and that such consent has not been obtained. It was also agreed between the parties that the failure to obtain development consent for the now constructed deck could be regularised by the issuing of a Building Information Certificate pursuant to Division 6.7 of the EP&A Act.
[13]
Evidence
The evidence as to the origin of the current stove is comprised solely of the evidence of Mr Coyne that some time after he moved in in 2007 he replaced an old stove with the stove now present in the kitchen.
The plans from the baby health centre show the construction of a bench and what was referred to as a "bottle warmer". The late evidence of Ms Noreen Colley, upon which she was not cross-examined, was that at the time she attended the baby health centre in 1969 the bottle warmer was of a branded type called a "Kookaburra" stove.
Further, a comparison of the bench and cupboard plan with the photographs of the current kitchen layout adjacent to the stove supports the evidence of Mr Coyne that apart from the removal of some facing treatment the benches, cupboards and sinks in the location of the stove have not changed since installation as part of the baby health centre.
[14]
Council's submissions
Apart from contending that the stove was new the Council was unable to identify any real basis for asserting that the installation of a stove was development that required development consent.
There was a suggestion that the kitchen, by the replacement of the stove, was something other than that approved in the 2003 DC as there was a change in form of the stove from that existing at the time of the baby health centre use.
The Council appeared, by inference, to be contending that the installation of the stove was somehow the carrying out of residential development rather than the approved commercial development.
[15]
The Respondents' submissions
The Respondents submitted that the stove was installed to replace an existing stove. The stove and the kitchen are used for the provision of amenities to the workers and visitors to the media centre and Mr Coyne uses it to prepare meals when using the Premises in his caretaking capacity. The presence of a kitchen and a stove do not convert the use from a permissible use to a prohibited use merely because of its existence, the manner in which it is used needs to be considered.
[16]
Findings
Absent some identification of some basis upon which the Council contends that the installation of the stove requires development consent I am unable to accept its submissions. It is beyond doubt that the stove is new, but the mere provision of a new piece of equipment within an existing building is not evidence of the need for or the failure to obtain any necessary development consent.
Whether the stove is being used for some residential purpose will be resolved in the consideration of the nature of Mr Coyne's occupancy of the building. If he is entitled to use the Premises as a caretaker residence then he is entitled to use the kitchen (including the stove), if he is not so entitled then he is not permitted to use the kitchen (or the stove) for residential purposes but is entitled to use it to provide amenities to the commercial uses undertaken pursuant to the 2003 DC.
The Council has failed to establish that the Respondents have installed a stove contrary to the provisions of the EP&A Act and is, therefore, not entitled to the relief it seeks.
[17]
Are the Premises being used for residential purposes that are prohibited?
[18]
Legislative provisions
In relation to the residential use of the Premises, s 4.3 of the EP&A Act provides:
4.3 Development that is prohibited (cf previous s 76B)
If an environmental planning instrument provides that -
(a) specified development is prohibited on land to which the provision applies, or
(b) development cannot be carried out on land with or without development consent,
a person must not carry out the development on the land.
…
The Land Use Table for the B1 zone in the LEP provides:
Zone B1 Neighbourhood Centre
1 Objectives of zone
To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood.
To ensure that development is of an appropriate scale and is compatible with the character of the surrounding neighbourhood.
