Jurisdiction : TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA

Citation : [2004] WATPAT 210

Town planning - Appeal solely on point of law - Non-conforming use - Allegation of loss of use - Interruption to use of part of land - Whether results in loss of non-conforming use for entire land - Relevant planning unit

Town Planning and Development Act 1928 (WA), s 67

Respondent : Dr J T Schoombee & Mr F J Van Der Kooy

Eaton & Sons v Warringah Shire Council (1972) 129 CLR 207

Foodbarn Pty Ltd v Solicitor General for New South Wales (1975) 32 LGRA 157

Lemworth v Liverpool City Council [2001] NSWCA 389; (2001) 53 NSWLR 371

North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50

Parramatta City Council v Brickworks Ltd [1972] HCA 21; (1972) 128 CLR 1

Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Berowra RSL Community & Bowling Club Ltd v Hornsby Shire Council (2000) 114 LGERA 345

Brown v Repatriation Commission [1985] FCA 194; (1985) 7 FCR 302

Cocks Macnish v Biundo [2004] WASCA 194

Collins v Minister for Immigration and Ethnic Affairs [1981] FCA 147; (1981) 36 ALR 598

Comcare Australia v Lees [1997] FCA 1415; (1997) 151 ALR 647

Franconi v Shire of Perth [1965] WAR 37

Hudak v Waverley Municipal Council (1990) 70 LGRA 130

Hyundai Automotive Distributors Australia Pty Ltd v Australian Customs Service (1998) 81 FCR 590

Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113

Ku-ring-gai Municipal Council v Twibill & Associates (1979) 39 LGRA 154

Leverington v State Planning Authority and East Torrens District Council [1970] SASR 387

McDonald v Director General of Social Security [1984] FCA 57; (1984) 1 FCR 354

Meriton Apartments Pty Ltd v Fairfield City Council, unreported; Land and Environment Court of NSW; 5November 2004

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Morris v Woollahra Municipal Council (1966) 9 ALJR 320

Norman v Gosford Shire Council & Anor [1975] HCA 15; (1975) 132 CLR 83

North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 6 NSWLR 50

Nunawading City Council v Harrington [1985] VicRp 64; [1985] VR 641

Politis v Federal Commissioner of Taxation (1988) 20 ATR 108

Woollahra Municipal Council v Banool Developments Pty Ltd [1973] HCA 65; (1973) 129 CLR 138

Woollahra Municipal Council v TAJJ Investments Pty Ltd (1982) 49 LGRA 123

Woolworths Ltd v Pallas Newco Pty Ltd & Anor [2004] NSWCA 422; (2004) 136 LGERA 288

1 EM HEENAN J: This is an appeal to this Court from a decision of the President of the Town Planning Appeal Tribunal given on 29 November 2004, pursuant to s 67 of the Town Planning and Development Act as that section stood prior to the recent amendments in 2004.

2 An appeal from a decision of the Town Planning Appeal Tribunal in these circumstances lies to this Court only on a point of law. That has some significance in the present case because I am unable on any such appeal to make any finding of fact and I must accept findings of fact made by the Town Planning Appeal Tribunal unless it can be established that those facts as found were the products of errors of law, such as, for example, being findings unsupported by any evidence.

3 The only review of the facts which it is possible for this Court to undertake in this appeal is to ascertain on the comparatively few occasions where it has been necessary to do so what is meant by particular language or findings in the reasons for decision of the learned President against the background of agreed or accepted facts or evidence before the Tribunal.

4 The matter which the learned President was considering was an appeal by Complete Furniture Restoration Pty Ltd, the present respondent, against a direction made by the Town of Claremont under s 10(2) of the Town Planning and Development Act by notice issued on 19 March 2004 regarding the use of certain premises known as Lot 4 Lakeway, Claremont. The direction which was given by the Town of Claremont is to be found at 26 and 27 of the appeal book and after reciting the terms of the relevant town planning scheme, the Town of Claremont Town Planning Scheme No 3, the notice specified, directed to the respondent:

"1. You are hereby directed under section 10 subsection (2) of the Town Planning and Development Act 1928, WA ('the Act') to stop and not recommence the development within 90 days of service of this notice upon you.

2. If you fail to comply with this direction, you commit an offence and will be liable to a penalty by virtue of subsection 10(7) of the act and subsection 40(5) of the Sentencing Act of up to $250,000 and a further daily penalty of $25,000 each day on which the offence continues.

