Seraglio v Shoalhaven City Council

Land and Environment Court (NSW)|2017-04-19|Before: Preston CJ, Mr P

Nature of case and outcome

The applicant in the proceedings, Mr Seraglio, applied for development consent for a Torrens title subdivision of land at Huskisson, being Lot 2 Deposited Plan 165748 ('the land'), into two new lots.
Two dwelling houses are erected on the land. Each dwelling house has its own site and curtilage. The two dwelling houses and their sites have different street addresses, the northern one known as 22 Bowen Street, Huskisson, and the southern one known as 34 Currambene Street, Huskisson. There is a paling fence separating the sites of the two houses. The proposed subdivision (as amended) is along the line of the existing fence so that the new lots would correspond with the existing sites of the dwelling houses. Following the subdivision, a dwelling house would remain on each of the new lots.
Shoalhaven City Council ('the Council') refused the development application for subdivision. The applicant appealed, under s 97(1) of the Environmental Planning and Assessment Act 1979 ('the Act'), against the Council's decision.
In its amended statement of facts and contentions, the Council maintained that the development application should be refused. The reasons given were legal and not on the merits. The Council contended that, first, the proposed development is prohibited under the applicable Shoalhaven Local Environmental Plan 2014 ('SLEP 2014') and that, secondly, the development application must be refused by s 80(2) of the Act because the subdivision would result in a contravention of SLEP 2014 and the Act. The reason why the Council said that the proposed development was prohibited and there would be a contravention of SLEP 2014 and the Act was the same. The development application proposed that, following subdivision of the land, a dwelling house will remain on each of the two new lots. Dwelling houses are prohibited on land in the applicable zone, R3 Medium Density Residential, under SLEP 2014. The subdivision of the land would result in the use of each of the new lots for the prohibited development of dwelling houses. The Council contended that there are no existing use rights permitting the continued use of the land for the purpose of dwelling houses.

The uses of the land

The land is located on the corner of Bowen and Currambene Streets in the village of Huskisson, in close proximity to the village centre. The land has an area of around 1012m².
There are two dwelling houses on the land. They were erected in the early 1930s. The Council minutes of a meeting on 8 February 1929 recorded that building applications for the land were granted.
One of the dwelling houses fronts Bowen Street and has the street address of 22 Bowen Street. It was later given the name of "Warrane". The other dwelling house fronts Currambene Street and has the street address of 34 Currambene Street. It was later given the name of "Inglewood".
The two dwelling houses and their sites have been physically used as separate dwellings for decades. Each of the dwelling houses and their sites were self-contained so as to be capable of being used separately for the purpose of dwelling houses. The site at 22 Bowen Street has the dwelling house, a garage and a driveway to Bowen Street. The site at 34 Currambene Street has the dwelling house and a separate driveway to Currambene Street. Each property has its own sheds and other structures in the curtilage of each dwelling house.
At some time in the past a paling fence was erected just north of the driveway on the site at 34 Currambene Street parallel to Bowen Street and physically separating the sites at 22 Bowen Street and 34 Currambene Street.
The two sites were also capable of separate identification. Numerous entries in the Council's rates book and valuation book from 1950 to 1969 separately identified the sites at 22 Bowen Street and 34 Currambene Street, referring to the former site as "lot cor [corner] pt 1 sec 4 Bowen Street Huskisson", and the "cottage" on it as "Warrane", and the latter site as "lot pt 1 sec 4 Currambene Street Huskisson", and the existing development of "cottage, shed and garage" on it as "Inglewood".
In 1980, the Council became concerned that the two properties at 22 Bowen Street and 34 Currambene Street were unsewered and that the guttering and downpipes on the dwelling houses were rusted and, as a result, runoff was occurring on the road reserve. The Council issued two notices under the then Local Government Act 1919, one for each of the properties, requiring connection of the premises to sewers, and issued another two notices under that Act, one for each of the properties, requiring the carrying out of work to renew the rusted roof guttering and down piping on each dwelling house and provide roof water disposal drainage from the down piping to the street water table.
In 1995, an application was made for a building certificate in respect of the land. The application enclosed a survey that identified each of the dwelling houses and sheds on each site and the paling fence separating the two sites. The Council building surveyor in his report noted that: The buildings on site are very old and were probably once cabins. Enquiries have indicated that Council was aware of status of land when rating matters were raised. No action proposed. OK to issue certificate. The Council then duly issued the building certificate.
The current aerial photograph and street view photographs depict a clear, physical delineation between the sites at 22 Bowen Street and 34 Currambene Street, including the dwelling houses, driveways, garages, sheds and works on the sites, and the paling fence separating the sites.

