RCM Constructions Pty Limited & Maycot Pty Limited v Ryde City Council

Introduction 1 The applicants have appealed against the deemed refusal of a development application for the re-development of land known as Nos. 334-390 Victoria Road, Gladesville ("the subject site"). 2 This is the separate determination of two preliminary questions, as permitted by Pt 31 r 2(a) of the Supreme Court Rules 1970, which applies in this Court by dint of Pt 6 r 1(1) of the Land and Environment Court Rules 1996. 3 The respondent, Ryde City Council ("the council") has raised the following two "questions of law" for separate determination: 1. Is the development application in whole or in part for prohibited development within s 76B of the Environmental Planning and Assessment Act 1979 ("the EP&A Act")? 2. If so, does the subject land enjoy existing use rights such that consent can be granted to the prohibited development? 4 It should be immediately observed that the two questions raised by the respondent are not questions of law at all, but rather are simply questions of fact. It is nevertheless appropriate to answer them because if both questions are answered in favour of the respondent's contentions, they will be determinative of the appeal. Background facts 5 The development application proposes the consolidation of a number of existing lots into one, the demolition of all existing buildings on the subject site, and the erection of five buildings comprising a mixture of commercial, hotel and residential uses. 6 Under the Ryde Planning Scheme Ordinance 1979 ("the Ryde PSO"), Nos. 336-390 Victoria Road, Gladesville are zoned 4(b2) Industrial Light (Restricted) and No. 334 Victoria Road, Gladesville is zoned 3(c1) Business Automotive. The zoning table in the Ryde PSO provides that residential flat buildings, shops and commercial premises are prohibited in both the 3(c1) and 4(b2) zones. Although the parties agree that the proposed development is prohibited on Nos. 336-390 Victoria Road, Gladesville, the applicant contends that the proposed development is not prohibited on No. 334 Victoria Road. The parties agree that No. 390 Victoria Road, Gladesville, comprising the Gladesville Hotel, enjoys existing use rights. 7 Nos. 336-388 Victoria Road, Gladesville comprise the Primrose Hill Timber Centre ("the timber centre"), which has been in operation since about 1924. On 22 July 1921 there was a proclamation in the New South Wales Government Gazette under s 309 of the Local Government Act 1919 ("the LG Act 1919") by which the whole of the subject land was included in a residential district, in which certain trades and businesses, including sawmills, were prohibited. The timber centre appears to have been approved, apparently under Pt XI of the LG Act 1919, as a joinery works. This conclusion may be drawn from a report of the council's General Purposes Committee meeting held on 15 January 1925 relating to complaints about noise. The report refers to the use of the premises as "Joinery Works, Gladesville" and states that "[t]here appeared to be evidence that the premises were being used for the purpose for which application was granted", and it further states that "there does not appear to be any infringement of the Residential Area Proclamation". 8 Upon the coming into force of the County of Cumberland Planning Scheme Ordinance 1951 ("the Cumberland PSO") the timber centre was zoned Living Area. It was subsequently zoned 4(b2) Industrial Light (Restricted) under the Ryde PSO. At all relevant times a sawmill was a prohibited use under these instruments. Evidence 9 Several applications regarding the timber centre are relevant. On 26 May 1958 a building application was made for a "Lorry Garage underneath Timber Mouldings Storage Shed", which was apparently approved. On 21 August 1958 a building application was made by AE Primrose & Co Pty Ltd for an office block, which again appears to have been approved. The plans for each of these applications show an existing building on the land as "mill" and "mill building". 10 On 27 May 1959 a building application was made for "Extension to Sawyer's Room and New Switch Room". The application form described the existing buildings as comprising "Mill Buildings, Amenity Block, Garage, Storage Sheds, Offices". Again, it seems that this application was approved. 11 On 14 August 1959 an application was made by AE Primrose & Co Pty Ltd for "Additional Storage area to Existing timber yard". The application form states that the industry commenced on the site in 1924. The report of the council's assistant town planner dated 1 September 1959 states that town planning consent is not required. 12 On 13 October 1959 a building application was made for additions and alterations to "Existing Mill". The purpose for which the new building was to be used was described in the application form as storage and sorting timber and compilation of orders. The existing buildings were described as "1. Office Block. 