Zolnay v Ashfield Council

9 The Applicant submitted another application No. 68/168/55251 (dated 28 February 1968) to further sub-divide the existing owners flat (the larger of two previously consented flats). This would have created 3 self-contained residential flats at the subject site. This application was refused (as was a further appeal based on special circumstances) because the building would not comply with the Council's Development Control requirements for Residential Flats and Home Units.

10 The Applicant was successful with another, separate application for a rear addition and two subfloor garages at the front of the building for use by the two flats. These were approved on 7 January 1969 with Building Application No. 8.1968.7056.1. Note - it was agreed between the parties that the date stamp for the approval of the plans for these alterations of 7 January 1968 was incorrect because the application was submitted on 19 December 1968. Hence the correct and agreed date of approval Building Application No. 8.1968.7056.1 is 7 January 1969.

The proposal 11 The proposal before the Court is for three units. As noted above, approvals for work on the subject property enabled it to be converted into two flats via permit No. 731, dated 1 March 1967 and Building Application No. 6.1967.6198.1 on 3 April 1967. Further work on the property for a rear addition and subfloor garages for the two flats were approved for the subject site on 7 January 1969 via Building Application No. 6.1968.7056.1. Legislative and planning framework and issues in dispute 12 The principal instrument controlling development in the area is the Ashfield Local Environmental Plan (ALEP) (as amended) and the Environmental Planning and Assessment Act, 1979. Building design and related controls are provided in the Ashfield Development Control Plan 2007.

13 The subject property is within the 2(a) Residential Zone - clause 10 of the ALEP. It is relevant to note that the ALEP adopts the definitions provided in the Environmental Planning and Assessment Model Provisions, 1980. The relevance of these provisions and their definitions is provided below.

14 There were several building design and town planning related issues arising from the original, but amended proposal for a three unit development that were agreed between the parties during the course of the hearing. Consequently, building and town planning design issues did not form part of the dispute that the parties asked me to hear.

15 Consequently, the sole issue dividing the parties was whether or not the Applicant was able to rely upon the existing use rights provision within Division 10 of the Environmental Planning and Assessment Act, 1979 (EPAA) and Part 5 of the Environmental Planning and Assessment Regulation, 2000 (EPAR) to enable the application's merit components to be considered. Existing use is defined under s 106 of the EPAA: 106 Definition of "existing use" In this Division, existing use means:

(a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4A of Part 3 or Division 4 of this Part, have the effect of prohibiting that use, and

(b) the use of a building, work or land: (i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and (ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse. 16 Therefore, the question before the Court is to establish whether the Applicant has an existing use right arising from the consents provided in 1967 and 1968 as well as the subsequent use of the building since that time. The Council's case 17 It is the Council's view that the proposal is not permissible under the ALEP, clause 10, since the land upon which the subject site is located is Residential Zone 2(a). Development permissible in Zone No 2 (a) is as follows: Zone No 2 (a) (Residential Zone)

Exempt development, flood mitigation, public utility undertakings, railway undertakings.

Child care centres; dwelling-houses; educational establishments; home industries; home occupations; hospitals not exceeding one storey in height; open space; places of public worship; professional consulting rooms; roads; utility installations (other than gas holders or generating works).

Any purpose other than a purpose included in item 1 or 2.

18 The current unauthorised use for five self-contained residential flats and the proposed conversion of the dwelling at 2 Drynan Street into three self-contained residential flats is not permissible under the ALEP. The parties agreed that residential flat buildings were not permissible under the current ALEP in Zone 2(a).

19 It was the Council's view that the Applicant has not demonstrated that the existing building, as a residential flat building, is a lawful use within the 2(a) Residential Zone. Therefore, the subject property cannot benefit from 'existing use rights' pursuant to s 106 of the EPAA and consequently the application should not be approved. The Applicants case 20 The Applicant argues that the building has been used as a 'residential flat building' since 1967 and contends that because the 1967 consent and building approvals were commenced they have not lapsed and are still 'alive'. It was also argued that because the dwelling still contained two flats, then the consent remained alive. It was contended that this was the case irrespective of the three other additional unlawful flats as well as the various other unapproved internal and external building works that had been undertaken at the subject site.

