Presrod Pty Limited v Wollongong City Council

Land and Environment Court (NSW)|2012-05-29|Before: Sheahan J

The applicant's case 51Mr Hemmings put to the Court that the applicant's approach relies on existing use rights, but also takes the benefit of the 2008 approval, and seeks to amend that DC by a later DC (T p12 LL45-48). There is no doubt that LEP 2009 prohibits the proposed use, but he submits that the savings provision (cl 1.8A) has the effect that, until the 2009 approval was finally determined, the application was to be determined as if LEP 2009 had not yet commenced (see applicant's memorandum of advice, par 19). 52Clause 1.8A permitted the DA to be determined, and approval granted, and immediately upon the granting of that consent, it ceased to have effect. Consequently, upon final determination of the 2009 approval, LEP 2009 "commenced" for the purpose of that DA, and it was only upon that commencement, that a provision of the LEP 2009 first had the effect of prohibiting the use. 53Mr Hemmings submits that DA 2009/867 was capable of approval "because there was not something which had the effect of prohibiting that use as at 30 July 2010" (T p27 L31). Therefore, although the LEP commenced on 26 February 2010 (cl 1.1AA), the relevant date for the purpose of the subject application, and s 106, is 30 July 2010 (applicant's reply submissions, par 5). Understood in that way, LEP 2009 is taken to have commenced following the 2009 approval (reply subs, par 9). 54In support of his interpretation, Mr Hemmings submits that existing use provisions are "designed to preserve and protect existing rights. They ought to be liberally construed", and should "not be restricted by dubious implications drawn from words used in other clauses directed to a different subject matter" (Parramatta City Council v Brickworks Limited (1972) 128 CLR 1, at 25, and Dorrestijn v South Australia Planning Commission [1984] HCA 76; (1984) 54 LGRA 99, at [105]). The Court should, therefore, approach the chronological requirements of s 106(b)(i) in accordance with that liberal interpretation. 55Mr Hemmings draws attention to differences in the express terms of s 106(a), which focuses upon "the commencement of an environmental planning instrument", compared with those of s 106(b), which directs attention to "provisions of the instrument", having the effect of prohibiting the use. Section 106(b) is, therefore, concerned with the use for which consent was granted. 56Mr Hemmings argues that, as the 2009 approval was acted upon within one year of its grant (see above at [28] and [43]), the use commenced for the purposes of s 106(b)(ii), and the whole of the site, therefore, has the benefit of existing use rights. 57As a result of those existing use rights, a new DA can be lodged to expand, intensify or alter those rights. However, rather than taking that course, the applicant submits that the subject application has the effect of modifying its earlier DC. As authority for this, Mr Hemmings refers the Court to s 80A of the EPA Act, Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780 ("Gordon & Valich"), at [17], and Waverley Council v CM Hairis Architects [2002] NSWLEC 180; (2002) 123 LGERA 100 ("Hairis Architects") (reply subs, par 19). 58Mr Hemmings submits that the Court had already considered the merits issues pertaining to the three-storey hotel in the 2008 approval, and the subject application merely modifies that DC by providing for dual key apartments and converting some of the two bedroom apartments to one bedroom (rely subs, par 20).

Finding on s 106 59An existing use as defined, in s 106 of the EPA Act, is a use that is lawfully commenced, but which subsequently becomes prohibited as a result of the introduction of a new environmental planning instrument. 60In this case, it is not in dispute that, as a result of the 2009 approval, the site has the benefit of DC, which is both valid and continuing, for use as hotel accommodation, notwithstanding the fact that such is now a prohibited use under LEP 2009. 61It is also agreed that, although the 2009 approval was granted (30 July 2010) after the date that LEP 2009 came into effect (26 February 2010) for a use that is prohibited in that LEP, cl 1.8A meant that, as it was lodged with Council before 26 February 2010, it could be determined as though the later plan had not commenced. 62The major difference between the parties essentially comes down to the impact, if any, that cl 1.8A had upon the commencement of the LEP, and whether it can be relied upon, as the applicant contends, to effectively defer commencement of the LEP, so that the terms of s 106 are satisfied. 63The Court is of the opinion that there is nothing in LEP 2009 that indicates a commencement date for some provisions, which is different to that for others. Clause 1.8A does not operate to alter the timing of the commencement of the LEP or the provisions within it, but it allows an application lodged within a certain time frame to be determined under an earlier instrument. 64The Court notes the difference, in their express terms, between s 106(a) and s 106(b), but the interpretation given to those differences by the applicant cannot be accepted. 65A DC granted before the commencement of an environmental planning instrument (or a specific provision within it) falls within the definition of existing use in s 106, but that is different from a situation where a DA is lodged before commencement of the relevant instrument, but not determined until after it has commenced. 66Accordingly, the provision prohibiting the subject use commenced on 26 February 2010, pursuant to cl 1.1AA of LEP 2009, and it was not deferred for the purpose of the 2009 approval, as a result of cl 1.8A. 67The site does not, therefore, have existing use rights under s 106(b) of the EPA Act, emanating from the 2009 approval.