2. Store & Garage Block. 3. Existing Mill and 4. Amenities Block". This building application appears to have been approved on 25 October 1959. 13 On 6 June 1985 a development application was made for a new building "to house more modern band resaw operations". That application was approved on 24 July 1985. 14 On 28 November 1985 the council wrote a letter to Primrose Hill Timber Pty Limited, which states: Victoria Road (336), Gladesville I refer to your letter dated 26 November, 1985 and wish to advise that the use of the subject property for the purposes of a timber yard/sawmill is considered to benefit from the "existing use" provisions contained within the Environmental Planning and Assessment Act, 1979. The parties' submissions 15 Mr P J McEwen SC, appearing for the applicants, relies upon the following submissions. (a) The subject site enjoyed lawful use until the Ryde PSO came into effect. This lawful use included the use of a bandsaw for the remanufacture of flitches, and at some time in the past, the cutting of logs. (b) The subject site was zoned "living area" and continued to enjoy lawful use under the Cumberland PSO as commercial premises. (c) The Ryde PSO had the effect of prohibiting use of the subject site as a sawmill. (d) The activities on the subject site cannot be characterised as industry for the purposes of the Ryde PSO. 16 Mr T F Robertson SC, appearing for the respondent, relies upon the following submissions. (a) The subject site was and is used as an integrated manufacturing business for the purpose of timber remanufacturing. This use falls within the definitions of Industry in both the Ryde PSO and the Cumberland PSO, under which such use is permissible. The use of the subject site should not be characterised as a timber yard, timber mill or sawmill. (b) If the subject site is characterised as a sawmill, it does not have a lawful origin. Use of the site as a sawmill has been unlawful since 22 July 1921, when the residential district proclamation was made under the LG Act 1919. Consideration Is the development application for prohibited development? 17 Section 76B of the EP&A Act states: 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. 18 The Ryde PSO prohibits development for the purposes of commercial premises, hotels and residential flat buildings; and prohibits development for the purpose of hotels and residential flat buildings in zone 3(c1). The whole of the development application is for prohibited development within s 76B of the EP&A Act insofar as it relates to the 4(b2) zone. Commercial premises and parking, however, are permissible purposes with development consent in the 3(c1) zone. Does the subject land enjoy existing use rights? 19 Section 106 of the EP&A Act defines "existing use" as follows: In this Division, existing use means: (a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4A of Part 3 or Division 4 of this Part, have the effect of prohibiting that use, …. 20 To satisfy this definition, the use of the subject site must be a prohibited use and must have a lawful origin. Each of these requirements shall be considered in turn. Is the present use of the subject site a prohibited use? 21 In determining whether the use of the subject site is prohibited, the first step is to characterise the scope of the existing use of the site. In Dosan Pty Limited v Rockdale City Council (2001) 117 LGERA 363 I considered the process to be undertaken in characterising an existing use (at 380): It is well settled that the scope of existing uses is not to be determined by reference to categories listed in the zoning instruments "but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date" ( Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-535; 10 LGRA 147 at 149-151). …. In North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50 Kirby P set out the following principles for defining existing uses (at 59): 1. Defining the "existing use" depends upon a detailed examination of the facts of each case. Inevitably there will be borderline cases where the characterisation of the use which is protected will be controversial and upon which minds may differ. 2. Nevertheless, the general approach to be taken is one of construing the "use" broadly. It is to be construed liberally such that confining the user to precise activity is not required. What is required is the determination of the appropriate genus which best describes the activities in question. 3. In determining that genus, attention should be focused on the purpose for which the determination is being made. This is a town planning purpose. It therefore considers the use from the perspective of the impact of the use on the neighbourhood. This is because the regulation of the use within the neighbourhood is the general purpose for which planning law is provided. 