3. You may appeal against this direction under the provisions of section 10AA and Part V of the Act."

5 In the schedule to this direction, it was specified that the land was lot 4 on Diagram 54123, being the whole of the land comprised in Certificate of Title Volume 1960, Folio 296; secondly, that the alleged development was the use of that portion of the land known as 6B Lakeway, Claremont for the purpose of furniture repair, refurbishing, polishing and lacquering and by item 3 the particulars of the contravention were said to be that the land is zoned residential R30 under Town Planning Scheme No 3 and that the present use comprises an industrial use which is not permitted under table 1, the land use table of Town Planning Scheme No 3, within land zoned residential.

6 In the result the respondent's appeal was upheld by the learned President who ordered that the direction of 19 March 1994 should be set aside. It is from that order setting aside the direction that the Town of Claremont appeals to this Court.

7 I have had the benefit of detailed written submissions which have been filed by the parties which have enabled me to read those submissions in advance, the reasons for decision and the authorities referred to. These benefits have been amplified by full argument and submissions made by counsel before me today.

8 I should say a little about the subject land and the improvements on the land as they appear from the materials and the evidence and the findings of the learned President. The subject land is located at Lot 4 on Diagram 54123, Certificate of Title Volume 1960, Folio 296. A copy of this is to be found at 60 of the appeal book. This demonstrates that Wayglen Holdings Pty Ltd, a duly incorporated company, is the proprietor of an estate in fee simple in the whole of Lot 4. It also shows that Lot 4 is an unsubdivided lot comprising 791 square metres of land.

9 Other evidence includes a series of aerial photographs and some promotional photographs taken of the premises when they were put up for auction in about 1992. These are to be found at 38 and 39 of the appeal book. They show that Lakeway is a road or a cul-de-sac of short length running west of Davies Road, Claremont north of the railway line. On the northern side of the roadway lies Lot 4 and on Lot 4 there is a building comprising two small warehouse or storage-type buildings, apparently of brick construction and with iron or metal roofing. Both of these warehouse type buildings are within the limits of the lot and each abuts the other with a common wall. There are separate entrances and it appears, and was accepted, that there are separate tenancies of the two units.

10 Throughout these proceedings, they have been referred to as units 6A and 6B. Unit 6B is the subject of the direction and has been leased to the present respondent under a lease granted in January 1994 and apparently extended or renewed. Since 1994, January of that year, the respondent as a lessee or tenant of those premises has indeed been using unit 6B for the conduct of the business of furniture repair, refurbishing, polishing and lacquering as asserted in the direction from the appellant of 19 March 2004 already mentioned.

11 The adjoining unit, also on Lot 4, 6A, is occupied by a business known as Antique Restoration and there is a finding which I will elaborate on in more detail shortly that the business of Antique Restoration, a furniture restoration business, had been conducted in unit 6A for more than 20 years prior to the notice of March 2004.

12 The land in the environs of Lot 4 is the subject of two successive town planning schemes made by the Town of Claremont and the provisions of the Town Planning and Development Act. The first such scheme is Town Planning Scheme No 1 ("TPS1") which came into effect on 7 April 1967 and under that scheme the area in the vicinity of Lot 4 was zoned GR5, that is, an area in which general residential use could be conducted.

13 A later town planning scheme, Town Planning Scheme No 3 ("TPS3"), relating to this area came into effect on 28 May 1985 under which the area in the environs was zoned as residential, R30. TPS3 is the scheme whose provisions affect the determination of this appeal.

14 Under Div 3 of TPS3 cl 24(1)(a) deals with non-conforming uses. At this point I will mention only subpar 24(1)(a):

"Notwithstanding any other provision of the scheme, if, on the date when the scheme comes into operation, any land or building or part of a building is being lawfully used for a purpose other than is permitted under the scheme it should be lawful subject to this clause and to any statutory by-law to continue to use that land or building or that part of a building and any land directly ancillary thereto for that identical purpose and no other."

