Saffioti v Kiama Municipal Council

Environmental Planning and Assessment Act 1979

1. Division 10 of Part 4 of the EPA Act sets out the provisions governing the continuance of and limitations on existing uses. The definition of the term "existing use" is set out in s 106, the provisions of which "…are definitional only: they have no operative effect": Cracknell & Lonergan Architects Pty Ltd v Leichhardt Municipal Council (2012) 193 LGERA 151; [2012] NSWLEC 194 at [39] and BYT Nominees Pty Ltd v North Sydney Council (2008) 161 LGERA 77; [2008] NSWLEC 164 at [23]. Existing use is defined under s 106 to mean: … (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 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.
2. As will be explained, the applicant's case is an instance where s 106(b), rather than s 106(a), is applicable because her existing dwelling was not development which was lawful as-of-right but, rather, it required the grant of consent when it was erected.
3. Sections 107-109B are the operative existing use provisions of the EPA Act. For these proceedings, the provisions in ss 107, 108 and 109B are of particular relevance: 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. (2) Nothing in subsection (1) authorises: (a) any alteration or extension to or rebuilding of a building or work, or (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or (c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or … 108 Regulations respecting existing use (1) The regulations may make provision for or with respect to existing use and, in particular, for or with respect to: (a) the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and (b) the change of an existing use to another use, and (c) the enlargement or expansion or intensification of an existing use. (d) (Repealed) (2) The provisions (in this section referred to as the incorporated provisions) of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument. (3) An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force. … 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.
4. As s 108 authorises regulations made under the EPA Act to make provision with respect to existing uses, it is necessary to set out the relevant clauses of the applicable regulation.

Environmental Planning and Assessment Regulation 2000

1. The object of Part 5 of the Regulation (the Part comprising clauses 39 to 46) is to regulate existing uses under s 108(1) of the EPA Act: cl 40. Under cl 41, the Regulation provides that an existing use may: … (a) be enlarged, expanded or intensified, or (b) be altered or extended, or (c) be rebuilt, or (d) be changed to another use, but only if that other use is a use that may be carried out with or without development consent under the Act, or …
2. However, cll 42-45 of the Regulation stipulate that development consent is required for any such allowable evolution of an existing use. Moreover, save for cl 45 (which is not relevant in this case), subclause (2) of each of these clauses limits the circumstances in which an evolution of an existing use is capable of obtaining development consent. Clauses 42-44 are in the following terms: 42 Development consent required for enlargement, expansion and intensification of existing uses … (1) Development consent is required for any enlargement, expansion or intensification of an existing use. (2) The enlargement, expansion or intensification: (a) must be for the existing use and for no other use, and (b) must be carried out only on the land on which the existing use was carried out immediately before the relevant date. 43 Development consent required for alteration or extension of buildings and works … (1) Development consent is required for any alteration or extension of a building or work used for an existing use. (2) The alteration or extension: (a) must be for the existing use of the building or work and for no other use, and (b) must be erected or carried out only on the land on which the building or work was erected or carried out immediately before the relevant date. 44 Development consent required for rebuilding of buildings and works … (1) Development consent is required for any rebuilding of a building or work used for an existing use. (2) The rebuilding: (a) must be for the existing use of the building or work and for no other use, and (b) must be carried out only on the land on which the building or work was erected or carried out immediately before the relevant date.
3. Under Pt 5 of the Regulation, the "relevant date" referred to in cll 42-44 is defined in cl 39 to mean: (a) in relation to an existing use referred to in section 106(a) of the Act - the date on which an environmental planning instrument having the effect of prohibiting the existing use first comes into force, or (b) in relation to an existing use referred to in section 106(b) of the Act - the date when the building, work or land being used for the existing use was first erected, carried out or so used.
4. It is apparent from the terms of cl 39 that this clause is importantly interdependent with the definition of "existing use" in s 106 of the EPA Act. Clause 39 provides the essential detail of the relevant date at which the assessment is carried out to determine the nature, extent and ambit of any existing use. As the existing dwelling originally required development consent (hence s 106(b) applies), cl 39(b) of the Regulation requires a focus on the development of the dwelling after the 1984 approval - hence a date proximate to 18 May 1984 is the relevant date. Had the existing dwelling use fallen within the meaning of s 106(a), the relevant date for focussing on the extant dwelling would have been 16 December 2011, when KLEP 2011 commenced.

Kiama Local Environmental Plan 2011

1. On 16 December 2011, the KLEP 2011 commenced and has now largely replaced the Kiama Local Environmental Plan 1996 ('KLEP 1996') in regulating development in the Municipality of Kiama (save for a small area, which is not relevant to the subject land). It is agreed that the vast bulk of Lot 117 is, and has been since the commencement of KLEP 2011, zoned as "E2 - Environmental Conservation" land. Of the remaining parts of Lot 117, there is a small section in the south east that is zoned as "RU2 - Rural Landscape" land and another small section in the north east zoned as "E3 - Environmental Management" land (Exhibit A, Statement of Agreed Facts at [7] and Tab B). It is also agreed that both the existing dwelling and the proposed development area are within that part of Lot 117 which is zoned as "E2 - Environmental Conservation" land (Exhibit A, Statement of Agreed Facts at [21] and Tab B).
2. The land use tables for the relevant zones of "RU2 - Rural Landscape", "E2 - Environmental Conservation" and "E3 - Environmental Management" are set out at the end of Pt 2 of the KLEP 2011. These particular land use tables have not been amended since the commencement of KLEP 2011.
3. Items 2-4 of each land use table set out the purposes for which development is either permitted without development consent (item 2), permitted with development consent (item 3) or prohibited (item 4). Relevantly, under the land use tables for both "RU2 - Rural Landscape" and "E3 - Environmental Management", development for the purpose of dwelling houses is nominated as being permitted with development consent (item 3) - in contrast to the E2 Environmental Conservation Zone. Given that the relevant land use zoning for the existing and proposed development under KLEP 2011 is "E2 - Environmental Conservation", it is appropriate to set out this land use table in full. 1 Objectives of zone • To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values. • To prevent development that could destroy, damage or otherwise have an adverse effect on those values. • To ensure adequate environmental buffers are provided, maintained or rehabilitated in the vicinity of high ecological value areas and waterways. 2 Permitted without consent Environmental protection works 3 Permitted with consent Environmental facilities; Recreation areas; Roads 4 Prohibited Business premises; Hotel or motel accommodation; Industries; Multi dwelling housing; Recreation facilities (major); Residential flat buildings; Restricted premises; Retail premises; Seniors housing; Service stations; Warehouse or distribution centres; Any other development not specified in item 2 or 3
4. With development for the purpose of "dwelling" or "dwelling house" not being expressly nominated in items 2, 3 or 4, the relevant use falls within item 4 as "[a]ny other development not specified in items 2 or 3", being the innominate use category, and is therefore prohibited in the E2 - Environmental Conservation Zone. It is that prohibition (which has been in effect since 16 December 2011) which gives rise to the issues before the Court.

