THE COUNCIL OF THE MUNICIPALITY OF KU RING GAI v MOBIL OIL AUSTRALIA LTD SUPREME COURT OF NEW SOUTH WALES KIRBY P, MAHONEY and CLARKE JJA 15 April 1992, 3 June 1992 [1992] NSWCA 48 BUILDING CONTROL and TOWN PLANNING — existing use rights — proposed enlargement and expansion of service station and adjoining land whether local authority empowered to give consent for enlargement or expansion of established existing use — whether such consent should be granted in the instant case — whether matter should be remitted to Land and Environment Court for reconsideration in the light of reg52-reg54 Environmental Planning and Assessment Regulations 1980 — held: (Clarke JA; Kirby P and Mahoney JA concurring): (1) Upon the assumptions agreed to by parties that (a) the development application involved a rebuilding of the existing service station; (b) that where the word "allotment" appeared in the Regulations, it referred to a particular lot identified in the relevant plan deposited at the Registrar General; and (c) that it was conceded that the lot here in question was a single allotment at the critical date at which existing use rights were to be determined, the local government authority was empowered to grant consent, in appropriate cases, to applications for enlargement or expansion of such existing use rights; (2) Although, in reaching his decision, Stein J in the Land and Environment Court had not considered whether consent should be given under Reg53 and Reg54 of the Regulations, there was no point in returning the matter to that Court for decision on the merits as the manner in which Stein J had determined the application made it clear that it was, in his opinion, an appropriate case in which to give consent; (3) Accordingly, appeal dismissed. Vaughan Taylor v David Mitchell Melcann Pty Ltd and Anor (1991) 73 LGRA 366 (CA) considered. Environmental Planning and Assessment Act 1979, s107, s108, s109. Environmental Planning and Assessment Regulations 1980, 152, 153, r54. Ku Ring gai Planning Scheme Ordinance 1971. Kirby P I agree with Clarke JA. Mahoney JA I have had the advantage of reading the judgment of Clarke JA. Upon the assumptions referred to in his Honour's judgment, I agree with the orders proposed and his Honour's reasons for them. Clarke JA There is a service station and motor vehicle workshop on the corner of Pacific Highway and Gladstone Parade, Lindfield. It has been there since 1937 and has been owned by the respondent for many years. In September 1965 the respondent purchased the adjoining block of land on which a dwelling house stood. It continued, however, to conduct its operations on the corner block on which the service station was situated. On 30 September 1971 the two lots of land were consolidated as Lot | upon registration of DP551244. At about or shortly after this time the dwelling house standing on the land which was acquired in September 1965 was demolished and the land has remained vacant ever since. On 17 April 1989 the respondent lodged a Development Application with the appellant to redevelop Lot 1 in DP551244 for the purposes of a service station and convenience store. 2 UNREPORTED JUDGMENTS The broad outline of the development application is set out in the judgment under appeal in terms which I repeat: "Mobil's development application is to demolish the existing two storey service station and workshop, now more than 50 years old, and replace it with a new self service petrol facility and convenience store repositioned on the site. The new building will be single storeyed with substantially less area and floor space than the existing building. The relocation of the building on the site enables the driveways and cross-overs to be redesigned, on site parking to be provided as well as extensive landscaping. The area of the lot is 1,726 sq m with a frontage of 49.7m to the highway and 26.2m to Gladstone Parade to the south. The northern boundary is 53.59m and the western boundary is 43.61m in length. Residential flat buildings are located immediately to the north and west and also on the opposite eastern side of the divided 6 lane highway" The appellant refused the development application on the basis that the proposed uses were prohibited in the residential 2(d) zone in the Ku ring gai Planning Scheme Ordinance ("the Ordinance") and existing use rights as a service station did not extend over the full area of the site the subject of the application. In further explanation of the objection I should point out that on 1 October 1971 the Ordinance, which had been proclaimed by the Governor on 29 September 1971, was published in the New South Wales Government Gazette and became operative. Accordingly, and this was agreed, the critical date for the determination of existing use rights was | October 1971. The respondent appealed from the decision refusing the development application and its appeal was heard by Stein J. When the matter came on for hearing the parties submitted a statement of agreed facts and invited his Honour to determine, upon the basis that the proposed uses were prohibited in the relevant zone, whether the existing use rights enjoyed by the respondent enabled the appellant, and therefore the Court, to grant