Nelda Bay Pty Limited v Sutherland Shire Council

Land and Environment Court (NSW)|2015-02-16|Before: Pain J

Solicitors: Gadens Lawyers (Applicant) Sutherland Shire Council (Respondent) File Number(s): 10560 of 2014

Historical approval history

On 26 September 1961 the Council approved DA 934/61 submitted by Mobil Oil Company Pty Ltd for the erection and use of a service station on the site subject to conditions. On 12 May 1976 the Council approved DA 282/76 submitted by Bob Jane Corporation (the 1976 consent). The Notice of Approval states that the Council "APPROVES your application for use of premises for motor tyre sales and the erection of a storage area along the southern boundary".
The following conditions were attached to the 1976 consent: 1. The provision of a 2.5 metre landscape strip to the eastern boundary of the site. 2. All vehicular access being to Box Road and the crossings in Box Road to be clearly signposted, the western crossing to be "out only" and the eastern crossing to be an "in only". 3. Off street parking to be provided for 12 vehicles. 4. The brick wall to the southern boundary is not to be extended beyond the line of the new awning, i.e. 11.9 metre building line. 5. All loading and unloading to be carried out within the confines of the site. 6. Tyre fitting and maintenance is not be carried out in the parking bays. 7. No advertising or goods are to be placed within the beautification area. 8. The removal of the concrete gutter and footpath crossings in Taren Point Road and the reinstatement of the kerb and gutter to the correct crossfall, which is to be suitably grassed or to Council's satisfaction. 9. The existing toilet facilities are to be fully repaired. 10. Walls surrounding the storage area are to be constructed with materials having a four hour rating in accordance with the provisions of Ordinance 70. 11. The open storage area is not to be roofed over unless approved by Council. A certificate of classification is to issue before the occupation of the building.

Operations at the site

The site was occupied by Bob Jane T-Mart until July 2013. Between 30 June 2010 and 1 July 2013 Bob Jane T-Mart sold goods and services in the quantities set out in the five page document at annexure A to exhibit 1.The vast majority of tyres and wheels listed in annexure A are by brand name. Annexure A consists of approximately 240 items, including: Product Group Quantity Sales … … … PROBASE 'BRONZE' WHEEL BALANCE 412 $3,128.18 … … … ACCESSORIES - WHEELS 1,441 $5,251.53 … … … TUBES 256 $5,782.83 … … … NITROGEN INFLATION 2,329 $14,643.38 … … … BALANCES 3,333 $22,395.93 … … … MISCELLANEOUS (Non-stocked) 3,600 $56,111.25 … … … PUNCTURE REPAIRS 6,151 $160,011.91 … … … ALIGNMENTS 11,297 $474,608.42 … … … Total 88,215 $8,956,305.41
The Council does not dispute that the sale of wheels was authorised by the 1976 consent. The use in 2010-2013 by Bob Jane T-Mart is not disputed to be different from the use from when the 1976 consent was granted. The Council did not raise any concern with Bob Jane T-Mart in relation to non-compliance with the 1976 consent.

Most recent application history

Development application DA12/1097 was lodged on 13 December 2012 for alterations and additions to an existing retail premises for use as an electronics and technical supply outlet. The application relied on existing use rights as the basis for its permissibility and was refused by the Council on 24 January 2013. Development application DA 13/0563 was submitted on 27 June 2013 which proposed the demolition of the existing building on the site, construction of a single storey building, change of use of the site to retail premises and installation of three advertising signs. The application relied on existing use rights for its permissibility and was refused by the Council on 14 October 2013. Development application 14/0324, the subject of these proceedings, was subsequently lodged with the Council.