Historical statutory and regulatory framework

1. Neither party referred to the applicable legislation or environmental planning instruments regulating the development of Lot 117 at the time of the building application and building application approval (17 April 1984 and 18 May 1984 respectively) to erect the concrete block dwelling on Lot 117 (Exhibit A, Statement of Agreed Facts at Tab C). However, both parties proceeded on the basis that the dwelling had received the necessary consents and that, thereafter, there was a sufficient basis for the dwelling use to be protected by existing use provisions. Nevertheless, the Court has taken the view that there is utility in the task (albeit an admittedly time-consuming one) of determining the relevant historical statutory and environmental planning framework: See Jojeni Investments Pty Ltd v Mosman Municipal Council (2015) NSWLR 760; [2015] NSWCA 147 at [54] and [33]-[44].
2. The Court is of the view that this task is necessary in order to be satisfied what use (nature and extent) was approved at the relevant date. Primarily due to the definition in cl 39(b) of the Regulation, this task requires the consideration of s 106(b) of the Act and cll 42-44 of the Regulation. As cl 39(b) uses the words "first erected, carried out or so used", in relation to a building, the relevant date is sometime following, but proximate to, the building approval date of 18 May 1984, being a point-in-time when the building erection works were completed so as to allow its occupation for dwelling purposes to commence.
3. In 1984, the erection of a building was regulated, in many parts of New South Wales, by both the EPA Act and the Local Government Act 1919 ('Local Government Act'). This meant that a person proposing to erect a building on land may have been required to obtain both a development consent under the EPA Act and a building approval under the Local Government Act: See, for example, Sydney City Council v Zizza (1989) 67 LGRA 224. However, in some circumstances, a building approval under the Local Government Act may have had dual effect as a development consent under the EPA Act: see Olivieri v Fairfield City Council (1993) 81 LGERA 118 at 121. Even so, it would not change the position that both statutes regulated the erection of a building.

Environmental Planning and Assessment Act (as operative at the material time)

1. Under s 4(1) of the EPA Act, the terms "development"; "development application"; "development consent"; "environmental planning instrument"; and "local environmental plan" were respectively defined to mean: • "development", in relation to land, means (a) the erection of a building on that land; (b) the carrying out of a work in, on, over or under that land; (c) the use of that land or of a building or work on that land; and (d) the subdivision of that land, but does not include any development of a class or description prescribed by the regulations for the purposes of this definition; • "development application" means an application for consent under Division 1 of Part IV to carry out development; … • "development consent" means consent under Division 1 of Part IV to carry out development … • "environmental planning instrument" means … a local environmental plan …; … • "local environmental plan" means a plan made by the Minister under section 70 that is in force;
2. Part IV of the EPA Act, titled "environmental planning control", was the principal division of the EPA Act regulating development. Section 76(2) provided that: Subject to this Act, where an environmental planning instrument provides that development specified therein may not be carried out except with consent under this Act being obtained therefor, a person shall not carry out that development on land to which that provision applies unless - (a) that consent has been obtained and is in force under this Act; and (b) the development is carried out in accordance with the provisions of any conditions subject to which that consent was granted and of that instrument.
3. In order for the relevant consent authority (normally a local council: s 4(1)) to grant development consent for any development that required consent under the applicable environmental planning instrument, a development application was required to be made to the consent authority in the prescribed form and manner: s 77. In determining a development application, the consent authority was required to take into account a wide range of matters specified under s 90 of the EPA Act and then either grant development consent (unconditionally or conditionally) or refuse development consent: s 91(1). If development consent was to be granted to a development application for the erection of a building, s 91(4) provided that such consent was "be sufficient to authorise the use of the building when erected for the purpose for which it was erected where that purpose is specified in the development application". Section 91(5) provided that any consent granted by a consent authority otherwise than in accordance with the EPA Act or any applicable environmental planning instrument would be void.
4. If development consent was granted by a consent authority, s 93(1) of the EPA Act provided that the date of consent on the notice of determination (required to be given to the applicant in the prescribed form and manner under s 92(1)) was the date on which the consent became effective and operative. Section 104(1) required councils to keep a register of all consents granted.

Local Government Act 1919 (as operative in 1984)

1. Part XI of the Local Government Act regulated the erection of buildings. Section 305(1) provided that a "council of a municipality may control and regulate the erection of buildings in the municipality, and this Part shall apply accordingly". Section 306(1) stipulated that a "building shall not be erected or used in contravention of the provisions made by or under this Act" and s 311(1) prohibited a building from being erected or altered "unless the approval of the council is obtained therefor beforehand". Section 310 provided that "[s]ubject to the provisions of this Act and of any ordinance every building hereafter erected in the area shall be erected to the satisfaction of the council - (a) in conformity with the Act and the ordinances; and (b) in conformity with the application, plans and specifications in respect of which the council has given its approval for the erection of the building".
2. In order to obtain the approval of the relevant council for the erection of a building, an applicant was required to submit an application for approval accompanied by the prescribed fee and two copies of the prescribed building plans and specifications: s 312. In considering an application for approval, the matters for consideration required to be taken into account by a council depended on whether "consent under the Environmental Planning and Assessment Act, 1979, is required in respect of the erection of a building". If consent was not required, then the council was required to consider a number of additional matters which it would not otherwise need to consider: s 313(2).
3. Section 314(1) empowered a council to approve, or approve subject to conditions, or disapprove of an application to erect a building. However, s 314(1)(b) mandated that "the council shall not approve unless it is satisfied that a building erected in accordance with the application plans and specifications … would be in accordance with the provisions of this Act and the ordinances and the Environmental Planning and Assessment Act, 1979, and any environmental planning instrument …". Moreover, s 314(4) was in the following terms: "[a]n application under this Division, so far as it relates to development that may only be carried out with consent under the Environmental Planning and Assessment Act, 1979, shall not be approved … unless that consent has been granted … but nothing in this subsection prevents the council from granting that approval at the same time as that consent is granted".
4. With respect to Lot 117, the relevance of these Local Government Act provisions is clear in circumstances where the only documentation placed before the Court with respect to the 1984 dwelling was a building application and approval under that Act (Exhibit A, Statement of Agreed Facts at Tab C). In the context of the evidence of the building approval being placed before the Court, with the parties agreeing that all consents were in place for the erection and use of the 1984 dwelling, it follows that they were accepting that the necessary consent under the EPA Act had either been obtained prior to or concurrently with the Local Government Act building approval.

