Mona Vale Pty Ltd v Pittwater Council

The statutory context 9 Division 10 of pt 4 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") deals with existing uses. Section 107 provides that nothing in that Act or in an environmental planning instruments prevents the continuance of an existing use. 10 Section 108 provides that the regulations may make provision for the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, the change of an existing use to another use, and the enlargement, expansion or intensification of an existing use. Clauses 41 - 46 of the Environmental Planning and Assessment Regulation 2000 ("the Regulation") are such provisions. They are known as "the incorporated provisions" and are to be taken as incorporated in every environmental planning instrument. They provide as follows: 41(1) An existing use may, subject to this Division: (a) be enlarged, expanded or intensified, or (b) be altered or extended, or (c) be rebuilt, or (d) be changed to another use, including a use that would otherwise be prohibited under the Act. (2) A use to which an existing use is changed is itself taken to be an existing use for the purposes of the Act and may, subject to this Division, be changed to another use.

42(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.

43(1) Development consent is required for any alteration or extension of a building or work used for an existing use. (2) The alteration or extension: (a) must be for the existing use of the building or work, or for a changed existing use, but for no other use, and (b) must be erected or carried out only on the land on which the building or work was erected or carried out immediately before the relevant date.

44(1) Development consent is required for any rebuilding of a building or work used for an existing use. (2) The rebuilding: (a) must be for the existing use of the building or work, or for a changed existing use, but for no other use, and (b) must be carried out only on the land on which the building or work was erected or carried out immediately before the relevant date. 45 Development consent is required: (a) for any change of an existing use to another use, and (b) in the case of a building, work or land that is used for different existing uses, for any change in the proportions in which the various parts of the building, work or land are used for those purposes. 46 Nothing in this Part prevents the granting of a development consent referred to in clause 42, 43 or 44 at the same time as the granting of a development consent referred to in clause 45. 11 It can be seen that each of cl 42(2)(b), 43(2)(b) and 44(2(b) limit the development permitted under each of those provisions to "… the land on which the existing use was carried out immediately before the relevant date". Clause 39 relevant defines the "relevant date" as the date on which the environmental planning instrument having the effect of prohibiting the existing use first came into force. The "relevant date" in this case occurred on 13 August 1982. 12 In this case, therefore, the question arises as to what part of the site constitutes "the land" upon which the existing use was carried out immediately before the relevant date. If "the land" is found, on the facts and circumstances of this case, to be limited to the surface of the Darley Street portion of the site, then the question arises as to whether consent may be granted to the proposed development. It is to these issues that the first and second legal questions are directed. 13 Next, it is also apparent that the development permitted under the incorporated provisions is limited by the descriptions in those provisions. That raises the question, in this case, as to whether the development which is proposed is a "rebuilding of a building or work used for an existing use" within the meaning of cl 44. That is the issue to which the third legal question is directed.

