Reading Properties Pty Ltd v Auburn Council

LEGISLATION CITED: Environmental Planning & Assessment Act 1979 ss 4, 81A, 96, 106, 107, 109B, 109H, 109M, 109N Environmental Planning and Assessment Regulation 2000 Division 3 of Part 8, cl 155(e)

Auburn Council v Constanti (2000) 109 LGERA 355; Botany Bay City Council v Workmate Abrasives Pty Ltd (2003) 126 LGERA 326; Caltex Australia Petroleum Pty Ltd v Manly Council [2007] NSWLEC 105; Carr v Finance Corporation of Australia Ltd (1982) 150 CLR 139; Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493; Currency Corporation Pty Ltd v Wyong Shire Council [2006] NSWLEC 692; Dorrestijn v South Australian Planning Commission (1984) 59 ALJR 105; 54 LGRA 99; Dosan Pty Ltd v Rockdale City Council (2001) 117 LGERA 363; CASES CITED: Harris v Hawkesbury Shire Council (1989) 68 LGRA 183 ; House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGERA 173; North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50; Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1; Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305; Shire of Perth v O'Keefe (1964) 110 CLR 529; Steedman v Baulkham Hills Shire Council [No 1] (1991) 87 LGERA 26; Steedman v Baulkham Hills Shire Council No 2, 31 NSWLR 562; Willoughby County Council v Dasco Design and Construction Pty Ltd (2000) 111 LGERA 422; Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299

APPLICANT: Mr N Hemmings QC SOLICITORS Allens Arthur Robinson LEGAL REPRESENTATIVES: RESPONDENT: Dr S Berveling SOLICITORS Matthews Folbigg

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT INTRODUCTION 1 HIS HONOUR: A retail shop has been lawfully used for years for storage, distribution and sale of sporting goods. The owner has a proposed tenant who wishes to use it for the purposes of a retail shop of a kind that is a little different: selling clothing, fashion and sports apparel. The local council states that this change is impossible because of planning law restrictions. That is the contest in this case and it arises as follows.

2 The applicant Reading Properties Pty Ltd appeals against the respondent Auburn Council's deemed refusal of development application No. 300/2006. The application was for a shop fit-out of Tenancy A9 and the erection of associated signage for a proposed tenant, described as a clothing/fashion/sports apparel retailer, in the Red Yard Complex located at 100 Parramatta Road, Auburn, being Lot 202 in DP 1039922. 3 The following are before me as preliminary questions but their determination is expected to be dispositive of the proceedings, there being no issue as to the merits:

(1) Whether the continued use of Tenancy A9 for the purpose of a shop is lawful as: (a) a use pursuant to Development Consent 195/97 ( the 1997 Consent ) pursuant to s 109B of the Environmental Planning & Assessment Act 1979 ( EPA Act ) ; or (b) a use pursuant to Development Consent 382/01 ( the 2001 Consent ) pursuant to s 109B of the EPA Act; or (c) an existing use pursuant to Part 4 Division 10 of the EPA Act. (2) Whether Tenancy A9 may be used for the purposes of a shop of another kind pursuant to clause 7 of State Environmental Planning Policy No. 4 - Development Without Consent and Miscellaneous Exempt and Complying Development ( SEPP 4 ). (3) Whether consent can be granted to the development application lodged by the applicant with the respondent on or about 3 July 2006 and numbered 300/2006. BACKGROUND 4 Tenancy A9 is one of a number of shops within the Red Yard Complex, which is bound by Percy Street to the west and Nyrang Street to the east. The complex is predominantly surrounded by industrial land uses. 5 The Red Yard Complex is used for a number of purposes including shops, cinemas, restaurants and entertainment facilities.

6 Redevelopment of the Red Yard Complex for those purposes was granted by council's 1997 Consent subject to conditions, pursuant to Auburn Local Environmental Plan No 43 (LEP 43). The 1997 Consent approved the following development: redevelopment of the Nissan Motor Showroom and Workshop and develop the remainder of the site for new cinemas, shops, restaurants and entertainment facilities. 7 LEP 43 adopted the following definition of "shop" from clause 4 of the Environmental Planning & Assessment Model Provisions 1980: shop means a building or place used for the purpose of selling, exposing or offering for sale by retail, goods, merchandise or materials, but does not include a building or place elsewhere specifically defined in this clause, a building or place used for a purpose elsewhere specifically defined in this clause. 8 Condition 3 of the 1997 Consent provided: That further individual applications shall be submitted for the specific uses within the development with the exception of the cinemas and the Nissan motor showroom components. 9 Tenancy A9 was constructed as a shop pursuant to the 1997 Consent. 10 At the time that the 1997 Consent was granted, the Red Yard Complex was zoned Employment 3(d) pursuant to LEP 43.

