Shao v Hornsby Shire Council

Land and Environment Court (NSW)|2001-06-26|Before: Cowdroy J, Mr J, Bignold J

The applicant appeals to the Court pursuant to s 56A of the Land and Environment Court Act 1979 ("the LEC Act") from the decision of Commissioner Murrell delivered on 26 June 2001. In such decision the Commissioner dismissed an appeal against the respondent's ("the council") refusal of a development application to use part of the premises known as Shop F at 87 Pacific Highway, Hornsby ("the premises") for a brothel ("the application"). The application was made upon the basis that the development involved a change in the use of the premises.
The applicant claims that the Commissioner made an error of law because she denied him procedural fairness by dismissing the appeal upon a ground which was not identified as an issue at the hearing of the appeal. The applicant also claims that the Commissioner denied procedural fairness by not providing an opportunity to call evidence relating to such issue.

In the judgment the learned Commissioner made findings at par [29] - [30] as follows:- The application fails on its merits and in law because I am not satisfied as to the structural adequacy of the unauthorised works for which approval for use is sought and in the absence of a building certificate it would be premature to contemplate the use of unauthorised works. In this regard I follow the approach of by Bignold J in Ireland v Cessnock [City Council [1999] NSWLEC 250] cited above.

I have assessed this application for the use only of the subject premises as argued on behalf of the applicant. However, if I considered it in terms of a new development, as submitted by the Council, that is, the additional floor space created by the alterations additions, plus its use as a brothel, this would require a comprehensive merits assessment and I agree with the Council that the development application is inadequate to undertake such an assessment. The Commissioner continued at par [31]:- As assessment of the use only would seem to me to circumvent the orderly and proper consideration of the planning merits as provided for in the Act. Notwithstanding this, my assessment of the use of the unauthorised works means the application fails in the absence of a building certificate. As such it is not necessary for me to assess the other issues raised by the council. The applicant submits that these issues were not argued at the hearing and that it had no opportunity to respond to them.

Following service of the appeal from the council's original determination the applicant sought and received particulars of the grounds of refusal. By letter dated 18 September 2000 council identified, inter alia, those portions of the subject building which it claimed did not comply with the requirements of Part C 3.4 of the Building Code of Australia ("BCA"). Further, in relation to alleged non-compliance with car parking requirements the council responded:- Council has no record of having approved the construction of the premises and its use as a business premises. The use of the premises generates an increased demand for parking above the previous approved uses within the existing building.

The council then particularised the requirements of its Car Parking Development Control Plan. Pursuant thereto three car parking spaces were required for business premises.

In February 2001 Mr Ron Smith prepared a report for the council in which he quoted a council officer's report as follows:- A search of Council's records show no approval has been granted by Council for either the erection or the occupation of the premises referred to in this application as Unit F.

Other portions of Mr Smith's report refer to an issue described as Issue 3 which was identified as follows:- Whether the subject building was appropriately constructed in that it does not comply with Part C 3.4 of the Building Code of Australia -Protection of openings and no upgrading of the building is proposed.

In respect of such use Mr Smith stated:- The premises should be upgraded to comply with Part C 3.4 of the BCA given the layout of the brothel. 8. The applicant relied on a report prepared by Mr Gary Shields, a town planner. In relation to Issue 3 he made the following observation:- The appellant is prepared to meet any Council requirements pursuant to Part C 3.4 of the Building Code of Australia for the protection of openings and/or the upgrading of the building.

The issues before the learned Commissioner were incorporated in a document entitled 'Amended Statement of Issues'. Such statement was obviously prepared in compliance with Part 13 Rule 14 of the Land and Environment Court Rules 1996 ("the Rules") which provides:-

Issues, including questions of law, are to be identified with precision and settled at the first call-over before the Registrar. They cannot be added to or expanded without leave. Before the Commissioner, the Amended Statement of Issues was tendered without objection.

However, it is apparent from the transcript of the proceedings that from the outset the council maintained that no approval had been given for any use of the premises. Mr Woodward, who appeared for the council announced, 'the bulk of the building has been approved, but this particular Shop F as it's called, does not have council approval and therefore we would be seeking car parking as well as s 94 contributions.'

Accordingly, and despite the applicant's contention that the development was merely a change of use, the council made a submission to Commissioner Murrell that the premises were unlawfully constructed and that the application for development consent would need to be treated as if it were a new development.

Commissioner Murrell was aware of the divergent approaches of the council and the applicant and the subsequent difficulties which emerged at the beginning of the hearing. The Commissioner invited the parties to consider their positions and indicated to them that she was prepared to adjourn the proceedings if necessary. Such invitation was not accepted.

Subsequently, the evidence established that the premises comprised a series of partitioned rooms constructed on a mezzanine floor in a building previously used as a retail timber shop. The floor had been constructed unlawfully between 1974 and 1987. In July 1987 the structure came to council's attention and the owner undertook to remove it. However, the structure remains.

The applicant acknowledged that no approval existed for the current use of the premises and in response to the council's opening submission the applicant repeatedly indicated that he was prepared to meet any conditions of consent including conditions which related to non-compliance with the BCA. Accordingly, no attempt was made by the applicant to address the critical issue, namely the fact that no approval existed for any use of the premises, nor its construction.