21 In addition, the Applicant contended that the category of the development approved was a 'residential flat building' and that because this was continued at all times after the 1967 consent, this provides the Applicant with the basis of existing use. Existing use rights enables a use to be continued or altered in accordance with Division 10, Existing Uses in the EPAA along with the subordinate legislation under part 5 of the EPAR. Consequently, a fundamental aspect of the existing use rights question is whether or not the 1967 consent can be considered to be a consent for a residential flat building. This issue is examined below. The 1967 consent and its relationship to residential flat buildings 22 In the affidavit provided by the Applicant, Mr Zolnay, he stated that since the end of 1969 there were at least three separate flats (dwellings) at the subject site. By the mid 1970s, all of the work associated with the 1967 and 1969 approvals were completed. Further, from the mid 1970s, the dwelling was divided so that it contained five separate dwellings, a situation which continued up until at least the time of the submission of development application No. 10.2007.154.1 on 28 June 2007.

23 It is clear from the ALEP at clause 10 that residential flat buildings are not listed as a permissible use. The original consent in 1967 was for the "conversion of the dwelling house to two self-contained residential flats", which was made pursuant to the Local Government (Amendment) Act 1951 and the Cumberland County Planning Scheme Ordinance (CCPSO).

24 The 1967 consent stated: Approval:- The County of the Municipality of Ashfield as the responsible authority hereby permits: conversion of the dwelling house to two self-contained residential flats. 25 The 1967 consent conditions stated that the: approval by the Council of and specifications in compliance with [my emphasis] the Local Government (Regulation of Flats) Amendments Act 1963 , the Local Government Act, 1919 , the ordinances thereunder and the Council's requirements. 26 The consent does not provide approval for a 'residential flat building'. The Applicant, in his written submissions (section 5.9), drew the Court's attention to the definition of a residential flat building (RFB) in the dictionary of the Environmental Planning and Assessment Model Provisions, 1980. The ALEP, clause 8 adopts the definitions given this instrument. In the Applicant's written submissions, he mistakenly stated that a RFB means a building containing two or more dwellings. The correct definition is: residential flat building means a building containing 3 or more dwellings, but does not include a an attached dwelling or multi dwelling housing. 27 Further perusal of the dictionary definitions in the Environmental Planning and Assessment Model Provisions, 1980 defines dual occupancy, which is in effect what was provided for in the 1967 consent: dual occupancy means 2 dwellings (whether attached or detached) on one lot of land. 28 As noted by the Respondent, the onus is upon the Applicant to deduce the appropriate evidence to demonstrate existing use (see Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 4) [2008] NSWLEC 149, in particular paras [16, 17, 26]). In this regard, the Applicant has not, in my view, demonstrated that the 1967 consent is for a residential flat building for which he now seeks consent. Indeed, no evidence has been provided to me of any relevant definitions from either the Local Government (Amendment) Act 1951 or the CCPSO, the instruments under which consent was provided in 1967, which might illuminate this matter.

29 Consequently, it would appear that the consent in 1967 was simply to create two flats from the extant single dwelling at 2 Drynan Street. Importantly, dual occupancy is still permissible with consent of the Council - clause 13 (1) (a) of the ALEP - Dwelling Houses-dual occupancy, which states: alter or add to a dwelling-house erected on an allotment so as to create 2 dwellings 30 Therefore, the application to apply existing use rights (s 106 (b) (i) of the EPAA) to the subject site cannot apply because the original consent was not for 'residential flat building'. Further, two dwellings as a dual occupancy are still a permissible use in the zone, with consent of the Council. Consequently, the application for a three dwelling residential flat building must fail. The question of existing use rights arising from the 1967 consent 31 Even if I am wrong in the interpretation of the definition of the dwelling at 2 Drynan Street, there remains another second, fundamental issue upon which the application for existing use rights must be assessed. This is s 106 (a) of the EPAA, which states that the use of the building or land must be for a lawful purpose.

