Reported Decision : 117 LGERA 363 Land and Environment Court of New South Wales CITATION : Dosan Pty Ltd v Rockdale City Council [2001] NSWLEC 252 APPLICANT: Dosan Pty Ltd PARTIES : RESPONDENT: Rockdale City Council FILE NUMBER(S) : 40055 of 2001 CORAM: Lloyd J Existing Use Rights :- characterisation - extent of area used - abandonment - intention - confirmation of existing prohibition - changed uses under the 1980 Regulation not existing uses - permissibility with consent results in loss of existing use right KEY ISSUES: Evidence : - presumption of regularity Environmental Planning and Assessment Act 1979 s 106, s 107, s 108, s 109, s 109B Environmental Planning and Assessment Regulation 1980 cl 54 Environmental Planning and Assessment Regulation 1994 cl 39, cl 40(1) and cl 43 Environmental Planning and Assessment Regulation 2000 cl 41(2) LEGISLATION CITED: Local Government Act 1919 s 342T Rockdale Local Environmental Plan 2000 cl 33 Rockdale Local Environmental Plan No. 10 Rockdale Planning Scheme Ordinance Ordinance No. 105 (General Interim Development Ordinance) County of Cumberland Planning Scheme Ordinance Auburn Council v Nehme (1999) 106 LGERA 19; Auburn Council v Nehme, NSWLEC, Bignold J, 19 March 1998, unreported; Australian Posters v Leichhardt Council (2000) 109 LGERA 343; Baulkham Hills Shire v O'Donnell (1990) 69 LGERA 404; Daniel v Manly Municipal Council (1975) 34 LGRA 14; Dillon v Gange (1941) 64 CLR 253; Dorrestijn v South Australian Planning Commission (1984) 59 ALJR 105, 54 LGRA 99; Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270; House of Peace Pty Ltd v Bankstown City Council (2000) 106 LGERA 440; Hudak v Waverley Municipal Council (1990) 18 NSWLR 709; Jones v Sutherland Shire Council (1979) 40 LGRA 323; Jurkovic v City of Port Adelaide (1979) 41 LGRA 71; Knox County v Ninth National Bank 147 US 91 (1893); CASES CITED: Lemworth Pty Ltd v Liverpool City Council (2001) 113 LGERA 8; McLean Bros & Rigg Pty Ltd v Grice (1906) 4 CLR 835; Manicaland Pty Ltd v Strathfield Council, NSWLEC, Bignold J, 12 December 1997, unreported; Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154; North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50; P Bartol & Associates Pty Ltd v Randwick City Council, NSWLEC, Bignold J, 26 April 1996, unreported; Perth, Shire of v O'Keefe (1964) 110 CLR 529; Salvation Army v Newcastle City Council (2000) 107 LGERA 40; South Sydney City Council v Houlakis & Anor (1996) 92 LGERA 401; Star Properties Pty Ltd v Leichhardt Municipal Council (2000) 111 LGERA 95; Steedman v Baulkham Hills Shire Council [No. 1] (1991) 87 LGERA 26; Steedman v Baulkham Hills Shire Council [No. 2] (1993) 31 NSWLR 562; Vaughan - Taylor v David Mitchell-Melcann Pty Ltd (1991) 25 NSWLR 580; Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138; Woollahra Municipal Council v T.A.J.J. Investments Pty Ltd (1982) 49 LGRA 123 DATES OF HEARING: 03/07/2001 and 04/07/2001 DATE OF JUDGMENT: 10/31/2001 APPLICANTS: Mr J B Maston (Barrister) SOLICITORS: Paul C Fabian & Co LEGAL REPRESENTATIVES: RESPONDENT: Mr D R Parry (Barrister) SOLICITORS: Abbott Tout JUDGMENT: 47 IN THE LAND AND Matter No.: 40055 of 2001 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 31 October 2001 Dosan Pty Limited Applicant v Rockdale City Council Respondent REASONS FOR JUDGMENT Introduction 1. On 3 March 2000 the applicant, Dosan Pty Limited, made a development application to construct a residential flat building on land known as Nos. 709-717 Forest Road, Bexley. The land is at present subject to the provisions of Rockdale Local Environmental Plan 2000, which commenced on 1 August 2000. Residential flat buildings are expressly prohibited on the subject land under that instrument. The applicant relies, however, on a claim to existing use rights which are said to apply to the land and which in turn would make its proposed development permissible with consent. 2. The applicant now claims in this proceeding a declaration that the land known as Nos. 709-717 Forest Road, Bexley enjoys existing use rights for a number of specified uses, pursuant to Pt 4, Div 10 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). Alternatively, if part only of the land enjoys existing use rights, the applicant claims a declaration that the development proposed in its development application is permissible with development consent over the whole of the land. 3. The subject land comprises lots 5 and 6, section 1 in deposited plan 6671. It has a frontage of 30.48 metres to Forest Road and a depth of 63.26 metres. It has been in common ownership since 1810. Since at least 1945 there have been five separate buildings on the land, each having a separate street number (Nos. 709, 711, 713, 717 and 715). The evidence shows that the land was let as separate occupancies, each comprising one of the buildings and a portion of the surrounding land. Three of those areas, known as Nos. 709, 711 and 717, front onto Forest Road. Nos. 713 and 715 are situated at the rear of the land and are accessed by a driveway which passes between Nos. 711 and 717. 4. It appears that the buildings were at all relevant times leased by separate tenants and put to separate uses. It also appears that the boundaries separating each tenancy have not varied. The applicant claims that the land enjoys existing use rights for the following specific purposes: (a) wrought iron manufacture; (b) printing shop; (c) motor car battery shop, and/or mixed use premises consisting of a flat/dwelling attached to a shop on a site used for a motor car battery shop; (d) motor cycle servicing; (e) motor body repairs. The Relevant Legislation 5. In order to understand what the applicant has to show to found the declaration which it seeks, it is necessary to turn to the legislation. 6. I will begin by considering the legislative framework in which this case falls to be decided and the history of planning controls affecting the site. Next I will look at each numbered area in turn to decide whether it may be said to have an existing use right. I will then consider whether the land as a whole can be regarded as having the benefit of an existing use or existing uses. 7. The existing use provisions are found in Pt 4 Div 10 of the EP&A Act. "Existing use" is relevantly defined as follows: 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 … 8. The protections and advantages afforded by existing use rights are set out in the following two sections: 107 Continuance of and limitations on existing use (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 subsection (1) authorises: (a) any alteration or extension to or rebuilding of a building or work, or (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, or (c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or (d) 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 section 80A(1)(b), or (e) the continuance of the use therein mentioned where that use is abandoned (3) Without limiting the generality of subsection (2)(e), 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. 108 Regulations respecting existing use (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.... 9. The protection afforded by s 107(1) and the limitations upon that protection, including the restriction of the protection to the area "actually physically used" are not directly relevant to the current application, because the applicant is not seeking to continue an existing use, but to change it to another use. Dependent upon the Court's findings as to the physical extent of any existing uses on the land, the applicant may also need to seek consent for an enlargement of the area used for prohibited uses. Section 107 is only relevant insofar as it is necessary to preserve the lawfulness of the present use or uses. The relevant limitations on the Court's power to grant development consent to the applicant's proposal are to be found in s 108 and in the regulations made thereunder. The parties in the present case agree that the regulations which apply to the current development application are those found in the Environmental Planning and Assessment Regulation 1994 ("1994 Regulation") rather than in the 2000 Regulation. 10. Clause 39 of the Regulation states that an existing use may be relevantly "enlarged, expanded" or "changed to another use, including a use that would otherwise be prohibited under the Act". Clause 43 provides that consent is necessary for a change of an existing use to another use. Clause 40(1) provides that consent is required for an enlargement, expansion or intensification of an existing use; but any such enlargement, expansion or intensification "must be carried out only on the land on which the existing use was carried out immediately before the relevant date". 11. Under this framework, there will cases where a parcel of land is to be properly regarded as an integrated whole, so that it could be said that an existing use is being "carried out" on the whole of the parcel, even though the "actual physical" use is confined to certain areas. In such cases an existing use right will attach to the whole of the land which will enable the occupier to obtain consent to expand the use beyond the area of "actual physical" use, so long as the use remains within the area which was "used" in the broader sense. 12. The latter limitation is critical in the present case. The applicant seeks to carry out a prohibited development over the whole of the land. The Court is only empowered to grant consent to the proposal if the whole of the land can properly be described as land on which one or more existing uses were "carried out" on the relevant dates. 13. The alternative declaration sought by the applicant is, on its terms, precluded by cl 40(1) of the Regulation. If only part of the land has existing use rights, the Court cannot grant consent to the development of the whole of the land for a prohibited purpose. 14. Also relevant for the purpose of determining whether the alleged uses of the land have been lawfully pursued are ss 109 and 109B of the EP&A Act. 15. Sections 109 and 109B of the EP&A Act provide as follows: 109 Continuance of and limitations on other lawful uses (1) Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained. (2) Nothing in subsection (1) authorises: (a) any alteration or extension to or rebuilding of a building or work, or (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, or (c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of the use therein mentioned, or (d) 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 section 80A (1) (b), or (e) the continuance of the use therein mentioned where that use is abandoned. (3) Without limiting the generality of subsection (2) (e), a use is presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months. 109B Saving of effect of existing consents (1) Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force. (2) This section: (a) applies to consents lawfully granted before or after the commencement of this Act, and (b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and (c) has effect despite anything to the contrary in section 107 or 109. (3) This section is taken to have commenced on the commencement of this Act History of Planning Controls 16. The presence or absence of existing use rights on each part or the whole of lots 5 and 6 will depend not only upon the uses to which those lands have been put, but also upon the history of planning controls affecting the site as far back as 1946. 17. From 12 July 1946 onwards the land was subject to Ordinance No. 105 (General Interim Development Ordinance) under the Local Government Act 1919. Clause 6 of that instrument required consent to be obtained for any "development" not explicitly permitted by the ordinance. The definition of "development" in s 342T of the Local Government Act 1919, which was inserted in 1945, makes it clear that a change in use was included in the concept of development in the planning regime at that time. Permitted development did not include the construction of new buildings or changes in use of buildings. The uses to which the land was put therefore required development consent if the use was one which was commenced after 12 July 1946. 18. From 27 June 1951, with the commencement of the County of Cumberland Planning Scheme Ordinance, the subject land was zoned Living Area. 19. The zoning table of that ordinance shows, in Column IV, the following as "Purposes for which buildings may be erected or used only with the consent of the responsible authority" in land zoned Living Area: Residential buildings; places of public worship; places of assembly; places of instruction; public buildings; hospitals; shops; commercial premises, other than warehouses and bulk stores; professional chambers; local light industries; utility installations other than generating works; any other purpose not referred to in Column III or Column V. 20. The following, in Column V, are "Purposes for which buildings may not be erected or used". Generating works; warehouses; bulk stores; industries other than local light industries; mines; institutions. 21. It can be seen that in the Living Area zone "light industry" was prohibited, but "local light industry", and "shops" were permissible with consent. Those uses are defined in cl 24 as follows: "Light industry" means an industry, not being an offensive or hazardous industry, in which the processes carried on, the transportation involved or the machinery or materials used do not interfere with the amenity of the neighbourhood by reason of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit, oil, or otherwise. "Local light industry" means any light industry which- (a) is carried on in a building whether on one or more floors or in one or more buildings with a total floor space not exceeding 5,000 square feet; (b) does not require the provision of any essential service mains of a grater capacity than that required for the normal development of a living area zone; (c) does not, by the carriage of goods or materials, create traffic upon public roads in the neighbourhood likely to create congestion or danger or requiring roads of a higher standard than would be necessary for the normal development of a living area zone. "Shop" means any building or place, or portion of a building or place, used or designed for use for the purpose of exposing or offering goods for sale by retail, and any premises which may be licenced by the council as a refreshment room and any premises under the Liquor Act, 1912, as amended by subsequent acts. 22. On 30 March 1973 the subject land came under the control of the Rockdale Planning Scheme Ordinance. Under that instrument it was zoned 4(c) Local Industrial. Schedule 4 contains a highly specific list of uses which are permissible with consent in that zone. These include, relevantly "cycle and motor cycle repairs" (but not motor vehicle repairs) and "printer (jobbing)". All other uses are prohibited. 