Draft conditions, prepared on a 'without prejudice' basis were formulated by the applicant, relating to compliance with the requirements of the BCA. Provision was also made for monetary contributions to be paid by the applicant pursuant to s 94 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") relating to car parking. The latter condition was only pertinent to a new development.

In Kioa v West (1985) 159 CLR 550 Mason J (as he then was) said at 582:- It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought against him and to be given the opportunity of replying to it.

In Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 the High Court of Australia in a joint judgment at 552-553 emphasised that the requirements of natural justice will depend on the circumstances of each case.

In the proceedings before Commissioner Murrell the Amended Statement of Issues did not address the absence of approval for the use of the premises. However this issue was raised by the council in correspondence prior to the hearing and in the statement of expert evidence of Mr Ron Smith. It was raised again at the outset of the hearing by Mr Woodward as a threshold issue. Accordingly throughout the hearing the applicant was on notice that an important question had been raised, namely whether the application should be treated as a new development or merely a change in use.

In her deliberations the Commissioner was required to consider the requirements of s 79C(1) of the EP&A Act and was accordingly not bound to determine the proceedings solely by reference to the issues. As was observed by Sheahan J in Concrite Pty Ltd v South Sydney City Council (1998) 101 LGERA 170 at 191, s 39(2) of the LEC Act 'clearly vests in the court all the functions and discretions of the consent authority, and the court is not bound by any limited articulation by the parties of the issues and options'.

In her judgment Commissioner Murrell said:- In terms of s 79C(1)(e) I'm also of the view that the development application for use of the unauthorised floor space would not be in the public interest. The planning laws and regulations are made to provide certainty in the environmental planning and development process for: the community, the council, and applicants. To allow use of unauthorised works that do not even have the benefit of a Building Certificate under the Act would not be in the public interest. In Brimbella Pty Ltd v Mosman Municipal Council (1993) 79 LGERA 367 Kirby P at 368 observed that the public interest was a matter to be taken into account by the Court by virtue of s 39(4) of the LEC Act. In accordance with the Commissioner statutory duty, the Commissioner was required to determine the suitability of the premises in which the proposed use was to be conducted even if this was not raised as an issue.

The Commissioner had expressed concern for the divergent approaches of the parties. However the applicant was prepared to proceed upon the basis that any qualification to the Commissioner's decision could be made the subject of appropriate conditions. There was no attempt made by the applicant to address the issue of the illegal structure and the absence of any existing consent, each of which had been raised by the Commissioner and by the council. The applicant elected not to seek an adjournment to address such issues.

In view of the above the Court is satisfied that there has been no procedural unfairness.

In Mison and Ors v Randwick Municipal Council and Ors (1991) 23 NSWLR 734 Clarke JA said at 740:- Where a consent leaves for later decision an important aspect of the development and the decision on that aspect could alter the proposed development in a fundamental respect it is difficult to see how that consent could be regarded as final . Upon the basis of such principle the Commissioner was correct in refusing consent. The Commissioner could not have granted consent to the application subject to a condition requiring the applicant receive development approval for the existing structure. Such consent would not have been valid as a final consent.

The applicant submits that had it been aware that the Commissioner would dismiss the appeal upon the ground that the building was unauthorised, it would have called evidence relating to such issue. The applicant sought to adduce evidence concerning the nature of the defects in the building and its non-compliance with the BCA on this appeal contained in a report by Keith M Campbell Building Consultant dated 12 October 2001 which relates to construction issues.

Section 56A of the LEC Act does not empower the Court to hear fresh evidence on an appeal which is confined solely to a question of law. To do so would be to render such appeal a re-hearing which s 56A of the LEC Act does not contemplate. However for the limited purpose only of considering the nature of the evidence which the applicant would have relied upon, the Court, with consent of the respondent, has acquainted itself with such evidence.

The Court is satisfied that such additional evidence would not have altered the Commissioner's decision and there has been no procedural unfairness afforded to the applicant. Even if such evidence had been available the Commissioner could not have granted consent upon the principle referred to in Mison. For the reasons stated above, such evidence could not alter the need for development consent for the premises.

The appeal be dismissed.
Costs reserved.
The exhibits be returned.

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.

CITATION : Shao v Hornsby Shire Council [2001] NSWLEC 254 APPLICANT Shao PARTIES : RESPONDENT Hornsby Shire Council FILE NUMBER(S) : 10803 of 2000 CORAM: Cowdroy J KEY ISSUES: Section 56A Appeal :- procedural fairness LEGISLATION CITED: Land and Environment Court Act 1979 s 56A Concrite Pty Ltd v South Sydney City Council (1998) 101 LGERA 170; CASES CITED: Kioa v West (1985) 159 CLR 550 ; Mison and Ors v Randwick Municipal Council and Ors (1991) 23 NSWLR 734 ; Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 DATES OF HEARING: 22/10/01 DATE OF JUDGMENT: 11/08/2001

(2001) 116 LGERA 462

(1998) 101 LGERA 170

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