Consideration
No Lawful Use
79 To establish an existing use right, the applicant must establish on the facts that the use was lawful and was not a prohibited use in existence immediately prior to the commencement of the relevant planning instrument that proscribed the use (s 106 of the EPAA).
80 The term "lawful" in ss 106 and 107 means not prohibited by planning law (Sydney City Council v Ke-Su Investments Pty Ltd (No 2) (1983) 51 LGRA 186 at 203-204).
81 In circumstances where premises are subject to a development consent, the terms of the consent become the "lawful purpose" from which an existing use can arise pursuant to s 106(b)(i) of the EPAA (Botany Bay City Council v Workmate Abrasives Pty Ltd (2004) 138 LGERA 120 at [12]-[14] and House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 at [36]-[37]).
82 Only the "lawful purpose", that is, the terms and conditions stipulated in the development consent, can be relied upon by the applicant to secure existing use rights. Any other "use" - such as an unlawful use or an actual use that is different from the consenting use - is not a lawful use, and cannot be relied upon to gain existing use rights (Fatsel Pty Ltd v ACR Trading Pty Ltd [No 3] (1987) 64 LGRA 177 at 190).
83 In order to determine what the lawful purpose is, the Court must look to the ambit of the language in the development consent to determine whether the use is lawful under planning law and therefore protected.
84 The principles relating to characterization of the purpose were recently usefully collated by Biscoe J in Warlam Pty Ltd v Marrickville Council (2009) 165 LGERA 184 (at [17]-[19]):
[17] Characterisation of the purpose of an existing use and the purpose of a proposed use are governed by the principles reviewed by the Court of Appeal in Royal Agricultural Society (NSW) v Sydney City Council (1987) 61 LGRA 305 at 309-311 and Grace v Thomas Street Café Pty Ltd (2007) 159 LGERA 57 at [56]-[69]. The leading High Court Decision is Shire of Perth v O'Keefe (1964) 110 CLR 529, 10 LGRA 147 (followed by the High Court in Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138 at 145-146, 28 LGRA 410 at 416-417, Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485, 44 LGRA 346 and Dorrestijn v SA Planning Commission (1984) 59 ALJR 105, 54 LGRA 99). Other leading Court of Appeal decisions include North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50, 67 LGRA 344, North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532 at 535, 71 LGRA 432 at 435, and Woollahra Municipal Council v Minister for Environment (1991) 23 NSWLR 710 , 73 LGRA 379.
[18] I would summarise the existing use principles, so far as may be relevant, as follows:
(a) existing use provisions in planning legislation are designed to permit continuation of a use of land for the purpose for which it was used immediately before later regulation that prohibited it wholly or partly or upon conditions. The rationale is that it is unjust to deprive an owner of the right to use land for an existing purpose: Royal at 309; Grace at [56];
(b) accordingly, existing use provisions should be as liberally construed as the language in its context allows: Dorrestijn at 108; 105; Grace at [67];
(c) in order to reconcile the right of the owner to use land for an existing purpose with the right of the local authority to enforce the conflicting objectives of planning legislation, the courts refuse to categorise the purpose of an existing use so narrowly that natural changes in the method of using land or carrying on a business or industry will render an existing use right valueless. Likewise, the courts refuse to categorise the purpose of an existing use so widely that land or premises could be used for a prohibited purpose that was not part of its use at the time of commencement of the prohibiting regulation. Accordingly, a test has been devised which requires characterisation of the purpose of the land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. The test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. The test is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc, as a class have made of the land: Royal at 309-310;
(d) a statement of the purpose for which land is being used is a description or characterisation of what is being done with or upon the land, not an account of the motives of the persons involved in that activity: Shire of Perth at 534; 150. Royal at 311, Woollahra Municipal Council v Minister for Environment at 714; 382;
(e) land may be used for more than one purpose. If activities, processes or transactions are capable of being treated as all or the majority of the species of a genus, then the genus may properly be regarded as describing the purpose of the use. If they are not, then the only conclusion may be that the land has been used for more than one purpose: Royal at 311; Grace at [59];
(f) the task is always to categorise the purpose (or each purpose) to which premises have been put: Grace at [60];
(g) that involves an inquiry into what, according to ordinary terminology, is the appropriate categorisation of the purpose of the use. A useful criterion to apply is that which would appeal to practical minds as appropriate in the context of town planning legislation: Shire of Perth at 535; 150-151; Pioneer at 507-508; 362;
(h) in determining whether a use is protected by existing use provisions, there are two distinct steps. First, identify the purpose for which land was being used as at the date of the later planning regulation which prohibited that use. The land may continue to be used for that purpose. Secondly, identify whether the use of the land thereafter is generally for the same purpose: Royal at 311;
(i) the design or form of a building is not determinative of its use. For example, a building might be constructed of units which are capable of residential use. But if the units are used for professional offices, the use would not be a residential flat building: North Sydney Municipal Council v Sydney Serviced Apartments at 535; 435;
(j) categorisation of uses is a matter of fact and degree and borderline cases will inevitably arise: Shire of Perth at 535; 150;
(k) a use can naturally evolve over time and changes in the method of operation of a particular category of use will not deny existing use rights: Grace at [60].
[19] The following characterisations of uses are illustrative. The use of premises for pottery making was not categorised more generally as a use for the purpose of light industry: Shire of Perth v O'Keefe . The use of premises for professional offices need not ordinarily be categorised with greater particularity (such as by reference to the particular profession): Shire of Perth at 535; 150. The general term "shop" is an insufficient description of a purpose. Thus, premises used as a butcher's shop were not properly to be categorised more generally as a shop: Shire of Perth at 535; 150. Similarly, premises used as a retail food shop were not to be categorised more generally as a neighbourhood village retail shop: Woollahra Municipal Council v Banool Developments . The use of the Sydney showground was for the purposes of a showground and speedway and could not properly be described as for the purpose of open air concerts, notwithstanding that five concerts had been held there over 25 years: Royal at 312. Premises which warehoused electrical goods and other goods were categorised as a warehouse, notwithstanding that that would permit the storage of goods not previously stored: North Sydney Municipal Council v Boyts Radio at 61; 354. Premises used as a milk bar with takeaway food were not classified as a café or refreshment room: Grace .