Planning controls

Between 27 June 1951 and 22 April 1980 the subject site was zoned Industrial Class A under the County of Cumberland Planning Scheme Ordinance (CCPSO). The CCPSO permitted all uses other than offensive/hazardous industries, dwellings and mines. From 22 April 1980 until 19 March 1992 the site was zoned 4(a2) General Industrial (Restricted) under the Sutherland Planning Scheme Ordinance (SPSO). The SPSO prohibited commercial premises other than banks or timber yards, motor parts and accessory sales (ancillary to an industrial use) and service stations. The SPSO also prohibited car repair stations in the 4 (a2) General Industrial zone.
From 19 March 1993 until 15 December 2000 the site was zoned General Industrial 4(a) under the Sutherland Shire Local Environmental Plan 1993. From 15 December 2000 until 29 November 2006 the site was zoned General Industrial 4(a) under Sutherland Shire Local Environmental Plan 2000. Since 29 November 2006 the site has been zoned Zone 11 - Employment pursuant to the 2006 LEP. "Vehicle and mechanical repair premises" are a permissible use in Zone 11.
Under the 2006 LEP the site is located in Zone 11 - Employment which specifies as follows: … 3 Development allowed only with consent Development (other than development included in item 2) for the purpose of: advertisements, animal boarding or training establishments (not including a riding school), arts and crafts centres, awnings, brothels, bulky goods premises (but only on land identified on the map for such a purpose), bus depots, business identification signs, car parks, childcare centres, community facilities, convenience stores, dwelling houses ancillary to other permissible uses, food shops, generating works, high technology industries, industries, junk yards, liquid fuel depots, maritime activities, motor showrooms, nightclubs, passenger transport facilities, places of public worship, recreation areas, recreation facilities, registered clubs, repair centres, road transport terminals, roads, service stations, service support industries, sex shops, utility installations, vehicle and mechanical repair premises, vehicle rental centres, veterinary hospitals, warehouses, waste recycling and management centres. Demolition not included in item 2. 4 Prohibited development Any development not included in item 2 or 3.
The 2006 LEP provides the following definitions: business premises means: a building or place used as an office, or for other business or commercial purposes, but does not include: (a) a building or place used for any of the following: (i) extractive industry, (ii) industry, (iii) light industry, (iv) a maritime activity, (v) offensive industry, (vi) a radio-communications facility, (vii) service support industry, (viii) a telecommunications facility, or (b) any other building or place defined elsewhere in this Dictionary and specified in the Table to clause 11 (Zoning Table). service station means a building or place used for the sale by retail of fuels and lubricants for motor vehicles, whether or not the building or place is also used for any one or more of the following: (a) the ancillary sale by retail of spare parts and accessories for motor vehicles, (b) the cleaning of motor vehicles, (c) the installation of accessories, (d) the inspection, repair or servicing of motor vehicles (other than body building, panel beating, spray painting, or chassis restoration), (e) the ancillary retail selling or hiring of general merchandise or services. shop means a building or place used for the purpose of display, sale, hire, auction, processing of goods or materials, or like or ancillary activities, but in clause 11 (Zoning Table) does not include bulky goods premises, a convenience store, a food shop, a junk yard, a motor showroom, a service station or a sex shop. vehicle and mechanical repair premises means a building or place used for the purpose of carrying out repairs to motor vehicles or machinery, including watercraft, and engines.
The 2006 LEP is not a Standard Instrument as per the Standard Instrument (Local Environment Plans) Order 2006 (the Standard Instrument). The Standard Instrument provides the following definition: vehicle repair station means a building or place used for the purpose of carrying out repairs to, or the selling and fitting of accessories to, vehicles or agricultural machinery, but does not include a vehicle body repair workshop or vehicle sales or hire premises.
"Business premises" and "shops" are prohibited in Zone 11.