The purpose of the uses of the land

The applicant and the Council agreed that the purpose of the uses of the land, from the date when the dwelling houses were erected in the 1930s until the date immediately before the coming into force of SLEP 2014, was dwelling houses. There were two uses for the purpose of dwelling houses, corresponding with each dwelling house on the sites at 22 Bowen Street and 34 Currambene Street.
At the time the uses commenced in the 1930s, there was no town planning regime applying to the land. At that time, the appropriate designation of the purpose being served by the two uses of the land was, according to ordinary terminology, dwelling houses. The purpose of use of 'dual occupancy' was not recognised at that time: Jojeni Investments Pty Ltd v Mosman Municipal Council (2015) 89 NSWLR 760; [2015] NSWCA 147 at [78].
The character, extent and other features of the uses carried out on the two sites, from when the uses commenced until immediately before SLEP 2014 came into force, continued to make dwelling houses the appropriate characterisation of the purpose being served by the uses.
The parties disagreed about the parts of the land on which each use for the purpose of dwelling houses was carried out. The applicant submitted that the parts of the land on which each use for the purpose of dwelling houses was carried out corresponded with the physical delineation of the sites at 22 Bowen Street and 34 Currambene Street. Each of these sites was the 'unit' of land on which each use for the purpose of dwelling houses was carried out.
The applicant submitted that: there was a clear, physical identification of separate sites, including by the dwelling houses, structures and works on the sites and the fence between the sites; the use of each site for the purpose of dwelling houses was separated from the use of the other site for the purpose of dwelling houses; and the sites were treated separately, including for rating and valuation purposes and for local government notices and orders. These factors support identification of two units of land, being the two sites at 22 Bowen Street and 34 Currambene Street, each being used for the purpose of dwelling houses. The applicant cited Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270; Steedman v Baulkham Hills Shire Council (1991) 87 LGERA 26 at 27-28 and Lemworth Pty Ltd v Liverpool City Council (2001) 53 NSWLR 371 at 375-378; [2001] NSWCA 389.
The Council contended that the whole of the land was put to each use for the purpose of dwelling houses. That is to say, the Council contended that the unit of land on which each use for the purpose of dwelling houses was carried out was coterminous, being in each case the whole of the land. The Council cited Steedman v Baulkham Hills Shire Council at p 27 in support of the propositions that the unit of land on which the use is carried out should be capable of identification as far as possible in a way which avoids detailed investigation and complicated disputes of fact and that if the land is rightly regarded as a unit and it is found that part of its area is physically used for the purpose in question, it follows that the land was used for that purpose. The Council submitted that identification of the whole of the land as the unit of land avoids detailed investigation and complicated disputes of fact as to which parts of the land have been put to each use for the purpose of dwelling houses. Furthermore, the Council submitted that the whole of the land can rightly be regarded as a unit of land. As parts of the land have been used for the purpose of dwelling houses, it follows that the whole of the land was used for that purpose.
I find that the unit of land on which each use for the purpose of dwelling houses was carried out was not the whole of the land but rather each site on which the use for the purpose of dwelling houses was carried out, being the sites at 22 Bowen Street and 34 Currambene Street respectively. These sites are capable of separate identification in the facts and circumstances of this case, as the applicant has pointed out. There are no problems of detailed investigation or complicated disputes of fact.
Indeed, it would be contrary to the facts of this case to identify the whole of the land as the unit of land on which each use for the purpose of dwelling houses was carried out. To select an obvious point, the portions of land on which the dwelling house, garage and structures on the site at 22 Bowen Street stand, were never used by the occupiers of the dwelling house on the site at 34 Currambene Street. Hence, it cannot be said that the use for the purpose of dwelling houses of the site at 34 Currambene Street extended to those parts of the land on which the dwelling house, garage and structures on the site at 22 Bowen Street stand. The reverse situation also applies. The occupiers of the dwelling house on the site at 22 Bowen Street never used the portions of the land on which the dwelling house and structures on the site at 34 Currambene Street stand for their use for the purpose of dwelling houses.