Historical environmental planning instruments

1. The only local environmental plan referred to by the parties, apart from the KLEP 2011, was the KLEP 1996. However, KLEP 1996 only came into force on 19 July 1996, some twelve years after the consents were granted for the existing dwelling on Lot 117. Accordingly, it is necessary to consider the planning instrument which preceded the KLEP 1996. The Kiama Local Environmental Plan No. 5 ('KLEP No 5') was the operative local environmental plan for the Municipality of Kiama. The KLEP No 5 was made on 21 August 1981 (New South Wales Government Gazette, No 118, 21 August 1981, at 4425) and was repealed when the KLEP 1996 came into force on 19 July 1996 (New South Wales Government Gazette, No 87, 19 July 1996, at 4172; cll 3(a) and 6 of the KLEP 1996 (as at 19 July 1996)). In order to properly answer the separate question before the Court, it is necessary to outline the relevant provisions of both the KLEP No 5 and the KLEP 1996. The KLEP No 5 contains the relevant planning provisions operative at the time of the 1984 approval of the existing dwelling on Lot 117.
2. The KLEP No 5 applied to all land within the Municipality of Kiama shown on the map marked "Kiama Local Environmental Plan No. 5": cl 2. Under cl 6(1), "consent" was defined to mean "consent under the Act" and "the Act" was defined to mean the EPA Act. The Council of the Municipality of Kiama was specified as the consent authority which had the function of determining development applications with respect to land to which the KLEP No 5 applied: cll 7 and 6(1).
3. Part III of the KLEP No 5 provided for the "general restrictions on development of land" within the Municipality of Kiama. In particular, the land use table to cl 11 of the KLEP No 5 specified the purposes for which development:

• "may be carried out without consent being required" (Column II);
• "may be carried out subject to such conditions as may be imposed by the council in accordance with clause 12" (Column III);
• "may not be carried out except with consent being obtained" (Column IV); and
• "is prohibited" (Column V); on land within a zone specified in Column I.

1. In relation to development for a purpose specified in Column III, cl 12(1) stated that such development "shall not be carried out on land within a zone shown opposite that purpose in Column I unless consent has been obtained therefor". However, cl 12(2) prohibited Kiama Council from refusing to grant development consent under cl 12(1). It provided that Kiama Council only had the power to grant development consent unconditionally or conditionally (pursuant to s 91 of the EPA Act): cl 12(2).
2. The Court, after obtaining the map for the KLEP No 5 on its own initiative, is satisfied that the entirety of Lot 117 was zoned under the KLEP No 5 as No 1(c) "Rural 'C' (Semi-Rural Residential) land. On the applicable map, Lot 117 is within an area that is "light brown with red edging and lettered 1(c)". Therefore, it is only necessary to explain that row of the land use table applying to land so zoned.
3. Under Column II, no purposes of development were specified. Under Column III, development for the purpose of dwelling-houses, amongst other purposes of development, was specified. Under Column V, twenty-six prohibited purposes of development were nominated. Finally, the innominate purposes of development were included under Column IV as "[a]ny purpose other than those included in Column III or V". The Court is not aware of any material amendment to this row of the land use table between the commencement and repeal of the KLEP No 5.

Kiama Local Environmental Plan 1996

1. Kiama Council asserted that part of Lot 117 was zoned under the KLEP 1996, as "No. 7(e) - Environmental Protection" [(No 7(e) Rural Environmental Protection (Hinterland)] land and that the remainder of Lot 117 was zoned as "No. 1(a) - Rural 'A'" land.
2. The land use tables to the KLEP 1996 for the relevant zones of "No 1(a) - Rural 'A'" and "No 7(e) - Rural Environmental Protection (Hinterland)" are set out under cl 9. The Court is not aware of any material amendment to these land use tables since the commencement of KLEP 1996.
3. Items 2 - 4 of each land use table set out the purposes for which development is either permitted without development consent (item 2), permitted only with development consent (item 3) or prohibited (item 4). No issue was raised with Kiama Council's assertion that development for the purpose of dwelling-houses was within item 3 of both land use tables (albeit as an innominate use for "No 1(a) - Rural 'A'" and a nominate use for "No 7(e) - Rural Environmental Protection (Hinterland)").

Kiama Council's claim that the proposed development would not be "on the land on which the existing use was carried out"