Evidence

The Applicant read in part the affidavit of Mr Sonter, solicitor, sworn 10 November 2014 which exhibited a bundle of documents marked exhibit A and a further affidavit of Mr Sonter sworn 12 December 2014. Exhibit A is made up of relevant documents from the Council's property file for the site obtained by the Applicant's development consultant. Exhibit A contains, amongst other things, development consent no 934/61 for a service station dated 26 September 1961, the 1976 consent, two building permit plans with no 2285/76 (one approved 16 August 1976 and another approved 10 September 1976) and the 2006 LEP. Paragraph 7 of Mr Sonter's affidavit sworn 10 November 2014 states: During my inspection of Council's property file I was unable to locate any correspondence from Council addressed to the operator of the site at any time which related to any alleged unauthorised use of the premises on the Site for the purpose of a tyre sales centre (whether on the basis that the use of the Site was contrary to the terms of the 1976 consent, or on any other basis).
A copy of an Independent Hearing and Assessment Panel report and recommendation of approval for DA 13/0563 was annexed to Mr Sonter's affidavit sworn 12 December 2014.
The Applicant also read the affidavit of Mr Chung sworn 13 November 2014. Mr Chung has been employed by Bob Jane T-Mart since 1997 and is currently the general manager of corporate affairs at Bob Jane Corporation Pty Ltd. In his affidavit at par 8-9, Mr Chung describes the operations of Bob Jane Franchise as follows: 8. The Bob Jane Franchise offered the service of fitting and aligning wheels, however, the primary purpose of the business was the retail sale of tyres and wheels. 9. The Bob Jane Franchise, as a typical Bob Jane T-Mart, offered support services, such as the fitting, balancing and alignment of tyres it sold, but the primary purpose of its business was always the retail sale of tyres and wheels, which is what the T-Mart system primarily does.
Annexed to Mr Chung's affidavit were relevant pages of the Franchise Agreement pursuant to which the Bob Jane Franchise operated (annexure A) and a list of authorised products and authorised services (annexure B). Authorised services are wheel alignment, wheel balancing, puncture repairs, tyre and wheel fitting, and probase wheel balancing.
Clause 10.14 of the Franchise Agreement relevantly states: (c) Prohibited Services/Product Sales The Franchisee and the Franchisee's Representative agree not to: … (ii) repair or modify or arrange for the repair or modification of any tyre or tube, other than normal puncture repairs carried out in a manner approved in writing by the Franchisor; …
Mr Chung states that he is familiar with the operation of a Bob Jane franchise from the franchisor's perspective. He further states that he has no reason to believe that the relevant Bob Jane franchise at the site was operated in breach of Clause 10.14(c).
The Council read in part the affidavit of Ms Pinfold, Council town planner, sworn 9 December 2014 which exhibited documents marked exhibit 2. Ms Pinfold was asked to characterise the 1976 approved use of the site. Having considered the location of the awning adjacent to the workshop and condition 6 of the 1976 consent that prevents tyre fitting and maintenance in the parking bays, in Ms Pinfold's opinion the area under the awning was intended for use for tyre fitting and maintenance. Paragraph 23 of Ms Pinfold's affidavit states: On the approved BA plan showing the proposed floor plan, site plan and elevations, I have calculated the floorspace of the approved building and divided the areas in to 3 categories, being:- Existing Showroom - 14m² Existing Workshop - 82m² New Storeroom - 42m² Total Floorspace 138m²
Exhibit 2 contains, amongst other things, the development application for the 1976 consent dated 28 November 1975, Bob Jane T-Mart advertising material dated November 2014 (after the franchise closed on the site in 2013) and the Statement of Environmental Effects dated March 2014 prepared by Hyperlinked Planning and Research Consultants (the SEE).
The Council also read the affidavit of Ms Edney, Council town planner, sworn 8 December 2014. Ms Edney attests to a conversation she had with the manager of Bob Jane T-Mart that took place in January 2013. The manager stated that in the couple of years he had been working at Bob Jane T-Mart he "cannot remember anybody coming to the site and buying a tyre and taking it with them rather than having it fitted on site".
The Council tendered the registered lease AB858186T to Bob Jane Corporation Pty Ltd valid from 3 November 2008 to when the site was vacated in July 2013 (exhibit 3). Item 3 of the Reference Schedule to exhibit 3 states: Use of the Demised Premises by the Lessee (Clause 6) The retail sale of tyres, wheels and batteries, including the fitting and repair of same, the retail sale and installation of automotive electrical devices, wheel and tyre alignment and all other related services carried on by a Bob Jane T-Mart outlet.