2 Permitted without consent
Environmental protection works; Home occupations; Home occupations (sex services)
3 Permitted with consent
Artisan food and drink industries; Bed and breakfast accommodation; Boarding houses; Business premises; Centre-based child care facilities; Community facilities; Home industries; Hotel or motel accommodation; Medical centres; Neighbourhood shops; Neighbourhood supermarkets; Oyster aquaculture; Respite day care centres; Roads; Shop top housing; Tank-based aquaculture; Any other development not specified in item 2 or 4
4 Prohibited
Agriculture; Air transport facilities; Airstrips; Amusement centres; Animal boarding or training establishments; Biosolids treatment facilities; Boat building and repair facilities; Boat sheds; Camping grounds; Caravan parks; Cemeteries; Charter and tourism boating facilities; Correctional centres; Crematoria; Depots; Eco-tourist facilities; Exhibition homes; Exhibition villages; Farm buildings; Forestry; Freight transport facilities; Function centres; Heavy industrial storage establishments; Helipads; Highway service centres; Hospitals; Industrial retail outlets; Industrial training facilities; Industries; Landscaping material supplies; Marinas; Mooring pens; Moorings; Mortuaries; Plant nurseries; Pond-based aquaculture Recreation facilities (major); Research stations; Residential accommodation; Resource recovery facilities; Restricted premises; Rural industries; Rural supplies; Sewage treatment plants; Sex services premises; Specialised retail premises; Storage premises; Tourist and visitor accommodation; Transport depots; Truck depots; Vehicle body repair workshops; Vehicle sales or hire premises; Warehouse or distribution centres; Waste disposal facilities; Water recycling facilities; Water storage facilities; Water treatment facilities; Wholesale supplies
The LEP defines:
residential accommodation means a building or place used predominantly as a place of residence, and includes any of the following -
(a) attached dwellings,
(b) boarding houses,
(c) dual occupancies,
(d) dwelling houses,
(e) group homes,
(f) hostels,
(g) multi dwelling housing,
(h) residential flat buildings,
(i) rural workers' dwellings,
(j) secondary dwellings,
(k) semi-detached dwellings,
(l) seniors housing,
(m) shop top housing,
but does not include tourist and visitor accommodation or caravan parks.
dwelling house means a building containing only one dwelling.
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.
Caretaker is not a defined term under the EP&A Act or the LEP. It is appropriate, therefore, to give it its ordinary meaning. The Macquarie Dictionary defines "caretaker" as meaning:
noun 1. a person who takes care of a thing or place, especially one whose job is to maintain and protect a building or group of buildings.
…
[19]
Evidence
The evidence of Mr Coyne was that he lived at the Premises. He has a room in which he has a bed and associated domestic facilities such as storage for his clothing and personal items. That room is not used for any commercial uses nor is it available for use by others who visit the site for non-personal purposes.
The evidence is also that the kitchen is used by him for domestic purposes and also for commercial use when he is undertaking business and by others who attend the site for business purposes.
There are two bathrooms at the Premises. One is used by Mr Coyne for his own use and it contains a shower and other facilities. The second bathroom that does not contain shower facilities is used by persons who attend the Premises for business purposes.
Mr Coyne stated in oral evidence that he is required to be on the Premises 24 hours a day 7 days a week to provide caretaking services to the Premises which are:
1. to protect the Premises against crime and vandalism;
2. to facilitate the use of the media centre for professional activities at all hours;
3. to protect against flood;
4. to undertake maintenance; and
5. to facilitate the use of the coffee cart on the Premises.
In addition to his caretaking, he is required to be present at the Premises due to the nature of his work that can require both long hours and late nights, or to be on call when he is required to respond to breaking events as a journalist.
Mr Mallam, town planner for the Council and Mr Townend, town planner for the Respondents both gave evidence as to whether Mr Coyne's occupation could be characterised as a caretaker. Mr Mallam said: It could not. Mr Townend said: It could.
[20]
The Council's submissions
The Council submitted that on the evidence it was clear that Mr Coyne was using the Premises for residential purposes. That use was a separate and independent use from the media centre use. The media centre use was not one that required a live on premises caretaker and Mr Coyne's "caretaking role" was no more than normal maintenance of the building and that there is no particular security that requires in person surveillance of the media centre. All of the windows and doors (apart from the sliding door at the rear) are secured by security devices. The rear door could also be similarly treated.