22 The principle that a broad and liberal approach should be taken in construing existing use rights is widely recognised: see Bob Blakemore Pty Ltd v The Anson Bay Company (Australia) Pty Limited, NSWCA, Clarke, Priestley and Meagher JJA, 23 March 1990, unreported,); Dorrestijn v South Australian Planning Commission (1985) 59 ALJR 105 at 108; Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1 at 25; Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138 at 144; Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270; Hudak v Waverley Municipal Council (1989) 18 NSWLR 709 at 714. 23 Mr Robertson relies upon the affidavit of Mr R H Trousdale, a director of Primrose Hill Timber Pty Limited, in which Mr Trousdale states: 12. The business of the company has 3 elements: 12.1 The importation and local purchase of flitches and sawn boards for on-site resawing, remanufacturing and milling of timber into various sizes, end-sections, profiles and lengths. 12.2 The purchase and resale of sawn, gauged and dressed timber and mouldings. 12.3 The purchase and sale of related building products including lattice, particle board, MDF board, plywood, doors and various fastenings. In the operation of the business it is necessary to operate the band resaw, circular saw, planer and moulders to provide the range of product offered by the business for sale and to meet customer orders. Unlike a hardware outlet or a timber yard that does not saw or mill and which sells only popular lengths and profiles, the business could not provide the broad range of product it offers without the resawing and milling activities. The business does not manufacture the processed timber into joinery, roof trusses or wall frames. The processed timber produced by the business is sold to others for use in house framing, joinery, architraves, skirting boards, fixings, house renovations, handyman projects and the like. 24 The Macquarie Dictionary (3rd Ed. Revised) defines timber yard and sawmill as follows: timber yard a place where timber is stored and sold sawmill an establishment in which timber is sawn into planks, boards, etc., by machinery 25 In my opinion, applying a liberal approach and ordinary terminology, the use of Nos. 336-388 Victoria Road, Gladesville cannot be described as a timber yard. The resawing and remanufacturing of timber at the subject site, as described by Mr Trousdale, extends beyond the ordinary meaning attributed to a timber yard. Applying ordinary terminology, the use of the subject site is for the purpose of the remanufacturing and resale of timber. It is either a sawmill or a timber remanufacturing industry. 26 Having established the present use of the subject land, it is then necessary to determine whether this use is a prohibited use under the Ryde PSO. The 4(b2) Industrial Light zoning under the Ryde PSO prohibits use of the land for the purposes of "commercial premises" or "industries referred to in Schedule 3". Sawmilling is listed in Sch 3. Is the use of the subject site for the purpose of commercial premises? 27 Clause 3 of the Ryde PSO states: "commercial premises" means a building or place used as an office or for other business or commercial purposes, but does not include a building or place elsewhere specifically defined in this clause or a building or place used for a purpose elsewhere specifically defined in this clause… 28 Industry is elsewhere specifically defined in cl 3 as follows: "industry" means - (a) any manufacturing process within the meaning of the Factories, Shops and Industries Act, 1962; (b) the breaking up or dismantling of any goods or any article for trade or sale or gain or as ancillary to any business; or …. 29 The Factory, Shops and Industry Act 1962, now repealed, provided: Manufacturing process means any handicraft or process in or incidental to the making, assembling, altering, repairing, renovating, preparing, ornamenting, finishing, cleaning, washing, breaking up, or adapting of any goods or any articles or any part of an article for trade or sale or gain, or as ancillary to any business, and includes any handicraft or process declared by the Governor, pursuant to this Act, to be a manufacturing process. 30 Prior to the coming into force of the Ryde PSO, the timber centre was zoned "Living Area" under the Cumberland PSO. Uses that were permissible with consent within this zone included "commercial premises, other than warehouses and bulk stores" and "local light industries". Development for "industries other than local light industries" was prohibited. The relevant terms were defined in cll 3 and 24 of the Cumberland PSO as follows: "Commercial premises" means any building or place, or portion of a building or place used or designed to be used as an office or for other business or commercial purposes or the storage of goods but does not include a place of instruction or place of assembly or a building used or designed for use for an industry or for a shop. "Light industry" means an industry, not being an offensive or hazardous industry, in which the processes carried on, the transportation involved or the machinery or materials used do not interfere with the amenity of the neighbourhood by reason of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit, oil, or otherwise. "Industry" means - (a) any manufacturing process within the meaning of the Factories, Shops and Industries Act, 1962, as amended by subsequent Acts; or (b) the breaking up or dismantling of any goods or any article for the trade or sale or gain or as ancillary to any business; or …. 