Wyong Shire Council v Ardi Pty Ltd

WYONG SHIRE COUNCIL Applicant v ARDI PTY LTD Respondent

In these class 4 proceedings, Wyong Shire Council seeks a declaration that the respondent, Ardi Pty Ltd, is in breach of the terms of a development consent, and it seeks consequential injunctive relief.

The issue in the case is whether the premises known as Units 7A and 7B Gordon Road, Long Jetty ("the premises") have been used as a residential flat building rather than a dual occupancy building.

The premises, which are described as lot 262 DP 521614, are zoned 2(a) (Residential) under the Wyong Local Environmental Plan 1991 ("the LEP"). In that zone, dual occupancy development is permissible with consent, and residential flat buildings are an innominate use which is prohibited. Clause 7 of the LEP contains the following relevant definitions: 7(1) In this plan - … "dual occupancy building" means a building consisting of two dwellings on one allotment of land; "dwelling" means a room or number of rooms occupied or used, or so constructed or adapted as to be capable of being occupied or used, as a separate domicile; … "residential flat building" means a building containing three or more dwellings.

Development consent 589/92 was granted subject to conditions on 22 September 1992 by the council to the respondent for the erection of an attached dual occupancy building. The erection of the building was completed in 1996.

The building is a two storey brick veneer building, which has a frontage to Gordon Road, Long Jetty. It contains two attached units. Relevantly, the building has an entrance foyer which is common to each unit and from which the entrance to each unit is gained. Internally, each unit has a stairway leading from the ground floor to the upstairs section, and each upstairs section has a rumpus room, a bathroom and a balcony.

In or around March 1996, a lockable door was installed midway up the stairs leading to the upper level of unit 7B. In or around February 1997, a lockable door was installed at the foot of the stairwell of unit 7A.

The history of the various occupations of each of the units is relevant. As to unit 7A, it was initially leased to Mr T E Heydon, Ms L Heydon and Ms Seifert from 10 May 1996 to 21 February 1997. On the latter date, Ms Heydon and Ms Seifert moved out, and Mr Heydon requested from the respondent, through its managing agent, the right to occupy as tenant the upstairs section of unit 7A. He was permitted to do so by the respondent, and a separate electricity meter was installed in respect of the upstairs portion (the meter being removed when his tenancy ended). Shortly thereafter, the downstairs section of unit 7A was leased to another person. Those two occupations ultimately ceased, and the whole of unit 7A was leased pursuant to a residential tenancy agreement expiring on 6 October 2000. At the time of the hearing of these proceedings, unit 7A was vacant, but new tenants occupying the whole of the unit were due to commence occupation on 27 October 2000. In summary, then, the upstairs and downstairs sections of unit 7A have been let in separate tenancies, but the whole of unit 7A is now currently let in one tenancy.

As to unit 7B, only the downstairs section has ever been let. Currently, it is occupied by a tenant who is holding over from month to month and who has been in occupation since 27 January 1998. The upstairs section of unit 7B has been used since about March 1996 by Dr R J Desiatnik and his family for the purpose of an occasional visit and for storage. Dr Desiatnik is the sole director of the respondent.

Dr Desiatnik gave evidence that the visits to unit 7B by him and his family have on average taken place five times per year, and lasted between two and three days per visit, with no more than two persons in occupation at any one time. He said that he had furnished the upstairs section of unit 7B with a small bar fridge, a toaster, a kettle, a table and chairs, a couch and a double bed, but no cooking is carried out there. When Dr Desiatnik or members of his family are not in occupation of the upstairs section of unit 7B, it is vacant. The upstairs section has no separate water or electrical connections or meters, nor does it have hard wired cooking facilities. Furthermore, unit 7B does not constitute a mailing address for him or for his family, as they permanently reside in Sydney.

The crucial issue is whether the building is being used as a "residential flat building" , that is, whether it is a building containing three or more dwellings. That issue depends upon the proper construction of the definition of "dwelling" which, as I have earlier set out, means "a room or number of rooms occupied or used, or so constructed or adapted as to be capable of being occupied or used, as a separate domicile".

A number of cases were cited in argument as propounding the proper test to be applied in determining the issue, but they differ in their approaches and no universally applied test can be discerned from them.

In South Sydney Municipal Council v James and Anor (1977) 35 LGRA 432, the issue for determination turned on the definition of "dwelling-house" which was defined in the relevant ordinance as "a building designed for use as a dwelling for a single family". At p 440, Reynolds JA said that a building is used as a dwelling-house within that definition: … if its use is such that it can fairly be said as a matter of fact that it is occupied in much the same way as it might be occupied by a family group in the ordinary way of life and that it is not a use and occupation more appropriately described in other categories of residential buildings.

That test was applied by the Court of Appeal in Burwood Municipal Council v Aboriginal Hostels Ltd (1979) 39 LGRA 150 to hold that the building in question was being used for the purpose of a hostel and not for the purpose of a dwelling-house. The issue in that case involved a definition of "dwelling" in the relevant ordinance which was almost identical to the definition under consideration in this case. Samuels JA went on, at p 153, to express the obiter opinion that the word "domicile" in the phrase "separate domicile" found in the definition must be intended to bear its technical legal meaning as a place of permanent residence to which the subject, if absent, has the intention of returning. In the same case, Hutley JA reserved for future consideration the precise meaning of the phrase "separate domicile" .