Applicant's submissions

The Applicant submitted that in considering the 2014 DA three tasks arise being: 1. to construe the 1976 development consent for motor tyre sales, an innominate use under the CCPSO; 2. to consider LEP 2006 in order to conclude that the use pursuant to the 1976 consent is prohibited under the LEP; and 3. to apply cl 41(1)(e) of the EPA Regulation to authorise the change of use (agreed by the Council if use is prohibited).
Each of those tasks requires a different approach to interpretation. Firstly, there is no suggestion from the Council that the use of the site by Bob Jane T-Mart was unlawful. There is no suggestion that the use was for any purpose other than pursuant to the 1976 consent. A use for "motor tyre sales" is now an innominate prohibited use under the 2006 LEP.
Dooralong Residents Action Group Pty Limited v Wyong Shire Council [2011] NSWLEC 251; (2011) 186 LGERA 274; MM & SW Enterprises Pty Ltd v Strathfield Council [2010] NSWLEC 8; (2010) 172 LGERA 125 and Jojeni Investments Pty Ltd v Mosman Municipal Council [2014] NSWLEC 120 make it clear that the present task is not an attempt to characterise the use, but rather it is the separate question of construction of the development consent. The Applicant relies on the conditions of consent of the 1976 consent and the approved building permit plans having regard to the principles in Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182. Properly construed the 1976 consent authorised the use of the land for the purpose of "motor tyre sales". This is clear on the face of the 1976 consent. This is confirmed by the plans approved for the building permit which it is agreed form part of the consent.
Additional services such as fitting and balancing of tyres are clearly ancillary to the sale of wheels and tyres. The sale of tyres has incidental to it fitting, balancing and the occasional repair. The principles in Foodbarn Pty Limited v Solicitor-General (NSW) (1975) 32 LGRA 157 at 161 apply. Foodbarn confirms that where an activity is ancillary it does not matter if it is big or small.
Secondly, it is necessary to determine whether or not the use of the land is for the purpose of "motor tyre sales". The use is for "motor tyre sales" with the fitting and balancing of tyres ancillary to that major purpose. These ancillary activities are not properly characterised as the repair of motor vehicles. The task requires the application of the ordinary meaning of words. The replacement of a tyre after it has been sold is not a motor vehicle repair.
The taxation and property cases relied on by the Council on the meaning of repair are unhelpful. For example Rhodesia Railways, Limited v Collector of Income Tax, Bechuanaland Protectorate [1933] AC 368 provides no assistance in working out repair and replacement in this case. It is obvious to state that repair of sleepers and track is repair of a railway line. While the 2006 LEP has an "old" definition of "vehicle and mechanical repair premises", the Standard Instrument now recognises the difference between the carrying out of repairs to a vehicle and the fitting of accessories to a vehicle. The Standard Instrument now defines a "vehicle repair station" as something which includes both activities. This supports the Applicant's construction.
Even if the balancing of tyres is the repair of a motor vehicle that activity is clearly ancillary to the dominant activity of the sale of tyres. Comparisons of floor area occupied by tyres compared to floor area occupied by cars is irrelevant. Ms Pinfold states that 14m2 is the sale area (out of 138m2) and over 100m2 is for fitting and balancing. Analysing in detail annexure A to exhibit 1 to try and work out sales percentages of different items is irrelevant as those percentages do not matter. The list of goods and services provided in annexure A to exhibit 1 shows "probase wheel balance" for $3,128 which equates to 0.03% of the turnover for three years. Similar observations of the activity being de minimis can be made of the other goods or services relied on by the Council. "Balancing" for $22,395 equates to 0.25% of turnover over the same period. Income from tyre sales is shown as approximately $9 million.
The use pursuant to the 1976 consent cannot be characterised as for "vehicle and mechanical repair premises", applying authorities such as Royal Agricultural Society (NSW) v Sydney City Council (1987) 61 LGRA 305, Dosan Pty Ltd v Rockdale City Council [2001] NSWLEC 252; (2001) 117 LGERA 363 and Dooralong. The use of motor tyre sales shop does not meet the description in the 2006 LEP of "vehicle and mechanical repair premises" and is therefore prohibited. The Applicant has the benefit of existing use rights.