1. Kiama Council's primary contention is that cl 42 of the Regulation cannot authorise the grant of development consent for the proposed development (being the applicant's proposed substitute dwelling). Kiama Council submitted that this is so because the proposed development would not be "carried out only on the land on which the existing use" of the current dwelling "was carried out immediately before the relevant date": cl 42(2)(b).
2. Kiama Council rejected the applicant's claim that the relevant land on which the existing use of dwelling was carried out before the relevant date is the entirety of Lot 117. Rather, Kiama Council argued that the existing use of Lot 117 for the purposes of a residential dwelling was simply limited to the "site" of the existing dwelling.
3. In seeking to define the land benefiting from existing use rights, Kiama Council argued that there could be no increase in the area actually physically and lawfully used for the existing use immediately prior to the commencement of the KLEP 2011. On the evidence, Kiama Council argued that only the footprint of the existing dwelling and a fair or generous curtilage could be said to be "the land on which the existing use" of dwelling "was carried out immediately before the relevant date". The proposed development would, according to Kiama Council, be carried out on land within Lot 117 that is beyond the curtilage of the existing dwelling. Therefore, cl 42 is incapable of authorising the grant of development consent to the proposed development. Kiama Council advanced three main arguments in support of this claim.
4. First, Kiama Council submitted that there is insufficient evidence before the Court to justify a finding that the whole of Lot 117 was the "land on which the existing use was carried out immediately before the relevant date". In fact, Kiama Council asserted that there is no direct evidence to show how the whole of Lot 117 was used immediately before the relevant date. Whilst Kiama Council conceded that part of Lot 117 was used for the purpose of dwelling immediately before the relevant date, it submitted that the use of part of Lot 117 for this purpose does not axiomatically warrant a finding that the whole of Lot 117 was used for that purpose: citing Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270; [1972] HCA 33 at 278 and 291; Lemworth Pty Ltd v Liverpool City Council (2001) 53 NSWLR 371; [2001] NSWCA 389 at [42], [50], [59] and [72].
5. In relation to the tendered evidence, Kiama Council disputed that the development consent for the existing dwelling - which it said was evidenced by an approved 1984 building application (Exhibit A, Statement of Agreed Facts at Tab C) - and the aerial photographs of Lot 117 sufficiently prove that the land beyond the curtilage of the existing dwelling was used for the purpose of dwelling immediately before the relevant date.
6. Whilst it was conceded that the terms of a development consent can provide an indication of the purpose of use of land, Kiama Council submitted that this is not determinative: citing Eaton & Sons Pty Ltd v Warringah Shire Council at 279.
7. In any event, Kiama Council contended that the relevant building approval is, when interpreted fairly and as a whole, ambiguous as to whether the entirety of Lot 117 was to be used for the purpose of dwelling. For example, whilst the location of the relevant building is identified as Lot 117 at large on the building application form, the attached plan delineates a particular part of Lot 117 as the "Site" for the (then proposed) dwelling. Similarly, Kiama Council argued that the aerial photographs of Lot 117, which were taken after the approval of the building, cannot reliably show for what purpose the entirety of Lot 117 was used immediately before the relevant date. The aerial photographs simply show a view of the top of the canopy of a largely forested bush block, with few improvements save for the existing house.
8. Secondly, Kiama Council submitted that the Court should not infer that the whole of Lot 117 was used for the purpose of dwelling. Kiama Council referred to the following passage of Stephen J in Eaton & Sons Pty Ltd v Warringah Shire Council at 291 (quoted by Stein JA in Lemworth Pty Ltd v Liverpool City Council at [43]) in support of this contention: [o]nly by first ascertaining the characteristics of the particular purpose of use claimed and comparing it with the evidence concerning the relevant land, regard being had to the absolute and relative sizes, locations and, perhaps, patterns of distribution of unused land, will it be possible to conclude whether all the land should be viewed as one whole, used for the claimed use or, on the contrary, as distinct portions, some of which have not shared in the claimed use.
9. Relying on this passage, Kiama Council contended that a finding that the entirety of Lot 117 constituted the relevant land under cl 42 of the Regulation would only be justified if it were to be demonstrated, after a factual inquiry, that the entirety of Lot 117 was actually used for the purpose of 'dwelling': citing Lemworth Pty Ltd v Liverpool City Council; Starray Pty Ltd v Sydney City Council [2002] NSWLEC 48; Mona Vale Pty Ltd v Pittwater Council (2003) 124 LGERA 449; [2003] NSWLEC 74 and Brinara Pty Ltd v Gosford City Council (2010) 177 LGERA 296; [2010] NSWLEC 230. In particular, Kiama Council submitted that a "quantitative and qualitative assessment is required … to identify those areas of the land which, in some way, attract or are necessary to the existing use": Brinara Pty Ltd v Gosford City Council at [44]. So, in effect, Kiama Council submitted that in order for the Court to be satisfied as to how Lot 117 was used, evidence of the actual usage of the existing dwelling by its occupants was required.
10. In light of both the limited evidence and the general characteristics of the use of land for the purpose of dwelling, Kiama Council argued that the only inference the Court should draw is that, immediately before the relevant date, the existing use of dwelling was carried out on the land comprising the footprint of the existing dwelling and a generous curtilage. In support of this, Kiama Council submitted that the appropriate objective characterisation of the relevant existing use is use for the purpose of dwelling and not the broader characterisation of use for residential purposes: citing Shire of Perth v O'Keefe (1964) 110 CLR 529; [1964] HCA 37 at 535; Warlam Pty Ltd v Marrickville Council (2009) 165 LGERA 184; [2009] NSWLEC 23 at [18] and Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 311-312. Moreover, Kiama Council submitted that the ancillary features of the use of Lot 117 for the purpose of dwelling, such as the land used as the driveway, should not "…mean that such areas become … part of the land the subject of the use within the Regulation": quoting Lemworth Pty Ltd v Liverpool City Council at [53].
11. Thirdly, Kiama Council submitted that the applicant's broader interpretation of the "land on which the existing use was carried out on" is inconsistent with a proper interpretation of the existing use provisions of the EPA Act and the Regulation. Kiama Council argued that the provisions regulating existing use rights must be understood in the context that, as observed in Lemworth Pty Ltd v Liverpool City Council at [60]: "[s]ince the inception of the [EPA Act], existing use rights have been circumscribed and restricted. This has happened progressively over many years. At no stage has this trend been reversed and a more liberal protection afforded to such 'rights', which, as has been pointed out is itself a misnomer for a 'privilege' … Existing use rights are really a relaxation of a prohibition." (See also [24]-[29] and Eaton & Sons Pty Ltd v Warringah Shire Council at 294).
12. In fact, Kiama Council submitted that the scope of existing use 'rights' under the relevant legislation has been consistently constrained by Parliament over time. Kiama Council contended that the factual inquiry demanded by the Regulation, of identifying the land to which existing use rights attach, is to be approached as a balancing exercise. Clause 42 should be interpreted and applied so as to reflect the intention to constrain non-conforming uses of land yet afford fairness to those carrying out a lawful use of land that is subsequently prohibited.
13. Kiama Council claimed that it would be inconsistent with the purpose of cl 42 to find, in these circumstances, that the proposed development area falls within the meaning of the land on which the existing use of dwelling was carried out immediately before the relevant date. Conversely, a finding limiting the relevant land to that of the existing dwelling and a generous curtilage was said to strike the appropriate balance.