11 On 29 November 1999, the council granted the applicant's application to modify the 1997 consent in relation to drawings, setbacks and vehicular access. On 21 August 2000, the council granted the applicant's further application to modify the 1997 consent.

12 The cinema end of the Red Yard Complex building was built and opened in September 2000. Much of the rest of the building was also built by September 2000, including the eastern wall of Tenancy A9. The western wall of Tenancy A9 was built by 25 September 2001.

13 On 27 October 2000, Auburn Local Environmental Plan 2000 (LEP 2000) commenced. It repealed LEP 43 in so far as it applied to the Red Yard Complex and rezoned those premises 4(c) Industrial Enterprise. 14 Under LEP 2000, shops and cinemas are prohibited in the 4(c) Industrial Enterprise zone. Schedule 1 of LEP 2000 provides the following definition of "shop": Shop means a building or place used for the selling, whether by retail or auction, or for the hiring or for the display for the purpose of selling or hiring, of items (whether goods or materials) but does not include a building or place defined elsewhere in this Schedule.

15 On 20 August 2001, the 2001 Consent was granted approving "Fitout of tenancy A9 as a retail shop".

16 The second condition 8 of the 2001 Consent provided in respect of Tenancy A9: The building is to be used for the storage, distribution and sale of sporting goods only and is not to be altered or adapted for another use without the prior consent of Council. Reason: the building has only been approved for this use and other uses require a separate approval of Council. 17 Tenancy A9 was fitted out in accordance with the 2001 Consent. Fit-out began within 12 months after commencement of LEP 2000 i.e. prior to 27 October 2001.

18 On 10 October 2001, a construction certificate was issued for the "Fitout of tenancy A9 as a retail shop". 19 On 5 November 2001, an occupation certificate was issued for Tenancy A9.

20 On 3 July 2006, the applicant submitted the subject development application No. 300/2006. On 4 October 2006, the applicant filed an appeal in this Court against the deemed refusal of the subject application. QUESTIONS 1(a) and 1(b): LAWFUL USE PURSUANT TO S 109B EPA ACT 21 Issues 1(a) and (b) are:

1. Whether the continued use of Tenancy A9 for the purpose of a shop is lawful as: (a) a use pursuant to the 1997 Development Consent pursuant to s 109B of the EPA Act ; or (b) a use pursuant to the 2001 Development Consent pursuant to s 109B of the EPA Act .

22 Section 109B of the EPA Act provides: 109B Saving of effect of existing consents (1) Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force. (2) This section: (a) applies to consents lawfully granted before or after the commencement of this Act, and (b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and (c) has effect despite anything to the contrary in section 107 or 109. (3) This section is taken to have commenced on the commencement of this Act. 23 The 1997 Consent approved "redevelopment of the Nissan Motor Showroom and Workshop and develop the remainder of the site for new cinemas, shops, restaurants and entertainment facilities". At the time the 1997 Consent was granted, s 91(4) of the EPA Act provided: A consent to a development application for the carrying out of development, being the erection of a building, shall be sufficient to authorise the use of the building when erected for the purpose of which it was erected where that purpose is specified in the development application.

24 Thus, the 1997 consent authorised the use of the Red Yard Complex when erected for a number of different purposes, including use for the purpose of shops. The word "shop" was widely defined as set out at [7] above.

25 A development consent should be construed liberally. In House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 at [41], Mason P (with whom Stein and Giles JJA agreed) said: "The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money in acting upon it and who is likely to wish to sell the land sooner or later".