its development application. The submission of the appellant before Stein J, and also before this Court, was that the northern section of Lot 1 in DP551244, upon which the dwelling had stood, did not enjoy existing use rights and accordingly Reg52-reg54 of the Environmental Planning and Assessment Regulations 1980 ("the Regulations") did not permit the use of that section for any use or uses prohibited under the Ordinance. Stein J rejected this submission and, after considering the merits of the appeal, granted conditional consent to the development application. The appellant submits that the existing use rights in respect of the subject land are confined to the corner lot upon which the service station has been operated since 1937 and that no power is to be found in the Environmental Planning Assessment Act ("the Act') or the regulations for the granting of a development application which involved prohibited uses under the Ordinance upon that part of the land which does not enjoy existing use rights. It is important to observe at the outset that the case was conducted upon the basis of two assumptions. They were: (1) That the development application involved the rebuilding of the existing service station. (2) That where the word "allotment" appeared in the relevant regulations it referred to a particular lot identified in the relevant plan deposited at the Registrar General. In this respect it was conceded that Lot 1 in DP551244 was a single allotment at the critical date (that is, 1 October 1971). UIRKE COUNCIL OF THE MUNICIPALITY OF KU RING GAI v MOBIL OIL AUSTRALIA LTB (Clarke JA) It must be emphasised, however, that although it was said that both assumptions were justified on the authorities (see Panaretos v Rockdale MuniciPal Council (1965) 12 LGRA 139, Parramatta City Council v Bolton (1974) 2 NSWLR 241, at 252-3, Parramatta City Council v Martelli and Co Pty Ltd (1977) 2 NSWLR 818, at 821, as to rebuilding and Ku ring gai Municipal Council v Kuttner (1979-81) 41 LGRA 1, as to allotment) this Court has not examined the correctness of the assumptions but has, on the invitation of both parties, accepted that they are both justified. When the Act came into force on 1 September 1980 it included a number of sections dealing with existing uses. They were contained in Division 2 of Pt4 of the Act. Some of the relevant provisions were amended in 1985 and 1986. In particular subs(b1) was added to s107(2) in 1985, subs(c) was added to s108(1) in 1986 and subs(2) and subs(3) were added to s109 in 1985. There were other amendments but it is not necessary to refer to them. The point which is raised in this appeal concerns primarily s107 and s108 the relevant provisions of which I set out in their amended form. They are: "s107. (1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use. (2) Nothing in subs(1) authorises: (a) any alteration or extension to or rebuilding of a building or work; (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned; (b1) without affecting para(a) or para(b), any enlargement or expansion or intensification of an existing use; (c) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in s91(3)(b); or (d) the continuance of the use therein mentioned where that use is abandoned..." "108. (1) The regulations may make provision for or with respect to existing use and, in particular, for or with respect to: (a) the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use; and (b) the change of an existing use to another use; and (c) the enlargement or expansion or intensification of an existing use. (2) The provisions (in this section referred to as 'the incorporated provisions' ) of any regulations in force for the purpose of subs(1) shall be deemed to be incorporated in every environmental planning instrument. (3) An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force..." The arguments in the appeal did not traverse the effects of s109 and it is accordingly unnecessary to set that section out although it should be noted that some of the considerations which arise in relation to s107 have been considered by this Court in the context of s109. During the argument it was said that it was clearly the intention of the draftsman of s106-109 of the Act to overcome the 4 UNREPORTED JUDGMENTS liberal construction of "existing use of land" developed by the High Court in a series of cases in the 1970's (see Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1, Eaton and Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 and Norman v Gosford Shire Council (1975) 132 CLR 83) and that the amendments effected in 1985 and 1986 were a further legislative response to the liberal construction of the existing use provisions in the Local Government Act 1919 which preceded the enactment of the Act. This seems to have been generally accepted. In Vaughan Taylor v David Mitchell Melcann Pty Ltd and Anor (1991) 73 LGRA 366 Priestley JA said (at 373): "The effect of s109, as it was interpreted in light of the High Court decisions, was radically changed by the addition to it, operative from 3 February 1986, of subs(2). That subsection requires that 'use' be understood in a much narrower sense than before; its effect was, in my opinion, to