31 Mr McEwen submits that the timber centre falls within the definition of commercial premises in both the Ryde PSO and the Cumberland PSO, such that the use of the subject site became prohibited upon the coming into effect of the Ryde PSO. Mr McEwen also seeks to rely upon the reference to "timber yard" in the context of "commercial premises" in the zoning table. For example, within the zoning table for the 4(b1) Industrial Light zone and some other zones which do not apply to the subject site, the Ryde PSO prohibits development for "commercial premises (other than banks, timber yards or rag collecting and dealing premises)". Mr McEwen submits that the specific exclusion of "timber yards" from the term "commercial premises" can be relied on to construe "commercial premises" as generally incorporating timber yards. 32 Similar arguments have been rejected in both the High Court and the Federal Court. In Neumann Dredging Co Ltd v Collector of Customs (QLD) (1987) 79 ALR 588, the Federal Court held that words of non-inclusion in one paragraph of the statute could not be used to construe their inclusion in the definition in another paragraph of the statute. In applying the decision of the High Court in Corporate Affairs Commission (SA) v Australian Central Credit Union (1985) 157 CLR 201, Northrop, Spender and Burchett JJ said (at 589-599): It would require a strong context to lead the Court to jettison the High Court learning, supported as it is by a wealth of earlier authority, even though the High Court decisions are, of course, not directly binding for the purposes of the construction of the section here in question. But the argument from the non-inclusory portion of the definition is in fact quite exiguous. In Corporate Affairs Commission (SA) v Australian Central Credit Union (1985) 61 ALR 236, a similar argument, applied to a statutory provision to which it could perhaps have been more readily applied than the argument presented here in relation to s 164, was rejected by the High Court. At 242, in the joint judgment of Mason ACJ, Wilson, Deane and Dawson JJ, it was said: It should be mentioned that it was also submitted, on behalf of the Commission and the Registrar, that the content of the specific exclusions from the general provisions of s 5(4) of the Code [this was a case concerned with the provisions of the Companies (SA) Code] supported a conclusion that the proposed offer in the present case would constitute an offer to a section of the public for the purposes of the sub-section. As King CJ pointed out in the Full Court of the Supreme Court, however, undue attention by courts to implications based on such exceptions is liable to lead to constructions which distort the true meaning of the relevant general substantive provisions. In s 164, the words of non-inclusion are added to avoid any suggestion that the quarrying referred to is included: but there was a real risk that it might otherwise have been included by virtue of para (c) of the so-called definition. That is a sufficient explanation of the presence of those additional words. There is, of course, no suggestion that para (c) has any application in the present case. 33 It is worthwhile to set out the passage of the judgment of King CJ, in the Full Court of the Supreme Court in Australian Central Credit Union v Corporate Affairs Commission (SA) (1985) 39 SASR 169 where his Honour said (at 182): Nor do I think that the specific exclusions from the concept of offer or invitation to the public in paras (a) to (d) of s 5(4) give much assistance. Where doubts are raised, often by interest groups, in the course of the preparation of legislation, as to whether certain fact situations would be caught by the legislation, there is a tendency to allay fears by inserting a specific exclusion. The insertion of such an exclusion rarely implies an intention that apart from the exclusion, the legislation would apply to the situation. Undue attention by courts to such supposed implications are based upon a misunderstanding of the processes by which legislation comes to be prepared and drafted, and can result in constructions which distort the true meaning of the legislation. 