15 So it was that what may loosely be called non-conforming uses under the new scheme which were lawfully being conducted prior to 28 May 1985 could be continued. I emphasise conforming uses which were then lawfully being conducted, because the earlier Town Planning Scheme, TPS1, of 7 April 1967 had similar provisions relating to non-conforming use. That scheme, the details of which are at 389 of the appeal book, contained cl 4.1 Existing Use Rights:

"No provision of the scheme shall prevent (a) continued use of any land or building for the purpose for which it was being lawfully used at the time of the coming into force of the scheme."

and went on to deal with other matters, so an unlawful use which had been conducted from 7 April 1967 until May 1985 would not be permitted under cl 24(1)(a) which operated from May 1985. Accordingly, in the proceedings before the President, there was scrutiny of whether the use of this land at lot 4 had been lawful or a non-conforming use continuously since 7 April 1967.

16 The learned President made a series of findings of fact which I should set out before coming to the details of this appeal. It was common ground that the use which had been made of Lot 4 since 1967 was not a residential use of a kind permitted under either of the two town planning schemes but the present respondent's claim was that it was a lawful non-conforming use which had been established and maintained continuously from 1967. That contention by the respondent was accepted by the learned President.

17 The findings of fact which were made or which I consider must be taken to have been made by the learned President are as follows. On Lot 4, as already described, there are two units which are separately tenanted and which have been referred to as unit 6A and 6B. From about 1958 or possibly 1960; that is, long before the first Town Planning Scheme came into force, both units were occupied and used for the purpose of cabinet-making and plumbing by two brothers known as Cunningham and from those premises they conducted a warehouse and a workshop for those trades. Some time in about early April 1967, possibly a few days before the commencement of the first town planning scheme, unit 6A was occupied by a business known as Antique Furniture Restoration and on 3 April 1967 there was an application to the appellant for a building licence in respect of unit 6A to allow extensions to an existing factory. That was evidently approved.

18 Some time later, possibly on 3 May 1986, unit 6A was occupied by a business known as Stripwood. This finding is in par 34 of the learned President's reasons for decision, and it is apparent that Stripwood was another name for the same business of Antique Furniture Restoration.

19 Unit 6A was continuously occupied by Stripwood until some time before 1984 from when it was used and occupied by Antique Restoration, the present tenant. That has been found to have been a continuous operation for 20 years prior to March of 2004. Those findings are in pars 48 and 49. Having regard to the structure of the learned President's reasons for decision and the issues which were agitated before him, this can only mean, in my view, that Antique Furniture Restoration or Stripwood was in continuous occupation of unit 6A for the purpose of an antique furniture restoration business from 1967 to the present.

20 The history in relation to the adjoining unit at 6B is slightly different. It will be recalled that I have already mentioned that 6B was also used by the Cunningham brothers from 1958 till 1960 as part of their warehouse and workshop for cabinet-making and a plumbing business.

21 At some time in the early 1970s, perhaps earlier, they departed from 6B. From the early 1970s onwards 6B was occupied by a business known as Creative Interiors which manufactured and sold beanbags and other knick-knacks. That was followed by a business which conducted the preparation, storage and sale of wildflowers, and then, on or about 28 February 1986, Stripwood, by then already in 6A, expanded into 6B and remained in 6B until about 30 April 1992. During part of that period, Stripwood had been occupying and using 6A although, as I have already indicated, it was simply Antique Furniture and Restoration under a different name.

22 After Stripwood ceased to use unit 6B in about 1992, 6B was used for a time by a business known as Paradise Cane. Then from late 1990 or early 1991 until about February 1992, 6B was occupied by St Catherine's and used for a warehouse for stock storage and delivery.

23 It was vacated by St Catherine's in about February 1992 and remained vacant until December 1993. During that period the entire Lot 4 had been sold and purchased by the present registered proprietor who undertook some renovations and refurbishment of unit 6B during the vacancy. In December 1993 the present respondent, Complete Furniture Restoration Pty Ltd, evinced an interest and began the present use under a lease commencing 1 January 1994. Those findings are in par 41. It was continuing with this business of furniture repair, furniture polishing and lacquering at the time of the direction of 19 March 2004.

24 There is no suggestion that the present use of 6B for furniture repair, furniture polishing and lacquering is materially different from, or in any way inconsistent with, the cabinet-making and plumbing business which had been conducted right back from 1960 onwards or from the antique furniture restoration business which has been conducted continuously in unit 6A (on the findings for the last 20 years), and on the evidence it would seem from 1967.