(2) The subject application, the 2009 approval, and s 109B 68Ms Duggan accepts that, although the site does not enjoy existing use rights, both the 2008 and 2009 approvals continue, and can be modified "in accordance with the Act", pursuant to s 109B(2)(b) (see T p20 L44). 69However, as the use to which the DC relates is prohibited, it can only be modified by way of a modification application, pursuant to s 96 of the EPA Act - an avenue that the applicant cannot pursue, and has not pursued, due to the "jurisdictional limitations" requiring the development to be substantially the same as that originally approved (respondent's submissions, par 34). 70Ms Duggan submits that, although, pursuant to s 80A, a later DC can impose conditions modifying the terms of another DC, that section does not operate to authorise the making of a DA, but can be exercised only on a validly made DA. Further, in referring to the division of the Act dealing with existing use, s 80A(1)(b) merely acknowledges that where a DC can be granted, a condition can be imposed on the DC, which operates to modify the existing use (subs, par 43). 71Ms Duggan submits that Part 4 Div 2 of the EPA Act, which authorises the making, consideration and determination of DAs, does not apply to prohibited developments (see ss 76A, 76B, and 77). Therefore, in the absence of existing use rights, the consent authority cannot approve the subject application, and "the exercise of the power to impose a condition never arises" (subs, par 36). 72Ms Duggan contends, therefore, that, as the 2009 approval does not confer existing use rights upon the site, and the subject application is for a prohibited use, it must be refused. 73Notwithstanding the applicant's principal position that the site has existing use rights, Mr Hemmings submits that s 109B, which forms "part of the suite of controls designed to protect existing uses" (applicant's reply subs, par 21), also provides the opportunity for the approval of the subject application. 74Mr Hemmings submits that the site and/or the development can benefit from both a s 106 existing use, and a s 109B continuing use, and relies upon Currency Corp Pty Ltd 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 ("Reading Properties") at [36] (but c.f Pain J's comments in Caltex Australia Petroleum Pty Ltd v Manly Council [2007] NSWLEC 105; (2007) 155 LGERA 255). 75Mr Hemmings argues, however, that if s 106 existing use rights are found to exist, the Court need not concern itself with s 109B, and he, therefore, confines his submissions on s 109B to the separate question of the power to modify a s 109B DC, for which there are no s 106 existing use rights (Tp 29 L 46 ff). 76Section 109B(2)(b) makes it clear that a DC, although for a now prohibited use, may continue and may be modified in accordance with the EPA Act. Although Mr Hemmings acknowledges that the present application is subject to the same controls as any other DA, he submits that, in this case, those controls are now to be applied in relation to a use, which is prohibited (reply subs, par 22), and that it is, as a result of that distinction, that the prohibited use may be modified in accordance with the Act. 77Mr Hemmings argues that the respondent's interpretation is unnecessarily and inappropriately restrictive, and he provided the Court with examples illustrating the impractical operation of the section, if the respondent's interpretation is adopted (reply subs, par 25, and see also Tp 31 LL32-43). He, therefore, submits that the preferred view should be that the prohibited use may continue, and be modified, by way of a further DA. 78Mr Hemmings submits that s 96 of the EPA Act is not the only means by which the DC may be modified, and that s 80A(1)(b) is as much a part of the legislative scheme as s 96. He also argues that there can be no doubt that s 80A is available to a DA which relies on s 109B (see Wingecarribee Shire Council v Pancho Properties Pty Ltd [2001] NSWCA 271; (2001) 117 LGERA 104 ("Pancho Properties")). He did acknowledge that there are limitations on the use of s 80A (see Gordon & Valich), but he noted Talbot J's consideration in Hairis Architects of the ability to use s 80A to modify an existing consent. 