23. On 4 December 1981 Rockdale Local Environmental Plan No. 10 rezoned the subject land Residential 2(b2). Under that zoning any use not expressly prohibited was permissible with consent. The list of prohibited uses was as follows: Boarding-houses; bulk stores; caravan parks; car repair stations; clubs; commercial premises; forestry; gas holders; generating works; hotels; industries; institutions; junk yards; liquid fuel depots; mines; motels; motor showrooms; places of assembly; refreshment rooms; roadside stalls; sawmills; service stations; shops; stock and sale yards; transport terminals; warehouses. 24. On 1 August 2000 Rockdale Local Environmental Plan 2000 ("Rockdale LEP 2000") commenced. Under that plan the subject land was zoned 2(b) - Villa/Townhouse Residential Zone. The following uses are permitted with consent Development for the purpose of: attached dual occupancies; boarding houses; child care centres; community facilities; detached dual occupancies; dwelling houses; educational establishments; granny flat housing; guest houses; hospitals; hostels; housing for older people or people with a disability; medium density housing (single storey or two storey); places of public worship; professional consulting rooms; public buildings; public transport facilities; recreation areas; roads; utility installations other than gas holders or generating works. All other uses are prohibited. Number 709 25. This part of the land comprises part of lot 5 and has a frontage onto the street. A brick and fibro building described in the development application plans as a "factory building" extends from the rear of the area to close to the front boundary of lot 5. There is a small yard in front of the building which is continuous with the yard in front of the adjacent building at No. 711. From photographic evidence it appears that this yard is paved with concrete and was recently being used as a parking area. 26. The earliest record which is before the court evidencing the uses to which this land has been put is an application by Carlton Print Pty Ltd to use the area as a "General Printers - Letterpress Printers". The application is not dated, but an attached letter bears the date 25 July 1973. In response to a question on the form asking what parts of the land or buildings are proposed to be used by the development, the applicant responded that it intends to use "all of section known as lot A", that is, the area commonly referred to as No. 709. 27. Reference to the Rockdale Planning Scheme Ordinance (which commenced in 1973) shows that "printer (jobbing)" was a use permissible with consent at the time. The council's records show that the application was approved subject to conditions and the approval was notified by letter of 10 September 1973. Subsequent records of requests for approval of advertising signage suggest that this use was in fact taken up. It may be inferred, therefore, that this use was continuing when Rockdale Local Environmental Plan No. 10 rezoned the subject land residential 2(b2) on 4 December 1981. Under this zoning "industries" were prohibited. In my opinion, the use of the land for the purpose of a printer falls into this category. That is to say, it became an "existing use" as that term is defined in s 106 of the EP&A Act. 28. On 12 July 1984 consent was granted to a changed use of the building for the manufacture of kitchen cabinets, which was clearly another prohibited use under the then planning regime. It is not clear whether this consent was implemented. 29. On 27 August 1987 consent was granted to again change the use of the building to the manufacture of wrought iron. The premises were thereafter used for wrought iron manufacture until June 2000, three months after the applicant lodged its development application proposing to build residential flats over the combined lots. Mr E A Hulak, the current owner of the land and a principal shareholder of the applicant, deposes that he subsequently attempted to find a temporary tenant for No.709: After [the then tenant] vacated their factory on the land… I decided to seek a new tenant to that factory on condition that if the land was required for re-development in accordance with the Development Application, the lease could be terminated. In October 2000 I entered into negotiations with Buber Mechanics for such a lease, however, the lessee indicated to me that it would not accept a termination on demolition clause in the proposed lease. 30. Both the printing use and the wrought iron manufacturing use continued to be prohibited under Rockdale LEP 2000, gazetted on 1 August 2000. The Applicant's Submissions 31. Mr J B Maston, appearing for the applicant, founds his assertion that existing use rights apply to this area on the fact that a development consent authorising the use of the land for wrought iron manufacture was granted on 27 August 1987. He submits that the land was therefore being lawfully used for a purpose which was prohibited by Rockdale LEP 2000 when that plan came into force at 1 August 2000. 32. Contrary to the respondent's assertion that this use has been abandoned, Mr Maston submits that it should be regarded as ongoing. He submits that the following considerations support this conclusion: (a) there has not been an interruption or break in the use of such a kind as to bring about a termination or abandonment of the use ( Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138 at 144; Daniel v Manly Municipal Council (1975) 34 LGRA 14); (b) the fact that proceedings are pending tends to show that the interruption is not an abandonment (Woollahra Municipal Council v Banool Developments Pty Ltd ); (c) the owner is entitled to take the view that he may apply for consent to a change of the existing use and, if consent is refused, he can revert to the existing use (Woollahra Municipal Council v T.A.J.J. Investments Pty Ltd (1982) 49 LGRA 123 at 128, Jurkovic v City of Port Adelaide (1979) 41 LGRA 71 at 78); and (d) an injustice would occur if simply because a prohibiting local environmental plan was made during a period of temporary interruption of use, fundamental property rights were lost (Hudak v Waverley Municipal Council (1990) 18 NSWLR 709, Star Properties Pty Limited v Leichhardt Municipal Council (2000) 111 LGERA 95 at 101). 33. The onus of showing that there was an abandonment of this use after the wrought iron manufacturer vacated the premises in June 2000 is, in Mr Maston's submission, on the respondent. This assertion must be based on the assumption that the twelve months is to be measured from the date of vacancy to the date of the coming into force of the prohibiting instrument. 34. As to the open yard in front of the building at No. 709, Mr Maston submits that the development consent granted to the wrought iron factory requires on-site parking to be provided and that from this it can be inferred that the land was used for parking connected with the factory use. This is what in fact occurred. The Respondent's Submissions 35. Mr D R Parry, appearing for the respondent submits that existing use rights over the open areas at No. 709 were abandoned when the latest consent was granted. In Development Application 171/87, which was the application to use the premises for wrought iron manufacture, in response to the question "Do you propose to use the whole or part of the buildings or land?", the proponent stated "whole building". Mr Parry submits that this shows that if the consent which was granted to this application was taken up, it entailed an abandonment of existing use rights in respect of all land outside the building footprint. In respect of the yard areas generally Mr Parry submits that although it appears that some of them have been used for parking, the onus is on the respondent to show that the parking pertained to particular uses and such onus has not been discharged. 36. Mr Parry further submits that the use of the building for wrought iron manufacture has been abandoned since the premises became vacant in June 2000; that because the premises has been vacant for more than twelve months the presumption of abandonment in sub-s 107(3) of the EP&A Act operates in favour of the respondent, the time being measured from the date when the occupants left to the current date, not from that date until the coming into force of local environmental plan; and that Mr Hulak's evidence of his intentions tends to show that the use has been abandoned. 37. According to Mr Parry, by entering into negotiations to lease the premises to Buber Mechanics, Mr Hulak had taken "a conscious step which evidences an intention to put the property to another use", which is inconsistent with an intention to continue the existing use on the premises. Conclusions 38. Section 106 of the EP& A Act provides that a use of a building, work or land becomes an existing use when an ongoing lawful use becomes prohibited by an environmental planning instrument. Existing use rights, therefore, initially arose in this instance when the re-zoning of the land occurred on 4 December 1981. Subsequent consents to change the use must have been granted pursuant to cl 54 of the Environmental Planning and Assessment Regulation 1980 (1980 Regulation) which reads: Changes of existing uses 54 (1) For the purposes of section 108(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... (3) Where an existing use has been changed to another use in accordance with subclause (1), the latter 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. 39. This clause is significantly different from the equivalent clauses of the 1994 Regulation and current Regulation. The 1994 Regulation provides at cl 39(1) that an existing use may be changed to another use, including a use that would otherwise be prohibited under the Act, and adds, significantly, that "(a) use to which an existing use is changed is itself taken to be an existing use for the purposes of the Act and may, subject to this division, be changed to another use." Clause 41(2) of the current Regulation is in the same terms. Neither of these clauses, however, purport to have retrospective operation. Under the Regulation which was in force in 1984 when the use for the manufacture of kitchen cabinets was consented to, and in 1987 when use for the manufacture of wrought iron was consented to, the changed use was not deemed to be an existing use. 40. The ongoing lawfulness of the wrought iron manufacturing use between 1987 and 2000 was protected by the consent, which was validly granted pursuant to the incorporated provisions of the then Regulation made under s 108, rather than by existing use rights. The coming into effect of Rockdale LEP 2000 could not make that use unlawful, because by that time it was also protected by s 109B of the Act. Nothing in that section, however, enables such a use to be changed to another prohibited use. 41. It may be the case, however, that new existing use rights were created with the coming into effect of Rockdale LEP 2000. 42. As noted above, s 106 defines an existing use as "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... have the effect of prohibiting that use". It is not clear from the wording of the section whether the instrument must be one which prohibits a use which was previously permissible. Both parties appeared to assume that the coming into force of Rockdale LEP 2000 was capable of creating existing use rights in this area and I did not have the benefit of argument on this point. I am thus prepared, for the purpose of this proceeding, to adopt the parties' assumption. An alternative reading is, however, available, being that an instrument which merely restates an existing prohibition does not "have the effect of prohibiting" the relevant use. However, any true ambiguity should be resolved in the applicant's favour in accordance with the principle of construction that provisions designed to protect existing use rights should be as liberally construed as the language in its context allows (Dorrestijn v South Australian Planning Commission (1984) 59 ALJR 105). 43. An existing use will not, of course, have been created if the wrought iron manufacturing use had been abandoned at 1 August 2000, being the date upon which Rockdale LEP 2000 commenced. The period between when the premises became vacant and when Rockdale LEP 2000 came into force is only two months. It will be of no use to the applicant, however, if it is found that an existing use was created on 1 August 2000, but that that use has been abandoned between the date on which the premises were vacated and the date of the hearing, which is a period of more than twelve months. As noted above, s 107(3) provides 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". The commencement of a new planning instrument during that period does not re-start the clock. Therefore the onus is, for practical purposes, upon the applicant to show that the use has not been abandoned. In this case I am satisfied that the onus has been amply discharged. I so find for the following reasons. 