Taipan Holdings Pty Ltd V Sutherland Shire Council [1999] NSWLEC 276

Land and Environment Court (NSW)|1999-12-14|Before: Bignold J, Mr J

The application for the building certificate, which was made in September 1998, was accompanied by a sketch plan prepared by surveyors Wallis and Moore Pty Ltd, dated 15 April 1998 showing the waterfront improvements (including the boatshed) adjoining the Applicant's freehold. That plan showed an area of some 174 m2 being occupied by structures, being timber jetty and wharves, floating pontoon, berthing area and a concrete reclamation on the greater part of which is located the reconstructed boatshed.

Prior to making the application for the building certificate, the Applicant had also made a development application seeking consent for the reconstruction of an existing boatshed (which had in fact already been reconstructed).

The Council's Solicitor's letter also advised as follows:

We are further informed that your client has lodged a development application in an endeavour to regularise the unauthorised erection of the premises.

As you are aware, our client has no power to grant approval retrospectively to development and building works which have already been carried out.

Thereafter, on 30 November 1998 , the Applicant concurrently filed the present proceedings against the Council's refusal to issue the building certificate and separate class 1 proceedings (No 10843 of 1998) against the Council's deemed refusal of the development application.

Those two proceedings were treated by the parties and by the Court as related proceedings because each involved the same boatshed building until the Applicant discontinued the class 1 proceedings on 30 September 1999 in circumstances presently to be noted.

On 24 June 1999, there was a hearing of a question of law that had been raised by the Applicant in the class 1 proceedings. That question was whether the site of the boatshed that had recently been rebuilt relevantly had the benefit of "existing use rights" conferred by the EP&A Act.

That question had originally been raised as an alternative question to the principal question whether the boatshed and watercraft storage use was a permissible purpose of development within Zone No 7(a) Environmental Protection (Waterways) Zone designated by the Sutherland Local Environmental Plan 1993 (the LEP), such Zone applying to waterways and lands in Sutherland Shire situate below mean high water mark.

However, at the commencement of the hearing on the preliminary question, Counsel for the Applicant had informed the Court that the principal question was no longer pressed as it was now common ground that development for the purpose of a boatshed was absolutely prohibited within Zone No 7(a) by the LEP.

In my judgment delivered on 15 July 1999, I answered the preliminary question in the affirmative, holding (at par 45) that "the use of the boatshed prior to its demolition and rebuilding between December 1997 and March 1998 was relevantly an existing use within the meaning of s 106 of the EP&A Act and that that use was not terminated or abandoned when the boatshed was demolished and rebuilt".

On 29 July 1999 the future course of the related proceedings was mentioned before me when I directed that the proceedings be listed for hearing, noting that the Council had informed the Court that it proposed to institute class 4 proceedings, seeking the demolition of the boatshed. Both proceedings were listed for hearing on 30 September and 1 October 1999.

Before those hearing dates, the Applicant had filed a Notice of Motion, seeking a declaration in the class 1 proceedings reflecting my determination of the preliminary question of law.

However, at the commencement of the hearing on 30 September 1999, the Applicant, sought and obtained, leave to discontinue the class 1 proceedings with no orders to costs.

Accordingly, the hearing was confined to the present class 2 proceedings. (I should also note that the Council did not file class 4 proceedings that it had earlier anticipated instituting. It is probable that this fact is connected with the fact that the Applicant discontinued the class 1 proceedings.)

Although the only issue is that raised by the class 2 proceedings, my determination of the preliminary question concerning the existing use entitlement is relevant to the present proceedings and it will be necessary in this judgment to refer to the matters of fact and of law that were previously determined to the extent that they are relevant (and binding on the parties) to the present class 2 proceedings.

The legal and factual issue raised by the class 2 proceedings is whether in the exercise of discretion, the Court should, or should not, direct the Council to issue a building certificate in respect of the boatshed building: vide EP&A Act s 149(F)(3)(a).

Recently, in Ireland v Cessnock City Council (1999) 103 LGERA 285, I had occasion to consider in some detail the statutory provisions relating to building certificates contained in the EP&A Act s 149A to s149G (inclusive) which were inserted into the Act by the Environmental Planning and Assessment Amendment Act 1997 (Act No 152) which came into force on 1 July 1998. Reference to that case will relieve me from setting forth here the provisions made by s 149A to s 149G.

S 149A confers a discretion on a council to issue a building certificate even in circumstances where the Council is not bound to issue it. In other words, the discretion is wider than the duty, and the duty to issue the certificate, unless certain conditions apply, does not create an implied duty not to issue the certificate where those conditions apply.

In Ireland that was a crucial holding because at the time that application was made for the issue of the building certificate, the council had already obtained a mandatory injunction from this Court for the demolition of the unlawfully erected building in respect of which the building certificate was sought. (However, that injunction had been suspended or stayed to afford the parties the opportunity to regularise the unlawful status of the building.) It was in those circumstances that I held (at par 48 and par 49 ) that there was no relevant obligation imposed upon the Council, pursuant to s 149D to issue the building certificate.

In addition to holding that s 149A relevantly conferred a discretion upon a council to issue a building certificate, I considered the question of the relevant powers vested in the Court in the following passage (at par 58):

In this respect, it must not be forgotten that the refusal by a council to issue a building certificate is an appealable decision. Moreover, the powers vested in this Court by s 149F(3) of the EP&A Act in respect of any such appeal may well be wider than are the powers vested in the Council. An obvious example of the apparently wider powers vested in this Court is the power referred to in s 149F(3)(c) for the Court to direct the Council to issue a building certificate in such terms and on such conditions as the Court thinks fit . The existence of this particular power suggests that the Court's powers on appeal are not to be confined to by the powers of the Council (by virtue of the application of the conventional interpretation of s 39(2) of the Land and Environment Court Act 1979 ).

The parties to the present proceedings have presented their competing cases on the common basis (derived from Ireland ) that the Court is vested with a discretion in the present case to direct, or not to direct, the Council to issue the building certificate in respect of the boatshed building.

The case has been presented on the common basis that the Council was not bound by s 149D to issue the building certificate. This common approach, in my opinion would appear to be clearly correct, for although, unlike the facts in Ireland, the Council has not instigated any enforcement action in respect of the unlawfully rebuilt boatshed, there can be no doubt that the Applicant was, from the date it received the Council's Notice of Intention to Issue a demolition order, vulnerable to such enforcement action, and remains so. However, up to the present time, the Council has not taken civil enforcement action against the Applicant or criminally prosecuted it. (The statutory time limit for criminal prosecution prescribed by the EP&A Act s 127(6) has expired).