79In Gordon & Valich (at [15] ff), Preston ChJ, when dealing with an application to amend an existing DC, stated the following: 15 At the outset, it should be noted that the development application is inaccurate in its description of the development. I have said, the application sought to amend the existing development consent in certain ways. Under the Environmental Planning and Assessment Act 1979, a development application can only be made seeking consent for the carrying out of development: s 78A(1). 16 "Development" is a defined term: see s 4(1). It includes the use of land, the subdivision of land, the erection of a building, the carrying out of a work, and the demolition of a building or work. A development consent may be granted authorising the carrying out of development of one or more of these types. A development consent, however, is not itself development. The Environmental Planning and Assessment Act does not permit the lodging of a development application to amend a development consent, rather only to carry out development of one or more of the types falling within the definition of development (see s 78A(2)). 17 Of course, if development consent is granted for the carrying out of development as defined, a condition of consent for that development may be able to be imposed requiring the modification or surrender of an earlier development consent: see s 80(1)(b) and (5). It may also be that even without a formal condition requiring modification, the grant of and the carrying out in accordance with another development consent may have such a consequence. In either case, this might be a consequence but it would not be the purpose of the development consent. 80In Hairis Architects, Talbot J found that there was no "statutory constraint" limiting the type of development that could be the subject of a DA. His Honour was also of the opinion that there was no distinction between the statutory scheme for the making of DAs, pursuant to the EPA Act (i.e. consent for the alteration of a building), and the granting of conditional consent as contemplated by s 80A (i.e. consent for the alteration of a right arising from an earlier DC). His Honour said (at [28]): The express provision in s80A for the grant of a conditional consent supports the expectation that an application for consent ultimately found to be dependent upon the exercise of that power can be a valid exercise. 81In his oral submissions, Mr Hemmings noted that the applicant was not relying on either s 96 or s 80A to modify the earlier DC, but submits that the power to modify, pursuant to a new DA, can be found in s 109B (see T p33 L9 ff). He then went on to say (at T p 33, LL37-45): ... the approach the applicant adopts is here is a new consent the effect of which is to modify the 2008 358 consent, the three storey consent. And so as a matter of - if the Court's otherwise satisfied, what do we approve, the Court simply approves the set of plans now before the Court. Those plans now before the Court have the effect of, implicitly, modifying 2008 358 and the assessment that the Court needs to undertake for the purposes of the application are limited to the intensification of the use because the underlying use has already been assessed and approved as part of 2008 358 consent. 82Mr Hemmings submits that subject to the merits considerations, DC may, therefore, be granted to the subject application.