44. In Hudak v Waverley Municipal Council (1990) 18 NSWLR 709, Hope AJA (with whom Kirby P agreed) made the following comments regarding abandonment (at 716-717): … it is necessary to have regard to the whole of the circumstances, including the subjective intention of the relevant person, and to determine whether in the light of all those matters the cessation of actual use proved by the facts is outweighed by an asserted subjective intention to continue the use. Where there continues to be activity designed to continue a non-conforming use … and the length of cessation of actual use is not very long, it may be easy enough to conclude that there has been no abandonment. If however years go by without actual use and particularly where the factor said to be delaying a resumption of the existing use is something of an indefinite character… there would be little difficulty in concluding that the cessation of use for a similar period of time involved an abandonment. 45. All of the above factors are against a finding of abandonment in this case. The period in question is only a little over the twelve-month period which brings the presumption into operation. There is no dispute that the subjective intention of Mr Hulak was to continue some non-conforming use on the site after it was vacated. His assertions in this respect are supported by his actions in lodging an application to develop the site for a residential flat building. The fact that the present building remains vacant is due to an "activity designed to continue a non-conforming use", that is, the prosecution of the current proceeding which makes it impractical for Mr Hulak to place another tenant in the premises. The delaying factor in this case is not "of an indefinite character", but on the contrary, definite and readily apparent. 46. Mr Parry's submission that Mr Hulak's approach to Buber Mechanics shows an intention to abandon the existing use is not supported by authority. 47. In Daniel v Manly Municipal Council (1975) 34 LGRA 14 the respondent council submitted that the existing use of a premises as a silk screen printing workshop had been abandoned where the then tenant had vacated the premises and the owner was seeking by development application to change the use of the premises. A submission to a like effect was rejected, Rath J stating (at 20): Existing use rights attach to premises, not persons. The right does not necessarily come to an end because the tenant for the time being exercising the right vacates the premises. The owner still has the right to use the premises himself, or to find a tenant who will use the premises for their existing use. Until the existing use right is lost, the owner is entitled to seek consent to a change of use, either for himself or for his tenant, actual or prospective. 48. More closely on point is Woollahra Municipal Council v T.A.J.J. Investments Pty Ltd (1982) 49 LGRA 123. In that case the premises was being used as a Hi-Fi Shop pursuant to existing use rights. The owner granted a lease to another tenant to use the premises for another non-conforming use, as a garden supplies shop. While an application to change the use was pending, the tenant entered into possession and commenced the use. The Court of Appeal held by majority that neither the granting of the lease, the lodgement of the development application nor the commencement of the changed use evidenced an abandonment of existing use rights. Hutley JA (at 126) reasoned that if an attempt to change from one prohibited use to another were treated as an abandonment, the intention of the relevant instruments to allow for the transition from more to less objectionable prohibited uses would be nullified: owners or occupiers taking steps to change uses would in all cases lose the benefit of the existing use rights, so that no change from one prohibited use to another would ever be possible. As this could not have been the intention of the legislature, it was held that these circumstances did not show an abandonment. 49. Woollahra Municipal Council v T.A.J.J. Investments Pty Ltd confirms the important point that insofar as intention is relevant in determining whether existing use rights have been abandoned, it need not be an intention to continue the then specific use authorised by the existing use rights, but may also be an intention to continue to take advantage of existing use rights in some other way, such as by seeking to substitute another prohibited use. That case was concerned with the interpretation of a subordinate instrument, the Woollahra Planning Scheme Ordinance, not with the provisions of the EP&A Act, but the same principles apply. There was and is the same preservation of existing use rights, with provision under the regulations for consent to be sought to change an existing use to a different prohibited use. For the legislative scheme to be effective it must also be possible to take steps toward changing the use without abandoning the existing use. 50. Mr Parry seeks to distinguish the above cases on the ground that, although the applicant's lodgement of a development application seeking to change the use may not itself constitute an abandonment, the applicant's conduct taken altogether is inconsistent with an intention to maintain the existing use. 51. I cannot accept this submission. If an application for consent for a changed use does not evince an intention to abandon existing use rights, much less so do preliminary steps such as entering into negotiation with a prospective tenant who proposes to use the premises for a different purpose. Negotiations alone do not show a changed intention. They merely show that other possibilities are being entertained. 52. In this case, Mr Hulak's approach to Buber Mechanics shows that he was willing to let the premises for another non-conforming use if this could be done on terms which allowed him to proceed with the development, if it were approved. Naturally enough, it was not easy to find a commercial tenant willing to take on a lease for such an uncertain term. Far from being evidence of abandonment, I take this as evidence that Mr Hulak's actions were consistent with his subjective intention to preserve the existing use rights. 53. In these circumstances I find that the area of lot 5 known as No. 709 continues to enjoy existing use rights as a wrought iron factory. 54. I will now deal with the issue of partial abandonment. In my opinion, the statement on the development application that only the building was to be used for the wrought iron manufacturing business should not be taken as an indication that existing use rights have been abandoned in respect of the front yard. Not every applicant for development consent can be expected to employ the word "used" in precisely the sense in which it is understood in planning law. The applicant for development consent in this case may have thought that, where the application form asked what part of the buildings and land was "used", it meant where would the core activity of the business – the manufacture of wrought iron – actually take place? In planning law, however, the areas where loading and unloading, parking, access of employees, waste disposal and so on take place are being "used" for a factory purpose as much as the factory itself. 55. It appears to me self-evident that the yard in front of the building must have been used in connection with the factory use. It is a very small area and it is the only means of access from the street to the factory. Raw materials and goods, employees and people who had business with the factory, must have come and gone across this yard. The town planner's report on the 1987 development application noted that a small van and a sedan would operate out of the premises. There is no other off-street parking on the land. It is safe to assume, therefore, that these vehicles would have occupied most of the parking space in the yard, which is only large enough to accommodate three or four ordinary cars at the most. 56. For the above reasons I find that the whole of that part of the subject land known as No. 709 enjoys existing use rights. Number 711 57. This area also fronts onto the street and straddles the boundary of lots 5 and 6. It comprises a building at the rear, which only occupies about one-third of the site. In front of the building there is a fenced yard, about half of which is covered by an awning. There is another small area between the fence and the front boundary which, from photographic evidence, appears to be used for parking. The premises are currently being used as an automotive repair shop known as Buber Mechanics. There is no evidence that this use was consented to by the council. 58. The council's records show that a development application (DA 1321/74) was lodged on 26 November 1974, to which consent was granted on 6 December 1974, to use this area for the purpose of motor cycle repairs and service. At that time "cycle and motor cycle repairs" were permissible with consent in the zone. The council's records include an application for a licence for an advertising sign on 28 July 1975 with the words "Motor Cycle Repairs and Service" which tends to show that this use was in fact taken up. 59. On 2 November 1976 the council received Development Application 1778/76 from a Mr Guerrino Vemier to use the premises for the storage of wrecked vehicles for resale. That application states, as does the town planner's report, that the premises was at the time still being used for motor cycle repairs, which use continued to be permissible with consent, whereas the proposed use was prohibited under the Rockdale Planning Scheme Ordinance. The development application was refused. 60. On 1 September 1977 Development Application 2001/77 was lodged by Mr R E Spink to use the premises to "fit car accessories eg. tail bars, radios, air conditioners…." That was another prohibited use. The development application stated that the land was at that time currently "not in use vacant" and that its last use had been for "washing machine repairs". The application was refused, the stated reason being that "the proposed use is not permitted under clause 22 of the Rockdale Planning Scheme Ordinance". 61. On 25 November 1977 Development Application 2082/77 was lodged by a Mr Stan Bayliss to use the premises for automotive repairs. That application states that the premises are already being used for this purpose, and that previous uses include washing machine repairs (three months) and motor cycle repairs. Development consent was refused by letter dated 8 December 1977. 62. The council has no record of any subsequent application for consent for use of the premises. 63. Mr K W Derwin, the chairman and managing director of a company which was part owner of the subject land between 1980 and 1999 testifies that in 1980 No. 711 was being used as a motor cycle repair shop by a company called "Team Bayliss". Mr I Buber who leased the premises from December 1988 testifies that at least from that point onward he used the premises for automotive repairs. The Applicant's Submissions 64. The applicant did not expressly plead in its amended points of claim that No. 711, taken in isolation, had existing use rights. Mr Maston, however, made submissions in which he suggested that this area enjoyed existing use rights. 65. Mr Maston submits that the consent granted for motor cycle repairs in 1974 was still in force on 1 August 2000 when Rockdale LEP 2000 came into force. He asserts that, although that consent was granted under a previous planning regime, the consent is saved by s 109B of the EP&A Act. He further submits that motor car repairs are of the same category as motor cycle repairs for the purposes of existing uses and consented uses. Conclusions 66. It is well settled that the scope of existing uses is not to be determined by reference to categories listed in the zoning instruments "but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date" (Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-535). Thus the fact that the relevant environmental planning instruments have chosen to deal separately with motor cycle repairs and motor car repairs or automobile repairs generally does not necessarily mean that I must regard them as distinct uses. 67. In North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50 Kirby P set out the following principles for defining existing uses (at 59): 1. Defining the "existing use" depends upon a detailed examination of the facts of each case. Inevitably there will be borderline cases where the characterisation of the use which is protected will be controversial and upon which minds may differ. 2. Nevertheless, the general approach to be taken is one of construing the 'use' broadly. It is to be construed liberally such that confining the user to precise activity is not required. What is required is the determination of the appropriate genus which best describes the activities in question. 3. In determining that genus, attention should be focused on the purpose for which the determination is being made. This is a town planning purpose. It therefore considers the use from the perspective of the impact of the use on the neighbourhood. This is because the regulation of the use within the neighbourhood is the general purpose for which planning law is provided. 68. Following this approach it would be possible to find that a motor car repair business and a motor cycle repair business were of the same genus. They are commonly regarded as such. Indeed there are many businesses in which the two activities are merged. From a town planning perspective their impacts might be regarded as similar, although not identical. They emit similar noises, use similar materials and equipment and would tend to raise the same amenity concerns. 