The lawfulness of the purpose

In order for the uses of the sites at 22 Bowen Street and 34 Currambene Street to be existing uses, the uses needed to be for a lawful purpose immediately before the coming into force of SLEP 2014. This involves tracing the history of the uses back in time to establish that when the uses commenced they were lawful and that they have continued to be lawful up to the point in time immediately before the coming into force of SLEP 2014 which had the effect of prohibiting the uses: BYT Nominees Pty Ltd v North Sydney Council (2008) 161 LGERA 77; [2008] NSWLEC 164 at [27].
The uses of the sites at 22 Bowen Street and 34 Currambene Street for the purpose of dwelling houses commenced when each dwelling house was erected on its site. This was in the 1930s. At that time, there was no planning law that required development consent to be obtained to erect and use a dwelling house. The erection in the 1930s and the subsequent use of each dwelling house and the use of the site on which it was erected for the purpose of dwelling houses was, therefore, lawful.
On 28 February 1964, Interim Development Order No 1 - Shire of Shoalhaven ('IDO1') commenced. The land was zoned Township. In that zone, dwelling houses was not nominated as a purpose of development that was permitted to be carried out without consent or that was prohibited and, therefore, was permitted to be carried out with development consent.
However, pursuant to initially s 342U(4) of the Local Government Act 1919 and subsequently s 109 of the Act, nothing in IDO1 prevented the continuance of the use of each dwelling house and the site on which it was erected for the purpose of dwelling houses, being the purpose for which such building and land were lawfully used immediately before the coming into operation of IDO1. The use of each dwelling house and the site on which it was erected for the purpose of dwelling houses was, therefore, a continuing use for a lawful purpose.
On 17 May 1985, IDO1 was repealed and Shoalhaven Local Environmental Plan 1985 ('SLEP 1985') commenced. The land was zoned 2(b2) Residential B2. In that zone, development for the purpose of dwelling houses was nominated as prohibited. Development that could be carried out only with development consent was development for any purpose other than a purpose for which development was prohibited.
However, pursuant to s 107(1) of the Act, nothing in SLEP 1985 or the Act prevented the continuance of an existing use of each dwelling house and the site on which it was erected for the purpose of dwelling houses, being a use for a lawful purpose immediately before the coming into force of SLEP 1985. The use of each dwelling house and the site on which it was erected for the purpose of dwelling houses, therefore, became an existing use within the definition in s 106 of the Act.
On 19 November 1985, SLEP 1985 was amended by Shoalhaven Local Environmental Plan 1985 (Amendment No 73) ('Amendment No 73'). This amendment introduced a definition of "dual occupancy development", inserted dual occupancy development as a nominate development in the development control table for certain zones, but importantly not for zone 2(b2) Residential B2, and introduced cl 18A setting a development standard for the maximum lot size for dual occupancy development in zones 2(b1) and 2(b2). Amendment No 73, therefore, did not effect any change to the existing uses of the land. Development for the purpose of dwelling houses remained prohibited in the 2(b2) zone. The purpose of dual occupancy development became an innominate purpose that could be carried out with development consent in the 2(b2) zone. Development for the purpose of dual occupancy development could be carried out in the 2(b2) zone but only if the development could not be characterised as being for the prohibited purpose of dwelling houses.
The use of each dwelling house and the site on which it was erected continued, therefore, to be an existing use within the definition in s 106 of the Act after Amendment No 73 commenced.
On 22 April 2014, SLEP 2014 commenced. The land was zoned R3 Medium Density Residential. The development control table for that zone specifies the developments that are permitted with consent, including dual occupancies but not dwelling houses. Any development permitted without consent (there are none specified) or permitted with consent (including dual occupancies) is prohibited. Development for the purpose of dwelling houses is, therefore, prohibited.
This tracing of the history of the uses and the purposes served by the uses of the land shows that the existing use of each dwelling house and the site on which it was erected for the lawful purpose of dwelling houses continued up to the time immediately before the coming into force of SLEP 2014.
The critical question between the parties is whether SLEP 2014 had the effect of prohibiting those uses. If it did, the uses would continue to be existing uses within the definition in s 106 of the Act. But if it did not, the uses would have ceased to be existing uses within the definition in s 106 of the Act: see BYT Nominees Pty Ltd v North Sydney Council at [28]. The answer to this question depends on whether the introduction of dual occupancies as a nominate development permissible with consent effected a change in the purpose of the use of each dwelling house and the site on which it was erected from dwelling houses to dual occupancies. If so, the uses became permissible with consent and were no longer prohibited. They would, therefore, cease to be an existing use within the definition in s 106 of the Act.