26 A development consent to use premises as a "shop" was construed so as to enable the premises to be used as a shop of any description in Harris v Hawkesbury Shire Council (1989) 68 LGRA 183 (CA). In that case there was a consent under the County of Cumberland Planning Scheme Ordinance to use premises as a "shop". The word "shop" was defined in the Ordinance to include "any building or place…used or designed for use for the purpose of exposing or offering goods for sale by retail". The premises were thereafter used for a mixed business or general store. Eventually, the Windsor Planning Scheme Ordinance 1973 revoked the earlier ordinance. The Court of Appeal found that the savings provisions of the 1973 ordinance preserved the original consent and that this permitted the use of the premises for the purposes of a shop of any description, notwithstanding that the existing use, being a use for the purpose of a mixed business or general store, was much narrower. Clarke JA, who delivered the leading judgment, held at 188: The consent granted, viz to use the premises as a shop, was a wide one. Shop was defined in cl 24 of the County of Cumberland Planning Scheme Ordinance to mean any building or place, or portion of a building or place, used or designed for use for the purpose of exposing or offering goods for sale by retail, and any premises which may be licensed by the council as a refreshment room and any premises licensed under the Liquor Act 1912, as amended, by subsequent acts .

The consent therefore enabled the premises to be used as a shop of any description. The actual use on the relevant date, which his Honour held to be the existing use, was much narrower. It was a use of the premises for the purposes of a mixed business or general store . However, that circumstance does not, in my opinion, qualify the right of any person to enforce a consent under cl 27(2) provided that the conditions imposed by the subclause are satisfied. If there was a relevant existing use which was permissible pursuant to a consent granted under the County of Cumberland Planning Scheme Ordinance then that consent may be enforced notwithstanding that it permitted uses wider than the existing use. 27 In the present case, the reference to "shops" in the 1997 Consent should be construed, in accordance with the definition set out at [7] above, as granting the applicant the right to use Tenancy A9 for the purpose of selling goods, merchandise or materials by retail. The 1997 Consent did not further limit the type of shop for which the premises could be used. However, it did impose a requirement pursuant to condition 3 that further application be made for a specific use for the purpose of shops.

28 The 1997 Consent and the 2001 Consent were granted and are in force. According to s 109B of the EPA Act, nothing in LEP 2000 prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with the 1997 Consent or the 2001 Consent. Thus, the 1997 and 2001 Consents are preserved by s 109B. The phrase "in accordance with" in s 109B(1) means that the conditions of both consents are part of what are saved, including condition 3 of the 1997 Consent and condition 8 of the 2001 Consent (set out at [8] and [16] above).

29 Accordingly, the answer to each of questions 1(a) and 1(b) is yes, subject to compliance with the conditions of those consents.

30 Those questions and answers mask the true issue between the parties as it emerged in submissions, namely, the effect of condition 3 of the 1997 Consent. In particular, whether applications may continue to be made under condition 3 and whether the council may consent to them. Condition 3 did not limit the number of applications that could be made. Accordingly, under the 1997 Consent, as preserved by s 109B, applications may continue to be made for the use of Tenancy A9 as a shop of a different kind, regardless of the fact that shops are now prohibited in this zone by reason of LEP 2000.

31 The council submitted that although applications could continue to be made under condition 3 of the 1997 Consent for the use of the premises for different kinds of shops, the council could not approve any such application because use of the premises as a shop is now prohibited by LEP 2000. I do not accept the submission. It is necessarily implicit in condition 3 of the 1997 Consent that the council would consider and may approve an application to which the condition refers. That is all preserved by s 109B.

32 The "applications" referred to in condition 3 of the 1997 Consent are not expressed to be development applications. In my view, an application pursuant to condition 3 does not necessarily have to be a development application. However, if it is labelled as a "development" application it is nonetheless an application under condition 3. I was informed, without dispute, that the subject application, at least, was made as a development application on the advice of the council. The 2001 Consent post-dated LEP 2000 which prohibited shops in this zone. This suggests that it was, and was understood by the parties to be, an application under condition 3 of the 1997 Consent. The subject application and the application to which the 2001 Consent related were, in my opinion, applications under condition 3 of the 1997 Consent even though they were labelled "development" applications.