69. To regard them as the same use in spite of prohibitions coming into effect at different points in time would create an interesting question as to when the use became prohibited for the purposes of s 106 of the EP&A Act. If we say that there is a single category of use - motor mechanical repairs - taking place on the land, but one sub-category of that use - motor car repairs - became prohibited in 1973, whereas all species of that use became prohibited in 2000, at what point was there a lawful activity being conducted on the land which became prohibited? It would appear that the "use" does not become effectively prohibited until all species of that use are prohibited. However, this would create an illogical outcome if the subcategory of use to which the land was actually put became prohibited, say if motor cycle repairs were being conducted on the premises and motor cycle repairs alone became prohibited, but the land was not regarded as being subject to an existing use because the genus as a whole remained permissible. The opposite interpretation would lead to an equally unsatisfactory outcome. If a use was taking place on land, say for a cake shop, and a minor subcategory of that use, say for a cheesecake shop, became prohibited and that was to be regarded as a prohibition of the activity taking place on the land for the purposes of s 106, then the cake shop premises would acquire existing use rights although it had been used for permissible purposes all along. 70. Neither of these approaches is satisfactory. However broadly or narrowly one chooses to define a "use", for existing use rights to arise there must logically be a correlation between the activity in fact prohibited under the relevant planning instrument and the activity being conducted on the land. The coming into effect of a prohibition against motor cycle repairs cannot give rise to existing use rights on a parcel of land used for motor car repairs or vice versa, even if these two activities are regarded as falling into a single category of use for the purpose of determining what may be done once existing use rights are acquired. 71. I find, therefore, that no existing use rights arose under s 106 because there was no point in time when an activity which was permissible and which was being carried out on the land became prohibited. 72. Motor car repairs became prohibited with the introduction of the Rockdale Planning Scheme Ordinance on 30 March 1973. There is no evidence, however, that motor car repairs were being lawfully conducted on the land immediately before this date. 73. Motor cycle repairs became prohibited under Rockdale LEP 2000 in August 2000, but immediately before this date the land was being used for motor vehicle repairs, not motor cycle repairs. 74. The fact that the consent for motor cycle repairs may still have been in force at 1 August 2000, thanks to s 109B, is of no assistance to the applicant. The definition of existing use rights in s 106 depends on there being a prohibited use taking place on the relevant date. It is not sufficient that there happens to be a consent for a use which becomes prohibited if that consent is not being implemented (except in the limited circumstances provided in s 106 (b) where a consent has recently been granted and is yet to be taken up). The consent is only relevant insofar as it renders lawful (or not) the use actually taking place. In this case the use authorised under the consent, the motor cycle repair business, was clearly not taking place on the land. 75. Neither is the use for motor vehicle repairs when Rockdale LEP 2000 came into force itself capable of giving rise to an existing use. 76. To found an existing use right, the use of land taking place when a prohibiting instrument comes into force must be a lawful use. It must be lawful not only in the sense that it is not prohibited, but it must also have consent if consent was required for that activity under the then planning regime (Steedman v Baulkham Hills Shire Council [No. 2] (1993) 31 NSWLR 562). 77. The motor vehicle repair use being conducted on the premises from the year 2000 onward was operating unlawfully. In my opinion, the 1974 consent which was expressly for "servicing of motor cycles" cannot be interpreted as authorising the use of the premises for the repair of motor vehicles. 78. The principles affecting interpretation of extant consents were discussed in the recent Court of Appeal decision of House of Peace Pty Ltd v Bankstown City Council (2000) 106 LGERA 440. In that case, Mason P (at 449-450) stated that because an "extant development consent" was a "species of existing use right", the same liberal principles should be observed in its construction. The fact that a development consent operates in rem and indefinitely in respect of a parcel of land should also be borne in mind: The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a land owner who may spend considerable money in acting upon it and who is likely to wish to sell the land sooner or later. 79. It should be noted, however, that whereas the interpretation of the scope of an existing use will often turn upon the categorisation of actual activities conducted upon the land (as in Shire of Perth v O'Keefe (1964) 110 CLR 529), the interpretation of an extant consent will turn upon the words of the consent. 80. Mason P in House of Peace commented further on the task of textual construction in which the court was engaged (at 449): How then is the language of historical consent to be construed? In ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 77 Kirby P (with whom Samuels JA and Hunt AJA agreed) referred to "what, objectively determined, it might be said the Council meant by the permission which it gave to the... predecessor [in title]". I respectfully agree, but with this emphasis. The search is not for what the council actually intended or what, if it had been interrogated about various possibilities, it would have said it intended. As an instrument [which operates in rem]... it must speak according to its written terms, construed in context but having regard to its enduring function…. 81. Looking to the written terms of this consent, the consent is expressly for "servicing motor cycles" and nothing else. However liberal one is inclined to be in the interpretation of an extant consent, there is no ambiguity in the scope of use permitted by this document. To put it another way, a council which consents to the use of land for the limited purpose of the "servicing of motor cycles" clearly does not intend to give permission for motor mechanical repairs generally. 82. The motor vehicle repair use being conducted on the premises in the year 2000 was operating without consent. Therefore it was not operating lawfully and could not give rise to existing use rights upon the coming into force of Rockdale LEP 2000. 83. I find, therefore, that this area does not have the benefit of any existing use. Number 713 84. This area comprises the rear of lot 5, and a corner of lot 6. A brick factory building occupies almost the whole of this part the land. It is currently used as a plaster manufacturing operation for which no consent is in evidence. 85. The only evidence of any consent relating to these premises is that in December 1977 consent was granted to use the premises for motor body repairs. This application was said to be by way of modification to a previous use for motor vehicle repairs. These were both prohibited uses at the time. Whether the previous use was lawfully commenced and what the legal basis was for granting the later consent does not appear from the evidence. 86. A neighbour, Mrs K Apostolidis, who lives at the rear of the subject property, observed that in 1989, when she and her husband moved into their house, the premises appeared to be occupied by plumbers. No consent is in evidence for that use. Soon after, the building was vacated and remained vacant for at least four years. Then for some time up until about mid-1993 it was used without consent for the assembly and maintenance of golf buggies. Thereafter the building was vacant for at least another two years. In the second half of 1997 Mrs Apostolidis observed that the premises were occupied by a plaster manufacturing business. 87. The council's records show that Development Application 8/98 was lodged on 16 January 1998 by Mr Khaled Salameh to use No. 713 for the manufacture and storage of plaster products. That application was rejected on the grounds that the proposed use was prohibited in the zone. A council officer inspected the premises the day before the present hearing commenced and it appeared that the premises were still being used for that purpose. The Applicant's Submissions 88. As with No. 711, there is no express pleading in the amended points of claim that this area enjoyed existing use rights. In Mr Maston's submission, however, at the date upon which Rockdale LEP 2000, came into force there was a consent still in force (the 1977 consent) to use this area for the purpose of motor vehicle repairs. Although this activity was no longer taking place on the land, he submits that Mr Hulak's evidence shows an intention to preserve existing use rights at this time. Conclusions 89. As stated above, the legal basis for the granting the 1977 consent to motor body repairs is not clear, since that was a prohibited use from 1973 onwards. It may have been that the land enjoyed existing use rights at that time. Whatever the legal situation in 1977, it is beyond doubt that any existing use rights for motor vehicle repairs or similar were abandoned in the period between 1989 and the present when the premises have either been vacant or used for other purposes without consent. There is no evidence of intention to rebut the presumption of abandonment during this period. Mr Hulak's intentions in the year 2000 are irrelevant. The use had been abandoned long before he and his wife purchased the property. 90. No existing use rights were created with the coming into force of Rockdale LEP 2000 on 1 August 2000 because the premises were not being used for a lawful purpose. The plaster manufacturing use was not lawful at that time nor had it been commenced lawfully. 91. As discussed previously, existing use rights arise because of actual use and are preserved by continuing (although not necessarily uninterrupted) use. The fact that a consent may have been granted under a former planning instrument to use these premises for motor body repairs does not assist the applicant to retain its existing use rights if the actual use pursuant to that consent had been abandoned; neither is the consent for motor body repairs protected by s 109B, since that consent was granted pursuant to a former planning instrument and is no longer in force (Auburn Council v Nehme (1999) 106 LGERA 19 at 26-27). 92. There are clearly no existing use rights for this part of the land. Number 715 93. This area comprises most of the rear half of lot 6. It is mostly occupied by a brick factory building, with a small yard along one side. The building is currently occupied by the firm Empress Printing Pty Ltd and used as a printing workshop. 94. The rear neighbour, Mrs Apostolidis, observed that from the time she moved into her property in January 1989 until proximately three years later the premises were vacant and in a dilapidated state. In January 1992 she then observed that some works were being done to the building, and a short time later that the building commenced to be used for a mechanical repairs workshop. The council's records indicate that there was no consent for these activities, and that council requested the occupants to cease work on the site on a number of occasions. On 24 January 1992, a development application was lodged to use the premises for a mechanical workshop. The application was refused on the basis that the use was prohibited in the zone. Mrs Apostolidis states that the mechanical repairs activity ceased some time later in 1992. 95. On 9 September 1993 Development Application No. 260/93 was lodged by Empress Printing Pty Ltd to use the premises as a printing workshop. 96. The application records the facts that previous uses of the premises were for a printing and packaging business from 1985-90 and mechanical workshop/storage from November 1990 to May 1993, but that the premises were currently vacant. These dates are not consistent with Mrs Apostolidis' observations noted above. In particular, Mrs Apostolidis does not mention any use of the premises by a packaging company at the time when she first became aware of the premises in 1989. 97. The council's Building and Development Committee on 1 December 1993 recommended "in principle" approval of the application subject to the imposition of satisfactory conditions. Its report dealt with the issue of existing use rights in the following manner: Because the property is located in a Residential 2(b1) zone the applicant has been requested to demonstrate to Council that existing use rights do prevail. Information submitted by the applicant indicates that for approximately twenty years the property was occupied by Acton Packaging Pty Limited using very large and at times loud machinery and employing several staff. The applicant has indicated that this tenancy terminated in early 1990. Two previous applications for auto mechanic workshops in 1977 and 1992 respectively were rejected by Council. Research of Council's records indicates that there are no previous approvals for this property 98. Upon the basis of this tenuous information the Council was prepared to accept that existing use rights obtained and granted the application for a "change of use" to a printing workshop by notice dated 6 January 1994. 99. The consent was subject to 33 conditions, including the following conditions as to the duration of the consent: 1 The term of this consent is limited to a period of two (2) years from the date of approval. The consent will lapse if the development does not commence within this time. 7. All activity being conducted so that it causes no interference to the existing and future amenity of the adjoining occupations and the neighbourhood in general by the emission of noise, smoke, dust, fumes, grit, vibration, smell, vapour, steam, soot, ash, waste water, waste products, oil, electrical interference or otherwise. 