Romeo, Guiseppe and Romeo, Anna Maria v Pittwater Council

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000

House of Peace Pty Ltd and Anor v Bankstown City Council (2000) 106 LGERA 440; Lemworth Pty Ltd v Liverpool City Council (2001) 53 NSWLR 371; Moore Development Group Pty Ltd v Pittwater City Council (2003) 127 LGERA 27; CASES CITED: North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50; 67 LGRA 344; Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGERA 305; Salvation Army v Newcastle City Council (2000) 107 LGERA 40; Shire of Perth v O'Keefe and Anor (1963) 110 CLR 529

APPLICANT Mr M Craig QC with Mr P Tomasetti (barrister) SOLICITORS LEGAL REPRESENTATIVES: D.C. Balog & Associates

RESPONDENT Mr A Galasso (barrister) SOLICITORS Mallesons Stephen Jacques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40438 of 2006 Guiseppe Romeo and Anna Maria Romeo v Pittwater Council

JUDGMENT 1 TALBOT J: The applicants are the owners of premises known as 1858 Pittwater Road, Church Point, located on the northern side of Pittwater Road directly opposite Scotland Island. 2 Under Pittwater Local Environmental Plan 1993 ("PLEP 1993"), the property is within the Neighbourhood Business 3(c) zone. Refreshment rooms and shops, as well as commercial premises, are permissible in the 3(c) zone only with development consent. The only development permissible within the zone without development consent is shops with a ground floor area not exceeding 500 m2. Relevantly for present purposes any other purpose is prohibited within the zone. 3 The council's records confirm that in November 1961 the Warringah Shire Council resolved to approve an application for alterations and additions to the premises then referred to as Church Point Store (Pasadena). Neither party is in the position to produce the original approval granted in 1961. Minutes of the meeting of the Health and Building Committee held on 7 November 1961 have been produced together with a report to the Town Planning Development Committee dated 15 November 1961. Both parties are prepared to rely upon the abovementioned records to understand the terms of the approval given in 1961. In the minutes of the meeting of the Health and Building Committee the application is described as follows:- Application for permission to convert existing premises known as 'Pasadena' into a guesthouse or boarding house. The application provides for three shops with small storerooms attached and an estate agent's office, also a restaurant and kitchen and toilets on ground floor. The first floor contains a caretaker's flat of two bedrooms, and thirteen bedrooms each containing a bathroom and W.C. On the roof - two laundries and small storeroom. The provisions of Ordinance 42 (Boarding houses and houses let in lodgings) applies, also Ordinance 71. 4 The minutes record that the Committee resolved to recommend "that the application be approved subject to" a number of conditions. 5 At a meeting on 13 November 1961 the council resolved to refer the matter to the Town Planning Development Committee. On 15 November 1961 the latter Committee formulated the following recommendation:- The application be approved, subject to the conditions recommended by the Health and Building Committee 7/11/61 Item 41. 6 The records show that the recommendation was adopted on 21 November 1961 and that Building Approval No. A212/63 issued. 7 Copies of plans bearing a notation No. A212/63 have been produced. The plans are described as follows:- Plan of proposed conversion of store and dance hall into shops and hostel at Pittwater Road Church Point for Church Point Stores Ltd. 8 It is agreed that Building Approval No. A212/63 was granted on 27 March 1963. 9 The following planning history is regurgitated from an Agreed Statement of Facts:-

3 Until 23 April 1992 the Property was within the local government area of Warringah. From 24 April 1992 the Property has been in the local government area of Pittwater.

4 On 27 June 1951 the County of Cumberland Scheme came into force. Under County of Cumberland Scheme the Property was zoned Living Area. In the Living Area zone all uses were permissible with or without consent other than: "Generating works; warehouses; bulk stores; industries other than local light industries; mines; institutions; drive-in theatres."

7 On 7 June 1963 the Warringah Planning Scheme Ordinance 1963 was gazetted. Under the Warringah Planning Scheme Ordinance 1963 the Property was zoned Neighbourhood Business "C". Restaurants and shops were permitted with development consent under this zoning. Motels Hostels and guesthouses were prohibited.

