Reading Properties Pty Ltd v Auburn Council

Reading Properties Pty Ltd v Auburn Council - [2007] NSWLEC 186 - NSWLEC 2007 case summary — Zoe

[35]

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.

[39]

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.

[52]

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.

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