Question 1 - the surface of the land? 14 The council relies upon the recent decisions in Lemworth Pty Ltd v Liverpool City Council (2001) 117 LGERA 305 and Starray Pty Ltd v Sydney City Council [2002] NSWLEC 48 to claim that "the land" on which the existing use was carried out is limited to the surface of the Darley Street portion of the site. 15 In Lemworth, the appellant had existing use rights in respect of the first floor of a building which it had been lawfully using as a brothel before development for the purpose of a brothel became prohibited in the relevant zone. It was held that, for the purpose of cl 42(2)(b) of the Regulation, the land upon which the existing use was carried out was "a distinct portion of the land (the first floor)" (par 44) and was not the whole of the land on which the building was constructed, nor the ground floor of that building. 16 In Starray, the applicant had existing use rights in respect of the street-level stratum of the particular site which it had been lawfully using for the purpose of public car parking before use for that purpose became prohibited in the relevant zone. It claimed that its existing use rights extended to the subterranean strata of the site and entitled it to use two basement levels of a building not then built but which was the subject of a current development consent. I held, at par 24, that the extent of the land to which the applicant had the benefit of existing use rights was the ground level of the site, that it did not use any subterranean strata of the site for the purpose of that use, nor did it hold those strata in reserve for that purpose, and that it did not use or hold in reserve for its use either of the basement levels of the proposed building because those basement levels did not exist. 17 In response to the council's claim, the applicant contends that neither Lemworth or Starray establish any new test for the determination of the question of what constitutes "the land" for the purpose of the relevant incorporated provisions, and that each of those cases depend upon their own particular facts. 18 In Lemworth at pars 24 - 43, Stein JA gave extensive consideration to the various versions of the incorporated provisions that have existed and he discussed relevant authorities in relation to them. In particular, at par 24, his Honour referred to the decisions of the High Court in Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1 and Eaton & Sons v Warringah Shire Council (1972) 129 CLR 270, noting that, although those decisions are now of limited assistance given the statutory changes that have since taken place, they are still relevant to the construction of the word "land" in cl 42(2). Hodgson JA at par 73 also expressed the opinion that the approach in those cases was "… to be applied to determine the extent of the area into which an existing use could be permitted to expand pursuant to development consent". 19 The issue in both Brickworks and Eaton was the identification of the land on which existing uses could be said to have been carried out. In Brickworks at p 23, Gibbs J (with whom the other members of the High Court agreed) said that the reference is "… to land which from a practical point of view should be regarded as one piece of land". In Eaton at p 279 Walsh J referred to the "… whole of the land as one unit for the specified purpose", and at p 281 Gibbs J referred also looking at the land as "a unit". Stein JA approached the matter in the same way in par 42 of Lemworth, and, par 74 of Lemworth, Hodgson JA posed the issue in this way: The ultimate question would be that contemplated by the decisions in Brickworks and Eaton, namely to this effect: is there some area of land including the first floor of the premises but extending beyond it that can fairly be regarded as a whole area used for the relevant purpose at the relevant time? 20 In my opinion, neither Lemworth nor Starray is authority for the proposition that the word "land" where used in the relevant parts of the incorporated provisions is in some way limited to the surface of the land on which the existing use was carried out at the relevant date. Each of those cases depends upon its own particular facts. In Lemworth, the Brickworks and Eaton approach was applied to reach a conclusion that the unit of land upon which the brothel use was carried out at the relevant date was the first floor of the building and it did not extend beyond it. In Starray the same approach was adopted to reach a conclusion that the unit of land upon which the car park use was carried out at the relevant date was the ground level stratum and it did not extend to subterranean strata or to the basement levels of a non-existent building.

21 Here, however, the facts are not in dispute. The whole of the Darley Street portion represents "the land" upon which the existing use was carried out at the relevant date. The council acted in conformity with such a conclusion by permitting, in the 1992 consent, a refurbishment that utilised the Darley Street portion. There is nothing the facts and circumstances of this case which could confine the existing use to a discrete part of the Darley Street portion, such as, as the council has suggested, its surface level. In fact, the 1992 consent authorised below ground works - the levelling of the site, and the provision of underground services such as sewerage and stormwater tanks. Furthermore, in this case, unlike Lemworth and Starray, no question arises as to whether the land on which the existing use was carried out was some area other than or beyond the Darley Street portion. 22 Accordingly, I answer the first question in the negative - the existing use rights which attach to the Darley Street portion are not limited to its surface.

Question 2 - can consent be granted? 23 In view of the answer to the first legal question, question 2 does not arise.