8 From 7 June 1963 until 31 August 1980 the continued use of the building on the Property for the purpose of a motel Hostel or guesthouse was authorised by Part IV of the Warringah Planning Scheme Ordinance 1963. Use of the ground floor for a restaurant and shops conformed with the permissible uses provided by the Neighbourhood Business "C" zone. The Council is unaware as to the nature of the use of the second floor annex or its relationship to the ground and first floor uses.

9 On 1 September 1980, the Environmental Planning and Assessment Act (the " EP&A Act 1979 ") came into effect. Since 1 September 1980 the continued use of the building on the Property for the purpose of a motel Hostel or guesthouse has been authorised by Division 10, Part 4 of the EP&A Act 1979.

10 On 11 October 1985 Warringah Local Environmental Plan 1985 was gazetted. Under Warringah Local Environmental Plan 1985 the Property was zoned Neighbourhood Business 3(c). Restaurants and shops were permitted with development consent under this zoning. Motels Hostel or guesthouse were prohibited.

11 On 30 November 1990, Warringah Shire Council granted consent (subject to conditions) to Development Application No. 1990/281 for "authorisation of a covered outdoor eating area and an existing extension to the restaurant kitchen storeroom"….

12 On 4 February 1994 Pittwater Local Environmental Plan 1993 was gazetted. Under Pittwater Local Environmental Plan 1993 the Property is zoned Neighbourhood Business 3(c). Restaurants (being a type of refreshment rooms) and shops are permissible with consent in the Neighbourhood Business zone. Motels Hostel or guesthouse are prohibited. 10 The applicants are seeking relief by way of declarations that call for determination of the following questions:-

(a) Does the property benefit from existing use rights pursuant to sections 106-107 of the Environmental Planning and Assessment Act 1979 and clause 42(2)(b) of the Environmental Planning and Assessment Regulation 2000? (b) If the answer to (a) is yes, do the existing use rights apply to the whole or part of the land? 11 The plans produced out of the council records endorsed with the No. A212/63 show a building comprising 3 levels. On the ground floor the entrance to the building is through a vestibule that provides access to an area marked "estate agent" and a "booking office" as well as the restaurant. Stairs lead off the booking office to the first floor. There is a kitchen adjacent to the restaurant. The remainder of the ground floor is depicted as 3 shops incorporating storerooms with common toilets at the rear. The first floor is divided into 13 individual rooms with en-suite and a separate two bedroom flat. A common laundry, plant room, private laundry and store are depicted within an annex on the roof. 12 The subject land is comprised within Lot 142, DP 752046 and Permissive Occupancy No. 1965/326. The building effectively occupies the whole of Lot 142. The Permissive Occupancy is used as an outdoor eating area.

The applicants' submissions 13 Mr Craig QC characterises the use approved in 1961 by reference to the terms of the approval. The recommendation made to the council was that "the application be approved". The application was described in the minutes of the meeting of the Health and Building Committee dated 7 November 1961 as seeking permission to convert the existing premises into a guesthouse or boarding house. He goes on to say it would be wrong to pick out the individual activities identified in the building plans and the documents to construe the use as being for a restaurant, shops, laundry, rooms, swimming pool, mooring for boats and so on. The appropriate genus of use is broader than that. According to Mr Craig, the Council objectively speaking, intended to approve a guesthouse or boarding house on the land, which in modern day parlance can be equally described as a motel where it is common to find, in addition to accommodation, a restaurant together with some retail use. 14 There is no question that the approved use continues. That is not in contention. The problem arises from the application of the approved use to the PLEP 1993 in order to ascertain whether the approved use or uses are prohibited within the meaning of s 106(a) of Environmental Planning and Assessment Act 1979 which includes the following in the definition of an "existing use":- ( 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;

The Council's Submissions 15 On the other hand Mr Galasso, who appears for the council, asserts that the application does not merely refer to a "guesthouse or boarding house" but specifically identifies and differentiates between three shops with small storerooms, an estate agent's office, a restaurant with kitchen and toilets, a caretaker's flat of two bedrooms, 13 bedrooms each containing a bathroom and WC, two laundries and a small storeroom. 16 Mr Galasso concedes that on and from the making of Warringah Planning Scheme Ordinance in 1963 development for the purpose of a motel has been prohibited whereas development for the purposes of shops has remained permissible without consent or only with development consent and refreshment rooms at all time have remained permissible with consent. The real estate business either fell into the category of professional consulting rooms or commercial premises, and accordingly has been permissible with consent. The respondent council does not contend that the first floor, approved for the purposes of a hostel, guesthouse, boarding house or even a motel, does not have the benefit of existing use rights.