[21]
The Respondents' submissions
Mr Coyne submitted that the use of the Premises for the domestic use was an ancillary use to the commercial use. Mr Coyne relied upon the principle enunciated in the decision of Foodbarn Pty Ltd v Solicitor-General (NSW) (1975) 32 LGRA 157 that provides per Glass JA at 161:
It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts. …. Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If anyone purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged. The ordinance is nonetheless being disobeyed…
Mr Coyne submitted that his residential use was ancillary to the media centre use as his occupation was as a caretaker for that use and was, therefore, subservient or inspired by the commercial use and is to be disregarded for the purposes of the characterisation of the use. Once it is accepted that the caretaker use is ancillary the residential aspect of that use is not prohibited in the zone.
The Premises should be treated as being a media centre for all rooms other than the bedroom as those rooms are, on the evidence, used for the commercial use. Therefore, the only part of the building used for residential purposes is the bedroom which is a minor proportion of the whole of the Premises.
The residential use cannot be considered as a separate and independent use as it is so intertwined with the commercial use and absent the commercial use Mr Coyne would not need to reside on the Premises.
[22]
Findings
It is correct that an ancillary use is to be disregarded in the characterisation of the purpose to which the Premises are being put. However, it is a question of fact and degree as to whether a particular use of particular premises is ancillary or a separate and independent use. As was observed in Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 per Meagher JA at 409-410
Notwithstanding the principles laid down in Foodbarn, it does not follow that a use which can be said to be ancillary to another use is thereby automatically precluded from being an independent use of the land. It is question of fact and degree in all the circumstances of the case whether such a result ensues or not. When a resident uses his land to park his motor car at his house, he is no doubt not conducting an independent use of car parking; when an employer installs at his factory a canteen for his workers, no doubt he is not conducting an independent use of running a restaurant; when the Clarks grew vegetables for their table they were not conducting an independent use of vegetable growing. But when one use of the land is by reason of its nature and extent capable of being an independent use it is not deprived of that quality because it is "ancillary to", or related to, or interdependent with, another use. If a book publisher opens a sales room at his publishing house to sell his products, the selling of books is an independent use although ancillary to the use of publishing. The series of cases dealing with dual uses (of which the decision of this Court in Warringah Shire Council v Caltex Oil (Australia) Pty Ltd (1989) 68 LGRA 206 is an example) illustrate the point: they show that a "convenience store" and a petrol station are two independent uses, although the former is clearly ancillary to the latter. This is a fortiori the case where the "ancillary" use has pre-dated the use to which it is said to become ancillary and when it has done so in circumstances where it was initially not "ancillary" to any other use.
Accordingly, in this case it is not sufficient for Mr Coyne to merely assert that he is a caretaker, the facts and circumstances of the case must be considered to determine whether the residential use is capable of being characterised as a separate and independent use.
Whilst evidence was adduced from both parties as to whether their respective town planners considered the occupation to be a caretaker use, such evidence is of assistance but not determinative of this issue. The proper characterisation of this use is a matter for the Court having regard to all of the evidence adduced in the proceedings.
In this case, I find that Mr Coyne's residential use is a separate and independent use and therefore, is a use that is prohibited in the zone. Whilst Mr Coyne finds it convenient for him to be resident at his place of work and whilst the nature of his work does from time to time see him being called from his domestic activities to embark on his professional activities and whilst such professional activities often see him working late into the evening, there is nothing that requires that he be present at the place of work when he is not engaged in that work. When he is engaged in that work he is carrying on his profession, he is not residing at the Premises. When he is not engaged in his professional work but he retires to sleep, to undertake usual domestic tasks such as preparing meals, entertaining himself or friends or attending to matters of personal hygiene he is engaged in a residential use of the Premises. Whilst these two uses may be undertaken either in a separate part of the Premises or in part of the Premises that is used for both domestic and business uses does not matter. The fact is that these uses are as a matter of fact and degree separate and independent uses.
Further, the fact that it is the professional endeavours that makes the residential use attractive and therefore, can be said to have inspired the residential use does not, having regard to the principles set out in O'Donnell above, preclude the residential use from having a separate character even where it could be said to be ancillary to or inspired by the commercial use.
