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[2000] NSWLEC 102
General information, not legal advice.
Land and Environment Court (NSW)
2000-05-31
Pearlman J, Mr P
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The application of these principles is illustrated in a useful way in the following passage from the decision of Meagher JA in Baulkham Hills v O'Donnell at p 409 - 410: When a resident uses his land to park his motor car at his house, he is no doubt not conducting an independent use of car parking; when an employer installs at his factory a canteen for his workers, no doubt he is not conducting an independent use of running a restaurant; when the Clarks grew vegetables for their table they were not conducting an independent use of vegetable growing. But when one use of the land is by reason of its nature and extent capable of being an independent use it is not deprived of that quality because it is "ancillary to" or related to, or interdependent with, another use. If a book publisher opens a sales room at his publishing house to sell his products, the selling of books is an independent use although ancillary to the use of publishing. The series of cases dealing with dual uses … illustrate the point: they show that a "convenience store" and a petrol station are two independent uses, although the former is clearly ancillary to the latter. 15. Here the nature of the use of lot 1 prior to 1976 was clearly recreational. According to Mrs Lynch's evidence, the swimming pool, brick pool house, boathouse and boat basin were used by her husband, herself and their three young children for recreational purposes. She stated that her children used the "whole of the property" (by which I infer that she meant both lot 1 and lot 5), for "living and playing". She said that the property, comprising both lot 1 and lot 5, was used as "our family home". On this evidence, it is not to be supposed that lot 1 was used by Dr and Mrs Lynch and their family for an independent use of boating and swimming. Simply to state that proposition reveals its absurdity. I am satisfied that the use of lot 1 for boating, swimming and related uses was a use which was in 1976 subservient to the dominant use of lot 1 and lot 5 for residential purposes.
I conclude that, immediately prior to the coming into force of IDO 30, lot 1 and lot 5 were properly regarded as one planning unit used as a whole for a residential purpose, and that, in accordance with the definition in s 106(a), existing use rights for use for that purpose attach to lot 1.
I should at this stage mention Woollahra Municipal Council v Hinton (1967) 13 LGRA 417. Mr McEwen SC, appearing for the council, cited that case as authority for the proposition that characterisation of the existing use in this case as being for residential purposes was too broad a definition, and that a narrower definition is required which would lead to a characterisation of the use of lot 1 as being for boating and related purposes. However, Woollahra v Hinton is a quite different case. The issue there was whether the use of certain land as a dwelling house before the relevant date constituted an existing use for residential purposes which would permit the use of that land after the relevant date for the purpose of a residential flat building. The issue here is whether the use of lot 1 for boating and related purposes is an independent, although ancillary use, or whether it is a use which is subservient to the dominant use for the whole of lot 1 and lot 5 for residential purposes.
My conclusion that existing use rights attach to lot 1 does not conclude the matter, as I have earlier pointed out. The second issue arises - that is, what is to be properly regarded as the development for which consent was sought.
Mr Tomasetti, appearing for the applicant, claimed that the development application in effect sought consent for a SEPP 5 development upon the lots other than lot 1, and that, in respect of lot 1, it sought consent under the provisions of the Environmental Planning and Assessment Regulation 1994 ("the Regulation") for an intensification of the existing use, or alternatively, a change of the existing use from a use for residential purposes for a single dwelling to a use for residential purposes for multi unit dwellings.
I have carefully considered the evidence concerning the development for which consent was sought, and I can find no evidence to support Mr Tomasetti's contention. An affidavit of Ms M D Laidlaw, who is the consultant planner from the council, discloses that the development application sought consent for a development comprising 22 self contained dwellings pursuant to the provisions of SEPP 5 upon the four lots which I have earlier described, which include lot 1. That evidence is corroborated by the plans, which were tendered as ex 1 and each of which is entitled "SEPP 5 housing development". Plan numbered DA04C is a lower floor plan, but it delineates the whole of the proposed development. It expressly refers to all four lots, including lot 1, as "the site area", and lot 1 is not differentiated in any way although it is apparent that the only work to be carried out on lot 1 is the construction of a new path.
Having regard to these matters, I agree with Mr McEwen's submission that the development application comes forward as a unified application for consent to a SEPP 5 development on all four lots.
I take it, then, that Mr Tomasetti was claiming that the Court on appeal could nevertheless grant development consent to the proposed development on all four lots, because intensification or a change of an existing use is permissible with consent pursuant to cl 40 and cl 43 of the Regulation.
In my opinion, the Court has no power to treat the development application as though it sought consent under cl 40 and cl 43 of the Regulation. It does not seek any such consent. Rather it seeks consent for a SEPP 5 development on all four lots. To treat the development application in the manner which the applicant claims would be a contravention of s 80(1) of the EP&A Act which empowers a consent authority (and the Court on appeal) to grant consent only to the development for which consent was sought.
In accordance with the foregoing, I answer the question of law in the negative; that is, consent cannot be granted to the proposed development on lot 1.
I invite the parties, in the hearing which is currently proceeding before me, to make submissions as to the further conduct and ultimate disposal of the class 1 appeal.
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Seribray Pty Ltd
Sutherland Shire Council
CITATION : Seribray Pty Ltd v Sutherland Shire Council [2000] NSWLEC 102 APPLICANT Seribray Pty Ltd PARTIES : RESPONDENT Sutherland Shire Council FILE NUMBER(S) : 11042 of 1999 CORAM: Pearlman J KEY ISSUES: Question of Law :- SEPP 5 - existing use rights - environmentally sensitive land Environmental Planning and Assessment Act 1979 s 106 Environmental Planning and Assessment Regulation 1994 LEGISLATION CITED: Interim Development Order No 30 - Shire of Sutherland State Environmental Planning Policy No 5 Sutherland Shire Local Environmental Plan 1993 Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404; CASES CITED: Foodbarn Pty Ltd and Ors v Solicitor-General (1975) 32 LGRA 157; The Council of the City of Parramatta v Brickworks Ltd (1972) 128 CLR 1; Woollahra Municipal Council v Hinton (1967) 13 LGRA 417 DATES OF HEARING: 24/05/2000, 30/05/2000 DATE OF JUDGMENT: 05/31/2000
(1972) 128 CLR 1