Conclusion 17 The resolution of the conflicting views put by the parties largely depends upon whether the use of the premises can be comprehensively described with the appropriate degree of generality as a use that is prohibited under PLEP 1993. If the separate components of the building are to be regarded individually for the purpose of identifying any existing use rights a different consequence will follow. 18 In Lemworth Pty Limited v Liverpool City Council (2001) 53 NSWLR 371, the Court of Appeal had cause to consider what land had the benefit of existing use rights where the use had been lawfully carried on in part of the building. Although the Court was considering different issues in that case it was nevertheless held that the existing use applied only to that part of the land upon which the lawful activity was being carried out or such other part of the land held in reserve for the same purpose. 19 In Salvation Army v Newcastle City Council (2000) 107 LGERA 40, Pearlman J had to decide whether an existing use was properly characterised by a comprehensive description of the use of the whole site or whether it was to be properly characterised as being used for two independent uses. Her Honour found that one distinct part of the property was used for the existing use whereas another distinct part of the property was used on the relevant date for another purpose. In the absence of any evidence that the land being used for the other purpose was being held in reserve for future expansion, Her Honour found that the existing use rights existed over part only of the land. 20 Both the Lemworth and Salvation Army cases involve factual circumstances where distinct parts of the property were being used for separate and readily identifiable uses. In particular that part of the land that had the benefit of existing use rights was the subject of a development consent peculiar to that use over a defined part of the land. That is not the case here where in 1961 the proposal encompassed the whole of the existing premises known as "Pasadena", comprehensively seeking permission to convert those premises "into a guesthouse or boarding house". Then followed a description of the integral parts of the development provided for in the application. 21 The plans that were before the council by at least 13 November 1961 dealt with the proposed changes to the whole of the building. The ground floor, restaurant, kitchen, vestibule and booking office are shown as a part of the building connected to the first floor accommodation via a staircase consistent with the concept of a guesthouse or boarding house to be let as lodgings and providing the amenity of meals for guests on the premises. The shops are immediately adjacent on the ground floor and integrated within the total project the subject of the proposal. The estate agent's office does not stand out as a separate and independent use, and the booking office appears to be associated with it. 22 McHugh JA sitting as he then was in the NSW Court of Appeal in Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGERA 305 provided a convenient summary of the historical object of existing use provisions and the principles to be applied accordingly. In order to understand the context of the observation made by McHugh JA I repeat the whole of the paragraph from pages 309 and 310:- 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. 23 Notwithstanding the absence of the written consent, the terms of the application are proved on the balance of probabilities. Moreover, it is clear from the language used in the report and minutes that the council simply approved the application. Accordingly, it is not a question of ascertaining what the council actually intended but rather ascertaining objectively what permission was given. It is not necessary to have regard to the precise manner of use. It needs to be identified generally "as the end for which it can be seen that the premises are being used" (Shire of Perth v O'Keefe and Anor (1963) 110 CLR 529 at 535). 24 It is consistent with authority that the general approach to be taken is one of construing the use broadly (North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50; 67 LGRA 344). It is not appropriate to confine the use to a precise activity but rather it is necessary to determine the appropriate genus which best describes the activities in terms of a general purpose. The landowner is entitled to a fair but liberal reading of the rights that are conferred (House of Peace Pty Limited and Anor v Bankstown City Council (2000) 106 LGERA 440 and 450). 25 Although there were clearly a number of different individual activities contemplated by the application that was approved in 1961, those separate and individual activities can generally be regarded as part of the overall use of the building for the purpose of providing accommodation and meals as one would expect at a tourist and recreation destination including an opportunity for patrons and the public generally to have an opportunity for casual shopping. The provision of three shops is in my view coincidental and generally supplementary or complementary to the use of the premises for the primary accommodation purpose. 