The caretaking activities undertaken by Mr Coyne do not alter the characterisation of the residential use to an ancillary use. The types of caretaking activities undertaken by him are no more than the normal incidents of property maintenance or security for commercial premises. There is no inherent feature of the land or of the commercial use undertaken that requires a person to be physically present on the Premises at all times to undertake that work or to provide a level of security that cannot be provided by the appropriate provision of security to the building by passive means. Even if the residential use allows Mr Coyne to be more present and therefore, undertake such activities at any time, his residence at the Premises is not necessary to enable such functions to occur.
For those reasons, I find that the residential occupation by Mr Coyne is not for the planning purpose of a caretaker ancillary to the commercial use such that it can be discounted for planning purposes. I find that Mr Coyne is using the Premises for the separate and independent use as residential accommodation (as defined) and is therefore a use prohibited in the zone. Further, Dajoco is aware, through its director Mr Coyne, of Mr Coyne's use, and by taking no steps to prevent his use it permits it to continue.
[23]
Should the proceedings be struck out or dismissed as an abuse of process?
[24]
Evidence
13.4 Frivolous and vexatious proceedings
(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings -
(a) the proceedings are frivolous or vexatious, or
(b) no reasonable cause of action is disclosed, or
(c) the proceedings are an abuse of the process of the court,
the court may order that the proceedings be dismissed generally or in relation to that claim.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1).
14.28 Circumstances in which court may strike out pleadings
(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading -
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
(c) is otherwise an abuse of the process of the court.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1).
[25]
The Respondents' submissions
The Respondents contended that the case brought by the Council was frivolous, vexatious and did not disclose a cause of action.
The form of the Summons in so far as there were broad declarations and orders sought was insufficient to properly raise any relevant justiciable issue.
Further, the Council was taking the proceedings for the ulterior purpose of unreasonably targeting Mr Coyne when he has done little or nothing wrong.
[26]
Findings
Whilst I accept that the declarations and orders sought in the Amended Summons are very broad, those claims do identify a cause of action. The complaint, as I outline above, is one of the carrying out of development that is either not approved or prohibited in the relevant zone. Such is a sufficient identification to give rise to a finding that the Amended Summons discloses a reasonable cause of action.
The complaints raised by the Respondents as to the form of the Summons are not sufficient for the proceedings to be considered an abuse of process. The amendments to the Summons resulted primarily from the changes in circumstances since the commencement of the proceedings where the Respondents had undertaken works to satisfy some of the Council's complaints.
Further, I do not accept that the evidence supports a finding on the balance of probabilities that the Council had commenced the proceedings for an ulterior purpose. For the reasons I have outlined above, I am satisfied that the Respondents have undertaken some development without the necessary development consent or development that is prohibited in the zone. The enforcement of the provisions of the EP&A Act by the Council is appropriate in the circumstances of this case.
For those reasons, it is not open on the evidence for me to exercise any discretion to strike out or dismiss the Summons in these proceedings.
[27]
The Council's submissions
The Council submitted that the breaches relating to the use of the Premises for a residential purpose are not merely technical breaches. In particular, residential use of the property creates an undesirable precedent as it is both prohibited in its form and is also in a high flood risk area.
Any suggestion that the Respondents may suffer hardship by being rendered homeless can be adequately ameliorated by providing a time period for the cessation of the use, which in the Council's submission should not be longer than a period of less than 180 days.
As to the deck, the Council accepted that in light of the evidence before the Court the deck should not be demolished but that the Respondents should be required to obtain a Building Information Certificate.
The Council submitted that it is appropriate in the circumstances of the case to make both the orders and declarations sought as such would serve to denounce the Respondents' conduct.
[28]
The Respondents' submissions
The Respondents submitted that if the Court was satisfied that Mr Coyne was using the Premises for a residential purpose other than as a caretaker the Court should decline to make any order as Mr Coyne has been there for such a long time and there is no harm in permitting him to remain. In the alternative, any order requiring the residential use to cease should be deferred for a period of ten years.