Question 3 - is the development allowed? 24 The council claims that the incorporated provisions do not allow the development which is proposed. Currently on the site there is a single storey shopping centre with car parking and associated facilities. What is proposed is a three storey building comprising public car parking at the basement level, specialty shops and a supermarket at the first level, and commercial offices at the second level. The proposed development, in the council's submission bears no relationship to the building it is proposed to replace. It could not be regarded as a "re-building" of the existing building within the meaning of cl 44 of the Regulation. 25 Ms Townsend, appearing for the council, relied on the decision Bragg and Anor v Hurstville Municipal Council (1971) 21 LGRA 292. In that case, the applicants sought a declaration that the replacement of a single storey building used as two flats with a two-storey building containing eight flats was encompassed by a provision which permitted the rebuilding of a building used for an existing use and therefore did not, under the relevant statutory provisions, require development consent. At p 295, Hardie J said as follows: … Dissimilarity in size, shape, design and appearance do not necessarily negative the concept of rebuilding. However, such differences, when substantial and accompanied by significant increases in the number of storeys and the total floor space area, may well mean that the new structure departs so greatly from the old that it assumes a different nature or character; with a different characterization or categorization, it is not able to qualify for the title or description of a rebuilding of the destroyed or demolished building. 26 The applicant's contention is, however, that the incorporated provisions contain no restriction on alteration, enlargement, or rebuilding by reference to the size or extent of the existing building in which the existing use is carried on. 27 I think that this must be so. The right of a person having the benefit of an existing use to alter, extend or rebuild the building used for the existing use, or to enlarge, expand or intensify the existing use is not at large - it depends upon the grant of development consent for what is proposed. But that is the only qualification. The incorporated provisions do not, in the wording in which they presently exist (as contrasted to earlier versions), contain some internal limitations depending upon elements of relationship such as size, extent, scale or degree. Matters of size, extent, scale and degree may well be relevant to assessment of the particular development in terms of the considerations which are prescribed by s 79C of the EP&A Act. However, except to the extent of the requirement that confines the rights prescribed by the incorporated provisions to the land upon which the existing use was carried out on the relevant date, there is no limitation in the incorporated provisions in terms of relationship between the old and the new which confines the power of the council to grant development consent to a proposal based on one or more of those provisions. 28 I think it is significant that earlier cases, such as Cenatiempo and Ors v Cumberland County Council (1961) 8 LGRA 81, Bragg v Hurstville, and Parramatta City Council v Bolton (1974) 2 NSWLR 241 turned on different statutory provisions. In those cases, the relevant provisions were cls 32 and 33 of the County of Cumberland Planning Ordinance which provided that an existing building may be used for an existing use, and may be altered, enlarged, rebuilt, extended or added to. I recognised that fact in my analysis in North Sydney Municipal Council v Stevens and Anor (1992) 75 LGRA 337 at 343. In that case, I went on to determine the meaning of "rebuild" in the context of the Regulation as it then stood. Again, the form of the Regulation then is significantly different to its form now. In particular, the Regulation then contained an internal limitation on the size of any alteration, extension or rebuilding to 10 per cent of the existing floor space. North Sydney v Stevens cannot, in those circumstances, be relied upon as authority for the meaning of the word "rebuild" as it appears in cl 44 of the current Regulation. 29 However, an analysis of the current statutory provisions suggests, I think, that the interpretation of the word "rebuild" that I adopted in North Sydney v Stevens remains apt. I held, at p 345, that the word "rebuild" meant merely the replacement of the existing structure with the new structure, and that the term was not limited by considerations of the degree of size, character or design. 30 Division 10 of pt 4 of the EP&A Act provides, amongst other things, for the continuance of and preservation of existing uses. Section 108 must be read in that context. It expressly provides that the regulations "may make provision for or with respect to existing use … in particular, with respect to the carrying out of alterations and extensions to or the rebuilding of a building used for an existing use, the change of an existing use to another use, or the enlargement, expansion or intensification of an existing use". In that context, the incorporated provisions provide for some flexibility in the continuance and preservation of existing uses. In South Sydney City Council v Houlakis and Anor (1996) 92 LGERA 401, Clarke JA at p 403 noted, with reference to s 109 of the EP& A Act, that "… enlargements of, and other alterations to, existing uses were facilitated with the consent of the relevant local government authority". That context suggests, in my opinion, that the word "rebuilding" in cl 44 should not be qualified by reference to size, extent, scale or degree, except so far as those matters are relevant in the assessment of a particular development application. 31 Accordingly, I would answer the third legal question in the affirmative - the proposed development is development allowed by cls 41-46 inclusive of the Regulation.

Conclusion 32 I have, in accordance with the foregoing reasons, concluded that there is no legal impediment to the council granting development consent in respect of the proposed development. As I have earlier said, it has indicated that it has no merit objections to the proposed development. The appropriate course, therefore, is to stand the proceedings over for mention before me so that they may be disposed of by appropriate orders.

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