34 These authorities apply to the present circumstances. The express exclusion of timber yards as commercial premises in zone 4(b1) (and some other zones) cannot be used to construe "commercial premises" in zone 4(b2) so as to include timber yards. Such an implication does not necessarily arise and, therefore, it is not appropriate for the Court to assume such an intention. This is especially so where the Ryde PSO specifically defines "commercial premises" in cl 3, as set out earlier in this judgment. In any event, as noted in par [25] above, the use of the subject site extends beyond that of a timber yard and accordingly the site would not be properly be construed as a "timber yard". 35 Under the definition of "commercial premises" in the Ryde PSO, the timber centre will not be commercial premises if it also falls within the definition of "industry". Having characterised the use of the timber centre as use for the purpose of the remanufacturing and resale of timber, it appears that such use falls within the definition of industry, as defined in both the Ryde PSO and the Cumberland PSO. The use of the subject site is not for the purpose of "commercial premises" and is not prohibited. 36 Use of the subject site for the purpose of industry (other than an industry referred to in Sch 3 of the Ryde PSO) is a use permissible with consent under the Ryde PSO. The use of the subject site was also a use permissible with consent between 1951 and 1979 as "light industry" under the Cumberland PSO. Is the use of the subject site use for the purpose of sawmilling? 37 Use of land for the purpose of an industry referred to in Sch 3 of the Ryde PSO is prohibited. Schedule 3 includes sawmilling. Sawmilling, therefore, is a prohibited use. Clause 3 of the Ryde PSO states: "sawmill" means a mill handling, cutting and processing timber from logs or baulks 38 In Penrith City Council v HBH Manufacturing Pty Ltd & Ors (NSWLEC, 5 June 1992, unreported) Stein J considered whether a flitch is a baulk and stated: "It seems to me that the terms are interchangeable. A flitch is a baulk is a flitch." 39 Mr Trousdale states in his affidavit that part of the operation of the timber centre involves the importation, resawing and cutting of flitches for the purposes of resale. Clearly this part of the operation satisfies the definition of sawmill in the Ryde PSO. 40 Mr Robertson submits that these sales are merely an ancillary use of the timber centre and that its central use is the industry of the remanufacture and resale of timber. Sales of resawn ex-flitch products at the timber centre for March 2004 accounted for 9.63% of sales by volume of timber, 16.3% of sales by value, and 34.1% of sales by the range of product. Conversely, Mr McEwen submits that the resawing of timber from baulks has a separate manner and operation to the rest of the business, and therefore remains independent of the other uses of the site. 41 In Foodbarn Pty Limited v Solicitor-General (1976) 32 LGRA 157, Glass JA (Samuels and Hutley JJA concurring) said (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 any one 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. 42 Clarke JA, with Priestley and Meagher JJA concurring, cited this passage with approval in Bob Blakemore Pty Ltd v The Anson Bay Company (Australia) Pty Limited (Court of Appeal, 23 March 1990, unreported). In determining whether one use was subordinate or ancillary to another, Clarke JA stated: Where there are two uses of property the question whether there are one or two existing uses is resolved upon a consideration whether both are independent uses, in which case they are both treated as existing uses, or whether one is ancillary to, or subserves, the other in which case the latter constitutes the sole existing use. It may be a nice question in a given case whether one use subserves the other. The question will always be one of fact and degree. 43 It is well recognised that it is a matter of fact and degree in all the circumstances, whether one use is independent of another: CB Investments Pty Ltd v Colo Shire Council (1981) 41 LGRA 270 at 272; Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 at 409; Penrith City Council v Waste Management Authority (1990) 71 LGRA 376 at 387. 44 The cutting of timber from flitches takes place in the workshop and is part of the provision of timber products. As such it appears, prima facie, to be part of the overall business of the remanufacture and resale of timber. However, the manner in which this occurs may be distinct from the overall remanufacture and resale. Unlike the milling and remanufacture of other timber, the cutting of timber from flitches requires the use of a band resaw. The use of the band resaw may render the cutting and remanufacture of baulks or flitches a distinct and independent use of the site. Although the sawmill product accounts for a smaller portion of sales, this would not alter the characterisation of the sawmill as an independent use of the site. In my opinion, it is open for the Court to find that the sawmill is neither ancillary nor subordinate to the operation of the site for the purposes of an industry for the remanufacture and resale of timber. Even if the use of the sawmill were considered to be ancillary to the use of the site for industry, this would not necessarily preclude the sawmill from being considered an independent use: Baulkham Hills Shire Council v O'Donnell at 409-410; Ashfield Municipal Council v Australian College of Physical Education (1992) 76 LGRA 151 at 156. 