32 The use of 2 Drynan Street at the date of the ascent of the ALEP, 20 December 1985, was, as admitted by the Applicant, not lawful because the building contained five flats as opposed to the 1967 consent for two flats.

33 The development application that forms this appeal is to modify the existing building at 2 Dynan Street to convert it from its current use of five residential flat dwellings to three residential flats, to form a residential flat building.

34 The initial starting point for assessment of this development application must be the question of whether or not the proposed use (residential flat building) could be carried out in the location's Residential Zone 2 (a) today. Examination of clause 10 of the ALEP reveals that residential flat buildings are not listed as permissible and are therefore a prohibited use. As noted above, there was agreement between the parties on this question.

35 In recognising this fact the Applicant seeks legal authority for the approval of the current development application under part 4, Division 10 of the EPAA (existing use) and also under Part 5 (Existing uses) of EPAR, the object of which is to regulate existing uses.

36 However, fundamental to this approach must be that the use of the building at the date of the ascent of the ALEP can be classified as a lawful existing use. If it cannot then there is no power under Part 5, Division 10 of the EPAA because there is no lawful existing use to change.

37 The use that was being carried out at the time of the ascent of the ALEP and that has continued to be carried out at the subject site when the development application was submitted was a building containing five dwellings, which was being used as a residential flat building.

38 The Applicant conceded that neither the physical form of the building nor the use of the building conforms to the original 1967 consent. However, the Applicant contended that if the building was altered from its present state by removing walls and rooms, the physical form of the building could be brought into accordance with the 1967 consent.

39 Nonetheless, this is not the question for determining the use of the dwelling under s 106 of the EPAA. The question that needs to be addressed is the use of the building at the relevant date, which is the ascent of the ALEP in 1985.

40 Thus, because the building is constructed with five dwellings and was and continues to be used as a residential flat building, this cannot be construed as the same use as that provided for the 1967 consent (permit number 731). Consequently, its use is unlawful.

41 While there exists development consent for a building with two dwellings along with the use of those dwellings as self-contained residential flats, there is no development consent or authority that permits lawfully either the use of the building as a residential flat building or its use for five flats. Consequently, the current building and its use is not in accordance with the terms of the 1967 consent.

42 Consequently, it follows that there is no existing use as defined under s 106 (a) of the EPAA: the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4A of Part 3 or Division 4 of this Part, have the effect of prohibiting that use, 43 Therefore there can be no foundation for any application under the EPAA or the regulations (EPAR) to alter or rebuild the building or to change its use. As there is no other source of authority, the appeal must fail.

Findings 44 Firstly, in regards to the question of whether the dwelling as consented to in 1967 is a 'residential flat building', I find that there is no evidence to support such a contention. The original consent provided for two self-contained residential flats and there is no evidence to contradict the definitions provided in the Environmental Planning and Assessment Model Provisions, 1980. These state that a "residential flat building means a building containing 3 or more dwellings". Consequently, it flows from this that the consent in 1967 cannot be defined as providing a residential flat building. This therefore has the effect off nullifying the Applicant's contention that it has existing use rights on the basis that the consent was for a residential flat building. Consequently the appeal must fail.

45 Second, the Applicant seeks legal authority for approval of the development application using a claim of existing use rights for the building as a residential flat building, but in doing so it needs to prove that the building, work or land was for a lawful purpose immediately before the coming into force of an environmental planning instrument (the ALEP in 1985). The Applicant has not demonstrated to my satisfaction that it has met this requirement and consequently on this criteria, the appeal must also fail.

Orders Therefore, the orders of the Court are: i. The appeal 10918 of 2008 in respect 2 Drynan Street is refused. ii. The development application No. 10.2007.154.1 under s 97 of the Environmental Planning and Assessment Act 1979 for consent to convert the existing dwelling at 2 Drynan Street into three units, is determined by refusal. iii. The exhibits are returned.

Dr Mark Patrick Taylor Commissioner of the Court

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