The applicant's claim that the proposed development would be "on the land on which the existing use was carried out"

1. The applicant submitted that cl 42 of the Regulation allows development consent for the proposed development to be granted because the development would be "carried out only on the land on which the existing use" of dwelling "was carried out immediately before the relevant date": cl 42(2)(b). The applicant claimed that the relevant "land" for the purposes of cl 42 is the entirety of the land comprising Lot 117. The applicant advanced four primary contentions in support of this claim.
2. First, the applicant contended that the development consent, as evidenced by the building approval, for the existing dwelling shows that the whole of Lot 117 was used for the purpose of dwelling immediately before the relevant date. Adopting a liberal interpretation of the building approval (citing House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at 503), the applicant submitted that the proper construction of its terms demonstrates that consent was granted "for the sole activity of a dwelling on the land being Lot 117".
3. In particular, the building location was specified as Lot 117 in the building approval and not further particularised as some smaller part of Lot 117. Therefore, in approving the dwelling, the development consent was said by the applicant to have implicitly approved the use of the whole of Lot 117 for that purpose.
4. Furthermore, the applicant submitted that the development consent did not refer to, or concern, any "separate and independent uses". Thus, the applicant relied upon the observation of Walsh J in Eaton & Sons Pty Ltd v Warringah Shire Council at 279 that: "…I think that the fact that in 1955 the appellant applied for an approval for the use of the whole of the land as one unit for a specified purpose and that the respondent granted that approval is a fact which, although not decisive, tends to support the conclusion that the allotment should be treated as one piece of land" (quoted in Lemworth Pty Ltd v Liverpool City Council at [39]).
5. Secondly, the applicant argued that the relevant facts and circumstances "show that [the relevant land] is the whole of the deposited plan allotment upon which the building is erected" rather than the building footprint or some other portion of Lot 117: quoting Scully v Leichhardt Council (1994) 85 LGERA 109 at 111. The applicant submitted that the present facts and circumstances distinguish this case from those cases where courts have determined that the "land" to which existing use rights attached was smaller than the relevant allotments. The applicant maintained that there is no evidence that Lot 117 was used for any purpose other than that of 'dwelling' or that Lot 117 was not used as an integrated and cohesive parcel of land: citing Romeo v Pittwater Council (2006) 149 LGERA 107; [2006] NSWLEC 645 at [20].
6. In contrast, the applicant submitted that in both Lemworth Pty Ltd v Liverpool City Council and Salvation Army v Newcastle City Council (2000) 107 LGERA 40; [2000] NSWLEC 36, "only a small portion of the subject site was utilised for the existing use - the remainder employed for an entirely different use". Contrary to the facts and circumstances in those cases, the evidence here was said to only demonstrate that Lot 117 was used for the single purpose of 'dwelling'. Certainly, the applicant submitted that there is no evidence of a range of "widely differing kinds" of activities occurring on Lot 117 at the material time capable of demonstrating multiple purposes of use: see Royal Agricultural Society of New South Wales v Sydney City Council at 311.
7. The applicant submitted that because Lot 117 was both, viewed practically, a single cohesive unit of land immediately before the relevant date and was only used for the purpose of dwelling, "it follows that the land was used for that purpose": Steedman v Baulkham Hills Shire Council (No 1) (1991) 87 LGERA 26 at 27 and citing Lemworth Pty Ltd v Liverpool City Council at [37] and [41]; Starray Pty Ltd v Sydney City Council at [23].
8. Thirdly, the applicant contended that, absent evidence to the contrary, the Court should infer that the occupier of Lot 117 used the entirety of the available bushland beyond the footprint of the existing building as quiet and serene surroundings for the purpose of dwelling. In this respect, the applicant submitted that the present circumstances were analogous to those in Council of the City of Newcastle v Royal Newcastle Hospital [1959] AC 248; (1959) 100 CLR 1 where their Lordships held at 255 that "[a]n owner can use land by keeping it in its virgin state for his own special purposes".
9. Additionally, the applicant submitted that the determination of whether the entirety of Lot 117 was used for the purpose of dwelling at the material date should be anchored in the recognition that this type of residential use is significantly different from the use of land for commercial or industrial purposes. Thus, it was submitted that the present circumstances are distinguishable from the relevant existing use case law concerning circumstances where an enterprise has not made productive use of a distinct portion of land.
10. Finally, the applicant contended that the recent historical evolution of the relevant existing use clauses in the Regulation demonstrates that Parliament has remained committed to preserving existing uses. Specifically, the alleged 'to-and-fro' in how tightly the Regulation has constrained existing use 'rights' over time was argued to militate against any claim that Parliament has uniformly sought to constrain existing use 'rights'.
11. The applicant submitted that amendments to the Regulation in 2007 and 2010 were proof of a 'winding back' of restrictions on the existing use 'rights' attaching to certain commercial and industrial uses of land: citing the amendments to cl 41 of the Regulation made by the Environmental Planning and Assessment Amendment (Existing Uses) Regulation 2007 and the Environmental Planning and Assessment Further Amendment Regulation 2010.
12. Consequently, the applicant reasoned that it would be misguided to interpret cl 42 narrowly on the erroneous basis that the intention of Parliament was to progressively do away with existing uses of land. Rather, the legislative purpose underpinning the relevant existing use provisions was "to embargo and protect a landowner's right to continue … a lawfully commenced use, which has become potentially adversely affected by changes to planning controls".

Submissions on costs

1. The applicant submitted that, if the applicant was to be successful, costs should follow the event: citing Romeo v Pittwater Council at [35]. However, whilst maintaining this position, the applicant accepted that it may be appropriate for the Court to reserve on the question of costs to allow the parties to make submissions.
2. Kiama Council submitted that costs ought to be reserved. It said that orders as to costs for separate questions in Class 1 proceedings are not simple in that costs do not axiomatically follow the event.

Development consent can be granted for the proposed development

1. For the reasons set out below, I have determined that it is possible for development consent to be granted for the proposed development under the existing use provisions of the EPA Act and the Regulation. I agree with the applicant that, for the purposes of cl 41(2)(b) of the Regulation, the entirety of Lot 117 constitutes the land on which the existing dwelling use was carried out immediately before the relevant date. I do not accept Kiama Council's contention that only a portion of Lot 117, essentially the footprint of the existing dwelling bounded by a generous or fair curtilage, constitutes the land on which the existing dwelling use was carried out.