33 The applicant submitted that the subject application can also be approved as an application for a consent to a modification of the 1997 Consent and that it was a "modification" referred to in s 109B(2)(b). The reference in s 109B(2)(b) to "modification, in accordance with this Act, of a consent", can only refer to a modification pursuant to s 96 because that is the only section which deals with modification of a consent. The 1997 Consent granted consent to the use of the Red Yard Complex for the purpose of, inter alia, shops. The subject application proposes a fit-out for a particular kind of shop. That application is not, in my view, a "modification" of the 1997 Consent. It calls for no modification. It is simply an application pursuant to condition 3 of the 1997 Consent to fit-out Tenancy A9 for use as a particular kind of shop.

QUESTION 1(c): EXISTING USE UNDER PART 4 DIVISION 10 OF EPA ACT 34 Issue 1(c) is whether the continued use of Tenancy A9 for the purpose of a shop is lawful as an existing use pursuant to Part 4 Division 10 of the EPA Act.

35 Existing use rights may continue to be enjoyed under Part 4 Division 10 of the EPA Act notwithstanding a supervening inconsistent planning law. Part 4 Division 10 includes ss 106 and 107 which relevantly provide: 106 Definition of "existing use" 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, and (b) the use of a building, work or land: (i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and (ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse

107 Continuance of and limitations on existing use (1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use. … 36 The applicant submitted that a use to which s 109B applies may also be an existing use within s 106: Auburn Council v Constanti (2000) 109 LGERA 355; Dosan Pty Ltd v Rockdale City Council (2001) 117 LGERA 363; House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; Currency Corporation Pty Ltd v Wyong Shire Council [2006] NSWLEC 692. No submission was made by the council to the contrary. Although Pain J in Caltex Australia Petroleum Pty Ltd v Manly Council [2007] NSWLEC 105 took a different view, I accept the applicant's submission. My reasons were expressed in Currency Corporation, where the authorities were reviewed.

37 Existing use provisions are "designed to preserve and protect existing rights and ought to be liberally construed": Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1 at 25 per Gibbs J. Similarly, in Dorrestijn v South Australian Planning Commission (1984) 59 ALJR 105 at 108; 54 LGRA 99 at 105, Mason ACJ, Deane and Dawson JJ, speaking of the expression "continued use" in the Planning Act 1982 (SA), said that "statutory provisions designed to protect and preserve existing rights should be as liberally construed as the language in its context allows". That principle of construction was noted by the NSW Court of Appeal in Steedman v Baulkham Hills Shire Council (1993), 31 NSWLR 562 at 567.

38 In planning law, the use of land must be for a purpose and involves the physical acts by which the land is made to serve a purpose: Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114 at [27] - [28] per Preston CJ citing Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534 - 535; Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGERA 173 at 188 (CA); and Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493 at 508.

39 The purpose of a use may be of a general nature and may be the genus of widely differing kinds of activities, processes and transactions. In Chamwell (above) at [36] Preston CJ said: "The characterisation of the purpose of a use of land 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, transactions or processes: Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 310". The rationale for this approach was identified in Royal Agricultural Society at 309 - 310 by McHugh JA (with whom Hope and Samuels JJA agreed): The object of existing use provisions in town planning legislation is to permit the continuation of the use of land for any purpose for which it was used immediately before the passing of the legislation even though the terms of the legislation prohibit that purpose wholly or partly or upon conditions. The rationale of these saving provisions is that it is unjust to deprive an owner of the right to use his land for an existing purpose. Because existing use provisions are incompatible with the main objects of the legislation of which they form part, the courts have had to develop principles which reconcile the right of owners to have the full benefit of the existing use of land with the right of the local authority to enforce the conflicting objectives of town planning legislation. The courts have done so by refusing to categorise an existing use so narrowly that natural changes in the method of using the land or carrying on a business or industry will render an existing use right valueless. At the same time, the courts have been concerned not to categorise the purpose of an existing use so widely that the land or premises could be used for a prohibited purpose which was not part of its use at the commencement of the legislation. Accordingly, a test has been devised which requires the purpose of the use of land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. Thus the test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. But it is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land. 40 McHugh JA concluded that the purpose of a use of land may be the genus of widely differing kinds of activities, processes and transactions (at 311): If the activities, processes or transactions are capable of being treated as all or the majority of the species of a genus, then that genus may properly be regarded as describing the purpose of the use of the land. If they are not, then it may be that the only conclusion is that the land has been used for more than one purpose. If that conclusion is drawn, then each purpose is to be characterised in accordance with the principles set out earlier in this judgment.