Did SLEP 2014 change the purpose of the uses?

The Council contended that the uses of the dwelling houses on the land are properly to be characterised as being for the purpose of dual occupancies as defined in SLEP 2014. "Dual occupancy" is defined in the Dictionary of SLEP 2014 as meaning "a dual occupancy (attached) or a dual occupancy (detached)". A "dual occupancy (detached)" is defined to mean "2 detached dwellings on one lot of land, but does not include a secondary dwelling". A "dwelling" is defined to mean "a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile".
The Council contended that the word "lot" in the definition of "dual occupancy (detached)" refers to a lot in the technical sense of legal title.
The Council contended that there are two detached dwellings (being the two dwelling houses) on the one lot of land, being the land comprised in Lot 2 in Deposited Plan 165748. Immediately before the coming into force of SLEP 2014, there were uses of the two detached dwellings on that lot of land. These uses fell within the definition of "dual occupancy (detached)" and hence "dual occupancy". The uses of the land were, therefore, for the purpose of dual occupancies, which was permitted with consent.
The uses could not, therefore, be characterised as being for the prohibited purpose of dwelling houses, because development can only be prohibited if it is not specified as being permissible with consent. Development for the purpose of dual occupancies is specified as being permitted with consent. If the uses of the land are properly to be characterised as being for the purpose of dual occupancies, they cannot be for the other purpose of dwelling houses.
The applicant disputed that SLEP 2014 had the effect of changing the purpose of the uses of the land from being dwelling houses to dual occupancies. The proper characterisation of the purpose of the uses of the dwelling houses and the sites on which they were erected immediately before the coming into force of SLEP 2014 was dwelling houses. The coming into force of SLEP 2014 could not change that characterisation of the purpose of the uses. It is legally irrelevant that the two dwelling houses could answer the description in the definition of "dual occupancy (detached)" of being two detached dwellings on one lot of land. The relevant question is whether each use being carried out on the land is properly to be characterised as being for the purpose of dual occupancies. The applicant submitted that purpose was not the purpose of the uses; the purpose remained that of dwelling houses.
The applicant submitted that the focus of the inquiry as to the purpose of the uses is what is actually and physically being carried out on the land and the end to which those physical acts are seen to serve. The focus is not on the label in SLEP 2014, being the definition of "dual occupancy (detached)".
The applicant submitted that there were two separate uses of two parts of the land. Each part of the land was a unit of land on which each use was carried out. The inquiry is what is the purpose of each separate use of each unit of land. The answer is that each use of each unit of land was for the purpose of dwelling houses. There was not one use of the whole land for one purpose of dual occupancies.
I find that there were two separate uses of two parts of the land, being the sites of 22 Bowen Street and 34 Currambene Street, for the purpose of dwelling houses. There was not one use of the whole of the land for the one purpose of dual occupancies.
First, immediately before the coming into force of SLEP 2014, there was a use of each dwelling house and the site on which it was erected for the purpose of dwelling houses. The characterisation of the purpose of a use looks to the use actually, physically and lawfully being carried out on the land and asks what is the end to which that use of the land is seen to serve. The purpose describes the character which is imparted to the land at which the use is pursued: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534; Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 at [27]; Abret Pty Ltd v Wingecarribee Shire Council (2011) 180 LGERA 343; [2011] NSWCA 107 at [51]. That task is to be performed by reference to the unit of land that is being actually, physically and lawfully used for the purpose.
In this case, there were two separate uses of two units of land, being one use of the site at 22 Bowen Street and the dwelling house erected on it and another use of the site at 34 Currambene Street and the dwelling house erected on it. There was not one single use of the whole of the land for any purpose. An examination of the actual and physical use of the dwelling house and other structures erected on each site, which is the unit of land for the use, reveals that the end to which each site is seen to serve is clearly dwelling houses. The purpose of dwelling houses is the character which is imparted to each unit of land at which the use is pursued.
Second, the coming into force of SLEP 2014 did not effect any change to the purpose of each use of each site. The coming into force of SLEP 2014 obviously did not change the actual or physical use of each site. The physical acts by which each site was made to serve some purpose did not change. The end to which the actual and physical use of each site can be seen to be put also did not change.