14. This approval being for a limited period of twelve (12) months only from the date of this approval after which time any use of the subject premises whatsoever will require the further Town Planning consent of Council. 15. Condition 14 was imposed to allow Council to review the compliance with condition 5 [should read "condition 7"], if condition 7 is complied with fully then it is likely that Council would renew its consent to continuance of the use. (There is an error in condition 15 in that it refers to Condition 5, and then Condition 7, where it is obviously intended to refer to a single condition. Reading the draft conditions prepared earlier by the Building and Development Committee clarifies that the reference is intended to be to Condition 7. Condition 5 in the draft conditions became Condition 7 in the final conditions, but the drafter has only changed one of two references to that Condition in Condition 15.) 100. There is no record on the council's files of the consent having been renewed in accordance with Condition 14. The Applicant's Submissions 101. The applicant submits that existing use rights arose in this area because it was being used lawfully for a printery, pursuant to the consent granted in 1994, when Rockdale LEP came into force on 1 August 2000. 102. In response to Mr Parry's contention that the consent had expired by virtue of condition 14, Mr Maston submits that: (1) Condition 14, which limits the consent to a period of twelve months, is inconsistent with Condition 2 which limits the consent to two years from the date of approval and provides that the consent will lapse if the development is not commenced within that time. (2) Condition 14 is invalid or must be read down insofar as it derogates from the two-year commencement period, because that period was required by s 99 of the EP&A Act as it then was (it is now s 95). 103. Alternatively, Mr Maston submits that if the consent expired one year after its grant, there was a "reversion" to the prior existing use rights, being those existing use rights upon which the application for change of use was based. The Respondent's Submissions 104. Mr Parry submits that the 1994 consent to use this area for a printery expired one year after its grant by virtue of Condition 14. According to Mr Parry, condition 14 is in no way inconsistent with the two-year lapsing provision in Condition 2, as they arise in different contexts. Condition 2 provided that the consent was to last for two years if it was not taken up in that period. It was only relevant if there was a delay in taking up the use. Condition 14 was imposed, and this appears on the face of the consent, in order to enable the Council to review the environmental performance of the printing shop. Condition 14 has therefore taken effect, and the consent expired one year after it was granted. 105. If the consent had expired, the coming into force of Rockdale LEP 2000 did not have the effect of creating an existing use on the site because the use of the land as a printing workshop at that time was not lawful. 106. Mr Parry further submits that at the date upon which the consent expired, one year after its grant, there can be no question of reversion to previous existing use rights, because any prior rights were abandoned when the use on the land was changed to the printing use. Conclusions 107. The 1994 consent to use the premises for a printing workshop was a consent to a change of an existing use to another use. It was authorised by cl 54(1) of the 1980 Regulation. As discussed above (at pars [38]-[40]) the 1980 Regulation does not deem the use to which an existing use is changed to be itself an existing use. Reliance cannot be placed, therefore, on the use a printing workshop being an existing use. 108. I also find that any previous existing use which justified the grant of the 1994 consent was abandoned. That use, it appears, was for packaging manufacture. The printing shop is not a continuance of that use, but a different use; and not a different existing use, but a use which is permissible only because it was consented to under the regulations. The prior use had ceased, according to the evidence of Mrs Apostolidis, by 1989. The council was prepared to accept (perhaps over-generously) that that use had not been abandoned by 1994, but the presumption of abandonment was already operating against a finding of continuance. With no contrary evidence of an intention to maintain that use, I must find that such use was abandoned before the year 2000. 109. The ongoing validity of the printing use depended solely on the 1994 consent. A reading of that consent leads to the conclusion that it did expire one year after it was granted. I agree with Mr Parry's submission that conditions 2 and 14 were not inconsistent because they served different purposes and came into operation under different circumstances. Condition 2 specified the time within which the development had to be commenced, in compliance with the statutory minimum which was then provided in s 99 of the Act. It dealt with the issue of delayed commencement. Condition 14 specified a period after which a renewal of the consent had to be obtained. In light of the explanation in Condition 15, it is clear that Condition 14 was only intended to apply if the consent was actually taken up during the one year period. It was a condition allowing for review of environmental performance. It is not be possible to review the environmental performance of an operation which has not yet commenced. 110. When the consent expired in January 1995, the use of the premises for a printery became unlawful. It did not have the protection of a consent or of existing use rights. It could not acquire any existing use rights or continuing use rights under the Act because it was not being used "for a lawful purpose" at the time Rockdale LEP 2000 came into effect in August 2000. Nor was it protected by s109B which only protects use for which a consent "is in force" (Auburn Council v Nehme, at 26). Number 717 111. This area fronts onto the street and occupies most of the front of lot 6. Number 717 is a long, narrow building the front wall of which is on the front boundary of Lot 6, with a yard running down one side and around the back. The front portion of the building is used by a car battery sales business. There is a small dwelling or flat in the rear part of the building. 112. Mrs Silvia Kay, whose father purchased lots 5 and 6 in 1944 testifies that the five buildings currently on the land, including No. 717, have been there since World War II, that is, no later than 1945. Regarding No. 717 she states: By 1948 the building at No. 717 consisted of a shop front facing Forest Road and a dwelling at the rear. My [family] lived there after my father brought the property, up until my father purchased a house at 27 the Avenue, Hurstville, and for a short period thereafter. My parents purchased that property in 1947. When they moved, the shop on 717 was let to Mr Vic Thorson. He established a motor vehicle battery sales shop in the shop part of the premises. 113. Mrs Kay also states in a later affidavit as follows: I am not clear of the precise dates during the 1940's except where they are related to the time my father purchased the property around the end of the war. I do not recall the precise date my parents moved or ceased living at 717 Forest Road. It was certainly not later than 1947. Consequently, the tenancy of the battery shop by Mr Thorson could not have been later than 1947. 114. In 1947 when the battery shop use commenced the land was subject to control under the General Interim Development Ordinance No. 105. Both the residential use and the shop use required interim development consent under the Ordinance. The council's register of development consents and approvals shows no record of a development application being made or approval being granted in respect of the premises. The register, however, only goes back to 1970. 115. The battery shop use appears to have become prohibited in 1973 upon the commencement of the Rockdale Planning Scheme Ordinance, under which the land was zoned 4(c) Local Industrial. Under that Ordinance the only activities permissible with consent were contained in a highly specific list of uses at Sch IV. That list does not include shops generally or battery shops in particular. Neither does it include residential uses. It is arguable that the residential use, if it be seen as a use in its own right, became permissible again in 1981 when the land was re-zoned residential 2(b2). 116. It is also arguable that the shop use became permissible once again upon the commencement of Rockdale LEP 2000. Under that instrument shops were prohibited in the zone, but there is a special provision which allows consent to be obtained to use a building for a shop if it had been lawfully constructed as a shop. That provision is as follows: 33 Use of existing buildings in residential zones Objective of the provision To allow the economic recycling of existing buildings that were constructed for use as shops and which are located within residential zones (1) This clause applies to all land in Zone 2(a1), 2(a), 2(b) or 2(c). (2) Where an existing building was lawfully constructed for use as a shop, a person may, with development consent: (a) use that building as a shop of the same or a different kind or as a commercial premises, or (b) alter, extend or rebuild that building for use as a shop or commercial premises. 117. The council records disclose that on 14 September 1993 the solicitor of the then proprietor of the battery shop wrote to the council to enquire whether there were any consents applying to No. 717. The council responded by letter dated 28 September 1993 to the effect that no consents were recorded, but that it was possible that the premises enjoyed existing use rights. In any case, the council stated that it had no objection to the continued use of the premises for a battery shop, but that a development application would have to be lodged "if the use were to change or expand". The Applicant's Submissions 118. Mr Maston submits that since there is evidence that the battery shop use has been conducted in the premises for at least 54 years without the council ever objecting to it, it can be inferred that the use was lawful, that is, that it either commenced with consent or commenced before a consent was necessary. In Mr Maston's submission, a consent may also be inferred from the presumption of regularity, as was found by Bignold J in Australian Posters v Leichhardt Council (2000) 109 LGERA 343 at 352- 352. 119. As for the dwelling at the rear, Mr Maston submits that continuous use of this part of the building as a dwelling has been shown since at least 1945, meaning that it predates planning control. 120. Mr Maston submits that, because of the two uses taking place in the one building, No. 717 falls into category "mixed use premises", which is defined as follows in Rockdale LEP 2000: mixed use premises means a site on which a building used for a non-residential purpose and one or more dwellings, that may or may not be attached to that building, are situated, whether or not the dwelling or dwellings will be used in conjunction with that non-residential use. 121. Shops, industries and mixed use premises are prohibited in the zone under the provisions of Rockdale LEP 2000. Therefore, either the shop acquired existing use rights in its capacity as a shop, possibly conferring existing use rights on the whole parcel, or the whole building acquired existing use rights in its capacity as a mixed use premises. 122. In reply to the respondent's contention that shops are a permissible use on that particular site by virtue of cl 33 of Rockdale LEP 2000, Mr Maston submits that shops are still a prohibited use in the zone per se and should be regarded as such for existing use purposes since a development application to erect a new shop on the land could not be granted. According to Mr Maston, existing use rights are concerned with prohibitions to the establishment of a whole enterprise, not exceptions for existing buildings. Clause 33 is similar to the provisions of State Environmental Policy No. 4 (SEPP 4), which has never been taken to lift an applicable prohibition on the erection of a shop on land, but merely allows for a change of one kind of shop to another. 123. Alternatively Mr Maston submits that if cl 33 has the effect contended for, that is, if it makes the shop use permissible with consent in a building which previously had existing use rights for the purpose of a shop, it must be "of no force and effect". This is because it would apply limitations to the council's power to grant consent to the continuance or modification of such a use and so would be a derogation from the council's power to consent to such developments under the incorporated provisions. It would also offend s 109(1) which says that an environmental planning instrument cannot require consent to be obtained for a use lawfully conducted before the coming into force of that environmental planning instrument. If cl 33 is of no force and effect, it leaves the land subject to a relevant prohibition, and therefore, still subject to existing use rights. 124. Further alternatively, Mr Maston submits that cl 33 does not apply because the respondent has not proved that the building was constructed for the purpose of a shop, or cl 33 only applies to buildings wholly constructed as shops, and not to a shop such as the subject shop which was in part of a building also used as a dwelling. It is submitted that the purpose of the clause requires a different meaning be attributed to the word "building" from the definition in the local environmental plan which includes a building or part of a building. 