A similar issue arose for consideration by the Full Court of the Supreme Court of South Australia in Masters v Padley (1984) 53 LGRA 417. There the definition which fell to be construed was that of "flat" which was defined in the relevant regulations as "a room or suite of rooms designed constructed or adapted for use as a separate domicile" King CJ, at p 422, rejected the legal meaning of "domicile" , and found the proper construction of the definition to be as follows: The definition is framed in terms of design construction and adaption, that is to say in terms of architectural design or physical character. The architectural design or physical character of a room or suite of rooms is not ordinarily determined by whether it will be used as a permanent home as distinct from a second home or a temporary place of residence … It seems to me that what … [the draftsman] … had in mind was a room or suite of rooms designed to be used as a separate and more or less selfcontained domestic establishment …

The obiter dictum of Samuels JA was not followed by Bignold J in North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd and Anor (1988) 66 LGRA 373 (at pp 381 - 382), his Honour preferring to adopt the approach of King CJ in Masters v Padley. The question in that case was whether a certain building was being used within the terms of a development consent authorising use as a "residential flat building" . On appeal ( North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd and Anor (1990) 21 NSWLR 532), Mahoney JA at 537 - 538 held that, in respect of the definition of "residential building" under the County of Cumberland Planning Scheme Ordinance, a number of descriptions were used involving different kinds of human habitation, and that the kind of human habitation involved in "residential flat building" within the definition envisaged a significant degree of permanency of habitation or occupancy.

It is not easy to reconcile the differing judicial pronouncements in the cases I have reviewed. In my opinion, the proper approach to the task of construction of the definition of "dwelling" in this case is to apply ordinary principles of construction and therefore to consider the definition in its context. The context in this case is the purpose for which the premises have been or are being used. Clause 10 of the LEP conventionally provides that the purposes for which development may be carried out without development consent or only with development consent or are prohibited are specified in the zoning table, and the descriptions of purpose or use set out in the zoning table are relevantly defined in cl 7(1) of the LEP. The relevant definition is that of "dwelling" and it is couched both in terms of use (viz "occupied or used" ) and in terms of physical layout (viz "constructed or adapted" ) . So far as concerns physical layout, it is useful to adopt the description propounded by King CJ in Masters v Padley , that is, a room or number of rooms constructed or adapted "as a separate and more or less selfcontained domestic establishment". But physical layout alone is insufficient; attention must be paid to the manner in which the particular premises are "occupied or used".

In the context of a planning control which regulates the purposes for which land may be used, it is appropriate, in my opinion, to think in terms of the ordinary meaning of "domicile" as a "place of residence", an "abode" or a "house or home" (see Macquarie Dictionary) rather than in terms of its technical legal meaning as being a permanent residence to which the subject, if absent, has the intention of returning. Characterisation of use is not generally concerned, from a planning control perspective, with the intentions of persons, but instead is concerned with the actual use to which the land is put (cf North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd and Ors (1989) 67 LGRA 344 per Kirby P (as he then was) at 353 in the context of existing uses). Accordingly, I refrain with respect from applying the obiter dictum of Samuels JA in Burwood Municipal Council v Aboriginal Hostels , and instead I focus my attention on whether or not the premises are being occupied or used, or are capable of being occupied or used, as a place of residence or home.

It is, of course, a question of fact as to whether a particular building falls within the definitions properly construed. For that reason, I reject as of no assistance the decision which I gave in Carmont v Ballina Shire Council (NSWLEC, 7 August 1998, unreported). That was a case where similar definitions were in issue, but the facts were different. The building in question had not been constructed, and therefore actual occupation or use was not in question. The issue accordingly turned on whether, from the relevant plans, the building was capable of being used or occupied as a separate domicile. In holding that it could not, I emphasised the purpose for which development consent was being sought.

I turn now to the evidence in this case. The critical physical fact is the lockable doors which close off the upstairs sections of each unit from the downstairs sections. There is also the fact that the upstairs sections of each unit have a separate bathroom. Furthermore, according to the approved plans, there is provision for separate electricity meters for each of the upstairs and downstairs sections of each unit. These facts lead me to find that the physical layout of the upstairs section of each unit is a separate and more or less selfcontained domestic establishment. Each upstairs section is so constructed or adapted as to be capable of being occupied or used as a separate domicile, in the sense, as I have indicated, of a place of residence, abode, house or home.

Mr Thompson, counsel for the respondent, submitted that the upstairs sections of each unit are not "capable" of being occupied or used as a separate domicile, because such use and occupancy would be illegal. As pointed out in the council officer's report to the council upon a development application made by the respondent in relation to the installation of the lockable doors, use and occupation of the upstairs sections would change the classification of the premises from class 1A to class 2 under the Building Code of Australia, and would be inconsistent with the provisions of the council's Development Control Plan No 58 (Dual Occupancy) Development Control Plan No 61 (Carparking), and Development Control Plan No 64 (Medium and High Density Residential Development). Furthermore, such use and occupation would be a non-conforming use under the LEP.