25 What is submitted however is that this use for furniture repair, furniture polishing and lacquering while once a continuous, non-conforming use for a period, had been lost well before March 2004. On the appellant's argument before me counsel submitted that it had been lost during the occupancy of 6B by Creative Interiors when it was used for the manufacture and sale of beanbags and other associated articles.

26 Similarly, the submission was that any non-conforming use had been lost during the period when 6B was used for the storage, sale and treatment of wildflowers, and further, that it had been lost by the period of use by St Catherine's as a warehouse during 1990 or 1991 to February 1992, but there were no findings in those respects by the learned President and it would not be proper for me to make any such findings in the absence of a review of the facts and the establishment of the details of the use of 6B by those three occupants during those three periods, nor, as I understand the grounds of appeal, it is specifically urged that any one or more of those three usages of 6B amounts to a circumstance where the loss of the non-conforming use had occurred.

27 Rather, the learned President found that during the period of the vacancy from February 1992 to December 1993 there had been a continuous period of more than six months during which the prior established non-conforming use had ceased and, on that account, by virtue of the provisions of cl 24 of TPS3 the use would have been lost if the use of Lot 4 were to be determined by the usage made of unit 6B alone and without regard to the continuing use of unit 6A by Antique Furniture and Restoration. That particular finding can be found at par 45 of the learned President's reasons for decision where the learned president said:

"If the matter were to be determined solely by reference to that unit then it would seem to me that such non-conforming use rights had been lost simply because they have not been used, 'used' meaning for a continuous period of six months as contemplated by clause 24(1)(b) of the scheme."

28 However, the learned President went on to conclude that that is not the manner in which the use of Lot 4 should be regarded. Rather, both units 6A and 6B should be considered to be a single planning unit forming as they did part of one legal parcel of land subject to the same Certificate of Title and, it may be added, ownership. The learned president considered that the matter should be addressed on the approaches explained by the High Court in Parramatta City Council v Brickworks Ltd [1972] HCA 21; (1972) 128 CLR 1 as that decision was approved and applied in Eaton & Sons v Warringah Shire Council (1972) 129 CLR 207.

29 So this appeal turns primarily upon whether or not it can be established by the appellant that the learned president was in error in treating units 6A and 6B as together compendiously forming Lot 4 constituting the relevant planning unit. That seems to me to be the crucial issue in the appeal. However, the appellant extends its challenge to the findings and the decision of the tribunal on a more extensive basis.

30 There were originally five grounds of appeal. Ground 2 was abandoned during the course of submissions and the remaining four grounds are as follows:

"(1) the learned President erred in law in holding that unit 6A and 6B Lakeway formed a single planning unit for which a non-conforming use right applied. The learned President ought to have held that 6A and 6B Lakeway were separate planning units and, given the factual finding at paragraph 45 that no non-conforming use rights attached to 6B Lakeway. The reference to the factual finding at 45 is the finding that I have already mentioned that there had been a period of at least six months interrupting the continuous use of unit 6B;

(3) in determining whether non-conforming use rights existed the learned President erred in law in focusing upon whether premises were used continuously since the gazettal of Town Planning Scheme Number 1, businesses which fall within the definition of industry. The learned President ought to have considered what, according to ordinary terminology, was the appropriate designation of the purpose being served by the use of the services as at the gazettal of TPS 1, the designated purpose, and whether there has been a continuous use of the premises which is really and substantially for the designated purpose;

(4) the learned President ought to have held that there had not been such a continuous use, either in respect of 6B Lakeway nor in respect of 6A and 6B Lakeway considered together or the learned President had erred in law in excluding evidence of noise and smell. The learned President ought to have admitted such evidence on the basis that it was relevant in ascertaining whether the current use of 6B Lakeway either according to the test in ground 3 above or according to relevant town planning control use classes is really and substantially the same as the use which pertained when any non-conforming use right first arose; and

(5) having determined that abandonment was irrelevant to the ascertainment of the exercise of any non-conforming use, the learned President erred in law in going on to consider abandonment and further erred in law in holding that keeping a building vacant for the purpose of carrying out repair works for the period of one year 11 months would not involve abandonment."

31 It is convenient to dispose of two of these grounds of appeal briefly. In relation to ground 4, that is the ground alleging error in excluding evidence of noise and smell, I am satisfied that the learned President was correct to dispose of those matters and reject evidence relating to noise and smell on the basis that the question of amenity in the area did not arise and that the sole question for determination was whether or not a relevant non-conforming use had been maintained continuously at the subject premises, whatever they were, since the commencement of the relevant town planning scheme. In short, I agree with the reasons given by the learned President at pars 9 to 13 inclusive of his reasons for decision for rejecting the evidence relating to noise and smell.