41 The principle that the purpose of a use should be defined broadly by reference to its appropriate genus was illuminated in North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50 (CA) and applied in Botany Bay City Council v Workmate Abrasives Pty Ltd (2003) 126 LGERA 326 at [48] (Cowdroy J). In the North Sydney case the council approved use of premises for the purpose of "warehouse/storage". Thereafter the premises were variously and continuously used for many years for the purposes of storage and sale of electrical goods, storage and sale of electrical organs, pianos and other goods, storage of books and goods other than for retail sales. Nevertheless, the court of Appeal held that the proper classification of the existing use rights was as a warehouse of goods without qualification. Kirby P (Samuels and Priestley JJA agreeing) held that the following matters of approach emerged from the authorities (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.

42 Kirby P's conclusions emphasised that existing use rights were to be broadly and liberally construed, not restricted to the precise activities shown by the evidence (at 64 - 65): I approach the task of classification of the existing use rights for this purpose in the way that the High Court has laid down in Perth Shire v O'Keefe, Parramatta City Council v Brickworks and Woollahra Municipal Council v Banool and as this Court recently elaborated in the Royal Agricultural Society case. They are not to be narrowly defined, restricting such use only to the precise activities shown by the evidence. They are to be broadly and liberally construed, keeping in mind the town planning context in which the classification is ventured. Approaching the matter in that way I would conclude, with Cripps J, that a proper classification of the existing use rights of these premises was as a warehouse of goods. It was not confined to the warehousing of those goods for the wholesale sale of goods. It is erroneous in the light of the evidence to confine the genus so narrowly. …The fact that the Boyt company stored mainly household and electrical goods is not a reason, looking at the matter from a town planning point of view, to confine the use of the premises as a warehouse only to the storage of such goods. At least this is not necessary so long as the nature and description of the goods stored are not different in quality from the kind of goods that the Boyt company and their various tenants have stored. Different questions would arise if an attempt were made to store noxious or dangerous goods. But nothing in the evidence, or in the proposal of Mr Kirk as disclosed in the evidence, suggests that this has been done or is proposed.

In short, the premises remain, as they have been: a warehouse. By the ordinary English meaning this is a place where goods are stored. That is what the Council approved many years ago without qualification or specification as to particular goods. It is the category which describes the variety of uses to which the premises have been put over nearly forty years. It is the category which best describes the premises from the town planning point of view. It is a use which is now generally prohibited under the NSPSO in this zone. But from the effect of that prohibition the subject land is relieved, and the owners of the premises on it protected by the preservation of existing use rights, lawfully acquired and continuously maintained.

43 The appropriateness of defining the purpose of a use as a "shop" is an issue in the present case and was addressed in Shire of Perth v O'Keefe (1964) 110 CLR 529. Kitto J (with whom Owen J agreed) said at 535: If premises were being used as professional offices at the commencement of the by-laws, no greater degree of particularity in defining the purpose is likely to appeal to practical minds as appropriate in the application of town-planning legislation than is involved in saying that the purpose is that of professional offices: the particular profession of the occupant would not ordinarily be adverted to by a person speaking in a town-planning context. The answer is perhaps not so easy in the case of a shop. As to a butcher's shop, for example, I should be inclined to think that while it would be immaterial to inquire into the details of the user the purpose in the relevant sense would be the purpose of a butcher's shop, and not of a shop generally. In the case of a general store, wide variations in the use as regards the nature of the stock carried and the methods of merchandising might occur before one would say, in an ordinary use of language, that the premises were not being used for the same purpose as before. In the case of premises used for pottery making, however, it seems to me to be clear that while changes in methods and designs would be immaterial a use of the premises for making anything other than pottery would be, in a substantial and relevant sense, a use for a different purpose. Of greater significance to the present case was the dictum of Menzies J at 537: When it is necessary to determine whether a use of premises which would otherwise be prohibited is allowed by virtue of by-law 372, it seems to me necessary to look to use for a particular purpose such as an office or a shop and not to use for a general purpose such as industry or light industry simply because so many uses permitted by local government legislation are of a very particular description.