limit the continued use previously permitted by s309 and s109 without consent, to the actual use of the land on the day when the planning laws otherwise would have affected it, that actual use being confined to the land actually (as opposed to potentially) physically being used, and the extent of the use of that land likewise being limited to its extent on that day." (See also Mahoney JA at 371 and Meagher JA at 376.) §$107(2) is in identical terms with s109(2) and I do not think it can be doubted that s107(2) had the same effect as s109(2) insofar as it limited the ambit of "existing use" where that expression appears in s107(1). In accordance with Vaughan Taylor (supra) the effect of s107(2) was to limit the existing use of which s(1) speaks to the land actually physically being used at the relevant date (that is, 1 October 1971). Upon that interpretation of the Act s107 provides no support for the respondent's case. At the date upon which the ordinance became operative no part of the northern section of the respondent's land was physically used as either a service station or a convenience store. Accordingly, the respondent's existing use rights under s107 were limited to the southern section of the land. However the new legislation, and its amendments, had a broader effect than simply to narrow the existing use which could lawfully be continued under s107. It introduced a provision, s108, which authorised the making of regulations enabling, for instance, the rebuilding of a building being used for an existing use and the change of one existing use to another use. Pursuant to the power contained in sl08 regulations were made and they appear in Pt6 of the Regulations which came into force on 26 August 1980. In the result existing use rights were to be more narrowly interpreted than had previously been the case while enlargements of, and other alterations to, existing uses were facilitated with the consent of the relevant local government authority. This was also made clear by Priestley JA in Vaughan Taylor (supra at 374) when he said: "Thus the legislature achieved the result, in my opinion, in cases of use of land predating the commencement of planning controls inconsistent with such use, of restricting the enlargement of such use to situations where a control authority exercised a power to consent to such enlargement after appropriate investigation of any environmental issues." The regulations on which the respondent relies are Reg53 and reg54 which, as amended in 1981, read: UIRKE COUNCIL OF THE MUNICIPALITY OF KU RING GAI v MOBIL OIL AUSTRALIA LTB (Clarke JA) "53(1) For the purposes of s108(1)(a) of the Act, a building or work being used for an existing use may, with consent under the Act being obtained therefor and subject to subCL(2), be rebuilt. (2) Any rebuilding of a building or work referred to in subCL(1) shall: (a) be for the existing use of the building or work or for a use changed or consented to be changed in accordance with CL254 but for no other use; (b) be carried out only on the allotment or allotments on which the building or work was erected or carried out immediately before the relevant date; and 54(1) For the purposes of s108(1)(b) of the Act, an existing use may, with consent under the Act being obtained therefor, be changed to another use, including a use which would otherwise be prohibited under the Act. (2) 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 therefor, be changed. (3) Where an existing use has been changed to another use in accordance with subCL(1), the latter may, with the consent under the Act being obtained therefor, be changed to another use, including a use which would otherwise be prohibited under the Act." The development proposed by the respondent involved two significant alterations to its existing use of the land. In the first place it sought to rebuild the building being used for the existing use on a larger area of land than had previously physically being used for that use. In the second place it sought to change the existing use of the land as a service station to a use as a service station and convenience store. This, it was accepted, was a different use from the existing one. The respondent accepts that its existing use rights under s107 are insufficient to authorise the development. But its counsel contends that the appellant had power under Reg53 and reg54 to consider and, if thought appropriate, to consent to the proposed development. The validity of these regulations was not in question in the appeal. Consequently the court is concerned to determine whether the two regulations I have mentioned authorised the appellant to consent to the development application lodged by the respondent. In its terms Reg53(1) enables the rebuilding of a building being used for an existing use provided that consent under the Act is obtained and subCL(2) is complied with. The relevant limitations imposed by subCL(2) are that the rebuilding of the building should be for the existing use, or for a use changed in accordance with CL54, and the rebuilding must be carried out only on the allotment on which the building (ie the service station) was erected immediately before 1 October 1971. Likewise r54 