The Council has raised a large number of issues or considerations that are said to be relevant to the exercise of that statutory discretion. They include the following: (i.) the boatshed was reconstructed without the Applicant obtaining the requisite approval under the Local Government Act 1993( the LG Act) and the requisite development consent under the EP&A Act 1979; (ii.) after the existing boatshed had been demolished, the Applicant continued with the reconstruction in the face of (a) the Council's Notice of Intention to serve an Order under the LG Act s 124 requiring demolition of the partly constructed boatshed; and (b) the Applicant's subsequent representation to the Council to cause construction work to cease; (iii.) the reconstruction of the boatshed is contrary to the Council's longstanding policy (reflected in its relevant planning instruments and related documents) to seek the reduction of foreshore development; (iv.) the reconstructed boatshed is larger than the building it replaced and represents an overdevelopment of the waterfront; (v.) the reconstructed boatshed has extended the economic life of the building it replaced; (vi.) the reconstructed boatshed is by virtue of its design and form, adaptable to residential usage; (vii.) the reconstruction of the boatshed involved a breach of the conditions of the Crown licence granted to the Applicant in respect of the waterfront structures; (viii.) the reconstruction of the boatshed without the requisite approval and consent denied the Council the opportunity to properly assess the development (including operation of the procedures for public involvement in the development control process); (ix.) the adverse precedent established by the case in that by ignoring the requirements for obtaining of prior approval and consent, from the Council, the Applicant seeks to obtain an advantage by his wrongdoing presenting the rebuilt boatshed as a fait accompli; and (x.) to grant a building certificate in respect of the boatshed, would in the circumstances of the case, be contrary to the public interest sought to be advanced by the EP&A Act..

The Applicant, as I understand its case, does not dispute the relevance of these considerations but says that their weight must be evaluated in the light of the statutory discretion conferred by s 149F(3) of the EP&A Act and the clear purpose or object of the provisions contained in ss 149A - G of the EP&A Act. In this respect, it relies upon the Court's decision in Ireland.

Concerning what might be called the planning merits of its application, the Applicant places at the forefront of its case the fact that an existing use entitlement has been established by my earlier determination of the preliminary question of law and relies upon this entitlement as ousting the application of the derogating provisions of the LEP (and the related documents) limiting foreshore development. The Applicant's argument in this respect is founded upon the EP&A Act s 108(3) and as that provision has been judicially interpreted, and in particular, by the decision of the Court of Appeal in Carden v Willoughby Municipal Council (1985) 56 LGRA 366 and by the decision of this Court in Russo v Kogarah Council (1995) 86 LGERA 300.

Additionally the Applicant relies upon the unchallenged evidence of Mr Stephen Whelan, Consulting Structural Engineer, whose report (Exhibit 5) concludes "that the refurbished boatshed is in sound adequate structural condition". This reliance is particularly relevant to the fact that the boatshed was rebuilt without the Applicant having obtained the requisite approval under s 68 of the LG Act. (It is to be noted that following extensive amendments to the LG Act which came into force on 1 July 1998, the requirement for approval under s 68 for the erection of a building was abolished.)

The Applicant does not dispute issues (i), (ii), (iii), (iv) (except that it disputes that the larger reconstructed boatshed involves an overdevelopment of the waterfront) and (v) raised by the Council.

However, as I have earlier mentioned, in relation to issue (iii), the Applicant relies upon its existing use entitlements as providing an entire answer to the issue raised, because the Applicant contends the relevant provisions of the LEP (and related documents) relied upon by the Council relevantly "derogate" from its existing use entitlements, and accordingly, by force of the EP&A Act s 108(3), those provisions have no effect.

The Applicant disputes issues (vi), (vii), (viii), (ix) and (x) raised by the Council to the extent presently to be mentioned.

In relation to issue (viii), the Applicant says that Crown license speaks for itself (and is, in any event, a matter between the Applicant and the Crown) and is not relevant to the discretion required to be exercised by the EP&A Act s 149F(3).

In relation to issues (viii), (ix) and (x), the Applicant says that these issues will be satisfactorily answered, if the Court were to exercise its statutory discretion under s 149F(3) on the basis of its determination on the merits of a notional application made by the Applicant under the Environmental Planning and Assessment Regulation 1994 (the Regulation) cl 39(1)(c) and cl 42 for the rebuilding of the boatshed. For reasons hereafter stated, I am of the opinion that in the circumstances of this case, consideration of a notional development application for the rebuilding of the boatshed is an appropriate approach to the exercise of the relevant statutory discretion under s 149F(3).

Before proceeding to an adjudication on the issues in dispute, I should first note - (i) the relevant facts concerning the boatshed and (ii) the relevant existing use entitlement - as those matters were determined in my judgment on the preliminary question of law. I did not understand the present proceedings as attempting to re-open or re-canvass those determinations.

C. THE RELEVANT FACTS CONCERNING THE BOATSHED AS DETERMINED BY THE EARLIER JUDGMENT

The primary facts as recorded in par 24 of my earlier judgment (delivered on 15 July 1999) are as follows: (i.) Waterfront structures which adjoin No 325 Woollooware Road, Cronulla, include an area of reclamation, a boatshed and launching ramp, have been continuously in existence, in one form or another, since shortly after the Lands Department granted a Permissive Occupancy (PO) in 1920 to an application to erect a boatshed and weekend dwelling combined skids, landing and bath. The area granted comprised about eight perches. (It is to be noted eight perches is equivalent to some 200 m2.) (ii.) A Permissive Occupancy (later (ie after the Crown Lands Act 1989 came into force) this form of tenure was to be replaced by a Licence) has existed in respect of the waterfront structures continuously since the original grant of the PO in 1920, the history being as follows: (i) PO originally granted to Mr Gillow in 1920; (ii) PO transferred to Mr and Mrs Williams in 1949; (iii) PO transferred to Dragon Holdings Pty Ltd in 1976; (iv) PO transferred (as a licence) to Taipan Holdings Pty Ltd in 1992. (v) Licence granted to Taipan Holdings Pty Ltd in 1998. (iii) The precise area of waterfront land occupied pursuant to the PO as originally granted (and as successively translated to the present time)has changed from time to time, as has the precise nature of the waterfront structures.

For example, in 1976 when an inspection of the waterfront structures and occupied land was conducted by the Department of Lands preparatory to transferring the PO to Dragon Holdings Pty Ltd, it was noted in respect of the occupation below mean high water mark that (I)t differs considerably from the purpose of the Permissive Occupancy but substantially conforms to the diagram prepared by Mr Loder in 1920 . (Mr Loder held the position as Cumberland Ranger in the Department of Lands in 1920 when he inspected the site of the proposed PO. The Report of the November 1976 Inspection also noted:

With regard to the inclusion of the dwelling in the Permissive Occupancy purpose the structure is no longer used for residence and is best described as a recreation room with extended roof over part of the reclamation.

The Department of Lands on 17 January 1977 advised the Council of the results of the November 1976 inspection of the PO and stated as the structures have been in existence for approximately 50 years, it is intended to amend the Permissive Occupancy accordingly.

