Waverley Council v C M Hairis Architects

Issues 11 The issues between the parties arise in two respects. 12 Firstly, the council contends that DA 138/02 is incompetent because it is not open for an applicant to modify or alter an existing development consent except by making an application pursuant to s 96 of the EP&A Act (which is not available in this case) or by making a fresh development application, pursuant to s 78A of the EP&A Act, seeking consent for the whole development incorporating the changes. 13 Secondly, it is the council's case that if Redwood is required to make a new development application then the existing use, upon which DA 133/98 was based, has been abandoned. The consequence of the abandonment of the existing use is that DA 138/02 must be assessed having regard and taking into account the current controls imposed by the council's Development Control Plan which had not been made at the date of the original consent.

The competency of the application 14 Mr Tobias QC, who appears on behalf of the respondent, does not agree that there are only two ways open to the respondent whereby it can achieve the change from the club use to the residential use at the lower levels of the building. His contention is that Redwood, as the present owner, is also entitled to make a development application to change the use at the lower levels of the proposed building, together with the appropriate structural changes. In that case, if the consent authority was so minded, a condition could be imposed pursuant to s 80A(1)(b) of the EP&A Act which provides, inter alia and relevantly to the present case, that a condition of development consent may be imposed if it requires the modification of a consent granted under the Act. According to Mr Tobias, the use of s 96 is a matter of choice. A developer seeking to change an existing consent can pursue an approval either through s 76A or s 96 provided that the limitation imposed by s 96 can be met. 15 Redwood acknowledges that the development, for which consent is sought pursuant to DA 138/02, will not be substantially the same development. Accordingly, no question of choice between s 76A and s 96 arises in the present case. However, it is said, on behalf of the respondent, that any inconsistency between the first and second consent can be resolved by an appropriate condition or conditions pursuant to s 80A(1)(b) of the EP & A Act. 16 Mr Ayling SC, who appears for the applicant, contends that the relief sought by the council relates to the procedure for obtaining consent not the consent itself. He seeks to make the point that the conditioning power contained in s 80A flows out of the granting of consent. It does not flow out of the making of an application. 17 Furthermore, the present application is neither an application for approval to alter an existing building nor a development application for a change of use. In effect, Mr Ayling contends that the application seeks to alter an existing right. It is not an application to carry out development at all. It does not relate to a building because the building does not exist. Accordingly, it is the council's case that the applicant should apply for consent to erect the total building thereby acquiring a new right when and if consent is granted rather than seeking to alter the rights that emanate from DA 133/98. In other words, Redwood is merely seeking to alter the right to erect the building approved by the development consent rather than making an application to carry out development. As Mr Ayling states in his written submissions in reply, the imposition of a condition contemplated by s 80A is not intended by the EP&A Act to interfere with the basic scheme of the Act as it relates to applications for consents, or for modification of consents. He submits that the EP&A Act assumes that the applicant has applied properly for what it seeks long before s 80A can be invoked by the consent authority. 18 It was only during his submissions in reply that Mr Ayling raised the question of whether the application was in respect of development at all. Mr Tobias was given leave to deal with the proposition. In doing so he submitted that the application is clearly one to erect part of a building, namely the ground floor and the first floor as specified in the submitted plans. "Development" is defined in s 4 of the EP&A Act as meaning, inter alia, the erection of a building and a "building" by definition includes "part of a building or any structure or part of a structure". Mr Tobias asserts that the council's submission, to the effect that the development application is to alter or modify an existing consent, is misconceived. Furthermore, he denies the proposition that it is merely an application to alter rights. In the respondent's view, the development application is an application to carry out a work, namely to erect part of a building and to change an approved use of land. 19 On the one hand, the council contends that s 96(2)(a) of the EP&A Act is intended to narrow the permissible scope of amendments to development consents, whereas the respondent regards s 96 as providing a concession where, after alterations are made, the proposed development remains substantially the same development as that to which the original development consent relates. Prior to the introduction of s 102, with the EP&A Act in 1980, it was necessary to make further and successive development applications in order to vary the terms of a development consent. As Bignold J observes in Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236 at 242, although the remedy provided by s 102 (now 96) "avoids the necessity for the obtaining of a further development consent to secure a modification of an existing development consent it does not abrogate the right to seek to obtain successive development consents in respect of the same land". 