As to the deck, whilst a Building Information Certificate could be obtained, the evidence now adduced has satisfied the Council that there are no structural, safety or amenity issues relating to the deck that would warrant its demolition. Those factors are precisely the factors upon which the Council would have to be satisfied in determining any application for a Building Information Certificate. As the Council is now satisfied, to require a certificate to be obtained would merely serve to provide an administrative formality with no substantive benefit.
[29]
Findings
The discretion that is conferred by s 9.46 of the EP&A Act is wide. The scope of this discretion was considered in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 and the principle was described by Kirby P at 342 in the following terms:
Discretion to withhold injunction is part of planning law:
It is important to conclude by pointing out that that discretion is itself part of the statutory scheme. In this sense, the exercise of the discretion should not be seen as the illegitimate interference by judges in the even-handed application of planning law which local government authorities have the responsibility of enforcing. Instead, it is an important part - a fulcrum as it were - of that planning law, designed to introduce into it the protection, in reserve, of a salutary discretion. Because it exists in the Court, the discretion must also be considered by planners who invoke the Court's jurisdiction. Because it is established by Parliament and is expressed in such broad terms, it is a legitimate and integral part of the overall scheme of planning legislation operating in this State. It cannot be ignored. It should not be unduly circumscribed by a gloss of cases.
With regard to the relief sought in connection with the deck the evidence of Mr Bailey was that he was not concerned with the structural adequacy or any environmental impact of the deck. Mr Bailey wished to have the deck regularised by the provision of a Building Information Certificate. In light of my findings above and in light of the evidence of Mr Bailey, I do not consider that there would be any real purpose served in requiring a Building Information Certificate to be obtained. The issues to which a Building Information Certificate relate have all been the subject of evidence and consideration in these proceedings such that the requirement to obtain certification would be doing no more than requiring form rather than substance. It is because the Council is now satisfied on the evidence produced to it that there is no further or other consequences of the deck remaining on the land other than the fact of its lack of approval that I will exercise my discretion and decline to make the declarations and orders sought in relation to the deck.
As to the residential use of the Premises, I do consider that it is appropriate in the exercise of my discretion that such use cease. The land is zoned for the nominated permissible uses such that the objectives of that zone (as outlined above) can be met. The presence of residential development of the type undertaken here is not consistent with the achievement of such objectives.
However, having regard to the length of time that Mr Coyne has been in residential occupation of the Premises and the undisputed evidence of a shortage or residential accommodation in the Northern Rivers I accept that the orders that I propose to make should be deferred for a period to enable Mr Coyne to make arrangements for alternative residential accommodation. I propose that the orders be deferred for a period of 12 months from the date of the orders to enable this to occur. In determining that such a period of time is appropriate I also take into account that there is no evidence that the continued occupation by Mr Coyne for twelve months would have any measurable unacceptable impact on the adjoining land uses if he remains in occupation for such a period of time.
As to the form of the declarations and order sought, I have had regard to both the utility in making multiple declarations and orders relating to the same subject matter such is produced by the alternative arguments of non-compliance with the Council's order and carrying out development without consent. I consider that the form of declarations sought are too broad and not sufficiently specific to identify the breaches I have found. I consider that it is appropriate to make an order to restrain the residential use and that such orders alone will be sufficient to achieve the objective of compliance with the requirements of the EP&A Act.
[30]
Conclusion and orders
For the reasons outlined above, the Court makes the following orders:
1. An Order that the First Respondent cease permitting, and otherwise be restrained from permitting or facilitating, the use of the land located at 71 Union Street, South Lismore, being land legally described as Lot 32 of Section 11 in DP 2613 (Property), for residential purposes;
2. An Order that the Second Respondent cease using the land located at 71 Union Street, South Lismore, being land legally described as Lot 32 of Section 11 in DP 2613 (Property), for residential purposes;
3. The operation of orders 1 and 2 be suspended for a period of 12 months from the date of these orders; and
4. Costs are reserved.
[31]
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Decision last updated: 09 June 2021