The Council responded to this advice by raising no objection to the PO being amended subject to (i) the boatshed not being used for residential occupation; (ii) the building being painted a colour which blends in with the natural foreshore environment to Council's satisfaction.

A copy of the Lands Department plan showing the nature of the waterfront structures as they existed in 1976 is annexed hereto and marked A .

When the PO was transferred (in the form of a licence) in 1992 to the Applicant, the Lands Department prepared a further plan of the waterfront structure as they existed in 1992. A copy of the plan is annexed hereto and marked B . That plan indicates the aggregated waterfront area occupied by waterfront structures to be some 150 m2 made up as follows:

Part awning 16.8 m2 Reclamation 65.8 m2 Landings 20 0m2 Slipway 18.6 m2 Part Recreation Room 8.4 n2 It is to be noted that the combined area of waterfront land occupied by those parts of the boatshed, recreation room and awning which existed below mean high water mark was some 44 m2 and that these structures were built on part of the reclaimed waterfront land. (Other parts (approximately 50% in total) of the boatshed, recreation room and awning were erected on the adjoining freehold land).

The current licence held by the Applicant in respect of the waterfront structures is that which commenced on 19 March 1998 just after the boatshed and recreation room and awning had been rebuilt. In its rebuilt form, the boatshed (including its covered verandah) occupies a greater area of waterfront land and a lesser area of freehold land than had the former structures. This is reflected in the Lands Department's Plan of the area, the subject of the current License held by the Applicant which shows the rebuilt boatshed (including the covered verandah) as occupying some 82 m2 of waterfront land. (This compares with the 44 m2 occupied by the former boatshed and allied structures.)

The 1992 and 1998 plans enable a visual comparison between those parts of the boatshed structure that were erected on land below mean high water mark and those erected on freehold land above mean high water mark. As I have earlier noted, some 50% of the former boatshed and allied structures was erected on the freehold land whereas only some 20% of the rebuilt building appears to be erected on the freehold land. A copy of the 1998 Lands Department plan is annexed hereto and marked C.

Finally, it is to be noted that according to the sketch plan prepared by Wallis and Moore Pty Ltd showing the waterfront structures as at 15 April 1998, (ie just after the boatshed building had been rebuilt) the area occupied below mean high water mark was said to be 177 m. This may be usefully compared with the area of eight perches (ie 200 m2) granted in the original PO. (v) Mrs Atwell who has lived at the adjoining premises, No 323 Woolooware Road for the past 64 years, (since she was aged 14) gave evidence that a boatshed has been in existence at the adjoining premises at all times during that period. This evidence is corroborated by the affidavit of Mr Jones who has resided in the adjoining premises at No 327A Woolooware Road for the past 48 years. (vi) Town planning controls applying to the Sutherland Shire have been in force continuously since 12 July 1946 in the following successive forms:- (a) Town and Country Planning (General Interim Development) Ordinance (Ordinance 105) which came into force on 12 July 1946 ; (b) the County of Cumberland Planning Scheme Ordinance (the County Scheme) which came into force on 27 June 1951 ; (c) Interim Development Order No 30 - Shire of Sutherland (IDO 30) which came into force in 5 March 1976 ; (d) Sutherland Planning Scheme which came into force on 24 April 1980 ; (e) Sutherland Local Environmental Plan 1992 which came into force on 27 March 1992 ; and (f) the LEP, which came into force on 12 November 1993 . (vii) According to the town planning controls, development for the purpose of a boatshed of land below mean high water mark first became absolutely prohibited when IDO 30 came into force on 5 March 1976 and included the waterways of the Shire within Zone 7(a) Waterways . Prior thereto, it is doubtful whether any planning controls applied to the Crown land situate below mean high water mark. Even if they did, the boatshed building, having come in existence at least 64 years ago (Mrs Atwell's evidence) would have qualified as an existing building under both Ordinance 105 and the County Scheme. Under the County Scheme cl 33 authorised an existing building to be altered, enlarged, rebuilt, extended or added to by the erection of new buildings without the necessity of development consent. (viii) According to searches made of the Council's records, no application for development consent under any of the successive planning controls, or for building approval under the Local Government Act 1919 Pt XI has been made in respect of the waterfront structures, the subject of the original PO or subsequent PO, or licences granted by the Department of Lands in respect of the waterfront occupation of the Crown lands at Burraneer Bay. (ix) On 23 August 1982 , the Council granted building approval pursuant to the Local Government Act 1919 Part XI to a building application for the erection of a dwelling-house on the freehold land known as No 325 Woolooware Road, Cronulla. That building approval was subject to a number of conditions, including the following two conditions pertaining to the boatshed: 15. The existing boatshed below high water mark, not being adapted or used for residential occupation. 16. The existing boatshed being painted a colour which blends in with the material foreshore. (x) In 1992, the Applicant acquired the freehold land ( No 325 Woolooware Road, Cronulla) and obtained the grant of a license from the Lands Department in respect of the waterfront structures which included a boatshed. The premises were leased from 1992 to March 1996. The tenants used the boatshed for the storage of two jet skis and trailer, life jackets and wetsuits. From April 1996 , Jason Caughlan, a Director of the Applicant, has occupied the premises as his family home. He has used the boatshed for storing game fishing equipment; two kayaks, a smaller dinghy, life jackets and boating equipment used in respect of a 21 foot speedboat which is moored on the sliprails adjacent to the boatshed. (xi) In August 1997, Mr Caughlan observed that a large tree branch had fallen upon the boatshed roof causing considerable damage to the roof. He sought advice from builders for the repair of the roof and was informed that the roof frame was damaged by termites. A report from a Pest Controller obtained by Mr Caughlan stated that the boatshed was severely damaged by termites and recommended that he obtain engineering and building advice to ensure the safety of the building. In early December 1997, Mr Caughlan obtained written advice from a builder advising of extensive termite damage to all walls, flooring and roof framing .

On 23 December 1997, Mr Caughlan instructed a builder to carry out necessary repairs and reconstruction of the boatshed . He was in attendance and observed extensive termite infestation and damage. The structure was virtually demolished. Thereafter, Mr Caughlan caused the boatshed to be reconstructed resulting in the following changes to the former boatshed: (a) An minor increase in the floor area and foot print; and (b) An alteration to the roof form. The existing gable and with a skillion attachment was altered to a larger gable roof; and (c) An existing timber floor, which was termite infested, was replaced with concrete. The majority of the floor was concrete but a small segment of timber was replaced with concrete; and (d) The front verandah was added; and (e) Alterations were made to the window and door openings and locations. Mr Caughlan, in causing the work to be done, believed that he did not require consent or approval.

His intention, on learning of the extent of the termite damage, was to rebuild the boatshed so that he might continue to use it for the purpose of storing his boating equipment etc.