20 DA 138/02, the plans lodged in support of the development application and the statement of environmental effects variously refer to the proposal as an amending development application to the approved DA 133/98. It appears to be common ground that DA 138/02 does not seek to replace or supplement development consent DA 133/98 nor does it seek a confirmation of the approval to any component part of the original development approved by DA 133/98. 21 In Starray Pty Limited v Sydney City Council [2001] NSWLEC 129, unreported, the applicant seeking development consent had made a development application to incorporate an existing use of public car parking in the basement of a development already the subject of a consent granted by the council. On appeal, the Senior Commissioner made an order that the development application previously approved by the council was confirmed subject to further conditions. The orders made by the Senior Commissioner were the subject of a further appeal pursuant to s 56A of the Land and Environment Court Act 1979. After accepting the applicant's submission that an application under s 96 of the EP&A Act would not have been appropriate since the development would not be capable of characterisation as "substantially the same development" as that which was the subject of the first consent, Cowdroy J found that it would be necessary for the appeal to be re-heard as the Senior Commissioner had no jurisdiction to make orders confirming the first consent but that "an application pursuant to s 96 of the EP&A Act to amend the first consent would be required to conclusively determine whether the existing use should be incorporated into the first consent". The appeal in respect of the development application was re-heard by the Chief Judge (Starray Pty Ltd v Sydney City Council [2002] NSWLEC 48, unreported). Her Honour noted the suggestion by Cowdroy J that a modification application under s 96 would be required and that such an application had been lodged with the council but had not then been determined. Cowdroy J's observation that it would be appropriate for any such application for modification to be filed and listed for hearing with the then current appeal appears, on its face, to be inconsistent with his acceptance of the applicant's submission that an application under s 96 of the EP&A Act would not have been appropriate since it would not pass the threshold test. On the one hand, his Honour seems to accept that an application for modification cannot be made whereas he ultimately concludes that such an application was essential. 22 Pearlman J observed that development proposed in the second development application was "inconsistent in part with the development the subject of the first consent, and hence consequential modification of the first consent will be necessary". It would appear thereafter that her Honour proceeded on the basis that any application pursuant to s 96 could have been dealt with favourably to the applicant, that is, it would be able to pass the threshold test that the development as modified would be substantially the same development. The distinction in the present case is that there is an express acknowledgment that the existing consent cannot be modified in a way that satisfies the test in s 96. The Chief Judge expressed the opinion that in the particular circumstances as she found them, if consent was to be granted to the second development application, a condition could be imposed under s80A(1)(b) requiring the first consent to be modified in stipulated ways. However, she says at par 16 that the consent would not itself modify the first consent "but would require a s 96 application to be lodged and approved". On that basis she held the second development application was neither misconceived nor incompetent. 23 Relying on the conclusion reached by the Chief Judge in Starray, Mr Ayling submits that, as a development consent for a residential flat building comprising 17 units is self evidently not substantially the same development as a development consent for a building comprising club premises on lower levels and 13 residential units on the upper levels, the only available statutory avenue for the respondent to obtain a development consent for a residential flat building on the subject land is to lodge a development application for such a building. Accordingly, if the respondent cannot successfully apply to have the first consent modified to make it consistent with the second development consent, then the second development consent must be incompetent. 24 The applicant's conclusion depends upon the Court agreeing that s 96(2)(a) is intended by the legislature to narrow the permissible scope of amendments to development consents and that, accordingly, the EP&A Act must be construed so as to ensure that the task and function of that provision is not circumvented. If the applicant is correct then applicants have a choice of statutory mechanisms for the modification of an existing development consent by either making an application under s 96 or a subsequent amending development application for the total proposal. Mr Ayling says that the decisions by Cowdroy J and the Chief Judge in the Starray litigation support the proposition that a person entitled to act upon a development consent is free to lodge and have determined a further development application which purports to modify or amend that development consent. However, any consent granted to such a subsequent development application is not, so the applicant submits, capable of being implemented, acted upon or carried out unless and until a s 96 application authorising the modification of the earlier consent is also made and approved.