125. Mr Maston's final alternative submission is that cl 33 does not purport to allow consent to be granted for the mere continuance of a shop in the same form as it was conducted prior to the coming into force of the planning instrument, but allows for consent to minor variations. Where it provides that consent may be obtained to use the premises for a shop "of the same kind", this means, of the same kind, but not identical. Therefore the clause does not apply to the continuation of an existing use which still relies on s 107 for protection. The Respondent's Submissions 126. Mr Parry submits that this area has ceased to enjoy existing use rights (if it ever had them) because neither of the activities currently conducted thereon are prohibited under the current planning regime. The dwelling use has been permissible since at least 1981 with consent. The shop use is permissible on this particular site pursuant to cl 33 of Rockdale LEP 2000, being located in a building which was lawfully constructed (as Mrs Kay's evidence shows) for the purpose of a shop. 127. According to Mr Parry, because the uses are no longer prohibited they do not fall within the definition of existing uses under s 106, being the lawful use of a premises before the coming into effect of an instrument which has the effect of prohibiting the use. The current instrument does not prohibit either the dwelling use or the battery shop use on this particular site. In response to Mr Maston's argument that the shop use is prohibited per se in the zone, Mr Parry argues that it is not always possible to determine what is prohibited on certain land solely on the basis of the zoning table and what is stated to be generally prohibited in that zone, but one must also have regard to provisions such as cl 33 which in certain circumstances operate to lift the prohibition. 128. Mr Parry submits that cl 33 of Rockdale LEP 2000 in no way derogates from existing use rights, but merely makes something permissible which was previously prohibited, which an environmental planning instrument is entitled to do. It is the EP&A Act itself which dictates that the creation of existing use rights should depend upon the permission or prohibition of an environmental planning instrument. Clause 33 does not derogate from existing use rights in this instance because no rights arise unless the environmental planning instrument takes the first step of prohibiting the use. 129. In reply to Mr Maston's submission that the building is a mixed use premises and therefore prohibited altogether, Mr Parry accepts that the building falls within the definition of mixed use premises, but contends that "mixed use" cannot constitute an existing use being an amalgam of more than one use. As I understand the submission, s 106 refers to development for "a lawful purpose", whereas a mixed use premises is by definition a building being used for two distinct and possibly unrelated purposes, so that it has to be established that each is prohibited in isolation before existing use rights can be found. 130. In the alternative, Mr Parry submits that to constitute an existing use the mixed use would have to be lawful immediately before the coming into force of a planning instrument and the applicant has adduced no evidence to show that it was. 131. Further in the alternative, it is submitted that even if the applicant is correct in stating that the land is being used for a purpose which is prohibited, being mixed use premises, it is nevertheless also being used for two permissible uses, being a dwelling and a shop and ,therefore, is not subject to a prohibition so as to attract existing use rights. 132. Finally, Mr Parry submits that if I decide against him that this part of the land is in fact relevantly subject to the prohibition against mixed use premises, that there is nevertheless no existing use right because the respondent has not proved that the use was conducted lawfully before the coming into force of Rockdale LEP. If the uses commenced in 1947, as suggested by Mrs Kay's evidence, they required development consent under the General Interim Development Order which commenced in 1946. The respondent has not adduced any evidence of such consent. 133. Mr Parry concedes that the yard of the dwelling of No. 717 might properly be regarded as the curtilage of the dwelling and so part of the same use, but submits that there is no evidence that the other open areas around the building have been involved with any particular use of the building so as to attract existing use rights. Conclusions 134. The first question to be answered in respect of No. 717 is whether the battery shop and dwelling were lawfully commenced. As consent has been required for these uses on the land since 1946, this means the applicant has to show either that the use commenced before that date, or that the uses had consent. 135. Mrs Kay states that her family lived in No. 717 from the time her father purchased the two lots, which she says was 1944, until 1947. This establishes that the premises have been used as a dwelling since before the commencement of planning controls. 136. Of the battery shop use, however, Mrs Kay can only say that it commenced "not later than 1947". This is not sufficient to show that the use predates planning controls. We simply do not know whether the use may have started before this, or whether there was some other related use of the shop which might have qualified it as being subject to an existing use. I find, therefore, that the applicant has not shown that the battery shop use was commenced before it became necessary to obtain a consent for that use. 137. There is no evidence of a consent having been granted to the battery shop use. Mr Maston submits, however, that the presumption of regularity may lead the court to presume that there was a consent to this use, there being no evidence to the contrary. As authority Mr Maston cites, as noted above, Australian Posters v Leichhardt Council (2000) 109 LGERA 343 and the cases referred to therein. 138. The presumption of regularity is a rule of evidence to the effect that when: …an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act. ( Knox County v Ninth National Bank 147 US 91 (1893), cited by Griffith CJ in McLean Bros. & Rigg Ltd v Grice & Anor (1906) 4 CLR 835 at 850, with whom Barton and O'Connor JJ agreed). 139. A possible application of this principle would be to say that proof of use of land for a certain purpose, if that purpose could only be carried out with consent, carried with it a presumption that consent had been obtained. However, a general application of this rule in existing use matters would abrogate the principle that the applicant bears the onus of proving all factual elements required to found the declaration which is being sought (Jones v Sutherland Shire Council (1979) 40 LGRA 323). 140. In Jones v Sutherland Shire Council, Huntley JA said (at 327): Where a person seeks a declaration, he has to prove all the facts which are necessary to enable that declaration to be obtained. This means that he takes upon himself to prove all the conditions necessary to be established, including matters which he could require the other party to prove, if he were the defendant. … In any event, in my opinion, a court should refrain from making a declaration as to the existence of a fact, when there is no evidence one way or other of the fact. … 141. All of the decisions to which I have been referred in which the presumption of regularity was applied in relation to a development consent are judgements of Bignold J. Most of those decisions can be distinguished from the current case on the basis that the actions in question which were said to give rise to the presumption were performed by a public authority and depended for their validity upon development consent having been granted. In this case the only parties who have acted as if development consent obtained are the proprietors of the shop themselves. 142. The judgment which contains the most extensive discussion concerning the presumption is Manicaland Pty Ltd v Strathfield Council (NSWLEC, 12 December 1997, unreported). This is also the only case referred to in which the presumption of regularity was decisive in establishing that a necessary consent had been obtained 143. In Manicaland the pivotal question was whether consent had been granted in 1962 to the Housing Commission of NSW to construct certain buildings as public housing. The applicant could not produce evidence of a development consent having been granted. It could, however, point to actions which were taken by the Housing Commission in exercise of its statutory power, namely, the construction and use of the buildings as public housing, which depended for their regularity upon consent having been granted. 144. It was recognised (at pars [3]-[4]) that the applicant bore the onus of proving that development consent had been granted, but was assisted in discharging this onus by the presumption of regularity, which was ultimately determinative, there being no evidence to show whether consent was granted or not. 145. In that case Bignold J cited the formulation of the presumption of regularity in Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 (at 164). That statement is limited in its application to public authorities: Where a public official or authority purports to exercise a power or to do an act in the course of his duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled (per McHugh JA). 146. Bignold J also refers to the fact that the actor in question was a public body as an "important" factor in the decision, though he does not go so far as to say that it is determinative: (s)ome facts are clear, namely that the buildings were erected in 1962 and the use for residential purposes commenced in September 1962 and has continued thereafter for nearly 35 years. It is also an important fact that the person responsible for that erection and that use is a public body, the Commission, executing its statutory duties under the Housing Act 1912. Based upon these undisputed facts the presumption of regularity, in my judgement, operates to presume that in carrying out this development the Commission had "obeyed the law" (Dillon v Gange) and "fulfilled the necessary conditions" (Minister of Natural Resources) by obtaining the requisite development consent from the County Council. 147. The other cases where the presumption of regularity has been applied so as to infer the necessary consents are also cases where public authorities have taken subsequent steps upon the understanding that a consent obtained. 148. In P Bartol and Associates Pty Ltd v Randwick City Council (NSWLEC, 26 April 1996, unreported) the Court was asked to infer that consent had been granted to the commencement of a restaurant use, where subsequent consents to modification had been granted and which could only have been lawful if there was a prior consent. Bignold J stated that although the presumption of regularity applied, it was rebutted by evidence suggesting that consent had not been granted. 149. In Australian Posters, Bignold J was prepared to infer, in the absence of direct evidence, that a certain building had been constructed with development consent. There was strong circumstantial evidence of a consent having been granted in that case. Bignold J said, however, that the applicants were also assisted by the presumption of regularity (at 353). That was an unusual case in that the local council had leased the land in question to the NSW Federation of Police Citizens' Boys Clubs on condition that it build a Police Citizens' Boys Club on the land. The Council had subsequently sold the land to the Federation and there had been a change of council boundaries. The successor council had granted three consents in respect of the subject site, on the "acknowledged basis" that the land enjoyed the benefit of existing use rights. 150. The only case referred to which did not share the public authority characteristic was Auburn Council v Nehme (NSWLEC, 19 March 1998, unreported) which concerned the question of existing use rights pertaining to a squash court. The use had commenced on the land in the 1950s. In that case, as in the present case, the only parties who had acted on the assumption that a consent had been granted were the persons who had used the land. Bignold J found that the granting of consent could be inferred pursuant to the presumption of regularity. He did not expound upon the basis for this conclusion. I do not give great weight to this finding as it was purely obiter, the council not having put the question of lawful commencement in issue in that case. 151. The presumption of regularity is clearly not a principle limited to the actions of public authorities. There have been other cases where the presumption has been applied to the actions of private persons. Dillon v Gange (1941) 64 CLR 253 (which is also referred to by Bignold J in Manicaland) was a personal injury suit in which the appellant was injured by a taxi cab owned but not driven by the respondent. A by-law of the City of Melbourne provided that no owner of a taxi cab should entrust his cab to any person to drive except in the capacity of servant. It was found that the presumption of regularity operated in favour of a finding that the respondent had obeyed the by-law, although in the event the presumption was rebutted. 152. There must be some limit to the application of the principle, however, in existing use cases where the law casts upon the applicant the obligation of proving all factual elements required to found the declaration which is being sought (Jones v Sutherland Shire Council noted above, at 327). Lawful commencement is an important matter to be proved if existing use rights are to be established. If the fact of the use having been commenced led to a presumption that consent was granted, the onus would almost always be cast back onto the party resisting the assertion of existing use rights to disprove lawful commencement. 