The ultimate findings of fact as recorded in par 25 of that judgment are as follows: (i.) Prior to its demolition and replacement by the rebuilt structure between December 1997 and March 1998, a boatshed has been continuously in existence as part of a number of waterfront structures occupying the bed and waters of Burraneer Bay and the subject of the PO originally granted in 1920 (and continuously in force thereafter) since some time after 1920 and before 1935 (when Mrs Atwell first observed it) when it originally came into existence. (ii.) The boatshed predated the commencement in July 1946 of relevant town planning controls, which controls in their successive forms did not prohibit boatshed development of the Crown land comprising Burraneer Bay until 1976 when IDO 30 - came into force on 5 March 1976. (iii.) Prior to 1976, the relevant town planning controls did not require development consent for the existence of the boatshed or for its alteration, extension, rebuilding etc. In terms of the successive planning controls in force prior to the commencement on 1 September 1980 of the EP&A Act, the boatshed qualified as an existing building and its use as a boatshed qualified as an existing use . After 1976, any alteration, extension or rebuilding of the boatshed required development consent as an alteration, extension or rebuilding of a building being used for an existing use. (iv.) The boatshed as it existed in 1976, when IDO 30 came into force, continued to so exist until it was demolished and rebuilt in the period December 1997 to March 1998. (v.) What physically occurred to, and in relation to, the boatshed in that three month period qualifies as a rebuilding of the building for its existing use within the meaning of cl 42 of the Regulation but no development consent as required by that clause, was obtained for such rebuilding. (vi.) In causing the boatshed to be rebuilt, the Applicant intended to continue the use of the boatshed for its existing use.

D. THE RELEVANT EXISTING USE ENTITLEMENT AS DETERMINED IN THE EARLIER JUDGMENT

In my earlier judgment, I considered three questions that had been raised on the "existing use" issue, namely: (i) Was the boatshed lawfully erected when it originally came into existence? (ii) Has the Applicant established that the erection of the boatshed (in whatever physical condition manifested throughout its lifetime) was authorised by the necessary planning consents? (iii) Was the existing use abandoned when the original boatshed was demolished?

My determination of question (i) as recorded in par 37 was as follows:

For all the foregoing reasons, I would reject the Council's argument that the absence of building approval under the Local Government act 1919 Pt XI to the erection of the original boatshed rendered the use of the boatshed to be not for a lawful purpose within the meaning of existing use as defined in the EP&A Act s 106(a) .

My determination of question (ii) as recorded in par 39 was as follows:

In view of my earlier findings (i) that is was not until 5 March 1976 (when IDO 30 came into force) that relevant planning controls required development consent for any alteration or extension etc to the boatshed building and (ii) that the boatshed building remained in the same physical form from 1976 until the time of its demolition, it follows that the boatshed must be regarded as relevantly lawfully erected. It further follows that the use of the boatshed was at all material times for a lawful purpose within the meaning of the definitions of existing use as contained in, or relevant to, the successive relevant planning controls, including that enacted in the EP&A Act s 106(a).

My determination of question (iii) as recorded in par 44 was as follows:

For the foregoing reasons, I would hold that the demolition of the boatshed preparatory to its rebuilding, did not terminate the existing use of the boatshed and did not constitute an abandonment of that use.

E. ADDITIONAL MATTERS NOT GOVERNED BY THE EARLIER JUDGMENT

It is apparent from the statement of the issues which have been raised in the present proceedings that there are a number of matters that are not subject to, or governed by, the earlier determinations by the Court. (This is not surprising because that determination was made in the class 1 proceedings concerning the Applicant's assertion of existing use entitlements under the EP&A Act whereas the present proceedings concern the Applicant's application for a building certificate).

These matters include some of the stated issues that are not in dispute in these proceedings and some of the stated issues that are in dispute.

I shall briefly refer to additional matters and where necessary, make my findings on matters in dispute.

Issues (i) and (ii)The Applicant's Conduct in Reconstructing the Boatshed

It is clear that whatever the state of the Applicant's mind, (and of course I here refer to the mind of Mr Jason Andrew Caughlan, a Director of the Applicant, a family company) when in December 1997, it commenced work on the demolition of the old boatshed and reconstruction of the new boatshed, it must be taken to have known at least from receipt of the Council's Notice dated 8 January 1998 of Intention to issue an order pursuant to the LG Act s 124 that the work being undertaken was unlawful, in the sense that it required prior Council approval and consent. I also accept the undisputed Council evidence that a few weeks after service of the Notice when work on reconstruction was continuing, notwithstanding the Notice, Mr Caughlan informed Mr Vergotis (a Council employee) that work would cease, as requested by Council. Despite this assurance, work did not cease and continued until the reconstruction had been completed by the end of March 1998.

Apart from attesting to his original belief that consent or approval was not necessary for the demolition of the old boatshed and reconstruction of the new boatshed, Mr Caughlan has made no attempt to explain how it was that the Applicant simply ignored the Council's Notice dated 8 January 1998 and simply reneged on his assurance (given a few weeks later) that work would cease.

In these circumstances, the Applicant exposes itself to the obvious adverse finding, which I make, that it reconstructed the boatshed despite receipt of the Council's Notice during the earlier stages of the construction process and despite the assurance given on its behalf to the Council a few weeks later that work would cease, in deliberate disobedience of the law (both the LG Act and EP&A Act) and in deliberate defiance of the Council's lawful authority. In so acting, the Applicant is without excuse and is rightly condemned.

Issue (iii) The Council's Planning Policies for reducing Foreshore development

Mr Cawthorne, Senior Planner in the Council's employ, in his report ( Exhibit C ) refers to a number of the provisions of the LEP which he considered to be relevant to the present case. These included (i) cl 2 which states the objectives of the LEP, including " (b) Improved and additional public access to foreshore areas "; (ii) cl 18 which states the objectives of Zone " 2(e2) Residential " (being the zoning of the Applicant's freehold land); (iii) cl 20 creating the " Foreshore Scenic Protection Area " and declaring its objective to be " to limit the scale of development in foreshore areas "; (iv) cl 14A establishing " foreshore building lines " and controlling development between the foreshore building line and the mean high water mark of the adjacent waterway; and (v) cl 23 stipulating additional considerations to be taken into account " before consent is granted to any development in any residential zone ".

In addition to the foregoing provisions of the LEP, Mr Cawthorne's Report refers to the Council's Development Control Plan for Foreshore Development (the DCP) and the Council's Code for Waterfront Development (the Code). Reference is made in his Report to the stated objectives of the DCP and of the Code. The former include:

to ensure that all development creates a minimum of disturbance to the natural landscape

maintain and improve public access in the intertidal area of the waterfront which is public land

phase out non-conforming structures and reinstate the foreshore as redevelopment proceeds in accordance with the Code requirements

Mr Cawthorne's Report express the following concerns raised by the unauthorised rebuilding of the boatshed: (a) The increase in the scale of development immediately on the waterfront of the property, when the aim is to reduce the dominance of man made structures, (b) The lost opportunity to re-expose (part of) the natural rock escarpment that characterises the waterfront in this locality and introduce landscaping, (c) The views from the water, (d) The scenic quality of the area, (e) The avoidance of proper development assessment through a system specifically set up to achieve Council's foreshore planning objectives.