As the applicant submitted, the task of characterisation of the purpose of the use requires focusing on the actual and physical use being carried out on the relevant unit of land and ascertaining the end to which that actual and physical use is seen to serve, which will be the purpose of the use. The appropriate 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: Royal Agricultural Society (NSW) v Sydney City Council (1987) 61 LGRA 305 at 310; Abret Pty Ltd v Wingecarribee Shire Council at [52]; Jojeni Investments Pty Ltd v Mosman Municipal Council at [75]-[76].
The task of characterisation of the purpose of an existing use does not start with the categories of purpose of development and their definitions specified in an environmental planning instrument and then ascertain whether any one or more of these categories of purpose could be applied to a particular use of land. That is to invert the process of characterisation of the purpose of a use. The proper characterisation of the purpose of a use is an evaluative judgment of the category of purpose, expressed at an appropriate level of generality, that best describes the end to which the actual, physical and lawful use of the land is seen to serve.
When the proper approach to characterisation for the purpose of existing use is understood, it can be seen that the coming into force of an environmental planning instrument that specifies various categories of purpose cannot, by itself, change the proper characterisation of the purpose of a particular use of land. The proper characterisation of the purpose of a particular use of land is derived from that particular use, not from the categories of purpose specified in the environmental planning instrument.
Of course, reference will need to be made to the environmental planning instrument to ascertain what legal effect the environmental planning instrument may have had on the lawfulness of the purpose of the use. In order for a particular use for a purpose to continue to be an existing use, the environmental planning instrument needs to have prohibited use of land for that purpose. This involves looking at the terms of the environmental planning instrument and the categories of purpose of use that are permitted without consent, permitted with consent, or prohibited on the land on which the particular use is carried out. But this task of determining the lawfulness of the use for a particular purpose comes after the task of determining what is the proper characterisation of the purpose of the use.
Third, even with the coming into force of SLEP 2014 and the specification of dual occupancies as a purpose of development that is permissible with consent, the proper characterisation of the purpose of each use of the sites at 22 Bowen Street and 34 Currambene Street and the dwelling houses erected on each of them was not dual occupancy. As I have found earlier, each use is not of the whole of the land but rather only of a part of the land, being the respective site and the dwelling house erected on that site. Each part of the land is the unit of land that is used. The use of each unit of land cannot be characterised as being for the purpose of dual occupancies, which involves two dwellings on one lot of land, but rather is to be characterised as being for the purpose of dwelling houses, there being a single dwelling on each unit of land.
The purpose of dual occupancies involves the use of two dwellings on one lot of land. This is a use of the whole of a lot for the one purpose. In this case, as I have found earlier, there was not one use of the whole of the lot for any one purpose. Instead, there were two uses of two separate parts of the land. This is antithetical to a use for the purpose of dual occupancies.
For these reasons, the coming into force of SLEP 2014 did not change the purpose of each of the uses being carried out on the land from dwelling houses to dual occupancies. As a consequence, the uses did not become for a purpose that was permitted with consent in the applicable R3 Medium Density Residential zone but instead remained for the prohibited purpose of dwelling houses. The uses, therefore, continued to be existing uses within the definition of s 106 of the Act after the coming into force of SLEP 2014.
The applicant also argued that the uses of the land could not be characterised as being for the purpose of dual occupancies because there were not two dwellings on "one lot of land" within the definition of "dual occupancy (detached)" in SLEP 2014. The applicant submitted that the word "lot" bore its ordinary English meaning and not a technical meaning of legal title. The word "lot" can simply mean "a distinct portion or piece of land" (Macquarie Dictionary). Applied to this case, the applicant submitted, each of the sites at 22 Bowen Street and 34 Currambene Street is a distinct portion or piece of land and hence can be considered to be a lot. There is only one dwelling, not two dwellings, on each site or lot. Hence, the use of each site cannot be for the purpose of dual occupancies as defined.
The Council disputed that the word "lot" in the definition of "dual occupancy (detached)" bears its ordinary English meaning but instead submitted that it bore a technical meaning referring to the legal title.
It is not necessary to determine this debate about the meaning of the word "lot" in the definition of "dual occupancy (detached)". I have found on the facts that the uses of the land are properly to be characterised as being for the purpose of dwelling houses and not dual occupancies. This finding did not depend on construing the word lot in the definition of "dual occupancy (detached)" as bearing its ordinary English meaning rather than a technical meaning referring to the legal title. On the facts, there was not one use of the whole lot for one purpose. Hence, there cannot be a use of the land for the purpose of dual occupancies.