Identifying the lawful existing use

1. In Jojeni Investments Pty Ltd v Mosman Municipal Council it was observed by Leeming JA that "…the definition and the substantive provisions in Div 10 of Pt 4 operate more subtly than may at first appear": at [10]. As was the case in those proceedings, the present circumstances have, happily, not given rise to the need to determine "…whether at each of the dates each environmental planning instrument commenced, the existing use continued": at [10]. This is because Kiama Council accepted that the existing dwelling use of land on Lot 117 was lawfully commenced and has been continuous. Certainly, no evidence to the contrary was put before the Court.
2. However, as Leeming JA emphasised in Jojeni Investments Pty Ltd v Mosman Municipal Council at [11], it is critical to appreciate that the definition of existing use in s 106 "…distinguishes between a use which was for a lawful purpose which became prohibited [limb (a) of s 106], and a use for which development consent was obtained which became prohibited [limb (b) of s 106]. The former category of uses did not require development consent: [Steedman v Baulkham Hills Shire Council (No 2) (1993) 31 NSWLR 562 at 569 and 580]; the latter are uses which were lawful only because consent had been obtained" (See also Botany Bay City Council v Workmate Abrasives Pty Ltd (2004) 138 LGERA 120 at [12] and MM & SW Enterprises Pty Ltd v Strathfield Council (2010) 172 LGERA 125; [2010] NSWLEC 8 at [81]-[82]).
3. In circumstances where a development consent was obtained for a use and that consent has not lapsed or otherwise become unenforceable, s 109B provides "an additional immunity for carrying out development" prohibited by the current environmental planning instrument: Jojeni Investments Pty Ltd v Mosman Municipal Council at [104]. Indeed, if s 109B is applicable, it is the relevant development consent ("not the actual or more limited use of the land") "that sets the boundaries" of the current authority to use the land: House of Peace Pty Ltd v Bankstown City Council at [36] citing Harris v Hawkesbury Shire Council (1989) 68 LGRA 183 (See also Currency Corporation Pty Ltd v Wyong Shire Council (2006) 155 LGERA 230; [2006] NSWLEC 692 at [47]-[60]).
4. Hence, in this case, it was necessary for the Court to identify the best evidence before it which showed the parameters of what development and use of land received the requisite approval and consent in 1984. Had the existing dwelling use of Lot 117 been properly characterised as a s 106(a) existing use, then the Court would focus upon the use and development as prevailing immediately before the coming into operation of KLEP 2011 on 16 December 2011 (being the relevant date pursuant to cl 39(a) of the Regulation). Although the applicant did not explicitly specify which of the two s 106 limbs the existing dwelling use falls within, Kiama Council suggested (unchallenged by the applicant) that the relevant existing use is that defined under limb (b) of s 106 (T 8.2.17, p 23, [40]-[51]). That is to say, the existing use is "… a use for which development consent was obtained which became prohibited" and is "…lawful only because consent had been obtained": Jojeni Investments Pty Ltd v Mosman Municipal Council at [11].
5. As I have already indicated, Kiama Council's interpretation in this respect is correct. When the relevant building application was lodged in 1984, the effect of the KLEP No 5 was that development (including both the erection of a building and the use of land) on Lot 117 for the purpose of dwelling-house could only be carried out with development consent having been issued pursuant to s 91 of the then EPA Act: cll 11, 12 and 6 of the KLEP No 5 and s 76(2) of the then EPA Act.
6. Any development on Lot 117 for the purpose of dwelling-house that did not have the benefit of development consent when the building application for the dwelling was approved in 1984 could not subsequently form the basis for an existing use because it would not be a "use which was for a lawful purpose" (Steedman v Baulkham Hills Shire Council (No 2) at 580). It therefore follows from the agreed position of the parties, that I proceed on the basis that the development consent was in place and that the best evidence of this consent was the contemporaneous building approval. So, in the absence of other materials, the documentary evidence associated with the building approval provides the best available evidence of the parameters of the development consent, and importantly, the nature and extent of the lawful existing use.
7. The parties were in agreement that the approved 1984 Local Government Act building application (Exhibit A, Statement of Agreed Facts at Tab C) constituted a development consent for the erection of a dwelling on Lot 117 and use of Lot 117 for that purpose. Although unclear, it appears that the parties did not agree that both a building approval and a development consent were granted but, rather, that they were one and the same. The applicant, in oral address, said that: [w]e say here that there is consent. The consent travels with the land, importantly, what was sought for in the consent and what was granted and to that extent we go to [(Exhibit A, Statement of Agreed Facts at Tab C)]". Additionally, the applicant said both that "[w]hat we have here, however, is the benefit of a development consent" (T8.2.17, p 10) and, by way of conclusion, "…your Honour will be mindful that the consent is for the whole of the lot … [t]he consent wasn't limited in any way …" (T8.2.17, p 21).
8. Similarly, in response to a question from the Court to both parties as to whether the approved building application was all that the Court could rely upon as the initial approval of the building, Kiama Council's counsel said that "…we agree with your Honour's assessment that in terms of the consent it is that which is at Tab C of the agreed bundle. It's the relevant instrument to construe" (T8.2.17, p 22). Moreover, Kiama Council's counsel also said in oral address that the "consent" is "…absolutely relevant, absolutely and I'm going to come to the inconsistent inferences that arise from the actual consent" (T.8.2.17, pp 31-32).
9. So, essentially, the position of the parties requires the Court to presume the existence of a development consent given the evidenced existence of a building application approved pursuant to the Local Government Act (see Auburn Council v Nehme at [2] and [4]). It is necessary to adopt this pragmatic approach in order for the Court to answer the separate legal question. Moreover, the approved building application must be relied upon to determine what the nature and extent of the lawfully approved extant existing use is. Although not material, the Court notes that s 314(1)(b) of the Local Government Act stipulated that a council should not grant a building approval "unless it is satisfied that a building erected in accordance with the application plans and specifications … would be in accordance with … the [EPA Act] and any environmental planning instrument". Similarly, s 314(4) prevented a council from approving a building application "so far as it relates to development that may be carried out with consent under the [EPA Act]" "unless that consent has been granted".