Council's submissions

The first question is whether the Bob Jane T-Mart use is permissible under the 2006 LEP. The answer is yes because the use was as "vehicle and mechanical repair premises" as defined in the 2006 LEP, described as a car care centre by Bob Jane T-Mart. It sold three basic items being wheels, tyres and batteries. It also provided services which can be considered as repairs. Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211 not Foodbarn is the relevant authority. The High Court in Lizzio stated the question of characterisation of the purpose of a use of land was one of fact and degree, not whether a use is dominant or ancillary.
That services and repairs, not tyre or wheel sales were the main matters provided can be seen from the goods and services sold at the Bob Jane T-Mart in its last years of trading from 2010 to 2013, listed in annexure A to exhibit 1. This shows sales of 412 probase bronze wheel balances, 1,441 wheels, 256 tyre tubes, 2,329 nitrogen inflations, 3,333 wheel balances, 3,600 non-stocked items, 6,151 puncture repairs, numerous tyres, and 11,297 wheel alignments with a total revenue of $8.9 million. Photographs attached to the Applicant's SEE for DA 14/0324 show Bob Jane T-Mart operations on the site before it was vacated, including working areas below the main roof, main tyre and parts storage, the customer service counter and temporary tyre storage, and a car parking area (tab 8, exhibit 2). The statement in the Bob Jane T-Mart catalogue that "all tyre prices include fitting, balance, tubeless valves, GST and tyre disposal" (p 5, tab 7, exhibit 2) is offered so that the contract for sale includes work and materials. It is not a simple retail sale. Old tyres are kept on the site and disposed of by Bob Jane T-Mart.
Under the Franchise Agreement mechanical repairs cannot be done in a general sense but mechanical repairs involving the repair of wheels or tyres can be undertaken. The Franchise Agreement attached to Mr Chung's affidavit provides for the sale of goods and services. It specifies prohibited services. Mechanical repairs and maintenance that adjusts or replaces camber or caster alignments is allowed. Puncture repair of tyres is allowed. Second hand tyres from other Bob Jane T-mart stores can be sold. Under the Franchise Agreement the sale of tyres involves the fitting and balancing of the tyres and can be characterised as "vehicle and mechanical repair premises".
The development application for the 1976 consent shows the physical nature of the land as including an air compressor and hoist, being the machinery present on the site. The machinery intended to be installed were tyre changing machines and "balancing electrical" according to the second page of the application. In construing the 2006 LEP other definitions can be referred to such as "service stations". (It is unclear how that definition assists the Council as that definition requires selling fuel which the land use did not.) The 1976 consent involves more than tyre sales and authorised vehicle repairs such as replacing tyres. If the Court finds that the 1976 consent is for motor tyre sales the use is still for a motor vehicle repair station given ancillary activities being conducted of fitting tyres and wheel balancing. The Applicant's approach assumes that what is ancillary to the purpose of the 1976 consent is to be disregarded for the purpose of characterising the use under the 2006 LEP and such an approach is contrary to Liverpool City Council v Maller Holdings Pty Ltd trading as Sydney Horse Transport [2014] NSWCCA 299 at [41], [42] and [44].
The meaning of repair and replacement has been considered in several taxation and property cases in various jurisdictions: Lurcott v Wakely & Wheeler [1911] 1KB 905 (Buckley LJ), Rhodesia Railways, Lindsay v Federal Commissioner of Taxation [1961] HCA 93; (1961) 106 CLR 377, W Thomas & Co Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia [1965] HCA 54; (1965) 115 CLR 58, Auckland Gas Co Ltd v The Commission of Inland Revenue [2000] 3 NZLR [2001]; 1 WLR 1783 (Privy Council). Those cases all confirm that repair is the replacement of subsidiary parts of an entirety rather than the entirety.
A tyre is indivisible from a vehicle so that repair to a tyre is a repair to the vehicle. A vehicle cannot function without a tyre and a tyre is integral to a vehicle. The same can be said of batteries and wheels. The fact that the 1976 consent does not describe the use of the activity as the repair of a vehicle is irrelevant. The label affixed to the activity by the 1976 consent cannot control the meaning of the permissible use under the 2006 LEP. From a planning perspective it would be tedious for an LEP to define an authorised use in terms of the detailed activity rather than the generic class of activity. The vehicle repair use is inextricable to the use of the land and is the principal activity on the land. Fitting of tyres if ancillary is still repair of a vehicle.
It is evident that authorising the sale of tyres involves far more than a retail activity typical of a shop: expertise was required to remove and add tyres, the use of mechanical or hydraulic equipment to do so was necessary and it no doubt extended to such ancillary services as were necessary for the replacement of tyres to be effective. This included wheel balancing, alignment and possibly the replacement of wheels. Bob Jane T-Mart held itself out as offering wheel replacement services. Although not expressly authorised by the 1976 consent, it is at least arguable that if a tyre cannot be fitted without replacing a wheel, the replacement of a wheel may be a necessary adjunct to the fitting of a tyre. If this is not so, then the use of the land was not authorised by the consent, and no existing use arises because the use was not for a lawful purpose: s 106(a) of the EPA Act.
Bob Jane Corporation Pty Ltd was the lessee pursuant to a registered lease of the whole of the premises. Clause 6.1 of the lease required the lessee not to use or permit the use of the premises for any purpose other than for the carrying on of the business specified in Item 3 of the Reference Schedule to the lease (extracted above at par 25).
This breadth of activity is consistent with the photographs and descriptions of the former use in the SEE (see par 23 above), and various advertising material in evidence. In 2014 Bob Jane T-Mart advertised the sale of tyres with a note "prices include fitting, standard balancing, valves and tyre disposal" (tab 7 exhibit 2). The sale therefore included the provision of services as well as the sale of goods. The contract was indivisible, and it is an error to describe one aspect as subsidiary to the other. This is part of the principal use of the premises.
Finally, to have existing use rights a use must fall within s 106(a) of the EPA Act. No existing use within the meaning of ss 106(a), 107 and 108 can arise because s 109B applies, as held in Caltex Australia Petroleum Pty Ltd v Manly Council [2007] NSWLEC 105; (2007) 155 LGERA 255.