26 Under the terms of PLEP 1993, any purpose other than a purpose for which development may be carried out without development consent or only with development consent is prohibited development. Development permitted without development consent is only shops where the gross floor area of each shop does not exceed 500 m2. All other shops are permitted with development consent together with refreshments rooms and the purposes specified in schedule 3 to the LEP. Business agencies and commercial premises (except funeral parlours) are purposes specified in schedule 3. The provisions of PLEP 1993, replicate the provisions of WLEP 1985 in relevant respects. 27 The respondent recognises that on and from the making of WPSO on 7 June 1963 development for the purposes of "motel" was prohibited whereas development for the purposes of "shops," business agencies and "refreshments rooms" at all times remained permissible with consent. Moreover, the council recognises that the different (and separate) uses continued, that is, the shops and real estate agency continued, as did the motel and restaurant (with their associated ancillary laundry activities). 28 None of commercial premises, motels or refreshment rooms are defined in PLEP 1993. However, the Model Provisions 1980 are adopted for the purposes of the plan except in respect of specific definitions, none of which are currently relevant. 29 The following definitions taken from the Model Provisions 1980 are helpful:- "commercial premises" means a building or place used as an offie 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 . "motel" means a building or buildings (other than a hotel, boarding-house or residential flat building) substantially used for the overnight accommodation of travellers and the vehicles used by them whether or not the building or buildings are also used in the provision of meals to those travellers or the general public. "boarding-house" includes a house let in lodgings or a hostel but does not include a motel. 30 I accept that it is appropriate and indeed proper, in the circumstances of this case, to identify the relevant use of the land by reference to the records of the council in respect of the use approved in November 1961. It is necessary nevertheless to equate that use to the planning provisions that apply to the subject land at present in order to ascertain whether the use is now prohibited for the purposes of s 106 of the EP&A Act. 31 Bearing in mind the approach taken by McHugh JA in Royal Agricultural Society that care should be taken not to categorised 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. The overall description of the existing use is as a motel as now separately defined by the Model Provisions providing in addition to the accommodation and restaurant or refreshment room, three shops with storerooms, an office, caretaker's flat, two laundries and a separate storeroom. I am satisfied that all of the facilities can be broadly and adequately encompassed by the comprehensive description of a "motel". The original approval recognised a complex principally established for the purpose of accommodation and convenient facilities for guests, including the shops. 32 I see no reason to exclude the shops from the motel complex anymore than the council did when the original proposal was approved. The estate agent's office incorporating, as it does, the booking office is obviously part of the accommodation use. I therefore find, as a matter of fact, that the current use of the building Pasadena for the purposes of a motel is a prohibited use and is therefore a use of the building within the meaning of s 106(a) of the EP&A Act. 33 I am prepared to make a declaration in the form of paragraph 1 in the Application Class 4 filed on 25 May 2006. 34 I have studiously avoided up to this point relying upon the decision by Lloyd J in Moore Development Group Pty Ltd v Pittwater City Council (2003) 127 LGERA 27 where His Honour found in respect of the same premises that there was an existing use and that the existing use in question is that of a motel. Although His Honour distinguished the part of the ground floor not occupied by the shops he nevertheless reached an identical conclusion to my own namely that the building accommodating the existing use and the land upon which the buildings stands may for practical purposes be considered as the same unit as that of the existing use. I have reached a conclusion on the basis that the provision of the shops is associated with and directly related to the overall development of the building primarily for accommodation purposes namely, in modern parlance, as a motel. The result in both cases is the same and therefore there is no reason for me to distinguish the judgment of Lloyd J because on either approach the building is being used for the purposes of an existing use relevantly within the context of s 106(a). 35 On the question of costs it should be noted that the council immediately prior to the hearing conceded that the reception area and the first floor could be attributed with existing use rights. However, the applicants continued to contend that the whole of the premises were entitled to those benefits and have been successful in persuading the Court to make a declaration in the terms set out in the application. It is appropriate therefore that the applicants be regarded as having been wholly successful in the proceedings and that the respondent should be ordered to pay the applicants' costs. 36 I have not been fully appraised of the reason that these Class 4 proceedings were necessary in the light of the earlier decision by Lloyd J in Class 1 proceedings but it is significant on the question of costs, that the issues raised in both proceedings have been resolved in the manner contended by the applicants.

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