THE COUNCIL OF THE CITY OF SYDNEY v VALAISIS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, PRIESTLEY and MCHUGH JJA 4 February 1988, 20 May 1988 [1988] NSWCA 31 Land and Environment — appeal from decision of Land and Environment Court allowing an appeal against the Council's refusal of development consent — construction of "existing use" provisions of s106(a) of the Environmental Planning & Assessment Act 1979 and CL51 and CL54(2) of the Environmental Planning & Assessment Regulations1980 — North Sydney Municipal Council v Bevillesta Pty Limited (CA, 19 March 1987, unreported) applied — appeal allowed. "Existing use" Statute - construction - Environmental Planning & Assessment Act 1979 - s106. Environmental Planning & Assessment Regulations1980 - CL51 and CL54(2). ORDERS Appeal allowed and orders below set aside orders substituted dismissing the Appellant's appeal to Bignold J and refusing development consent. Respondent to pay Appellant's costs of the appeal and to have a certificate under the Suitors Fund Act. Samuels JA This was an appeal from a decision of Bignold J in the Land and Environment Court by which he allowed an appeal by the present respondent against the present appellant's determination refusing consent to a development application to use premises known as No 304A Chalmers Street Redfern for the purpose of a refreshment room or restaurant. When the appeal came on the respondent appeared in person as indeed he had done below. The Court informed him that on 19 March 1987 (Bignold J's decision was given on 27 August 1986) it had delivered judgment in North Sydney Municipal Council v Bevillesta Pty Limited (unreported) which might well determine the appeal against him; and the respondent was urged to consider obtaining legal assistance. However, he preferred to continue the case in person and it is evident from the record of the proceedings below that he is no stranger to the role of advocate. So the case proceeded and we should acknowledge the assistance which we, and the respondent also, for that matter, received from the detached and capable argument of Mr Ayling of counsel for the appellant, who not only protected his own client in the most competent fashion, but laid out with scrupulous fairness the arguments which could possibly be urged for the respondent. The respondent provided us with several pages of written arguments, much of which was irrelevant, together with a sheaf of documents including previous decisions of the Local Government Appeals Tribunal delivered in various bouts of the litigation which has proceeded over the years between him and South Sydney Municipal Council, in the first instance, and then its successor, The Council of the City of Sydney. We derived little or no assistance from this. However, the issues in the case are plain and the facts tolerably clear, so that it has not been necessary to undertake the task of discriminating in the appellant's material between evidence of fact and submissions upon fact and law. In the 2 UNREPORTED JUDGMENTS proceedings before Bignold J the respondent, as I have said, appeared in person. He did not give any evidence. A document, which was described from time to time as an "affidavit" of 24 February 1986, does not appear ever to have been sworn, and at no time did the respondent venture into the witness box, although he called some evidence upon the planning aspects of his application. He was permitted by Bignold J, rather unfortunately I think, to persist in making statements of fact from the bar table which cannot be accorded any evidentiary weight, save to the extent that they might represent admissions against the respondent's own interest. In the proceedings below, the present appellant submitted that the court had no power to uphold the appeal because the proposed development was for a purpose prohibited by the City of Sydney Planning Scheme Ordinance ("the Ordinance") which was the relevant environmental planning instrument, (the premises were zoned 2(b) and in consequence their use for "refreshment rooms" was prohibited under Column V of the table set out in CL23 of the Ordinance) and was not sanctioned by any right of existing use under Division 2 Part IV of the Environmental Planning and Assessment Act 1979 ("the Act"). Bignold J, having dealt with a matter of estoppel (a conclusion which was initially challenged in the appellant's notice of appeal but which is no longer in issue), applied a construction of CL54(2) of the Environmental Planning and Assessment Regulation 1980 ("the Regulation") which was consistent with his own prior decision in Bevillesta which, as I have already indicated, was ultimately reversed by this Court. I think that it is necessary to supply some factual background to the issue of law upon which, in my opinion, the matter must ultimately be determined. The "relevant date" in relation to existing use was 16 July 1971 upon which day the environmental planning instrument came into force see s106(a) of the Act and CLS1 of the Regulation. The premises in question, No 304A, consist of an upper storey added to existing shop premises known as Nos 304, 306 and 308 Chalmers Street. That addition was made, with consent, in 1963; and I take the remaining relevant history of the premises from the report adopted in evidence by Mr B J Holland, the appellant's Chief Planner-Research, Information and Appeals. This evidence was not controverted by any evidentiary material led by or on behalf of the respondent and I see no reason why it cannot be regarded as entirely reliable. In late 1968 the subject premises (by which I mean No 304A) were approved for use as a billiard saloon, a use which continued on until some date between April and October 1970. In January 1971 the appellant granted consent for the use of the premises as a restaurant, but the consent was never implemented by the respondent, and the premises were not used for that purpose until, possibly, late in 1971 and pursuant to separate consent. In the document to which I have referred as the respondent's "affidavit", there is this statement: "On 16/7/71, being relevant date of commencement of City of Sydney Planning