Applicant has existing use rights as motor tyre sales shop

The Applicant's case as submitted at the hearing is not reflected in the order of the questions posed to the Court. Its case is question (b). It suits the Council's case to answer first question (a) first.
The parties agree that the relevant time for the determination of whether an existing use right as identified in s 106(a) of the EPA Act exists is the use of the land immediately prior to the commencement of the 2006 LEP. If that use was prohibited by the 2006 LEP then the Applicant has existing use rights. It is agreed that if the use of the site when the 2006 LEP came into force was for the purpose of "motor tyre sales", that use than became prohibited. The parties disagree on whether the 2006 LEP prohibited the use of the land because they seek to construe (the Applicant) or characterise (the Council) that use and its purpose differently.
The Applicant relies on the use of the site by Bob Jane T-Mart from 2010 to 2013 (an agreed substitute time period for proof of the land use before the 2006 LEP came into effect) as a use for "motor tyre sales" as granted consent in 1976. At issue according to the Council is whether regardless of the 1976 consent the use of the land should be characterised for a presently permissible use of "vehicle and mechanical repair premises" under the 2006 LEP. If a currently permissible use, the site does not benefit from existing use rights.
Although urged by the Council that the Court's first task is to characterise the purpose of the use of the land to see if it meets the definition of "vehicle and mechanical repair premises" in the 2006 LEP (question (a)), the purpose of the use of the land pursuant to the 1976 consent for motor tyre sales is the first matter to consider (essentially question (b)). That was the relevant legal basis for the use of the land when the 2006 LEP came into force. As the Court of Appeal in Maller held at [41], where it is necessary to construe the purpose of the use of land that should be done once. The Council's approach would impermissibly result in the exercise being done twice. The facts and legal issues arising in Maller were quite different to those in this matter and do not support the Council's submission that whether the use is permissible under the 2006 LEP must arise first because only if prohibited do existing use rights arise. While the latter part of that submission is correct the legal basis for the use relied on by the Applicant is the 1976 consent, pursuant to which the use of the site continued from 1976 to 2013. In Maller the use of land in issue had changed substantially over time and the legal inquiry necessitated by those criminal proceedings was different to this matter. A similar approach was taken in MM & SW Enterprises Pty Ltd at [87].
Construction of the use of the land for the purposes underpinned by the 1976 consent can be done relatively simply. Ultimately there was not much disagreement between the parties as to what can be considered in the construction of the 1976 consent. The most relevant evidence is that the consent on its face provides expressly for the sale of motor tyres. On one view the inquiry stops there. No action was taken by the Council suggesting that the use by Bob Jane T-Mart was not carried out in accordance with the 1976 consent during the time that company operated on the site. The Council appeared to submit during the hearing that the Applicant must demonstrate that what Bob Jane T-Mart did was in conformity with the consent. There is no specific allegation from the Council (before these submissions by its counsel in court) that the 1976 consent was not complied with by Bob Jane T-Mart, which is also supported by par 7 of Mr Sonter's affidavit dated 10 November 2014 (see above at par 16). This cannot be raised in this manner now as casting some onus on the Applicant to do so. Arguably the use of the land for the purpose of motor tyre sales pursuant to the 1976 consent is an innominate prohibited use under the 2006 LEP.
If it is necessary to characterise the purpose of the use of the site following the grant of the 1976 consent the principles for doing so were stated by me in Dooralong at [99]: The parties were not in disagreement with the principles relevant to characterisation extracted in Chamwell at [27] - [50] and adopted in Abret at [49] - [54] . Characterisation must be done in a commonsense and practical way: Chamwell at [45]. The principles were correctly summarised in the Salvation Army's submissions. Firstly, a use must be for a purpose, being the end to which the use of the land can be seen to be put : O'Keefe at 535. The use of land involves no more than the "physical acts by which the land is made to serve some purpose": Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493 at 508. Secondly, the nature of the use needs to be distinguished from the purpose of the use: O'Keefe at 534 - 535 and Warringah Shire Council v Raffles [1979] 2 NSWLR 299. Thirdly, in determining whether land was used for a particular purpose, an inquiry into how that purpose could be achieved is necessary : Council of the City of Newcastle at 499 - 500 . Fourthly, the characterisation of the purpose should be done "at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on", not "in terms of the detailed activities or processes" but not so general as to "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 Agricultural Society of New South Wales at 310. The construction is for town planning purposes: Boyts Radio and Electrical at 59 per Kirby P and Grace at [88] - [90].