153. I would not, therefore, be willing to find that a presumption that a consent has been granted arises merely because occupants have used the land in a manner which required consent. Something more is required to give rise to the presumption. I would limit the application of the presumption of regularity as found in Australian Posters and its predecessor cases to closely analogous situations. That is, to cases where there is no direct evidence of a consent having been granted and a public official or public authority has subsequently done an act or exercised a power which depended for its validity upon a prior consent having been granted. Those are not the circumstances of this case. 154. There can therefore be no question of an existing use right arising on the battery shop premises. This means that it is not necessary to consider the interesting question raised by counsel as to the effect of cl 33 of Rockdale LEP 2000: whether shops have relevantly ceased to be prohibited on the land, or whether the general prohibition preserves the existing use right and cl 33 purports to derogate therefrom. 155. The dwelling use, however, was lawfully commenced and became prohibited with the coming into force of Rockdale Planning Scheme Ordinance, under which the land was zoned 4(c) Local Industrial. Therefore, existing use rights arose on the portion of the land devoted to the dwelling use. However, the dwelling use subsequently became permissible on 4 December 1981 when the land was zoned Residential 2(b2), and continues to be permissible up to the present day. 156. In disputing the question of existing use rights on No. 717, both parties proceeded on the assumption that if either of the uses on the land had become relevantly permissible, existing use rights ceased to apply. 157. Although the point was not argued, it is worth pausing to consider whether this assumption is supported by the EP&A Act. Of course, an existing use right if it remains will cease to have much of its value when the use becomes permissible again, because the user could rely on either the existing use right or permissibility under the planning instrument for continuance of the use. It is in any case clear that the planning instrument which makes the use permissible cannot require further consent to be obtained for the continuation of the use if it was previously lawful as an existing use (see s 109). If the existing use right does remain, however, it will have relevance in cases such as the present where the user seeks approval to change the use to a prohibited use. 158. The following considerations appear to me to suggest that the existing use is preserved. 159. It may be arguable that as the primary purpose of existing use rights is to provide an exception to a current prohibition, it is axiomatic that land ceases to enjoy existing use rights when that prohibition is lifted by a subsequent instrument. It is clear, however, in this, as in many other cases, that the capacity of existing use rights to pave the way for other prohibited uses pursuant to s 108 of the Act and the regulations may often be their most valuable attribute. This is a benefit which is expressly provided by the Act and the regulations. It is an existing right, meaning that the court should apply the principle of statutory construction "that statutory provisions designed to protect and preserve existing use rights should be as liberally construed as the language in its context allows" (Dorrestijn v South Australian Planning Commission (1984) 59 ALJR 105, 54 LGRA 99 at 105, per Mason ACJ, Deane and Dawson JJ). 160. The Act expressly provides only one way in which existing use rights may be lost, that is, by a condition in a consent requiring surrender of existing use rights, as authorised by s 80A(1)(b). Section 107(2)(e) provides that the protection of 107(1) is not extended to a use which has been abandoned, but does not provide that it ceases to be an existing use. Nowhere in the Act is it expressly stated that when a use becomes permissible under a later planning instrument it ceases to be an existing use under the Act. It cannot therefore be said that the existing use is "extinguished" by the coming into force of such an instrument. It may be, however, that the use for some other reason ceases to fall within the definition of existing use under s 106. 161. The definition of an existing use is as follows: 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, … 162. The phrase "the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument..." is somewhat ambiguous. It could be taken to mean that a use is only an existing use at the point in time before the prohibiting instrument comes into force. This interpretation, however, would lead to the absurd result that the protection of s 107(1) was useless, because it only applied before the use became prohibited. Instead, it is usually taken to mean "the purpose for which the building work or land was lawfully used... " at the relevant date. A present category of use is thus defined by reference to a past event. On one reading, if one can identify, in respect of certain land, a lawful use to which the land had been put before an instrument came into force which had the effect of prohibiting that use, that use would for ever after be an "existing use" of that land for the purposes of Pt 4 Div 10, no matter what permissions or prohibitions had been imposed by subsequent instruments. 163. The definition does not explicitly require that the use must still be a prohibited one at the date upon which its existing use status is being asserted. 164. Section 107 then goes on to state that except as expressly provided "nothing in this Act or an environmental planning instrument prevents the continuance of an existing use". This section does not suggest that the existing use loses its status as an existing use when a planning instrument no longer purports to prevent that continuance. Put another way, if nothing in an environmental planning instrument prevents the continuance of an existing use, then an existing use may remain an existing use notwithstanding the coming into force of an environmental planning instrument which may make such use permissible. 165. I turn now to those considerations which seem to me to suggest that a use of land loses its protection as an existing use upon coming into force of an environmental planning instrument which has the effect of making such use permissible. 166. Existing uses are created pursuant to s 106 upon the coming into force of an environmental planning instrument which has the effect of prohibiting the use. It is the coming into force of an environmental planning instrument which makes a particular use an existing use. The creation of an existing use is dependent upon the planning instrument. There seems to be no reason, therefore, why a planning instrument could not operate conversely, so as to make a particular use no longer a prohibited use. Since the creation of an existing use is dependent upon a prohibition in a planning instrument, so too can a planning instrument remove the prohibition. 167. Neither would such a step appear to derogate from the incorporated provisions contrary to s 108(3). If a particular use is no longer by definition an existing use then the incorporated provisions simply do not apply thereto. The incorporated provisions would still be taken to be incorporated in every environmental planning instrument. But the incorporated provisions can and would only continue to operate on existing uses as defined in s 106. 168. A further consideration is s 109. That section operates to allow the continuance without obtaining consent (or further consent if it already has consent) of a use which, upon the commencement of a planning instrument, could only be continued with consent. On its terms, this section must apply as much to uses which were lawful only by virtue of s 107 as well as to uses which commenced with consent or without the necessity for consent. It would be anomalous if the existing use could, at the same time, be controlled by both s 107 and s 108 on the one hand and by s 109 on the other hand, with different consequences. It seems to me that the scheme of Pt 4 Div 10 of the EP&A Act is to allow a use to fall within either the former or the latter. 169. It is also useful to consider the underlying purpose of existing use rights, which is to prevent the hardship which would otherwise be caused to some users of land by the imposition of a new prohibition. Kirby P in Boyts (at 51) described existing use rights as "a transitional derogation designed, for a time only, to cushion the impact of new general planning laws upon private owners with established use of their land". If existing use rights are properly seen as "transitional" in nature, there is little planning law or private law justification for continuing to recognise them after the prohibition which ushered them in has been lifted. At that point, the owner of the subject land is in the same position as all landowners conducting lawful uses and there seems to be no policy reason why he or she should enjoy superior protection. 170. If we consider also the effect of s108 and the regulations, the possibility of obtaining consent to change an existing prohibited use to another prohibited uses has benefits both for the owner, who may continue to take advantage of the existing use without being constrained to continue activities which may have ceased to be viable in the area; and the public, because it facilitates the transition from less to more desirable prohibited uses. It is much less plausible that the legislature would have intended that on all land which had at some time enjoyed the benefit of an existing use, the owner should ever after be able to change a permissible use to a prohibited use. The latter interpretation would have private, but no public, benefits. Such an outcome would be highly detrimental to the orderly enforcement of planning controls in the State. 171. The considerations which suggest that a use of land can lose its status on an existing use by becoming a permissible use seem to me to be persuasive. I am thus inclined to the view, for those reasons, that an existing use can no longer be an existing use upon coming into force of an environmental planning instrument which has the effect of making such use permissible (albeit with consent). In such a case the use would no longer satisfy the definition in s 106. 172. For the above reasons I find that neither the dwelling nor the battery shop, taken in isolation, have existing use rights. 173. I next turn to Mr Maston's submission that the premises as a whole are properly described a mixed use premises as that concept is defined under the current local environmental plan; that mixed use premises are prohibited under this plan and have for this reason acquired existing use rights. 174. As discussed above (at par [66]), it is a settled principle that the scope of uses protected by provisions such as s 107 or 109 are not to be determined by reference to categories listed in the zoning instruments "but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date" (Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-535). It is quite irrelevant to my mind that a later planning instrument has created a category of use which is much broader than any which would be referred to in ordinary terminology, and which by definition comprises two or more unrelated purposes occurring on the same land. Before the coming into force of Rockdale LEP 2000, it would never have occurred to anybody to describe this as the use to which the premises were being put. They were being used, simply, for a battery shop in one part and a dwelling in another. The battery shop part could not have become an existing use because it was not, in any case lawful. The dwelling was not, and did not become an existing use, because it is not subject to any relevant prohibition. Whole of the Land The Applicant's Submissions 175. Mr Maston for the applicant submits that, as lots 5 and 6 have been in single ownership at all material times and have been used without regard to the property boundary between them, they should be regarded as a single parcel of land for existing use purposes. 176. It is submitted that Lemworth Pty Ltd v Liverpool City Council (2001) 113 LGERA 8, in which it was held that use of the first floor of a building for a brothel did not confer existing use rights on the car park or the ground floor of the building, should not be followed in that it is inconsistent with the decision of the Court of Appeal in South Sydney City Council v Houlakis & Teakdale Pty Ltd (1996) 92 LGERA 401. In the latter case Clarke JA said that the words "enlargement, expansion or intensification" in the Regulation embodied the "notion of increase" and that the words should be given a wide rather than narrow construction. Mr Maston also submits that Cowdroy J in Lemworth failed to consider the effect of s 107(2)(b) of the EP& Act, which sets the boundary of the actual existing use, in conjunction with s 108 and the regulations which allow the area of that use to be expanded with consent. 177. Mr Maston submits that the Court should instead follow Steedman v Baulkham Hills Shire Council [No. 1] (1991) 87 LGERA 26 at 27, in which it was held that existing use rights for the purposes of an extractive industry may attach to land not physically used for that purpose if the whole land is rightly regarded as a unit; and Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 in which it was suggested that ordinarily on small urban allotments the whole parcel of land will be treated as one for existing use purposes. 178. Contrary to the respondent's submission that the six occupancies make it impossible to regard the land as a single unit, the applicant cites Baulkham Hills Shire Council v O'Donnell (1990) 69 LGERA 404 for the proposition that there is no limit to the number of uses, including existing uses, which may subsist on one unit or parcel of land. 179. Mr Maston asserts that the small size of the land in the present case and the fact that buildings straddle the internal property boundary should lead to a finding that whatever existing uses have been found encompass the whole allotment. The Respondent's Submissions 180. Mr Parry, for the respondent, submits that the recent statements of principle in Salvation Army v Newcastle City Council (2000) 107 LGERA 40 and Lemworth v Liverpool City Council offer the correct approach to the extent of existing uses under the current Act and the applicable regulations (which in the present case is the 1994 Regulation). That is, that the entitlement to change a use and to expand the area physically subject to the use is limited to the land on which the existing use was taking place immediately before the coming into force of the relevant prohibition. 