Mr Cawthorne's Report provides the following overall commentary on the Council's foreshore planning policies, which I did not understand the Applicant to challenge or dispute, and which I accept.

The main thrust of Sutherland Shire Council's foreshore planning policies since 1974 has been to reduce the amount and dominance of development on the waterfront and to introduce more landscaping to assist with the preservation of the natural land / water interface. To achieve this, the type and scale of development permissible has been carefully controlled so as to allow waterfront property owners the right to enjoy their waterfronts while maintaining enough of the natural waterfront character so that the man made environment does not dominate the natural foreshore.

Clause 14A of the Sutherland Shire Local Environmental Plan, 1993 establishes a number of objectives for foreshore development. It places the onus of waterfront owners to demonstrate that non-conforming development may be retained while still achieving the foreshore objectives. To achieve these objectives, Council may consider a reduction in the size of an approach would also lead to a reduction in the amount or scale of development on the waterfront.

As I have earlier noted, the Applicant does not contest the existence of the Council's planning policies on foreshore development or the content of them, or indeed the analysis and resume of the policies contained in Mr Cawthorne's Report ( Exhibit C ).

Rather, the Applicant accepts the Council's evidence concerning its policies on foreshore development, but contends that the existing use entitlement established in respect of the boatshed entirely prevails over those policies by force of the EP&A Act s 108(3).

However, herein lies a matter of some little difficulty for the Applicant because although it has the benefit of my earlier determinations (i) that "the use of the boatshed prior to its demolition and rebuilding between December 1997 and March 1998 was relevantly an existing use within the meaning of s 106 of the EP&A Act and that that use was not terminated or abandoned when the boatshed was demolished and rebuilt"; and (ii) that the demolition of the old boatshed and the reconstruction of it that occurred between December 1997 and March 1998, qualifies as a rebuilding of the building for its existing use within the meaning of cl 42 of the Regulation, it also suffers the detriment of my determination that the rebuilding occurred without the Applicant obtaining the requisite development consent.

Accordingly, whilever the obtaining of the requisite development consent remains outstanding, the rebuilt boatshed has the status of having been unlawfully rebuilt.

Concerning this status, in my earlier judgment, in par 22, I left open the possibility that the Applicant might wish to argue that development consent may still yet be obtained for the rebuilding of the former boatshed.

However, the Applicant has chosen not to argue for that possibility, at least at the present time, as is reflected by its discontinuance of the class 1 proceedings. Thus, the rebuilt boatshed remains under a legal cloud because although the work undertaken between December 1997 and March 1998 has been held to constitute "the rebuilding of a building for its existing use" within the meaning of cl 42 of the Regulation, the plain fact remains that the requisite development consent for that rebuilding was not obtained.

Accordingly, when the Applicant asserts that "its existing use entitlement prevails over any of the Council's planning policies on foreshore development" which derogate from that existing use entitlement, it is necessary that that assertion be understood as not being made directly or immediately, but being made mediately, in the sense that if a notional development application for the rebuilding of the boatshed were required to be determined, the Applicant could rely upon the effect of the EP&A Act s 108(3) to oust those planning policies which had the effect of derogating from the existing use entitlement conferred by cl 39(1)(c) and cl 42 of the Regulation.

Thus, the crucial question to be answered is whether in the present context, ie upon an appeal pursuant to the EP&A Act s 149F, it is legitimate for the Court to determine a notional development application for the rebuilding of the old boatshed resulting in the coming into existence of the rebuilt boatshed.

I should at once interpose that the legitimacy of consideration by the Court of a notional development application was not questioned or challenged by the Council in the proceedings.

In my judgment, the approach to the exercise of the statutory discretion conferred by s 149F(3) of the Court determining a notional or hypothetical development application for consent to rebuild the old boatshed so as to bring into existence the rebuilt boatshed, is an appropriate exercise for the Court to undertake in the discharge of its statutory discretion under s 149F(3).

This is particularly so in the present case because unless the Applicant can establish that development consent should be granted to the notional development application for the rebuilding of the boatshed, it could not reasonably expect the Court to exercise in its favour the statutory discretion conferred by s 149F(3), in view of my finding that the Applicant completed the rebuilding of the boatshed in deliberate disregard of the law that required Council's consent and approval for such rebuilding, and that in so acting, the Applicant must be regarded as being without excuse.

There is precedent for the approach of the Court considering a notional or hypothetical development application in the exercise of statutory discretion vested in it . For example, in Woollahra Municipal Council v Alcaine (1986) 59 LGRA 40, in determining an application for mandatory injunction to remedy a breach of planning law and the Local Government Act 1919, Cripps CJ at 41 said that if the respondent had appealed to Court against the conditions of the building approval and development consent (which conditions she had breached) the appeal would have been upheld. His Honour went on to hold that this fact was sufficient justification to refuse the mandatory injunction.

In another case involving a claim for mandatory injunction to remedy a breach of the planning law, Hope JA, in giving the judgment Court of Appeal in Woollahra Municipal Council v Barlow (1988) 66 LGRA 248 at 249, approved of a similar course that had been taken by the trial judge:

He said - and in my opinion, quite correctly, that - the Court had a discretion whether to grant a mandatory injunction in such a case and that applying the decision of Cripps J in Woollahra Municipal Council v Alcaine (1986) 59 LGRA 40, he must have regard to the prospects of success on the part of the respondent if he appealed against the refusal of the Council to approve the carrying out of the work which he in fact had carried out

The approach adopted by the Court in Alcaine and in Barlow is consistent with (and probably is inspired by) the provisions of the EP&A Act s 124(3) which expressly empower the Court in civil enforcement proceedings for a breach of the Act to adjourn the proceedings to enable an outstanding development consent (which alone constitutes the " breach of the Act ") to be obtained.

It is now necessary to examine the relevant statutory provisions of the EP&A Act and Regulation which found the basis for the Applicant's hypothetical or notional development application to the rebuilding of the boatshed

Part 5 of the Regulation contains the provisions "with respect to existing use" that are contemplated by the EP&A Act s 108(1).

Clause 39(1) of the Regulation is in the following terms:
(1) An existing use may, in accordance with this Division, be: (a) enlarged, expanded or intensified; or (b) altered or extended; or (c) rebuilt; or (d) changed to another use, including a use that would otherwise be prohibited under the Act.