The proposed subdivision is lawful and should be approved

The proposed subdivision of the land along the line of the existing fence separating the sites of 22 Bowen Street and 34 Currambene Street is not prohibited and will not result in any contravention of SLEP 2014 or the Act, contrary to s 80(2) of the Act. Subdivision of land in the R3 Medium Density Residential zone is permissible with consent. The carrying out of the subdivision will not cause a change in the purpose of the use of each part of the land, which will become the new lots. The purpose of the uses before and after the subdivision will remain the same, namely dwelling houses. Each use for that purpose is an existing use within the definition in s 106 of the Act. Section 107(1) permits the continuance of the existing uses. There is, therefore, no legal reason preventing the grant of development consent to the proposed subdivision. The Council raises no merit reasons for not granting consent.
The Council wishes to provide draft conditions of consent for the subdivision. The applicant wishes to provide an amended plan of subdivision showing the line of subdivision to be along the line of the existing fence. Accordingly, the further hearing of the proceedings needs to be adjourned to a date to allow for the Council and the applicant to provide these documents to the Court. At the adjourned hearing, the Court can make orders disposing of the proceedings by upholding the appeal and granting development consent to the subdivision.
The Court directs: 1. The applicant is to file and serve an amended plan of subdivision by 5 May 2017. 2. The respondent is to file and serve draft conditions of consent by 12 May 2017. 3. The proceedings are listed for further hearing on 16 May 2017 at 10am.

Addendum made on 16 May 2017

The Court orders: 1. Leave is granted to the applicant to amend the plan of subdivision in the form of the plan of proposed residential subdivision by Allen Price & Scarratts, drawing no 26513-01 Revision 4 dated 30 September 2015. 2. The appeal is upheld. 3. Development consent is granted to development application No SF10511 for a two lot Torrens title subdivision and demolition of existing deck at Lot 2 in Deposited Plan 165748, known as 22 Bowen Street, Huskisson, on the conditions in Annexure A. 4. Costs are reserved.

Annexure A - Conditions of Consent (18.9 KB, pdf)

Amendments 16 May 2017 - Addendum made on 16 May 2017 - Final orders made 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: 01 May 2018

(2011) 180 LGERA 343

(2007) 151 LGERA 400

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