Scheme Ordinance, I did not use as refreshment room because of incorrect advice given by Council to prospective tenants. I used as my private office." It is clear therefore that immediately before the relevant date the premises were not being used as a restaurant or refreshment rooms and, subject to the weight to be given to the respondent's assertion that he was using the premises on that date as his private office, there is evidence that in July 1971 the premises were not being used at all, and that in October 1971 the premises bore a "To Let" sign which was still to be seen in November 1971. At some stage early in 1972 the premises were occupied as a clothing factory without the appellant's consent. Various URJ THE COUNCIL OF THE CITY OF SYDNEY v VALAISIS (Samuels JA) 3 unauthorised uses followed, which it is unnecessary to note in detail, until on 7 October 1977 the Local Government Appeals Tribunal granted consent to the use of the premises as a refreshment room for a period of six years. However, by January 1978 any such use had terminated. During that year "To Let" signs were displayed in the window of the premises which, it seems, were not used for any purpose before the consent of 1977 expired on 7 October 1983. There were then some proceedings in 1984 about the use of the premises as an amusement parlour; finally, the subject application was made and the proceedings, with which we are concerned, followed. In my view, it is clear that immediately before the relevant date the premises were not being used as a restaurant or as refreshment rooms, so that the respondent cannot assert any existing use of that kind see s106(a) and cl51. He has argued that he did use the premises on the relevant date as an office, that is to say, as commercial premises, a use also prohibited under the environmental planning instrument and thus available, if it had existed, to establish an existing use Within s106 and CL54, save for one critical element. In s106(a) of the Act "existing use" is defined to mean use "for a lawful purpose" Immediately before the relevant date, the County of Cumberland Planning Scheme Ordinance regulated development in the area and the premises were zoned "Living Area". By dint of Column IV in the table attached to CL26 of that ordinance, the premises could have been used as commercial premises with the consent of the responsible authority. But there is no evidence that any consent Was ever given, even if I were to assume in the respondent's favour that there was evidence that he had in fact used the premises for the purpose specified at the relevant time. There is no such evidence, merely his unsworn assertions; but, assuming there is, there is nothing to show that such a use was a lawful one. Accordingly, the respondent has failed to establish any existing use right attached to the subject premises. However, although Bignold J came to that conclusion, he nevertheless felt able to extend to No 304A the undoubted existing use entitlement Which attached to No 308 as a refreshment room. I should interpolate that there is evidence which has not been challenged that Nos 304, 304A, 306 and 308 may be regarded as a "shop building complex" and thus as separate parts of the same building. On that basis the learned judge turned to CL54(2) of the Regulation which is in these terms: "Where a building, work or land is being used for more than one existing use, the proportions in which the several parts of the building, work or land are being so used may, with consent under the Act being obtained therefore, be changed." There were, in addition to the existing use of No 308, other and different existing uses attaching to Nos 306 and 304. Bignold J then construed CL54(2) as permitting the extension of the existing use of No 308 to No 304A which, as I have already pointed out, had no existing use entitlement. In doing so, he founded not only upon what he took to be the preferable construction of the clause but also upon his application of the same interpretation in Bevillesta. However, on appeal this Court (Kirby P, Mahoney & Priestley JJA) expressed the view that CL54(2) only authorised a change in proportionate use between several parts of a building each of which was being used for an existing use. Each part of the building involved in the transfer of use must itself be in use for an existing use. Consequently, one cannot supply a use to a part of a building not in use by extending portion of the use to which another part of the building is being put. Since No 304A has not relevantly been used for an existing use, it cannot now 4 UNREPORTED JUDGMENTS become the subject of an existing use by taking the transfer of some portion of an existing use from some other part of the building. That conclusion disposes of the appeal. The respondent, as I understood him, requested that if this Court was of the view that Bignold J fell into error, we should return the case to the Land and Environment Court to enable reconsideration of the evidence already given, or the taking of new evidence. The only purpose of the exercise would be to enable the respondent to produce evidence tending to establish some existing use, immediately before the relevant date. But he has already had ample opportunity to do this and has not merely failed to adduce that evidence; he has failed to offer any evidence at all, or to present himself for cross-examination. In those circumstances I see no point in remitting the matter and in my judgment the appeal should be allowed, the orders below set aside, and orders substituted dismissing the appellant's appeal to Bignold J and refusing development consent. The respondent must pay the appellant's costs of the appeal, and is entitled to a certificate under the Suitors Fund Act. Priestley JA I agree with Samuels JA. McHugh JA I agree with the orders Proposed by Samuels JA and with his reasons. The appeal is allowed, the orders below are set aside, and orders are substituted dismissing the appellant's appeal to Bignold J and refusing development consent. The respondent must pay the appellant's costs of the appeal, and is entitled to a certificate under the Suitors Fund Act.