Clause 42 of the Regulation is in the following terms:
(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, or for a use changed under clause 43, but 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.

The term "relevant date" referred to in cl 42 of the Regulation is defined in the Dictionary to the Regulation (see cl 3(1)) as follows:

relevant date means: (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.

By virtue of the EP&A Act s 108(2), Part 5 of the Regulation is "taken to be incorporated in every environmental planning instrument".

Section 108(3) of the EP&A Act provides as follows:

(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.

The effect of s 108(2) in the present case is to deem to be incorporated in the LEP the provisions of Part 5 of the Regulation, and the effect of s 108(3) is that any provisions of the LEP that would derogate or have the effect of derogating from the incorporated Regulations " have no force or effect " while the incorporated Regulations remain in force.

The effect of the EP&A Act s 108(3) was considered by the Court of Appeal in Carden v Willoughby Municipal Council (1985) 56LGRA 36). In that case, land which was developed by a residential flat building was zoned "Special Uses 5(a)" by a Sydney Regional Environmental Plan in which Zone the proposed development of converting the residential use to "strata office suites" was prohibited.

The owner, in advancing his development proposal relied upon "existing use" rights. In response, the Council relied upon cl 34 of the Regional Plan which was in the following terms:

The Council shall not consent to the development of land within Zone No 5(a) marked in black on the map as " Bus. Pkg " for a purpose specified in Schedule 8 unless there is provided on the site a car parking station.

It was common ground that the proposed development fell within the ambit of that clause.

Relying upon this clause, the Council argued that consent that otherwise might have been given under the existing use entitlements could not be given because the development proposal did not include an on site carparking station.

The principal judgment was given by Mahoney JA who, after discussing as a matter of construction the ambit of cl 34, addressed the effect on that clause of the EP&A Act s 108(3):

But, whether it is so limited, the effect of s 108(3) of the Environment Planning and Assessment Act is, in my opinion, that cl 34 cannot restrict the power and, in appropriate circumstances, the duty which the council has to give consent under reg 54. Section 108(3) is in the following terms:

In my opinion cl 34, if it operated to restrict the council's power or duty to give consent within reg 54, would within s 108(3) derogate from the terms of reg 54. Regulation 54 empowers the council to consent to the change of an existing use to another use in any case. The effect of cl 34 would be to restrict that power: the consent could be given only where there is provided on the site a car parking station . The practical result of this would be that, in a case such as the present, the power to consent given by reg 54 could seldom be exercised. This, I think, is a derogation within the prohibition of s 108(3). Consequently, cl 34 has no force or effect while reg 54 remains in force.

Kirby P, having expressed his agreement with Mahoney JA's judgment " substantially for the same reasons " considers the effect of s 108(3) in the following passages at 368:

However, I would confine my remarks in this regard to the matter first dealt with by Mahoney JA, namely the protection afforded to the appellants' existing use rights by virtue of the combined operation of s 108(3) of the Environmental Planning and Assessment Act 1979 and reg 54 of the regulations made under that Act. If cl 34 of the Sydney Regional Environmental Plan No 5 , were to operate so as to restrict the council's power to given consent under reg 54, it would inevitably derogate from the terms of that regulation to the extent of requiring that there is provided on the site a car parking station as a condition of the giving of consent. Accordingly, having regard to reg 54, cl 34 of the plan can, by virtue of s 108(3), have no force or effect to that extent.

I am not convinced that so handsome a protection from derogation from existing use rights was necessarily intended by those who drafted the provisions of s 108(3) of the Act. However, the provisions are expressed in the most ample and general terms and derogation involves, relevantly, nothing more than taking away from or detracting from that which would otherwise exist. There can be no doubt that the imposition on the council of the requirement to impose the obligation to provide a car parking station, was a derogation from its powers otherwise to give consent under reg 54.

Accordingly, I agree with Mahoney JA that the council (and hence the assessor) were empowered to give consent to the change of use sought by the appellants, unrestricted in this case by the terms of cl 34 of the plan.

Although the effect of s 108(3) is amply demonstrated by the decision in Carden it is also instructive to consider earlier judicial authority on " existing use " entitlement in a statutory regime which had no counterpart to s 108(3) , and thereafter to consider the case on the basis that the section applied.

A prime example of earlier authority is found in the judgment of Else-Mitchell J in the Land and Valuation Court judgment in Mobil Oil Australia Ltd v. Baulkham Hills Shire Council (No 1) (1971) 28 LGRA 371. That case involved a development application under the conventional existing use entitlements contained in the Baulkham Hills Planning Scheme Ordinance to rebuild a service station. The question arose whether the following clause in what was styled "special provisions" of the Ordinance prevented the Council from granting consent under the existing use entitlement:

56 (1) The responsible authority shall not consent to the erection or use of a building for the purpose of a service station or car repair station -

(a) within 300 feet of the intersection of a county road or main road with another county or main road

His Honour held at 373 that as a matter of construction of the Ordinance, cl 56 applied to all consents given by the Council, including consents granted under the existing use entitlement. Accordingly, his Honour held that the existing use provisions did not authorise the granting of consent to the rebuilding of the service station.

Absent s 108(3), the interaction of the provisions of the LEP and the existing use provisions deemed by s 108(2) to be incorporated into the LEP would require resolution in the process of statutory construction such as was undertaken in Mobil.

However, once s 108(3) is brought into account, no such resolution as occurred in Mobil is required because any provisions of the LEP which derogate from the existing use entitlements conferred by the incorporated provisions have no force or effect.

Thus, simply by way of illustration, the decision in Mobil would be reversed under the statutory regime now provided by the EP&A Act in s 108(2) and s 108(3).

In Russo v Kogarah Council (1995) 86 LGERA 300, the proposed development involved converting an existing dwelling-house situate on land zoned 4(b) Light Industrial under the relevant planning instrument into child care centre. The planning instrument contained the conventional form of controls on development, including the following familiar provision:

10(3) Except as otherwise provided in this plan, the Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.

In determining the development appeal to this Court, the Assessors had concluded that the proposed development " would not be consistent with the objectives of the 4(b) zone " (at 304).

In the appeal against the Assessors' decision pursuant to the Land and Environment Court Act 1979 (the Court Act) s 56A, the appellant argued that that conclusion had no bearing upon, or relevance to, the existing use entitlement relied upon by the appellant (304).

In upholding that ground of appeal, I said (at 305) in relation to s 108(3):

It will be appreciated at once from the foregoing statutory provisions that if the applicant were to establish a relevant existing use of no 1 Rocky Point Road as a dwelling-house, that existing use can, subject to the grant of development consent, be changed to another use (including the proposed child care use). Moreover, by force of s 108(2) of the Environmental Planning and Assessment Act the regime in respect of existing uses provided for in the regulation is deemed to be incorporated into the Kogarah Local Environmental Plan and by force of s 108(3) of the Environmental Planning and Assessment Act any provisions of the Kogarah Local Environmental Plan (eg the 4(b) zoning and cl 10(3) that would derogate or have the effect of derogating from the incorporated provisions has no force or effect: cf Carden v Willoughby Municipal Council (1985) 56 LGRA 366.