However I do not accept this submission. It would require the word "lawfully" to be inserted before the words "occupied or used" in each place where they occur in the definition of "dwelling" , so that a "dwelling" would be described by the definition only if the occupation or use of the room or number of rooms as a separate domicile was a lawful occupation or use. No such insertion is required in order to elicit the proper construction of the definition. The type of occupation or use which the definition of "dwelling" contemplates is one which is "as a separate domicile" . The definition qualifies "occupation or use" only in that manner. Furthermore, the word "capable" in the definition governs the words "constructed or adapted". For the reasons I have earlier outlined, those words indicate physical layout and they do not indicate any technical legal meaning. Finally, the context militates against the construction which Mr Thompson espoused. The task is to construe a definition in an environmental planning instrument. The controls which that planning instrument imposes are not to be found in the definitions of terms used in the instrument; rather they are to be found in the particular clauses which apply depending upon the definition into which a particular development might fall.

I turn now to the question of "occupied or used". Unit 7A is not now occupied or used as a separate domicile (in the sense I have earlier outlined), but both the upstairs and downstairs sections have been so occupied or used. It must follow accordingly that the upstairs section comprises a "room or number of rooms … so constructed or adapted as to be capable of being occupied, as a separate domicile". In other words, if the upstairs section of unit 7A was occupied or used as a separate domicile, it is "capable" of being so occupied or used.

I find as a fact that the upstairs section of unit 7B has been, and still is, "occupied or used as a separate domicile". Dr Desiatnik and members of his family occupy or use the upstairs section as a place of residence or abode on a number of occasions in each year. They may not be domiciled there in the technical legal sense, but the upstairs section is used by them as a more or less selfcontained domestic establishment in which they reside from time to time.

I conclude, therefore, that, within the terms of the relevant definitions in the LEP, Units 7A and 7B comprise four "dwellings" and that, accordingly, the premises comprise a "residential flat building" . The use of the premises as a "residential flat building" does not conform to the terms of the development application, and the council is accordingly entitled to the declaration which it seeks.

It remains to consider whether the Court should, in the exercise of its discretion, grant the consequential relief which the council seeks.

The majority of the orders which the council seeks would require the respondent to comply with the terms of the development consent, and to be restrained from using and occupying the premises in breach of the development consent. A further order would require the removal of the lockable doors.

Mr Berveling, appearing for the council, submitted that the Court should exercise its discretion in the council's favour because the breach of the development consent was not merely a technical breach. Instead, he submitted, it has the effect of converting an authorised use into a non-conforming one, and it changes the classification of the premises under the Building Code of Australia, which has implications in terms of fire safety.

On the other hand, Mr Thompson pointed to the fact that Dr Desiatnik's occupation or use of Unit 7B is infrequent, and that Unit 7A is now let in its entirety. Mr Thompson also submitted that the lockable doors serve a security purpose, and that there was merit in having them remain in place.

Bearing in mind the guidelines for the exercise of discretion set out in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339 - 341, I consider that the breach of the development consent which has been established is not merely technical, and that it is a "continuing breach by conduct which could quite easily be modified to bring it into compliance with the law" (at p 340). It is appropriate that the Court should make the orders which relate to compliance with the development consent, and which restrain occupation or use otherwise than in accordance with the development consent.

However, I am prepared, in the exercise of the Court's discretion, to refrain from ordering the removal of the lockable doors. Although the lockable doors facilitate the use of the premises as a residential flat building by contributing to the physical layout of the premises as separate dwellings, a critical factor remains the use of the premises. So long as the premises are used in compliance with the development consent, it is not essential that the lockable doors be removed, and I accept that they do serve a security purpose.

In accordance with the foregoing, I make the following declaration and orders:

(1) I declare that the respondent, by itself, its servants, agents or assigns is in breach of the terms of development consent no 589/92 in relation to land being lot 262 DP 521614 generally known as Units 7A and 7B Gordon Road, Long Jetty (hereinafter referred to as "the premises"); (2) I order that the respondent, by itself, its servants, agents or assigns:

(a) comply with the terms of development consent no 589/92 in relation to the premises; (b) be restrained from using, causing or permitting the premises to be used or occupied in breach of the terms of development consent no 589/92; (c) be restrained from using, causing or permitting to be used part of the premises generally known as Unit 7A for the purposes of separate occupancy; and (d) be restrained from using, causing or permitting to be used part of the premises generally known as Unit 7B for the purposes of separate occupancy.

(3) I reserve the question of costs. (4) The exhibits may be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

(b) be restrained from using, causing or permitting the premises to be used or occupied in breach of the terms of development consent no 589/92;

(c) be restrained from using, causing or permitting to be used part of the premises generally known as Unit 7A for the purposes of separate occupancy; and

(d) be restrained from using, causing or permitting to be used part of the premises generally known as Unit 7B for the purposes of separate occupancy.