The extent of the lawful dwelling use

1. I now apply the law to the facts as I have accepted them. The land in question is best described as a "bush block". Save for the areas cleared for the current dwelling, the existing driveway, a new driveway, a small cleared area near the south eastern corner (which falls within the RU2 zoned portion), and the part of Lot 117 proposed for a replacement dwelling, the balance of the property of over 9.3 hectares is forested. The bush block is predominantly vegetated with remnant Illawarra subtropical rain forest, comprising large trees, vines, shrubs and ground cover. The abundant presence of native vegetation most probably provided the rationale for the vast majority of the land to be rezoned as E2 Environmental Conservation land in 2011, leaving only a very small area in the north-east as E3 Environmental Management land and another very small area in the south-east as RU2 Rural Landscape land under the KLEP 2011.
2. Material to my decision is the fact that the whole of the Saffioti land is contained in the one lot - Lot 117 - without any separation of activity or uses into different areas or "internal" title divisions. In short, the subject land is currently a single cohesive planning unit and at all material times has been a single cohesive planning unit. The land can simply be described as a bush block with a dwelling built upon it. This lack of division by title and lack of differentiation of activity is very material to the core issue, an observation to which I will return.
3. The extent and nature of the approved and therefore lawful existing use of Lot 117 for the purpose of dwelling should be understood in light of the ordinary meaning or understanding of that purpose of use.
4. In existing use cases the relevant use should not be described or understood by reference to the environmental planning instrument under which it has become proscribed: Shire of Perth v O'Keefe at 535; North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50 at 61 and Minister for Planning v Rose Bay Marina Pty Ltd (2003) 126 LGERA 181; [2003] NSWCA 119 at [34]-[36]. This is a case where the existence of an existing dwelling use right is not in dispute between the parties, only the physical extent of the existing use is in issue.
5. However, in the absence of any division of the land by title (or otherwise) or evidence of any area on the land being put to some other use, a dispute focussed on the extent of the existing use necessarily requires an examination of the characterisation of the use of land for the purpose of dwelling. Should it be determined that the lawful dwelling use was and is limited to a mere portion of a single lot or rather that it extends to the whole lot? The issues in this case require that question to be answered. If it is instructive or helpful to do so, resort may be had to dictionaries to elicit the ordinary meaning of a purpose or use, see House of Peace Pty Ltd v Bankstown City Council. However, for common terms such as "domicile", "dwelling" or "dwelling house", little value is gained from such an exercise in this case.
6. Understanding the essential usage of a dwelling is assisted by a simple reflection on common domiciliary activities - activities which can be accepted as being common sense expectations within the scope of judicial knowledge. So with a dwelling, the use is readily comprised of activities involving people going about their normal domestic living: eating, sleeping, recreating, resting, playing, studying, gardening, keeping pets and so on. The list of domestic activity associated with a dwelling might be more or less diverse, depending upon the people living within the dwelling. For instance, an elderly retired couple's habitual use of their dwelling can be expected to differ from the habitual use of a dwelling occupied by a family with a number of active children.
7. The range of activities carried on within or associated with a dwelling can be expected to vary reflecting both the opportunities and constraints offered by the relevant physical environment - but such variation does not redefine the core dwelling use and its proper characterisation. It remains a dwelling despite the diversity of domestic habitation. So, for instance, a dwelling on a modestly sized block in Rose Bay with a small garden is unlikely to be a place where active outdoor family games are physically possible, whereas a family living in Bowral with a large backyard is more likely to be able to embrace a greater diversity of outdoor family activities, such as gathering around a barbecue with children running around, perhaps kicking a football. Despite these differences, both indisputably constitute a dwelling use.
8. So, accepting the diversity of human habitation associated with a dwelling, it is then necessary to understand the concept of a planning unit to which the use in question is attached. Although the terms dwelling and dwelling house might tend to infer or suggest that it is the physical structure of the house that one is focussed upon, in reality the characterisation attaches to the whole planning unit. In a domestic dwelling context, the planning unit is most commonly the entire lot upon which the dwelling sits. It would be nonsensical to contemplate just the curtilage of a dwelling building as being the planning unit and the surrounding land within the relevant lot as being somehow disconnected from the planning unit. Whether the dwelling is located in Rose Bay or Bowral, the activity which commonly occurs within the house and outside the house is all bundled together in that dwelling use of the whole land. So if children play games in the backyard, while the parents grow vegetables in a kitchen garden or tinker away on a carpenter's bench - all being activities outside or away from the physical structure and possibly curtilage of the dwelling, the domestic usage of the entire land is that of "dwelling" with the only confinement, in most circumstances, being the lot boundaries.
9. With that context established, I now return to the Saffioti bush block, Lot 117. As mentioned, there was placed before the Court evidence of the existing dwelling by way of application and construction plans, which led to the 1984 building approval. In the absence of evidence to the contrary, various conclusions may be drawn as to how the land was used, on the balance of probabilities, based on the nature of the simple dwelling approved in 1984. Similarly, various aerial photographs were admitted into evidence, taken over a range of years, which gave no indication of any non-domestic usage of the land, given the absence of land disturbance, tree removal or built structures. Importantly, the dwelling usage of a bush block obviously embraces normal and expected activity both within and outside the physical structure of the dwelling.
10. As outlined above, counsel for Kiama Council pressed the Court to accept the proposition that the existing dwelling use rights should be confined to the existing 1984 dwelling together with "a fair or generous curtilage". In a question from the Court, counsel was pressed how the Court could decide what that "fair or generous" curtilage may or may not be. Putting to one side the usual and expected activities within the confines of a dwelling, it is to be expected that the occupants of a bush block might use their land for a diversity of outdoor activities: they might have a vegetable plot, an area cleared for outdoor eating around a barbecue, they might use paths weaving amongst the trees along which the family dog is walked, the more energetic occupants might go for a morning jog, whilst others might go for an evening stroll to a vantage point to view the setting sun, or there might even be an amateur botanist amongst the occupants who simply loves to observe and study the changing state of the vegetation, and associated bird habitat, across the seasons. In short, the entire subject land, absent evidence otherwise, can readily be seen as being lawfully used for domestic dwelling purposes - including both the site of the existing dwelling, the area proposed as the site for the proposed new dwelling, and beyond.