A further useful summary to similar effect appears in MM & SW Enterprises at [84]-[85] citing Warlam Pty Ltd v Marrickville City Council (2009) 165 LGERA 184. The Council relied on the "common sense" approach in Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529; Royal Agricultural Society and North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50; (1989) 67 LGERA 334 as supportive of its case that the test is to look at the activities on the site not what the consent says to see if the use is prohibited. The identification of the activity authorised by historic consents is a second question according to the Council, an approach I have not adopted for the reasons already given. The recent Court of Appeal decision in Jojeni Investments Pty Ltd v Mosman Municipal Council [2015] NSWCA 147 applies a number of these authorities at [71]-[82] and identifies that a key factor is the level of particularity at which the activity in issue is assessed, as identified in Royal Agricultural Society at 310 (at [76]) and Woollahra Municipal Council v Banool Developments Pty Limited [1973] HCA 65; (1973) 129 CLR 138 per Mason J at [79]-[80].
The balance of the parties' submissions in relation to the 1976 consent will be considered. The consent was issued subject to eleven conditions (set out in par 6). Condition 3 required off street parking for twelve cars. Condition 6 required that tyre fitting and maintenance not be carried out in the parking bays. The Council submitted and the Applicant accepts that the consent authorised the fitting of tyres in those parts of the site not including the parking area. Condition 10 required that walls surrounding the storage area were to be built to a certain fire rating. The Council submitted and the Applicant accepted that the storage area was by inference for the storage of tyres given its fire rating but little hangs on that. It is entirely to be expected that there would be a storage area for tyres on the site. The conditions are consistent with the use of the site for motor tyre sales with the provision of related services of tyre fitting and maintenance expressly recognised in condition 6.
The parties agreed the site plans which accompanied the building permit were to be regarded as part of the 1976 consent. There were two separate plans dated 16 August 1976 and 10 September 1976 approved for the same building permit no 2285/76. Attard v Transport for New South Wales [2014] NSWLEC 44; (2014) 205 LGERA 396 at [176] which the Council referred to is one of several cases where submitted plans have been considered in order to interpret a development consent. In Allandale Ward JA held at [163] that plans can be considered to interpret a development consent but not to extend it and similarly, Meagher JA stated at [44] the principle that evidence is not to vary the consent but to identify the thing referred to in it. That observation should be applied to the Council's reliance on signage on the building shown on the plans as a "car care centre" as supporting its submission that the use was for vehicle repairs. The expressly approved use in the 1976 consent is for motor tyre sales and the label on the plan of "car care centre" does not extend that approved use.
The Council relied on Ms Pinfold's evidence (see par 22) that the plans authorised an existing showroom (for retail) of 14m2 which was approximately 10% of the approved floor space. The new storage area was 42m2 and the existing workshop 82m2. That the plans show areas used for the services of tyre fitting and wheel balancing which are proportionally a large area of the site does not support the Council's submission that the site is for a vehicle repair shop. It is self-evident that cars are substantially larger than tyres and wheels and their accommodation on the site requires more space than is devoted to tyre sales and storage. It is also self-evident that fitting and balancing of tyres and wheels can be services ancillary to the sale of tyres. Reliance on the plans alone does not assist the Council's case as these should be read with the conditions to understand the consent as a whole.
The development application for the 1976 consent identified existing machinery on the site such as an air-compressor and hoist, the site being a former service station. The Council relied on the existing and new machinery to be installed for tyre changing machines and electronic balancing machines to submit that this machinery was typical of "vehicle and maintenance repair premises". The Council also relied on photographs of the use of the land by Bob Jane T-Mart showing hoists, workshop facilities and other areas for the fitting of tyres, which the Council emphasised occupied a substantial proportion of the site. That the machinery located on the site can be described as able to be used for vehicle repair and maintenance does not convert the purpose of the use of the site to such an activity. It is trite to state that equipment related to the fitting of tyres and balancing of wheels may well be used in a different context for the repair and maintenance of a vehicle.
The Council relied on the list of goods and services sold by Bob Jane T-Mart in the period 2010 to 2013 contained in annexure A to exhibit 1, partially extracted in par 7. The Council's analysis of the list (par 35 above) is incomplete and does not reflect the information in it. It is clear from viewing the list and from the Applicant's analysis of the list (par 32 above) that the vast majority of income of approximately $9 million was derived from the sale of tyres and wheels not the ancillary services of wheel balancing and tyre fitting and other service items from which a small amount of income was derived. Whether these service activities are described as ancillary as referred to in Foodbarn, or assessed as minor not major as a question of fact and degree per Lizzio the Council's case is not supported by this evidence. Lizzio does not overrule Foodbarn expressly or impliedly in any event.