These statutory provisions relating to existing uses means that any determination of the applicant's development application by reference to any relevant existing-use entitlement would involve an entirely different determination from that which would be appropriate if the proposal were adjudged to be a conforming development within the 4(b) Light Industrial Zone.

In my judgment, the provisions of the LEP, the DCP and the Code limiting foreshore development that have been collected and analysed by Mr Cawthorne in his Report (Exhibit C), which I have summarised above, relevantly derogate or have the effect of derogating from the existing use entitlement that is conferred by cl 39(1)(c) and cl 42 of the Regulation.

Accordingly, by force of the EP&A Act s 108(3), those provisions have no force or effect. In so concluding, I can see no justification in the Council's argument for limiting the effect of s 108(3) to the LEP. The DCP and the Code obviously bear a close relationship to the LEP, but it is clear that they provide ancillary and subordinate controls to the principal controls employed by the LEP. It would be an absurd result if s 108(3) were effective to oust the principal controls enforced by the LEP, but ineffective to oust the ancillary and subordinate controls which, like the provisions of the LEP, "derogate" from the existing use entitlements.

In my judgment, effect must be given to s 108(3) in relation to derogating provisions of the LEP and of the ancillary and subordinate provisions contained in the DCP and the Code.

This conclusion inevitably means that the Council's case against the notional development application to rebuild the boatshed is virtually undermined because that case is fundamentally based upon the relevant provisions of the LEP, the DCP and the Code, which combine to limit development on the foreshores. That this is the basis for the Council's case is demonstrated by the fact that in refusing development consent to the Applicant's development application, the Council advanced the following reasons: (1) The application is considered unacceptable pursuant to the provision of s 90(1) Part (q) of the Environmental Planning and Assessment Act 1979 in that the development application seeks the retrospective approval for the reconstruction of the boatshed, the subject of this application. (2) The application is considered unacceptable pursuant to the provision of s 90(1) Part (a)(i) of the Environmental Planning and Assessment Act 1979 in that the proposed re-construction is contrary to the provisions of Clause 14A of Sutherland Local Environmental Plan 1993. (3) Specifically the proposed re-construction is contrary to the objectives of this clause and the applicant has failed to demonstrate that the removal of the building in question would not be inconsistent with any of the objectives of this clause. Nor has an objection under the provisions of State Environmental Planning Policy No. 1 been submitted in relation to the development within the Foreshore Building Line applicable to this property.

The Council's reliance upon cl 14A of the LEP is particularly instructive because subclause (5) limits the Council's ability to consent to development on an allotment of land having a foreshore building line (such as applies to the freehold in this case) unless "it is satisfied that the following buildings or works (if any) will be removed before, or within a reasonable time after, the development is carried out - (a) …… (b) any building or work below the present mean high water mark ………"

Clause 14A(5) of the LEP obviously derogates from the existing use entitlement conferred by cl 39(1)(c) and cl 42 of the Regulation upon the boatshed in the present case (because it is substantially located below mean high water mark and the small section located on freehold land encroaches the foreshore building line).

How then, in view of the effect of s 108(3), should the notional development application be determined?

The obvious reference point for the determination is the EP&A Act s 79C(1). It requires consideration of the following matters of relevance to the proposed development (and I paraphrase): (a) the provisions of any environmental planning instrument or development control plan; (b) the environmental and social impacts of the proposed development; (c) the suitability of the site for the development; (d) public submissions; and (e) the public interest.

For the reasons that I have already given, the effect of s 108(2) and (3) is that the relevant LEP (and associated documents) is taken to incorporate the existing use provisions and to render of no force or effect other provisions of the instruments which derogate from the existing use entitlement.

Paragraph (a) obviously operates in favour of the proposal.

The environmental impact of the proposal is, in my judgment, not significant given the continuous existence for more than 60 years of extensive waterfront structures adjoining, and partially upon, the freehold land owned by the Applicant. In particular, it must be appreciated that the boatshed is located on the existing concrete reclamation.

Additionally, the immediate neighbouring properties are also extensively developed on their waterfronts, as are many of the waterfront properties on this side of Burraneer Bay.

There is conflict of opinion between Mr Cawthorne and Ms Levy (whose planning report is Exhibit 1) as to whether the rebuilt boatshed constitutes an "overdevelopment" or is otherwise unacceptably visually conspicuous.

Ultimately, I find myself in agreement with Ms Levy's evaluation. In its physical context, I do not find the rebuilt boatshed to involve an overdevelopment or to be visually intrusive or conspicuous.

I accept, as I have previously found, that the rebuilt boatshed is larger than the one it replaced and obviously the rebuilding extends the life of the boatshed development.

However, I do not think that either of these features creates an unacceptable environmental or social impact.

What I have found concerning the economic and social impacts of the proposal also applies to the consideration of "the suitability of the site for the development". The site has accommodated a boatshed for more than 60 years and is obviously suitable for the development.

The remaining consideration is the "public interest". I accept that there is an important element of public interest in the Council's consistent application of its foreshore development policies. I also accept Mr Cawthorne's evidence that in the present case, the Council has lost the opportunity to seek a negotiated result of allowing for some new waterfront development in place of old existing development. I accept the Council's evidence that in recent years, the Council has been able to achieve satisfactory negotiated results and that the foreshores have been enhanced thereby. I take this factor into consideration, however I think on balance that it is outweighed by my evaluation of other relevant considerations under s 79C(1).

Accordingly, I have concluded that the notional development application for the rebuilding of the boatshed should be approved.

The remaining Issues numbered (iv), (v), (vi), (vii), (viii), (ix), and (x)

These issues can be considered very briefly because they are largely subsumed by my finding that the notional development application should be approved.

However, it is necessary to add these further findings and observations:- (i.) The rebuilt boatshed is larger than the boatshed it replaced, and it extends the life of the boatshed. (ii.) As a matter of physical capability, the rebuilt boatshed is adaptable for residential use. However, such a possible use is not its existing use and if it were to occur would involve a breach of the EP&A Act, including a breach of the condition of the building approval for the dwelling-house erected on the freehold that the boatshed "not be adapted or used for residential occupation". In my opinion, the present proceedings involve no question of use of the boatshed other than for its existing use (ie as a boatshed). (iii.) The rebuilding of the boatshed without the requisite consent may have involved the Applicant in a breach of conditions of his licence held from the Crown. However, this is a matter for the Crown, not for the Council (or the Court). (iv.) The rebuilding of the boatshed, without seeking the Council's approval and consent, had the effect of by-passing the development control processes that the Council would otherwise have applied, creates a bad precedent of the statutory controls being ignored and is contrary to the public interest in the true and proper administration of the EP&A Act.