I agree with the judgment of Kitto J. which I have had the advantage of reading but I would prefer to express no opinion upon a question such as whether greater particularity than use for a shop is requisite. As at present advised, it seems to me that it may be, for instance, that premises used as a butcher's shop at the relevant time could subsequently be used as a small goods shop. It is, of course, common for shops in a shopping centre in a residential area to be used from time to time for the sale of different wares and I would not wish to say anything here to cast any doubt upon the lawfulness of such changes.

44 These authorities suggest that it is appropriate to define the purpose of the existing use of Tenancy A9 as a shop, a genus, and that what is at stake is whether it is allowable to change it from one species of shop (a sporting goods shop) to a similar species of shop (a clothing, fashion and sports apparel shop).

45 The purposes of use of the Red Yard Complex, including Tenancy A9, authorised by the 1997 Consent included "shops" and cinemas. Immediately before the coming into force of LEP 2000, which prohibited shops and cinemas, the cinema end of the Red Yard Complex building was built and in use and the rest of the building, including Tenancy A9, was in the course of construction. Land can be used for a lawful purpose without there being an actual physical use of it: Steedman v Baulkham Hills Shire Council [No 1] (1991) 87 LGERA 26 (CA) at 27; Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 80 LGERA 173 (CA) at 186. Relevantly to s 106(b), within one year after the date on which LEP 2000 commenced, construction was complete and the fitting out of Tenancy A9 pursuant to the 2001 Consent had begun.

46 In those circumstances, the council conceded that s 106 would have been applicable but for two reasons. First, it was said to be that the 1997 Consent was not a development consent for a use but a consent for the erection of a building for a specified purpose and that there was no development consent for a use until the 2001 Consent. I do not accept this submission. In my opinion, the 1997 Consent was a development consent which allowed for the use of the building for several purposes including shops.

47 Secondly, according to the council submissions: (a) s 109M of the EPA Act and condition 19 of the 2001 Consent both prohibited use of the building until an occupation certificate was issued; (b) Tenancy of A9 could not have commenced prior to the issue of an occupation certificate; and (c) as an occupation certificate was not issued until more than one year after the date on which LEP 2000 commenced (which prohibited shops), s 106(b) was inapplicable.

48 Section 109M prohibits a person from occupying or using a building unless an occupation certificate has been issued. This section was included in a new Part 4A dealing with certification of developments, introduced into the EPA Act on 1 July 1998. Also introduced into the Act on that date was s 81A which replaced s 91(4) (set out above at [23]); both sections were in similar terms except that the new section was expressed to be subject to s 109M. Sections 81A(1) and 109M provide: 81A Effects of development consents and commencement of development

(1) Erection of buildings A development consent that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the development application, subject to section 109M.

Note. Section 109M prohibits the occupation or use of a new building unless an occupation certificate has been issued for the building. 109M Occupation and use of new building requires occupation certificate (1) A person must not commence occupation or use of the whole or any part of a new building (within the meaning of section 109H) unless an occupation certificate has been issued in relation to the building or part. Maximum penalty: (a) in the case of a class 1a or class 10 building, as referred to in the Building Code of Australia - 5 penalty units, or (b) in the case of any other building - 1,000 penalty units.

(2) This section does not apply to: (a) the occupation or use of a new building for any purpose if the erection of the building is or forms part of exempt development or development that does not otherwise require development consent, or (b) the occupation or use of a new building at any time after the expiration of 12 months after the date on which the building was first occupied or used, or (c) the occupation or use of a new building by such persons or in such circumstances as may be prescribed by the regulations, or (d) the occupation or use of a new building that has been erected by or on behalf of the Crown or by or on behalf of a prescribed person.

49 Condition 19 of the 2001 Consent dated 20 August 2001 provides: A person must not commence occupation or use of the whole or part of the new building unless an occupation certificate has been issued in relation to the building or part. 50 There is a threshold question whether ss 81A(1) and 109M apply. The council argued that they, and not the earlier s 91(4), apply because ss 81A(1) and 91(4) authorised the use of a building "when erected"; and that the subject building could not have been erected prior to 1 July 1998, when ss 81A(1) and 109M commenced. It was said that it could not have been erected prior to 1 July 1998 because a modification to the 1997 consent was granted in November 1999. Furthermore, tenancy A9 required a fit-out prior to commencement of use and a construction certificate for the fit-out was not granted until October 2001. The applicant submitted that the earlier s 91(4) governed because it was in force when the 1997 development consent was granted.