32 Turning then to ground 5 relating to the question of abandonment, the learned President dealt with this issue rather as an afterthought in the reasons for decision and on the basis that the question of abandonment did not strictly arise in view of the mandatory terms of cl 24(1)(b) of the TPS3 that the nonconforming use would be lost if there was to be a continuous period of six months in which the premises were not used for the relevant use.

33 Questions of abandonment of a non-conforming use can sometimes arise in other circumstances where no actual physical use continues on the premises perhaps because in a passive condition they continue to serve the dominant use of other parts in the premises or because it is considered convenient not to carry on the particular activity on that aspect of the premises for some time or because necessary repairs or other works are being carried out. This was not a case in which questions of abandonment had been raised directly for decision or, having regard to cl 24(1)(b), where non-use for more than six months would not result in the loss of a non-conforming use because of the absence of any intention to abandon.

34 Accordingly, I conclude that the learned President's reference to the notion of abandonment was, in the context of this case, no more than an indication that there had been no intention by the land owner to abandon the non-conforming use for the whole of Lot 4 during the period of inactivity or vacancy of unit 6B or at all. However, that is not the finding or the conclusion which really addresses or determines any of the issues in the case and, as was accepted by counsel in the course of argument, does not really lead anywhere. It was not determinative of the first appeal and it is not determinative of the appeal to this Court. Consequently ground 5 of the grounds of appeal cannot produce success for the appellant.

35 That takes me back to the question of whether or not the two units should be regarded as a single planning unit or, as the respondent contends, whether 6B should be regarded as a separate planning unit, and whether there was some misuse of the description of the use of 6A or 6B as industrial use as submitted by the appellant under ground 3. There are the two issues which go to the heart of this appeal.

36 The reference in ground 3 to the definition of "industry" can be regarded as a reference to the learned President's conclusions in pars 58 and 59 of his reasons for decision. Those read as follows:

"58 Counsel for the respondent seemed to be at pains to focus upon the more recent past. Whilst the evidence given in relation to events which have occurred 30 years ago may be less than complete, which is hardly surprising, the effect of the evidence albeit in some respects limited, satisfies me that at least until 1992 the premises, approached in the manner of a single planning unit in the way that I have described above, was used continuously for businesses which fall within the definition of industry and do not necessarily fall within the notion of craft industry."

"59 As a result, it seems to me that at least until that point there are nonconforming use rights which have been acquired and utilised in respect to the premises."

"Since 1993 the premises have been continuously occupied and utilised with those nonconforming use right purposes."

37 The substance of ground 3, as argued very fully by Mr Wittkuhn for the appellant is that as was held by the High Court in Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529, that, just because there is a non-conforming use which may be described as being for an industrial purpose, it does not mean that the non-conforming use permits use of other different and distinct industrial usages. The principle emerges clearly from the reasons for decision of Kitto J at 535 but can be epitomised by the reasons for decision of Menzies J at 536 where his Honour said:

"The purpose for which the premises were being used at the relevant time was pottery making. It is conceded that pottery making falls within the description of light industry but it does not follow either in logic or in town planning that use for one purpose which falls into the category of light industry is to be regarded as use for any other purpose which falls into that category."

38 The submission for the appellant is that the learned President fell into error by classifying the non-conforming use, which he had found had been established for unit 6A, as within the definition of industry and proceeding from that conclusion divined that the premises had been continuously occupied and utilised by the non-conforming right, implying industrial purposes, since. The argument is that, on this approach, there had been a conflation between the broader notion of industrial use and the particular specific non-conforming use which had emerged from the historic use of the land.

39 I accept that, if the criticism which is implicit in these submissions had been established as a matter of fact, there would be a ground for finding that there had been an erroneous test applied by the learned President. However, I am not satisfied at all that that is what occurred; rather I take the contrary view.