11. Kiama Council submitted to the Court that "there needs to be a factual inquiry into what part of the relevant lot was physically used for the purpose of the existing use at the relevant date". Kiama Council criticised the applicant for not placing before the Court evidence of the actual domestic use of the land immediately prior to the relevant date. There are numerous authorities which indicate that the approach pressed by Kiama Council is not appropriate. As was held in Royal Agricultural Society of New South Wales v Sydney City Council, as adopted with approval in People for the Plains Inc v Santos NSW (Eastern) Pty Ltd (2017) 220 LGERA 181; [2017] NSWCA 46 at 216: "characterisation of the purpose of the 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" (See also: Shire of Perth v O'Keefe at 535; Jojeni Investments Pty Ltd v Mosman Municipal Council at [76]; Seraglio v Shoalhaven City Council [2017] NSWLEC 45 at [47]).
12. I am of the view that for the relatively simple use of land (being a single lot constituting a single planning unit) for the purpose of dwelling, detailed evidence is not necessary to define the parameters of that use. I rhetorically ask: would the contrary approach require evidence from former occupants to determine whether on a range of dates, perhaps habitually, their domestic usage of their land included, for example, walking the family dog to the further reaches of their property or, alternatively, just short walks with the dog around the perimeter of the dwelling (thereby inviting a conclusion that the further reaches of the property were not so used)?
13. The farce of such an inquiry is highlighted to demonstrate that the preferred course with respect to an existing dwelling use is to accept that the common diversity of domestic activity is probable and that, with a bush block, such activity can be accepted as embracing the expanded range of activity to be expected on such land. Consider the implications if the more restricted approach pressed by Kiama Council were to be accepted: how would one treat the occurrence of normal domiciliary activity extending beyond the "fair or generous curtilage" of the dwelling? If the family dog were regularly walked to the boundary of the lot, or the family jogger too frequently strayed from doing tight laps around the perimeter of the dwelling: would such activity be deemed unpermitted, somehow triggering a breach of the planning control? Such a farcical outcome highlights the improbability of Kiama Council's inflexible approach being correct.
14. All of the cases referred to by Kiama Council as providing authority for the necessity of a detailed factual inquiry to determine the ambit of existing dwelling use rights relate to the examination of more complex usages of land, not simple domestic dwelling uses. These decisions, if properly relevant here, should consequently be distinguished with respect to that point.
15. The decision of Eaton & Sons Pty Ltd v Warringah Shire Council concerned the use of discrete portions of land for the purpose of a "…timber and hardware reselling business, involving amongst other activities the storage of building timber": at 271. In Lemworth Pty Ltd v Liverpool City Council, the relevant existing use was the operation of a brothel on one floor of a two storey commercial building. The existing use of an allotment as a retail shopping complex was the subject of Mona Vale Pty Ltd v Pittwater Council. Brinara Pty Ltd v Gosford City Council concerned the existing use of buildings for commercial purposes across two allotments. Finally, a street-level public car park was the relevant existing use in Starray Pty Ltd v Sydney City Council.
16. I should observe that the detailed factual inquiry approach discussed in the previous paragraphs would be relevant and have utility in investigating the parameters of a domestic dwelling use of land if there was any issue as to whether the dwelling use had potentially become another use. Another instance where a detailed factual inquiry is likely to be necessary would be where the land in question, constituting the relevant planning unit, was being used for a range of different uses. This case does not involve such issues, with both parties acknowledging that "dwelling" is the only usage historically and prospectively proposed for Lot 117.
17. Lest there be some remaining thought that it is inappropriate to find that the dwelling use extends to the furthest reaches of Lot 117, to the lot boundaries, in circumstances where it is, in essence, a simple bush block in its natural state, I consider the judgment of Lord Denning in Council of the City of Newcastle v Royal Newcastle Hospital to be instructive (although noting it was a rating case rather than a planning law case).
18. Beyond a core 17½ acres on which a tuberculosis hospital was built and an adjoining 18½ acres of "rough ground", the Royal Newcastle Hospital owned 291 acres of natural bushland, traversed by heavily timbered ridges and gullies, described as being in its virgin state. This bushland had a few bush tracks, one of which was well-defined, but no evidence was before the Court to establish the physical usage of these tracks. The question for the Privy Council was whether this bushland was "used" by the Royal Newcastle Hospital for hospital purposes, as, if it was, the land would then be exempt for rating purposes. Upholding a majority decision of the High Court, Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493; [1957] HCA 15, the Privy Council confirmed that the bushland was "used" within the meaning of the relevant rating legislation. Accepting the evidence that the bushland was acquired for purposes, inter alia, "to keep the atmosphere clear and unpolluted" and to "provide quiet and serene surroundings for the patients", it had to be determined whether the land was used for those purposes.
19. Finding that the bushland was "used" for hospital purposes their Lordships stated: "An owner can use land by keeping it in its virgin state for his own special purposes. An owner of a powder magazine or a rifle range uses the land he acquired nearby for the purpose of ensuring safety even though he never sets foot on it. The owner of an island uses it for the purposes of a bird sanctuary even though he does nothing on it, except prevent people building there or disturbing the birds. In the same way this hospital gets, and purposely gets, fresh air, peace and quiet, which are no mean advantages to it and its patients".
20. Analogously, this decision assists in understanding the determination in this case that, on the balance of probabilities, the entirety of the bush block was lawfully used at the material time and continues to be lawfully used for the purpose of dwelling.

Costs

1. I have considered the parties' position as to costs. I propose to make no order as to costs unless, within fourteen days, a party applies to the Court for a costs order by way of notice of motion.

Orders

1. The Court orders: 1. The answer to the below separate question is that the proposed development is permissible, with development consent, under clause 42 of the Environmental Planning and Assessment Regulation 2000; Whether the proposed development for the purpose of a dwelling (Proposed Development) under Development Application No.10.2016.185 is prohibited development on Lot 117 DP 751254 (Lot 117) known as 29 Thompsons Road, Broughton Village under E2 Environmental Conservation zone in Kiama Local Environmental Plan 2011 (KLEP) or is permissible by reference to clause 42 of the Environmental Planning and Assessment Regulation 2000. Specifically, whether the Proposed Development involves an increase in the area or use made of Lot 117 for the existing use of a dwelling house on Lot 117 that has been actually physically or lawfully used before the coming into force of the KLEP. 1. The proceedings are stood over to the Registrar's List, by telephone, on Monday 19 June 2017 for further directions. 2. The exhibits may be returned.

Amendments 06 June 2017 - Typographical error at paragraph 61 - "Lot 177" to "Lot 117" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 June 2017