51 It does not necessarily follow that the building was not erected when the 1999 modification consent was granted. Modification of a development consent (which is not itself the granting of a development consent: s 96(4)) is available in a case where a development has already been carried out: Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299 at [33]; Willoughby County Council v Dasco Design and Construction Pty Ltd (2000) 111 LGERA 422 at [87] - [94].

52 Be that as it may, there is a presumption that a statute is assumed not to have retrospective operation where that would interfere with rights which have already accrued. In Carr v Finance Corporation of Australia Ltd (1982) 150 CLR 139 at 151 Mason, Murphy and Wilson JJ said in a joint judgment that: "The common law presumption against imputing to the legislature an intention to interfere retrospectively with rights which have already accrued does not call for a narrow conception of a right. If it were otherwise, the essential justice of the rule would be eroded". In that case a mortgagee's power of sale was held to be an accrued right. In the present case, when the 1997 Consent was granted, the then existing s 91(4) conferred a right by authorising the use of the building when erected for the purpose for which it was erected. That right had, in my view, accrued when, on 1 July 1998, that section was replaced by s 81A(1) which was in similar terms but expressed to be "subject to s 109M". In my view s 81A(1) was only intended to operate prospectively in relation to future development consents.

53 Even if ss 81A and 109M apply (contrary to my view), they and condition 19 of the 2001 development consent are irrelevant, in my opinion, to the meaning of "use" in s 106. Section 109M and condition 19, as well as s 109N, which provides that a "change of a building use" requires an occupation certificate, relate to occupation certificates. Those certificates are essentially concerned with the health and safety of occupants of buildings, including by reference to whether the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia. This is apparent from a reading of s 109H, which imposes restrictions on the issue of occupation certificates, and from Division 3 of Part 8 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) relating to occupation certificates. It is also borne out by the definition of "change of building use" in s 4 of the EPA Act, namely, "a change of use of a building from a use that the Building Code of Australia recognises as appropriate to one class of building to a use that the Building Code of Australia recognises as appropriate to a different class of building". Section 109H(1) and (2) provide: 109H Restrictions on issue of occupation certificates (1) A final occupation certificate must not be issued to authorise a person to commence occupation or use of a new building unless the certifying authority is satisfied: (a) that a development consent or complying development certificate is in force with respect to the building, and (b) in the case of a building erected pursuant to a development consent but not a complying development certificate, that a construction certificate has been issued with respect to the plans and specifications for the building, and (c) that the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and (d) that such other matters as are required by the regulations to be complied with before such a certificate may be issued have been complied with.

(2) A final occupation certificate must not be issued to authorise a person to commence a new use of a building resulting from a change of building use for an existing building unless the certifying authority is satisfied: (a) that a development consent or complying development certificate is in force with respect to the change of building use, and (b) that the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and (c) that such other matters as are required by the regulations to be complied with before such a certificate may be issued have been complied with.

54 Clause 155(e) of the EPA Regulation 2000 provides that an occupation certificate must contain: 155 (e) a statement to the effect that: (i) the health and safety of the occupants of the building have been taken into consideration where an interim occupation certificate is being issued, and (ii) a current development consent or complying development certificate is in force for the building, and (iii) if any building work has been carried out, a current construction certificate (or complying development certificate) has been issued with respect to the plans and specifications for the building, and (iv) the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and (v) a fire safety certificate has been issued for the building, and (vi) a report from the Fire Commissioner has been considered (if required).

55 The definition of an existing use under s 106 is broader, in my view, than the use of a building which s 109M and condition 19 prohibit. Section 106 is an enabling, facultative provision which has to be construed liberally in accordance with the authorities discussed earlier. Section 109M is a penal provision where no such principle of construction applies.

56 For these reasons I would answer question 1(c) "yes".

57 Although it is unnecessary to go further, I will address the applicant's submission that s 109M is inapplicable because of subsection 2(a) or (b). Subsection (2)(a) provides that s 109M does not apply to the "use of a new building for any purpose if the erection of the building is or forms part of…development that does not otherwise require development consent". The erection of the subject building did not require development consent because of s 109B, as analysed earlier. I therefore accept that subsection 2(a) is in point. Subsection (2)(b) provides that the section does not apply to "the occupation or use of a new building at any time after the expiration of 12 months after the date on which the building was first occupied or used". The meaning of that provision is unclear. The applicant submitted, as I understood it, that it meant that as the subject building was occupied and in use by September 2000, no occupation certificate was required because it was occupied or used 12 months thereafter. I do not accept that construction. I construe it to mean, in substance, that an occupation certificate is only required once, before the first occupation or use, and not annually. That is not relevant to the present case.