F. HOW SHOULD THE STATUTORY DISCRETION BE EXERCISED IN THE PRESENT CASE?

It now becomes necessary to evaluate my findings on the issues raised, from the perspective of the statutory discretion vested in the Court by the EP&A Act s 149F(3). In other words, how do those findings inform the Council's decision as to the proper exercise of discretion called up by the present proceedings?

My findings on most of the issues raised by the Council's case have been generally favourable to the Council. However, the weight to be given to these favourable findings must be assessed in the light of the clear object or purpose of the provisions of the EP&A Act concerning building certificates, which is to provide for some form of ex post facto regularising of a situation that has given rise to an unlawfully erected building. In Ireland, I gave detailed consideration to this matter, and it is here necessary that I make some brief references to that judgment.

At p 301, in Ireland I traced the legislative antecedents to the current provisions now found in the EP&A Act ss 149A to G before expressing the following conclusion at par 67:

The present statutory regime is clearly linked with the legislative antecedents that I have enumerated and the interpretation of the present provisions is assisted by the light cast by the decided cases on the previous enactments. What clearly emerges is that the legislature has for a very long period made provision for the obtaining of a building certificate ex post facto which may be sought and issued in respect of a building that was originally erected without the requisite approval or consent of the council, and when so issued, has always been conceived as to some extent regularising past breaches of the Local Government Act and/or the EPA Act.

At pp 302 - 308 in Ireland , I considered a similar argument to that advanced by the Council in the present case, namely that to regularise the existing unlawful status of the boatshed would be (i) to condone the illegality (ii) to reward wrongdoing (iii) to set a bad precedent and (v) be contrary to the public interest in the proper administration of the EP&A Act .

I there cited two decisions (20 years apart) which illustrated a significant perceptible change in judicial attitudes to "the impact of past planning law breaches" on the determination of development applications. The earlier decision was that of Hardie J in the Land and Valuation Court's decision in 1962 in Ellmoos v Sutherland Shire Council (1962) 8 LGRA 16 where his Honour recognised as "strong public interest factors" (i) the overall problem of planning law enforcement; and (ii) the undesirable effect of precedent of an applicant being placed, by reason of major breaches of the Local Government Act, in a stronger position than if the statutory processes had not been breached.

The contrasting decision of the Full Court of the South Australian Supreme Court in Kouflidis v City of Salisbury (1982) 29 SASR 321, (decided 20 years later) was next noted, with citation of an extended passage from the judgment of King CJ at 323-324. I do not here repeat that passage, it perhaps being sufficient to extract from it the following three brief sentences (which encapsulate the relevant line of reasoning):

Although an applicant for consent should derive no advantage, direct or indirect, from the unlawful use, I do not think that it should be an impediment to the consideration of his application on its planning merits. If on the merits a planning consent should be given, it is desirable in the public interest that it should be given irrespective of the past conduct of the applicant. It is desirable that the position should be regularised leaving the past unlawful conduct to be punished by penal sanctions.

In Ireland I noted (at par 87 ) that the approach taken in Kouflidis has been consistently applied in this Court in the exercise of its comprehensive appellate jurisdiction embracing (i) planning appeals, (ii) building appeals, (iii) demolition order appeals and (iv) building certificate appeals (being a comprehensive jurisdiction that was never vested in the former Land and Valuation Court, and its absence may go far in explaining the decision in Ellmoos ).

I adhere to the views expressed in Ireland, noting that I did not understand the Council in the present proceedings to question those views.

Upon further reflection, there is yet another compelling reason why many of the issues raised by the Council against the issue of the building certificate in the present case should not receive much weight in the exercise of the statutory discretion conferred by s 149F(3). Although the reason derives from the simple and obvious fact that the provisions relating to the issue of a building certificate are part and parcel of the EP&A Act, its implications are more profound. Those implications are virtually the same as those formulated by Kirby P in the following passage from his oft cited judgment in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 where his Honour, speaking of the statutory discretion conferred upon this Court by the EP&A Act s 124(1) "to make such order as it thinks fit to remedy or restrain a breach of the Act" said at 342:

It is important to conclude by pointing out that that discretion is itself part of the statutory scheme. In this sense, the exercise of the discretion should not be seen as the illegitimate interference by judges in the even-handed application of planning law which local government authorities have the responsibility of enforcing. Instead, it is an important part - a fulcrum as it were - of that planning law, designed to introduce into it the protection, in reserve, of a salutary discretion. Because it exists in the Court, the discretion must also be considered by planners who invoke the Court's jurisdiction. Because it is established by Parliament and is expressed in such broad terms, it is a legitimate and integral part of the overall scheme of planning legislation operating in this State. It cannot be ignored. It should not be unduly circumscribed by a gloss of cases.

The President in that passage was considering the discretion vested in this Court to decline in the exercise of discretion, to grant relief in a case where a breach of the Act had been established. I would respectfully adopt that line of reasoning and adapt it in its application to the statutory discretion concerning the issue of a building certificate.

It is obvious that by introducing into the EP&A Act the provisions of s 149A - G, the Legislature is to be taken as intending to extend to that Act the facility for ex post facto regularising of unlawful development, conformably to long established legislative antecedents dating back to 1928 (which antecedents include the amendments made to the Local Government Act 1919 s 317A in consequence of the coming into force on 1 September 1980 of the EP&A Act: see Ireland at 301).

However, it is equally obvious that that facility was not intended to displace or undermine the normative requirements of the Act that development consent be obtained before development is carried out: vide the EP&A Act s 76A.

Notwithstanding the normative regime for development control under the EP&A Act, sections 149A - G do not inject a foreign element into the Act, because from its inception, the Act has provided in s 124(3) (no doubt exceptionally) for a breach of the Act caused only by the failure to obtain development consent, to be cured by the ex post facto grant of that consent.

Accordingly, and for the foregoing reasons, I would attribute only slight weight to the issues in respect of that which I have found in favour of the Council.

In my opinion, the consideration of far greater (indeed decisive) weight in the exercise of the statutory discretion in the present case, is the outcome of a hypothetical or notional development application seeking the requisite development consent for the "rebuilding" of the boatshed within the meaning of cl 39(1)(c) and cl 42 of the Regulation.

That issue, having been determined in favour of the Applicant, I am of the opinion that the statutory discretion should be exercised by directing the Council to issue the building certificate.

For all the foregoing reasons, I make the following orders:
Appeal allowed.
Direct the Council to issue a building certificate in respect of the rebuilt boatshed.
Exhibits be returned.
No order as to costs.

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.

Land and Environment Court of New South Wales CITATION: Taipan Holdings Pty Ltd V Sutherland Shire Council [1999] NSWLEC 276

(1999) 103 LGERA 285

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