181. Therefore, in order to obtain the first declarations which it seeks, the applicant would have to demonstrate that an existing use right for at least one of the established purposes obtained on each constituent part. For example, it would have to show that the plaster warehouse at No. 713 and the mechanic's workshop at No. 711 were in some sense being used for the purpose of a battery shop or a dwelling or a wrought iron manufacturer if those were the existing uses which were found on the land. 182. According to Mr Parry, the fact that there are five different buildings on the land which have at all relevant times been divided into a total of six separate occupancies, must lead to a finding that the existing uses which have been established did not extend beyond the areas which were leased for those purposes. Because of the distinct occupancies, it could not be said that any of the areas was at any time caught up with the use of another area, or held in reserve for that use. It should be found, as in the Salvation Army case, that different areas within a single allotment may be subject to different uses when the allotment is not operated relevantly as a unit. Conclusions 183. In Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 it was held that land which was part of an allotment on which an existing use was conducted, but not physically used for the relevant purpose at the date when an existing use came about might, in certain circumstances, be held to have the benefit the existing use. Barwick CJ went so far as to say that it would be a rare case in which "a line can properly be drawn within a suburban allotment confining the existing use of the allotment to the area of physical use" (at 274). However, that case does not simply say that a suburban allotment must always be regarded as subject to a single use. The majority in that case reached its decision after taking into account a multitude of factors including common ownership and occupancy; the purpose for which the land was purchased; legal boundaries and the fencing of lots; and whether the land was kept vacant for future expansion. As Walsh J stated at 278: It is clear, in my opinion, that it will not be possible in all cases to avoid the difficulty of resolving questions of fact and of degree or to avoid the necessity of drawing a line to mark off one area from another within land within the same ownership. It seems plain that in some cases the physical use for a particular purpose of a small portion of a large holding would not warrant a finding that the whole area was used for that purpose. But I am of the opinion that where a relatively small area is held by one owner and none of it has been used in fact for any purpose different from that for which a part of it has been used, it should generally be regarded as being all one parcel for the purpose of determining what land has been put to that use. 184. Eaton pre-dates the EP&A Act, sub-s 107(2)(b) of which provides that nothing in sub-s (1) authorises "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". This sub-section does not change the definition of existing use, only the extent of what might be done without obtaining further consent. It is to be noted that although cl 40(1) of the 1994 Regulation specifies that any enlargement, expansion or intensification, must "be carried out only on the land on which the existing use was carried out", it does not contain the "actually physically and lawfully used" limitation. Its effect is that, while the whole of the land in some circumstances might continue to be regarded as having the benefit of an existing use in the broader sense, the proprietor needs consent under the Regulation to expand the actual physical use within that area. 185. The effect of the equivalent sub-s in s 109 of the EP&A Act was described by Priestley JA in Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 25 NSWLR 580 (at 588): that a growing awareness of the need to control the environmental impacts of inappropriate existing development had led to the need to restrict what might be done without obtaining further consent, so that the consent authority would retain the power to decide after appropriate investigation whether any enlargement, expansion or intensification to pre-existing developments should be allowed. Although the concept of what an existing use authorises has changed, the broader concept of the existing use remains relevant to determine what may be done with consent. 186. The broader concept of use (in the Eaton sense) defines the boundaries within which the use may be expanded and changed with consent. In the present case the applicant is seeking consent both to change the use of the land to another prohibited use and expand the use to cover the whole of the land. The principles described in Eaton and related cases continue, therefore, to be relevant. 187. A useful summary of the approach to be taken in determining the extent of a use, which takes into account the earlier cases, is to be found in Steedman v Baulkham Hills Shire Council [No. 1] (1991) 87 LGERA 26 at 27 (per Meagher JA): It is also clear enough on the authority of these cases, that the land subject to the determination should be capable of identification as far as possible in a way which avoids detailed investigation and complicated disputes of fact; that land can be used for a lawful purpose without there being an actual physical use of it; that if the land is rightly regarded as a unit and it is found that part of its area was physically used for the purpose in question it follows that the land was used for that purpose; and that if some part of the land was used for mining or extractive purposes, the fact that the balance of the land was held in reserve and intended for future use does not derogate from the fact that in law the whole of the land was used for mining or extractive purposes. 188. In Salvation Army v Newcastle City Council (2000) 107 LGERA 40, Pearlman J adopted the above principles as a starting-point for determining the extent of existing use rights. In that case a panel beating business which was an existing use had been conducted on a small part of a larger rural holding, while the rest of the land was used for a permissible purpose. The applicant, as in this case, sought to show that the whole holding enjoyed the benefit of the existing use, so that it might be possible for it to obtain consent to change to another prohibited use and extend that prohibited use well beyond the area physically occupied by the panel beating business. 189. One of the determinative factors which led Pearlman J to find that the whole of the land was not being used as one unit for existing use purposes was the fact that the portion of the land on which the existing use was taking place was separately leased to the user, whereas the owner of the land continued to effectively occupy the remainder by putting it to a grazing use. Another important indicator was that the development consent relating to the existing use described the use as taking place within limited parts of the land. The same factors are critical in the present case. (In the result, Pearlman J held that one distinct part of the property was used for the existing use and another part for the purpose of grazing livestock; that there was no evidence that the part which was not used for the existing use was being held in reserve for future expansion; and it followed that the applicant had failed to established existing use rights to the whole of the land.) 190. The correctness of the recent judgement of Cowdroy J in Lemworth Pty Ltd v Liverpool City Council (2001) 113 LGERA 8 was strongly debated in the present case. The factor which made that judgement distinctive was the ruling that the "land" to which an existing use was restricted might be only a single floor of a building and that in such a case the existing use did not extend vertically to other floors in the building (at 12-13). Insofar as the judgement was concerned with the scope of existing uses generally it does not depart from the principles laid down in authorities such as Eaton and Steedman. 191. There is no inconsistency between the decision in Lemworth and the decision of the Court of Appeal in Houlakis. In the latter case the issue was whether an extension in the trading hours of a hotel was an enlargement, expansion or intensification of the use within the meaning of s 109(2)(c), which requires consent to be obtained for any such enlargement, expansion or intensification. Clarke JA's finding that the concepts should be given a broad rather than a narrow definition actually limits the kind of changes which might be implemented without the requirement for consent. This case makes no comment on the kind of physical expansion which may be consented to if consent is sought. 192. In the present case I have found that the only existing use right arising on the property is for the purpose of a wrought iron factory. The boundary of the area known as No. 709 forms the limit of the actual physical lawful use of the land for that purpose. 193. A consideration of the authorities discussed above means that a declaration that the whole of the land enjoys existing use rights can only be made if I find that whole of the land known as Nos. 709 to 717 was used for the purpose of a wrought iron factory before the coming into force of the relevant prohibition. 194. To state the question in this way is to answer it. The applicant would have to show that the areas which have not been found to have existing use rights on their own account, namely Nos 713, 715, 711 and 717, were in some sense being 'used' for the purpose of a wrought iron factory, in spite of the fact that they have been proved to have quite distinct uses. The applicant has not seriously attempted to do this and that conclusion is not supported by the evidence. A more promising course for the applicant may have been to attempt to show that the whole of the two lots was being put to some kind of composite use, such as that of an industrial estate, but this was neither pleaded nor suggested in argument, and would have presented its own difficulties of proof. 195. In Baulkham Hills Shire Council v O'Donnell (1990) 69 LGERA 404 it was decided that a number of uses, including existing uses, may subsist on one unit or parcel of land. In that case the land was used simultaneously for a riding school and a quarry, with neither of the uses predominating. It was found that the land was operated as one unit, so that both uses applied to the whole of the land. This does not really assist the applicant's case. It may be possible in theory that all of the uses which have been established, existing and other uses, can take place simultaneously on the same land, but in this case the evidence shows to the contrary that they took place on distinct areas of land which were separately leased to different occupants. 196. In the present case the fact that the land has been divided into at least five (and possibly six) separate occupancies for over fifty years is a strong indicator that the land should not be treated as a single unit for existing use purposes. It is, of course, the actual use of the land, rather than the legal terms of occupation which is determinative, but in this case the separate leases clearly have led to a distinct separation of the uses taking place on the land. All of the evidence from witnesses tends to show that the areas which have been separately leased represent the boundaries of the various uses conducted therein. If more than one of the separate portions of the land had been leased by the one party, it might have been easier to show that a second portion was being held in reserve or in some other sense devoted to the same use as the first portion; but where each has been leased separately (there being no evidence to the contrary) it is natural to assume that each tenant has conducted its business within the confines of its allotted area. 197. The terms of the consents which have been tendered also show a clear separation of the uses. In the case of No. 709, the consent indicates that the use is to take place within the building leased for that purpose. One can infer that the land immediately surrounding the building was used for a purpose related to that use, especially the parking of vehicles and the loading and unloading of goods, but for the use to be extended to any of the other buildings on the land or their curtilage would have been outside what was permitted by the consent. 198. Confirming the existing use in this way is entirely consistent with the principles explained by Walsh J in Eaton (noted in par [183] above). The physical use for a particular purpose of a small portion of a larger holding does not warrant a finding that the whole of the building was used for that purpose in a case such as this, where other distinct parts of the holding were used for purposes different from that for which part of it was used. In these circumstances the larger holding should not be regarded as being all one parcel for the purpose of determining what land has been put to that use. 199. I therefore find that the applicant is not entitled to the declarations which it seeks. 200. The orders of the Court are: (1) The application is dismissed. (2) The question of costs is reserved. (3) The exhibits may be returned. I hereby certify that the preceding 200 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd Associate Dated: 31 October 2001 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.