Finding on s 109B 83Although s 109B is a savings provision that sits within the "existing uses" division (Part 4 Div 10) of the EPA Act, and should, therefore, be given a broad interpretation, there is nothing in that section which provides a consent authority with power to grant DC. 84The Court cannot disregard that fact, and it is also relevant that the legislature proposed a different set of rights and controls for existing uses, as opposed to continuing uses. 85The Court is, therefore, of the opinion that it should reject the applicant's submission that 109B specifically provides for the making of a DA which is for a prohibited use. 86Accordingly, as the subject application is for a prohibited use, it is not development to which Part 4 Div 2 applies, and in the absence of existing use rights, there is no power within the EPA Act to grant consent.

The merits of the subject application 87As the Court has found in favour of the respondent in relation to Contention 1, the question of the amenity impacts need not be answered. However, for the sake of completeness, and in case the above is found to be wrong, the Court's findings on contentions 2, 3 and 4 will now be briefly outlined. 88Residents raised a series of concerns, such as the additional level in DA 2008/358, the previous approval processes for site, and alleged non-compliance with conditions of consent, but these cannot be addressed as part of assessing this present application - these Class 1 proceedings do not provide any opportunity for judicial review of past decisions, nor for any reconsideration of Commissioner Brown's reasons on the earlier occasion. 89The witness Brown opined that addition of a further 11 units will increase traffic movements, and affect issues associated with the reception area being within the shared driveway, but Mr Wetherall noted that conditions of consent under previous approval DA 2009/867 have specific requirements regarding the operation of the right of carriageway (condition 3), and the behaviour of occupants, through a plan of management (conditions 31 and 32). Importantly, Mr Wetherall noted that the Traffic and Parking Assessment prepared by McLaren Traffic Engineering for the current DA calculates that the additional 11 units will generate only an additional 1 to 2 trips per hour, a very small impact. 90Loss of privacy and noise impact were seen by Mr Brown to result from the additional people likely to be attracted to the development by the reconfiguration, and the unavailability of additional rooms, but Mr Wetherall relied again on the plan of management to ensure that there will not be any unacceptable amenity impacts on adjoining residential properties. 91The Court is satisfied that any increase in traffic and any increased amenity impacts brought about by the reconfiguration and the additional rooms would not warrant the refusal of the application for a number of reasons. It cannot be disputed that the additional traffic generated by the proposed development is "insignificant", and would be "readily absorbed by the surrounding road network"; the amount of parking on site "exceeds Council's requirements"; and there are conditions in force to address patron behaviour.

Conclusion and Orders 92As the subject application is for a prohibited use under LEP 2009, the applicant's appeal under s 97 of the EPA Act must fail. 93The formal orders of the Court are: (1)The applicant's appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the respondent's refusal to grant approval to DA 2011/112 is dismissed. (2)Costs are reserved. (3)All exhibits are returned to the parties. 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: 29 October 2012

Some relevant background to this appeal 21The site has the benefit of a number of DCs, which are pertinent to the claim of existing use rights. 22On 28 May 1987, the Council granted consent for the construction of a two-storey building, with 43 motel units, and a restaurant (DA 1987/218). 23On 13 July 1887, approval was granted by the Council to a modification to DA 1987/218, which provided for 34 serviced apartments and 36 car parking spaces. 24On 10 March 2008, DA 2008/358 was lodged for alterations to the existing serviced apartments, including the addition of a further storey, construction of basement and grade level parking at the rear of the site, modifications to the external features and roof, associated landscaping and drainage. The DA also sought a change of use to hotel accommodation. The number of apartments and car spaces were both increased to 50, the gross floor area ("GFA") increased from 2065 sqm to 3493.12 sqm, and the floor space ratio ("FSR") increased from 0.68:1 to 1.15:1 (see Exhibit C6, tab 7, Statement of Environmental Effects ("SEE") p 14). 25On 23 October 2009, DA 2008/358 was approved, by way of an agreement between the parties, pursuant to s 34(3)(a) of the Land and Environment Court Act 1979 ("the 2008 approval" - see Presrod Pty Limited v Wollongong City Council, unreported, NSWLEC, Hussey C, 23 October 2009, Exhibit C6, tab 5). 26On 22 July 2009, a further DA (DA 2009/867) had been lodged for the change of use of the existing serviced apartments to hotel accommodation. DA 2009/867 was refused by Council, but on 30 July 2010, DC was granted by this Court (see Presrod Pty Limited v Wollongong City Council [2010] NSWLEC 1257) ("the 2009 approval"). At par [11] of that decision, the Court noted that, under LEP 2009, hotel accommodation is a prohibited use, but, as the DA had been lodged prior to gazettal of the LEP (on 26 February 2010 - see par [14] above), it was subject to the savings provision in cl 1.8A, which states: If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not finally been determined before that commencement, the application must be determined as if this Plan had not commenced. 27Relevantly, as stated above (at [15]) under LEP 2007, hotel accommodation was a permissible use on the site, with DC. 28In early January 2011, Matthew Lang installed at the drop off zone near the entry foyer at the site, two signs related to the 2009 approval (see affidavits of Chris Risto Boskovki, Matthew Lang, and Dax Eddy filed 29 May 2012).

(2007) 155 LGERA 255

(2006) 155 LGERA 230

(2007) 158 LGERA 116

(2002) 123 LGERA 100

(2001) 117 LGERA 104

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