40 The reference to a definition of "industry" and a further reference to the notion of "craft industry" seems to have arisen during the course of the appeal before the learned President partly as a result of the terms of the direction already quoted - the passage can be found at AB27, which refers to the use being an industrial use, which is not permitted - and from some submissions made by an agent for the present respondent before the learned President seeking to maintain that this was a light industrial use. Those are not distinctions which are meaningful in this context. What is meaningful is the finding, at par 61, that the premises had been continuously occupied and utilised for the same non-conforming use as had occurred up until 1992. That sentence involves something of a paraphrase of pars 58 and 61 of the learned President's reasons for decision, but I am satisfied that any fair reading of the reasons for decision can only mean that there was a finding that the particular use of 6A had been continued to 1992 and since. Indeed that is the evidence, and that was the finding, as I have already described, arising from the continuous use of 6A by Antique Furniture Restoration, Stripwood and then Antique Restoration during the whole of that period. Accordingly, I reject the submission that there has been an erroneous conflation of the notion of industrial use with the need to identify and determine whether or not the particular historical non-conforming use had continued.

41 As I have already indicated, much attention was devoted to whether or not there had been other interruptions for six months or longer of the continuous non-conforming use of unit 6B besides the period of vacancy from February 1992 to December 1993, which was found to have occurred by the learned President. It is true that the learned president did not make any findings in relation to alleged interruptions to the pre-established non-conforming uses in relation to the periods of use of unit 6B by Creative Interiors, by the wildflower business or by St Catherine's warehouse, but I do not regard any of these grounds of appeal as giving rise to the need to re-examine those issues. Indeed, if any re-examination were to occur it would necessarily require a reconsideration of all the facts of the case and new findings of fact to be made as to whether or not there had been interruptions and whether the particular use had been ceased for longer than six months on each occasion.

42 That is outside the scope of review permitted by the present appeal. Had it been shown that this had occurred and, on that account, there had been a failure by the Town Planning Appeals Tribunal to exercise its jurisdiction to determine all issues before it, that would have itself established an error of law requiring the decision to be set aside and the matter remitted to the Tribunal for further consideration, but I do not regard any of the grounds of appeal as raising those issues in that form.

43 That is hardly surprising in the light of the finding that there had been an interruption which by itself would have eliminated the benefit of the non-conforming use as a result of the vacancy between February 92 and December 1993. Once one interruption has been shown then if the appellant's argument about the proper planning unit is correct, then that is sufficient for success in this appeal. Demonstrating that there had been other interruptions could do no more to strengthen or improve the appellant's position than the finding which already stands unchallenged itself provides.

44 I have been taken to a detailed consideration of the decisions of Parramatta City Council v Brickworks (supra), especially in the reasons for decision of Gibbs J at 21 - 22 and at 23, and of Eaton & Sons v Warringah Shire Council (supra), particularly in the judgment of Barwick CJ at 273, where the learned Chief Justice deals with the potential significance of areas which are fenced off or divided from other parts of the subject land, and of the need to make determinations of fact and degree as described by Stephen J at 291.

45 Those decisions were considered and applied by the Supreme Court of New South Wales in Lemworth v Liverpool City Council [2001] NSWCA 389; (2001) 53 NSWLR 371, particularly by Stein JA at 377 - 378 and Hodgson JA at 384. Without rehearsing the passages which have been cited I respectfully accept and apply those decisions.

46 Applying those principles to the present case one considers that there is one, relatively small, suburban sized block of land in single ownership. It has not been subdivided. The provisions of the Town Planning and Development Act prevent separate development of the property, in the absence of subdivision, without the approval of the authority. There can be no subdivision without the potential loss of the non-conforming use on Lot 6A except at the discretion of the Town of Claremont - par 24(1)(e) of the Town Planning Scheme.

47 The basis for suggesting that proper planning considerations require that these two parts of the one block of land be treated separately stems largely from the facts that: there is a wall separating the two warehouse units; that they have got separate entrances; that they are separately tenanted; and that, over the years while they have been on occasions used by the one occupant for the one business, such as by the Cunningham brothers back in the 1960s and by Stripwood in the mid-1980s, the predominant pattern of use shows that they were utilised by separate tenants for different commercial purposes for most of the time.