The effect of s 80A(1)(b) does not appear to have been the subject of detailed argument in the Starray cases. The Chief Judge appears to have assumed that the reference to "modification…of a consent" is a reference to the prospect of making a s 96 application and the imposition of a condition to that effect. 25 The Court agrees with Mr Tobias that s 80A(1)(b), so far as it relates to modification, operates quite independently of s 96. It must be read in the context of requiring the surrender of a consent previously granted or the modification or surrender of a right conferred by Div 10 of Pt 4, namely an existing use. Section 80A(5) is instructive in this respect and provides as follows:- (5) If a consent authority imposes (as referred to in subsection (1) (b)) a condition requiring the modification or surrender of a consent granted under this Act or a right conferred by Division 10, the consent or right may be modified or surrendered subject to and in accordance with the regulations.

26 Clause 97 within Pt 6 Div 8 of the Environmental Planning and Assessment Regulation 2000 ("the Regulation") provides the means of giving effect to a condition imposed pursuant to s 80A(1)(b) and s 80A(5) of the EP&A Act. It is clear from the terms of cl 97 of the Regulation that the modification or surrender of an existing development consent or existing use right is achieved by delivery of a notice in accordance with cl 97(2) of the Regulation. Clause 97(1) of the Regulation specifies the information to be contained in the notice, including details of the modification. It is appropriate to set out the whole of cl 97 of the Regulation as follows:- 97 Modification or surrender of development consent or existing use right (cf clause 68 of EP&A Regulation 1994) (1) A notice of modification or surrender of a development consent or existing use right, as referred to in section 80A (5) of the Act, must include the following information:

(a) the name and address of the person by whom the notice is given,

(b) the address, and formal particulars of title, of the land to which the consent or right relates,

(c) a description of the development consent or existing use right to be modified or surrendered,

(d) particulars as to whether the consent or right is to be modified (including details of the modification) or surrendered,

(e) if the applicant is not the owner of the land, a statement signed by the owner of the land to the effect that the owner consents to the modification or surrender of the consent or right.

(2) A duly signed and delivered notice of modification or surrender of a development consent or existing use right:

(a) takes effect when it is received by the consent authority, and

(b) operates, according to its terms, to modify or surrender the development consent or existing use right to which it relates. 27 Prior to the recent amendments to the EP&A Act, s 91(7) and cl 80 of the Environmental Planning and Assessment Regulation 1994 (the 1994 Regulation") prescribed the manner of dealing with a condition requiring modification of an existing consent. Form 7 in the 1994 Regulation is replicated in the 2000 Regulation by the requirements stipulated in cl 97(2). The consequence is that an earlier consent may be modified, in accordance with s 80A of the EP&A Act and cl 97 of the Regulation, without any necessity for there to be an application pursuant to s 96 of the EP&A Act. The constraints imposed by s 96 in regard to the threshold test of requiring that the development as modified be substantially the same development as the development for which the consent was originally granted, therefore, has no application. This issue was not addressed in Starry and indeed it appears not to have been necessary given that there was a recognition that an application pursuant to s 96 could be made. 28 I agree with Mr Tobias that what is proposed by DA 138/02 is development being for a change in the use of two levels of the planned building and the consequential changes to the structure of the building. It is difficult to perceive any logical distinction in the approach taken by the applicant, which depends upon whether a building is in existence. Most development applications after all, relate to proposals which are not dependant on pre-existing development. Admittedly, if the building had been constructed pursuant to DA 133/98 the concept of alteration and changes consequent upon the cessation of a club use and the introduction of a residential use might be more readily appreciated and understood. There is no statutory constraint upon the category of development, as defined, that can be the subject of a development application. In the Court's view, the distinction between an application to alter a building and an application to alter a right arising from an earlier development consent is not sustainable in the present context. Although it may not be elegant, it is nevertheless, in the Court's opinion, correct to regard the development application as an application for consent to carry out specific building works in order to achieve a particular use. The approach taken by Mr Ayling whereby he seeks to confine the application by relating it only to the change of a right is inconsistent with the Court's understanding of the practical effect of the application. The concept proposed by the respondent may not be sustainable on its merits either because of its artificial nature or otherwise, but that is not a matter to be decided in these class 4 proceedings. The fact that the application is novel does not detract from its efficacy as an application. The Court does not agree with Mr Ayling when he seeks to distinguish the act of granting consent subject to conditions contemplated by s 80A from the statutory scheme for the making of development applications pursuant to the EP&A Act. They are intrinsically related. The express provision in s 80A for the grant of a conditional consent supports the expectation that an application for consent ultimately found to be dependent upon the exercise of that power can be a valid exercise. 29 If DA 138/02 is granted, conditionally or otherwise, it will give rise to further rights. Thus, if the consent authority decides not to modify DA 133/98 pursuant to s 80A(1)(b) then the owner can proceed with either scheme. On the other hand, the consent authority may exercise its discretion to modify DA 133/98 to be in accord with DA 138/02 so that any inconsistency is removed thereby effectively locking the owner out of the option to revert to the club use. Whether or not the power to impose a condition pursuant to s 80A(1)(b) is exercised by the consent authority is a matter for the exercise of its own discretion. There is nothing in DA 138/02 that dictates the necessity for that to be done. It is conceivable, although not necessarily desirable, that the person entitled to act on the consents could rely on DA 138/02 to construct and use the lower part of the proposed building and to carry out the minor works shown in the supporting plans at the upper levels and then rely on DA 133/98 for the balance of the work. Whether there are anomalies in that approach that cannot be resolved remains to be determined by the consideration and determination of the new development application on its merits. It is, however, not so far as the Court can see, contrary to any principle established by the regime provided in the EP&A Act or otherwise. It may be complicated, inept, inconvenient, inappropriate or conceptually unsound but that does not make it incompetent. 30 There is no statutory or other legal constraint upon the number of development applications that a person can make in respect of the same land. A shopping centre complex is a demonstrative example of the way in which there can be a mosaic of development consents extending around the different parts or sections of a single site. Section 80A(1)(b) of the EP&A Act provides a facility for the consent authority to insist on the surrender of an existing development consent. It follows that the Act contemplates there can be more than one valid and operating consent in existence at the one time. The legislature has left the option or election whether to require surrender of an existing consent to the consent authority. There is no warrant to read the power to modify in s 80A(1)(b) as being akin to or in the context of a surrender as Mr Ayling suggests. Just because the result may be little or no different in some cases does not necessarily lead to the conclusion that the power to modify is always to be construed in such a constrained way. 31 If one has regard to s 96 (formerly s 102) as being facilitative in the sense that Bignold J categorised it in Progress and Securities, and as the Court now does, then the making of a separate development application pursuant to s 78A cannot be regarded as a circumvention of the regime established by s 96. The evaluation of a fresh development application involves a significantly more rigorous assessment than prescribed by the regime under s 96. 32 The Court is satisfied the process engaged by DA 138/02 could lead to a separate approval for the distinct part of the building subject to the proposed changes or it could result in a conditional determination which requires the subject of DA 133/98 to be modified so that any inconsistency between the two proposals is removed. The latter result foreseeably could foreclose the prospect of reinstating the club use through any process available to the developer under Div 2 or Div 7 in Pt 4 of the EP&A Act. It is not right to say, therefore, that the respondent is relying on an application that is dependant upon the exercise of the consent authority's power under s 80A(1)(b) and s 80A(5). Whether the Court, exercising the function of the consent authority, uses its discretion to do that remains to be determined. 33 Having regard to all of the above reasons, the Court is not satisfied, in the circumstances of this case as outlined, that the development application, DA 138/02, is incompetent.

Abandonment 34 It is common ground that the existing club use, upon which the determination of DA 133/98 was based, has been physically abandoned for several years. Accordingly, the respondent must rebut the presumption in s 107(3) of the EP&A Act, namely that a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months. 35 In Woollahra Municipal Council v Banool Developments Pty Limited (1973) 129 CLR 138 the respondent had lodged a building application for use inconsistent with the existing use. Mason J, as he then was, rejected the conclusion by the primary judge that it was not enough for the respondent to have a subjective intention to continue the activities and that it was incumbent upon the respondent to indicate its intention in the applications or accompanying documents. His Honour said at 149 as follows:- A building application indicates the use to which the applicant proposes to put the land if his application is approved : the making of the application is not necessarily inconsistent with the existence of an intention to put the premises to their "existing use" if the application be refused.