QUESTION 2: SEPP 4 58 Issue 2 is whether Tenancy A9 may be used for the purposes of a shop of another kind pursuant to cl 7 of SEPP 4.

59 SEPP 4 applies to the local Government area administered by the council. In prescribed circumstances, cl 7(1) of SEPP 4 permits a building used for the purposes of a shop of a particular kind to be used for the purposes of a shop of another kind upon sufficient written notice being given to the council, without the necessity for development consent. Clauses 3(1) and 7(1) provide as follows: 3 (1) This Policy is designed to permit development for a purpose which is of minor environmental significance, …without the necessity for development consent being obtained therefor, where: (a) the carrying out of that development is not prohibited under the Act, except by reason only of a requirement for the obtaining of development consent before that development may be carried out, and (b) the development is carried out in accordance with any development standard applying in respect of the development,

but without affecting any requirement to obtain consent or approval under any other Act in respect of the carrying out of development.

7 (1) Subject to subclause (5), where: (a) a building is lawfully used, or has been lawfully constructed to be used, for the purposes of a shop of a particular kind, and (b) the building could not, but for this clause, be used for the purposes of a shop of another kind, except with development consent being obtained therefor, the building may, without the necessity for development consent being obtained therefor, upon a sufficient written notice being given to the council, be used for the purposes of a shop of another kind. 60 The council submitted that cl 7(1) of SEPP 4 is excluded because of cl 2(4)(b) or (c) which provide: 2 (4) Nothing in this Policy shall be read or construed as: … (b) authorising the carrying out of any development that is prohibited under the Act, except where the carrying out of the development is so prohibited by reason only of a requirement for the obtaining of development consent before it may be carried out, (c) authorising the change of an existing use, within the meaning of Division 10 of Part 4 of the Act, to another use, …

61 I do not accept the submission. Clause 2(4)(b) is irrelevant, in my view, because, by reason of s 109B, the subject development is not prohibited under the Act. Clause 2(4)(c) is also irrelevant in my view. I have earlier found that the existing use under s 106 is for the purpose of a shop. By cl 2(4)(c), that use cannot be changed to another use by notice under cl 7(1). However, the subject application is not seeking a change of the existing use to another use. It is seeking a change to the use of a shop of a particular kind to the use of a shop of another and similar kind.

62 However, in my opinion, cl 7(1) of SEPP 4 is inapplicable for another reason. The reason is that although a change from a shop of one kind to a shop of another kind is within the spirit of cl 7(1), Tenancy A9 is not within its letter because Tenancy A9 can be used for the purposes of a shop of another kind without a development consent being obtained therefor. That is because, as analysed earlier, condition 3 of the 1997 Consent permits Tenancy A9 to be used for the purposes of a shop or another kind upon "application" being made to the council and does not require the "application" to be a development application.

63 Consequently, question 2 should be answered "no".

QUESTION 3: 2006 Development Application 64 Issue 3 is whether consent can be granted to the development application lodged by the applicant with the respondent on or about 3 July 2006 and numbered 300/2006.

65 As I have answered questions 1(a), (b), (c) in the affirmative, it follows that the answer to this question is also in the affirmative. Despite the prohibition under LEP 2000, changes in the specific use of Tenancy A9 for purposes of shops can from time to time be the subject of application to the council pursuant to condition 3 of the 1997 Consent. Consent can be granted to the subject application because it seeks consent for the use of Tenancy A9 as authorised by condition 3.

SUMMARY 66 In summary my answer to the preliminary questions set out at [3] above are as follows: 1(a) Yes, subject to compliance with the conditions of consent. 1(b) Yes, subject to compliance with the conditions of consent. 1(c). Yes. 2. No. 3. Yes. 67 The exhibits may be returned. The proceedings will be listed before the Registrar for directions on 13 April 2007.

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