48 Returning to the observations of Barwick CJ in Eaton's case at 270, dealing with fencing off, the learned Chief Justice pointed out that the fencing which had occurred in that particular case did not mean that the land on either side of the fence or other division was for separate uses. What emerges from the passage cited is that the division, whether it be a fence, a wall or some other barrier, must be examined having regard to the use of the overall area. A fence or a division which is installed for the purpose of differentiating the use between premises will obviously be significant but it is any differentiation with regard to the nature of use, not the identity of the occupant, which is crucial. For example, if there are two carpentry businesses on either side of a brick wall it can hardly be said that the land upon which both units are constructed is used for anything but carpentry. It would not be so if there was a carpenter's shop and a hairdressing salon.

49 Having regard to the division by the brick wall in this case and the single ownership of a relatively small piece of land, I am satisfied that the learned President was correct in his conclusion to treat the whole of Lot 4 as a single planning unit. I am reinforced in this view by the consideration that if it were possible to treat each unit as a separate planning unit a logical extension of that argument would lead to the conclusion that one unit could be the subject of a subdivision application and that it could be used for residential purposes, such as an apartment or a house. That is conceded by counsel for the appellant, quite properly so, and is submitted by him to be consistent with the Town Planning Scheme. I recognise that that, of course, is a possibility but from a general planning viewpoint, having regard to the use, not just of units 6A and 6B, but of the entire area, it would be quite artificial to treat units 6A and 6B as separate planning units. I cannot see how the fate or destiny of the use of one can be separated from the fate or destiny of the use of the other.

50 If 6B were to become residential then it would seem to follow that 6A should do also from a planning viewpoint, and if 6A can remain with the non-conforming use, which is indicative of the use of the entire land as a whole, as the learned President has found, then 6B should enjoy the same benefit. It may be that there is some element of fact and degree in that conclusion although it seems to me that, if so, it is a modest one. I agree, with respect, with the decision made by learned President in this regard. The position can be put on a different and more cautious footing, namely, that it was a decision which was plainly open to the President and which has not, in my view, be shown to have been in error. Once it is established, as I am satisfied that it has been established, that unit 6A and unit 6B form part of the same planning unit, then the finding made by the learned President that the use of both units was determined by the continuing use of unit 6A disposes of the fate of this appeal.

51 The learned President's conclusion that 6A had been used continuously for the antique restoration business for 20 years or more before 2004 and his other findings that the antique furniture restoration business had been conducted from unit 6A from April 1967 onwards provide ample factual foundation for that ultimate conclusion.

52 Lest it be suggested that I have not adverted to a very helpful analysis in other authorities, the conclusion which I have just reached is reinforced by the examination of what is to be regarded as the genus of the usage having regard to town planning purposes described by Kirby P in North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50, particularly at 59 and again at 60 - 62. I was urged to consider the decision of Glass JA in Foodbarn Pty Ltd v Solicitor General for New South Wales (1975) 32 LGRA 157. Unfortunately, the copy of the report was not available during the course of argument but the proposition which counsel for the appellant sought to draw from the decision was that it is not always the case that different uses of parts of one lot of land, whether flats or units in an apartment block, or offices in a complex or separate areas on one piece of land, are ancillary to one another. I have no doubt that this general proposition must be correct and should be accepted. It is necessary, therefore, to consider whether or not there is anything in the findings of the learned President to suggest that the use of unit 6B was not ancillary to the use of unit 6A. Having regard to the general light industry/trade operation (mainly for carpentry assembly operations) it seems to me that the proposition that the use of these two units was not ancillary cannot be sustained. It was certainly a finding of the learned President that the use of 6B followed, as a matter of character, the use of 6A and nothing has been demonstrated to cast doubt on that conclusion or to demonstrate that it is an error.

53 That I think completes the examination of all the five grounds of appeal. It follows from the conclusions which I have reached that this appeal should be dismissed. I should add that if I had been persuaded to a contrary conclusion in relation to ground 3, that is that the learned President had made an error of law by classifying this use as a species of industrial use and using this categorisation to conclude that the use of 6A meant that there had been a continuation of industrial use for the whole of Lot 4 were wrong, I would have been faced with the problem of whether or not it was possible to reach any final disposition of the appeal on those grounds. For reasons which I have already canvassed I consider that that would not have been possible without making a series of findings of fact about exactly what had happened in the past. In that case it would have been necessary to direct that the decision should be set aside and the appeal be remitted to the Town Planning Appeals Tribunal to be reheard. Similar directions, for slightly different reasons, would have been necessary in relation to ground 5 had it succeeded, but it is not necessary for me to pursue those matters. The order will be that the appeal should be dismissed.