The use of the site for motor tyre sales with ancillary activities is further confirmed by the lease of the site by Bob Jane Corporation Pty Ltd in evidence, contrary to the Council's reliance on this. Clause 6.1 required the lessee not to use or permit the use of the site for any purpose other than for the carrying out of the business specified in Item 3 of the Reference Schedule to the lease, identified in par 23. The evidence of Mr Chung summarised at par 18-21 further confirms the nature of the business engaged in by Bob Jane franchisees including that general vehicle repairs were not part of the business to be undertaken by franchisees, all of which supports the Applicant's case.
The Council also relied on the advertising material of Bob Jane T-Mart franchisees generally in November 2014 exhibited to Ms Pinfold's affidavit which referred to prices including the fitting, standard balancing, valves and tyre disposal as confirming that services were included in the sale of goods. That takes the Council's argument no further as that material simply confirms the other evidence of what occurred on site.
The Council submitted that the repair or replacement of a tyre was integral to the operation of a motor car so that the use of the site was therefore a "vehicle and mechanical repair premises", relying on several older cases from diverse jurisdictions which considered whether a repair or replacement was effected, namely Lurcott v Wakely & Wheeler (a covenant in a lease to substantially repair and keep in good condition the premises), Rhodesia Railways Ltd (cost of replacing rails and sleepers for part of track was a repair, the effect of the work was to bring the track as a whole back to normal condition) and Lindsay v Federal Commissioner of Taxation (whether reconstruction of a slipway was the replacement or repair of the whole of site). These authorities were said to support a submission that replacement of one part for another if considered to be part of a whole object is a repair. I adopt the passage of Windeyer J in W Thomas & Co Pty Ltd v Federal Commissioner of Taxation at 72, a case also cited in the Council's submissions where his Honour identified that nothing much was to be gained by comparing the particular facts of other cases with the facts of the case before him. Whether or not work done upon a thing is a repair of that thing is a question of fact and degree. These cases concerned taxation and property statutes not planning law. They are of limited assistance and do not cause me to accept the Council's submissions for the reasons given in relation to the construction or the characterisation of the use of the site pursuant to the 1976 consent.
As the Applicant submitted that a tyre is sold and installed on a vehicle by the same business is not the repair of a vehicle in a planning law context. That distinction is confirmed by the current definition in the Standard Instrument of vehicle repair shop as identified in the Applicant's submissions. The definition (see par 14 above) differentiates between the two activities of vehicle repair to vehicles and the selling and fitting of accessories to a vehicle. The use of the site by Bob Jane T-Mart fell within the latter category of activity, and was the use authorised by the 1976 consent.
Bob Jane T-Mart operations on the site from 2010 to 2013 were not for the purpose of "vehicle and mechanical repair premises" and therefore were impermissible under the 2006 LEP. The Applicant's approach to the characterisation of the purpose of the use of the site the subject of the 1976 consent is correct. The Council's case impermissibly sought to specify the use at too great a level of particularity, contrary to the authorities cited above in par 49-50.
The activities of Bob Jane T-Mart up to 2013 being consistent with the 1976 consent became prohibited under the 2006 LEP. Subject to resolution of the issue of whether s 109B of the EPA Act applies, the Applicant has existing use rights which use can be changed in accordance with the relevant EPA Regulation.
The Council relied on my decision in Caltex where I held that there were alternative not concurrent rights in Div 10 of the EPA Act. If s 109B (which provides for the continuation of a development consent in force) applied, s 106 and s 108 existing use rights were excluded. A contrary view was taken in Currency Corporation v Wyong Shire Council [2006] NSWLEC 692; (2006) 155 LGERA 230 and Reading Properties Pty Ltd v Auburn Council [2007] NSWLEC 186; (2007) 158 LGERA 116 that Div 10 provided for dual rights. The Applicant relied on those cases. It is unnecessary to further consider this issue as the Court of Appeal in Jojeni has determined very recently that the approach in Currency Corporation and Reading is correct, at [106]. That decision is binding upon me so that s 106(a) and s 108 apply for the benefit of the Applicant.
In conclusion the Applicant has existing use rights. The answer to (b) is "Yes". The answer to question (a) is "No". It is agreed that existing use rights can be changed under s 108 of the EPA Act and cl 41(1)(e) of the EPA Regulation (question (c)).

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 June 2015

County of Cumberland Planning Scheme Ordinance Environmental Planning and Assessment Act 1979(NSW)s 97, s

(2013) 195 LGERA 182

(2014) 205 LGERA 396

(2007) 155 LGERA 255

(2006) 155 LGERA 230

(2011) 186 LGERA 274

(2001) 117 LGERA 363

(2010) 172 LGERA 125

(2009) 165 LGERA 184

(2007) 158 LGERA 116

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