authorises the appellant to grant consent, subject to subCL2 and subCL3 (which are not presently relevant) to a change of an existing use to another use, including a use which would otherwise be prohibited. Accepting the two assumptions to which I earlier referred (ie that the proposal involved a rebuilding on the single allotment on which the present building stood at the critical date) I see no reason why the development could not proceed provided that consent was obtained. The appellant has undoubted power under Reg54 to consent to a proposed change of an existing use and no reason appears why that power could not be exercised in this case. Nor is it readily apparent that consent cannot be granted under Reg53 to the rebuilding proposed. Provided that 6 UNREPORTED JUDGMENTS consent is granted under Reg54 to the proposed change of user the proposal satisfies subCL2(a) and subCL(b) of Reg53. The appellant however argues that nothing in s108 or the regulations enables the grant of consent to the rebuilding of a building being used for an existing use where the land to be covered by the rebuilt building extends beyond the bounds of the land the subject of the existing use. In support of this argument counsel referred the court to the High Court cases which I earlier mentioned and submitted that the northern section of the allotment was beyond the area of existing use. The argument, as I understand it, depends upon the acceptance of two propositions. First, that the phrase "existing use" in s107 and s108 should be understood in the wider sense explained in those cases. Secondly, that nothing in s108 or the regulations enabled the expansion of the area on which the rebuilt building is to stand beyond that which is found to be the area of existing use in accordance with the High Court authorities. In my opinion the submission is misconceived. It takes no account of the effect of the new legislation and the regulations which, as I earlier pointed out, imposed a much narrower meaning upon the phrase "existing use" in s107 and introduced a new regime wherein the relevant local government authority was empowered to grant consent in appropriate cases to applications for enlargements or expansions of existing uses. Nor do I think that the terms of s107(2)(b) detract from this conclusion. It is true that there is not to be found a mirror subsection in s108 but the combined effect of that section and Reg53 enables consent to be given to the rebuilding of a building onto a greater area of land than previously occupied by the building provided that subCL2(b) of the regulation is complied with. That subclauses fixes, in my opinion, the limitation on the area of land on which the rebuilt building may stand. In short the scheme brought into effect by the enactment of the Act and regulations, and later amendments, replaced the original liberal test of existing use with a narrower one while at the same time empowering local government control authorities to grant consent to changes in use or enlargements or expansions or other specified alterations to the use in appropriate cases. I should add that Reg52A, which came into force on 6 March 1987, authorises the granting of consent to the enlargement, expansion or intensification of an existing use. This regulation was passed pursuant to the power in s108(1)(c) and the conditions imposed upon the enlargement, with consent, of an existing use were the same limitations as appear in Reg53(2)(a) and Reg53(2)(b). The express power to consent to the expansion of an existing use seems to me to be quite inconsistent with the argument which has been presented by the appellant. Its counsel sought to answer this point by contending that expansion was, in effect, merely another expression for intensification and was designed to cover the problems discussed in Norman's case. Given that the purpose of this part of the Act and the regulations was to replace the previous existing use provisions with a completely new scheme I see no reason to read down "enlargement, expansion or intensification" where they appear in s108 and Reg52A in the manner suggested by the appellant. Subject to one matter, therefore, the judgment under appeal should be upheld. Counsel for the appellant submitted that if the Court reached this conclusion then it should remit the matter to the Land and Environment Court for further reconsideration by it. The reason given for this course was that neither the appellant nor the Land and Environment Court had considered the question whether consent should be given under Reg53 and Reg54. It is true that the trial UIRKE COUNCIL OF THE MUNICIPALITY OF KU RING GAI v MOBIL OIL AUSTRALIA LTB (Clarke JA) judge did not refer to the granting of consent under the regulations but, as it seems to me, the manner in which he dealt with what he described as the merits in the case makes it quite clear that he was of opinion that it was an appropriate case in which to give consent. It follows, in my opinion, that the appeal should be dismissed with costs. Counsel for Appellant: WR Davison / R Morling Instructed by: Abbott Tout Russell Kennedy Counsel for Respondent: MG Craig QC / JR McKenzie Instructed by: Cutler Hughes and Harris