45 If there are multiple independent uses of a site, and neither is subservient to the other, inquiry must be made as to the permissibility of each use: see Hawkesbury Shire Council v Mitchell (1988) 64 LGRA 235 at 238; Doyle v Newcastle City Council (1990) 71 LGRA 55. Industry is a permissible use under the Ryde PSO. Use for the purposes of a sawmill, however, is prohibited. It is well recognised that the permissibility of the genus does not render permissible a specific use that is otherwise prohibited: see Ashfield Municipal Council v The Australian College of Physical Education (1992) 76 LGRA 151 at 156; Egan v Hawkesbury City Council (1993) 79 LGERA 321 at 328; and Berowra RSL v Hornsby Shire Council (2001) 114 LGERA 345 at 355-356. Therefore, the permissible use of "industry" does not alter the prohibition of the specific use for the purposes of sawmilling. 46 Whilst it is open for the Court to find that sawmilling is an independent use of the timber centre, and is therefore a prohibited use, such a question need not be determined in this instance due to the absence of any evidence of lawful commencement of such a use, as I shall now explain. If there was an independent use for the purpose of sawmilling, was this use of the subject site for a lawful purpose? 47 The residential district proclamation under the LG Act 1919, published in the New South Wales Government Gazette on 22 July 1921, lists "sawmills" as a prohibited trade. This proclamation was already in operation when works commenced at the site on or about 1924. The proclamation continued to operate concurrently with the Cumberland PSO: see Wilcox M.R., The Law of Land Development in New South Wales, The Law Book Company Limited: Sydney, 1967 at p 237. Upon the repeal of the residential district proclamation, sawmilling remained an unlawful use in the 4(b2) zone under the Ryde PSO. 48 It is unclear for what purpose consent was initially granted. Mr McEwen submits that the principle of regularity should be applied. He relies upon the 1925 minutes of council and the use of the site as a sawmill to support a presumption that consent was granted for this use notwithstanding the existence of the proclamation prohibiting sawmills. The principle of regularity states that: [when] … an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act. ( Dosan at 390, citing Knox County v Ninth National Bank (1893) 147 US 91, cited by Griffith CJ in McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 at 850, with whom Barton and O'Connor JJ agreed). 49 The principle of regularity cannot be applied in this instance because the use could never have been conducted lawfully. Subsequent to making of the residential district proclamation in 1921, the council did not possess power to grant consent for the purpose of sawmilling. It follows that, at all material times, the use of the subject site as a sawmill was unlawful. If, at any time, use of the timber centre constituted use for the purpose of sawmilling, it would not have been use for a lawful purpose. 50 As mentioned earlier, an existing use will only arise where, prior to its prohibition, the use was for a lawful purpose. Since sawmilling was at all material times a prohibited purpose, any use of the timber centre as a sawmill would not give rise to an existing use under the EP&A Act. It is thus unnecessary to determine whether the timber centre is or was ever used for discrete purpose of sawmilling. Orders 51 Accordingly, I make the following orders. (1) The preliminary questions raised by the respondent council be answered as follows: Question 1 Is the development application in whole or in part for prohibited development within s 76B of the Environmental Planning and Assessment Act 1979 ("the EP&A Act")? Answer: With respect to Nos. 336-390 Victoria Road, Gladesville - Yes, in whole . With respect to No. 334 Victoria Road, Gladesville - Yes, in part (commercial premises and car parking excepted). Question 2 If so, does the subject land enjoy existing use rights such that consent can be granted to the prohibited development? Answer: With respect to Nos. 334-388 Victoria Road, Gladesville - No. With respect to No. 390 Victoria Road, Gladesville - Yes . (2) The exhibits may be returned. (3) The question of costs is reserved.