36 There is, of course, an onus on the applicant who seeks to maintain an existing use to demonstrate that at all times there was a requisite intention to maintain the existing use (Star Property Investments Pty Ltd and Another v Leichhardt Municipal Council (2000) 111 LGERA 95). A distinction is to be made between an intention to maintain an existing use and a subjective intention to maintain existing use rights. 37 Relying on the principle established by the High Court in Banool, Hutley JA in Woollahra Municipal Council v T.A.J.J. Investments Pty Ltd (1982) 49 LGRA 123 at 128 recognised the established principle that an owner is entitled to take the view that they could apply for consent to change an existing use on the basis that if the consent was refused they would revert to the existing use. In the same case Mahoney JA used the example of where premises may be vacated by a tenant and that while the owner is seeking another tenant to use them for the same purpose, though they may be in fact vacant they nevertheless continue to be held for the purpose. Hope A-JA (as he then was) in Hudak v Waverley Municipal Council (1990) 70 LGRA 130 at 137 warned against a concept that an existing use will continue indefinitely despite absence of actual use merely because an owner has an intention to carry out the existing use or to resume it at some time in the future. Identifying the question of one of fact and degree, his Honour said that it is necessary to have regard to the whole of the circumstances, including the subjective intention of the relevant person and to determine in the light of all those matters whether the proof of the cessation of actual use is out weighed by an asserted objective intention to continue the use. As in the present case, his Honour pointed out that as years go by without actual use it may be difficult to rely on something of an indefinite character upon which the resumption of the use depends. His Honour used the example of a delay pending winning the lottery. 38 The facts show in the present case that Bondi Diggers were part of the joint venture to redevelop the premises, including a club, until the settlement of the Supreme Court proceedings on 29 June 2001. That was notwithstanding having vacated the premises in about October 1999 to allow works to commence pursuant to DA 133/98. 39 An important factor in considering whether there has been an abandonment of the club use is that DA133/98 firstly depended upon the existing use and thereafter the proposal has incorporated an intention to reinstate the club in the new building. It still does. 40 DA 138/02 is supported by an Statement of Environmental Effects which contains a number of statements which make reference to the club use. Both parties seek to draw support for their respective arguments out of the same statements. On balance, the Court reads these statements as an examination of the merits for approving the proposed development in DA 138/02 as opposed to reverting to the club use which, so it is put, should be regarded as less conducive to the residential amenity of the locality. The statements do not envisage an abandonment of the club use but rather threaten that if it continues the consequences could be adverse traffic and other impacts. The same observations can be made about an affidavit by a director of a company associated with the application for consent to DA 138/02. Although the affidavit was prepared in support of the respondent's case, ultimately the applicant tendered the affidavit as part of its case in reply. Rather than the material relied upon by the applicant supporting the argument that the existing use has been abandoned, the Court construes the statements as demonstrating the prospect that if Bondi Diggers do not return to occupy the premises, if built pursuant to DA 133/98, an alternative occupier for the purposes of a club will be sought out. Cross-examination of Andrew Mark Thomas, a director of Redwood, revealed that if DA 138/02 is unsuccessful the company would revert to the existing development consent and find a club to occupy the lower levels of the premises, although not necessarily the Bondi Diggers. In the meantime, no effort has been made to find an alternative club user. The company is waiting for DA 138/02 to be determined. Pursuing the development the subject of that latter proposal is its first preference. 41 Mr Thomas provides the evidence to support a subjective intention to maintain the existing use if the alternative use is not made available to the company. In accordance with the established principle starting with Banool and reinforced by subsequent decisions by the Court of Appeal, the Court is satisfied that Redwood has at all relevant times since June 2001 maintained the necessary subjective intention to maintain the existing use. The pursuit of the alternative use is truly no more than the exploration of the availability of an alternative use which, in itself, is indirectly dependant upon the establishment and maintenance of the existing use. The respondent's case is stronger for the fact that no relevant use conflicting with the existing use has been physically undertaken on the land since the club use ceased in October 1999. 42 It is not now strictly necessary to make a formal finding in relation to the existing use given that the respondent is entitled to proceed with DA 138/02 in accordance with the findings made earlier. However, the finding of whether or not there has been an abandonment may be relevant in the event that DA 138/02 is refused. Nevertheless, the Court is not satisfied that in the circumstances of this case the existing use has been abandoned in the relevant sense.

Orders 43 The applicant has not been successful in persuading the Court to grant any relief that it seeks. 44 There is no disentitling circumstance to which the Court's attention has been drawn. Accordingly, it may be expected that the Court will exercise its discretion in relation to costs by making an order that the applicant pay the respondent's costs. The applicant will be afforded an opportunity to refute that expectation within 14 days of judgment. 45 The formal orders of the Court are as follows:- (1) Application dismissed. (2) Subject to any application made by Notice of Motion within 14 days, the applicant is to pay the respondent's costs. (3) The exhibits may be returned.

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