Land and Environment Court of New South Wales CITATION: The Firm (Australia) Pty Ltd - V - South Sydney Council [1999] NSWLEC 5 PARTIES Applicant The Firm (Australia) Pty Ltd Defendant South Sydney Council NUMBER: 10517 of 1998 CORAM: Lloyd J :- Brothel KEY ISSUES: Use of dwelling house Whether non-residentialuse amounts to "used as a dwelling house" Brothel LEGISLATION CITED: Use of dwelling house Whether non-residentialuse amounts to "used as a dwelling house" DATES OF HEARING: 12/17/1998 DATE OF JUDGMENT DELIVERY: 02/04/1999 Applicant M S Campbell LEGAL REPRESENTATIVES: Respondent A M Hawkes (s) JUDGMENT: 1. This is a question of law raised by the respondent in proceedings before a Commissioner and referred to me for determination pursuant to the Land & Environment Court Act 1979, s 36(5). 2. The question requires the construction of clause 37 of the South Sydney Local Environmental Plan 1998, which is as follows: "37 Non-residential development in Zone 10 (1) The Council must not grant consent to the use, for a non-residential purpose, of a building or land within Zone No 10 which was used as a dwelling house, boarding house, private hotel, or multiple dwelling at the appointed day unless it is satisfied that the building is no longer suitable, or required by the local community for residential purposes. (2) In determining a development application to which this clause applies, the Council must consider, in each case, whether there is sufficient comparable accommodation in the locality to satisfy demand for such accommodation in that locality." 3. As originally framed the question of law comprised two questions as follows: "1. Whether Clause 37(1) of the South Sydney Local Environmental Plan 1998 applies to a building part only of which was used as a dwelling house, boarding house, private hotel or multiple dwelling at the appointed day. 2. Whether Clause 37(1) of South Sydney LEP 1998 applies to a building which was vacant at the appointed day but was last lawfully used as a dwelling house, boarding house, private hotel or multiple dwelling prior to the appointed day." 4. I was informed by the parties that the first question was no longer relevant. Accordingly, the only question before me is question 2, which in turn only raises for consideration sub-clause (1) of clause 37. 5. The applicant has brought an appeal under the Environmental Planning & Assessment Act , s 97 against the deemed refusal of the respondent to refuse a development application for the use of premises as a brothel. The premises comprise a terrace house which was, prior to 1987, used as a residence. There is no evidence of what the use of the building was between 1987 and 1996, but it was probably used as a residence. In about 1996 the building was used for about six months as a brothel but without development consent therefor. It is not known whether such use was as a home occupation. For about two years before 7 April 1998 the building was used by a charities' collection agency, again without development consent. The appointed day for the purpose of clause 37(1) is 24 April 1998. The building was vacant on that day. 6. Mr A M Hawkes, who appears for the respondent, submits that a use of premises does not necessarily mean physical occupation of such premises. He relies for this proposition on Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493, 4 LGRA 69 (affirmed: (1959) 100 CLR 1). Mr M S Campbell, who appears for the applicant, submits that use means physical use so that if the building is unoccupied at the appointed day it is unused. I accept the submission of Mr Hawkes and reject the submission of Mr Campbell. The submission of Mr Hawkes is consistent with the Royal Newcastle Hospital case. The submission of Mr Campbell could lead to absurd consequences. It would mean, for example, that a person could cease occupying a building immediately before the appointed day so that it was vacant on that day and then resume occupation immediately after the appointed day. This would lead to an artificial concept of use and in turn would lead to an abuse of the intention of the clause. The question whether a building is being used in the relevant sense is, however, a question of fact which depends upon the particular circumstances in each case. 7. Mr Hawkes also submits that any unlawful use must be ignored. He cites a number of authorities, including Pearce and Geddes: Statutory Interpretation in Australia (1996) 4th Edition, Butterworths, at 43 for the proposition that the courts will resist strongly an interpretation of an Act that will permit a person to take advantage of his or her own wrong. He refers to a number of cases involving existing use provisions in which the lawfulness of the existing use was held to be a necessary element in order to enable the continuance of that use (in particular Bourne v Marrickville Municipal Council (1953) 19 LGR (NSW) 218, Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1 at 26, 26 LGRA 437 at 456). As with Mr Hawkes' first submission, these are settled propositions which I also accept as applying in this case. 8. Mr Hawkes further submits that a use may be continued notwithstanding that it is interrupted or broken and notwithstanding that an application is made to change the use to another use. The owner retains a right to use the premises for its previous use. He referred to Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138 at 144, 149, Daniel v Manly Municipal Council (1975) 34 LGRA 1 at 20, and Woollahra Municipal Council v TAJJ Investments Pty Ltd (1982) 49 LGRA 123 at 132. 9. I accept the general proposition for which Mr Hawkes cites the abovementioned cases. The cases referred to by Mr Hawkes, however, are all existing use cases. The question in each case was whether an existing use right was lost because of an interruption in that use. That is not the case here. A residential use of the subject premises is not an existing use as defined in the Environmental Planning & Assessment Act (s 106). That is because a use of premises for the purpose of a dwelling house is permissible in the relevant zone without development consent. That is to say, the use of premises as a dwelling house in the relevant zone here may not be lost by some interruption to such use or by a change from residential to some other use. 10. In my view the question which I am asked to determine (question 2 in paragraph 3 above) is not a question of simple statutory construction. It is more a question of fact. The answer to the question must depend upon the particular facts and circumstances in each case. The true answer to the question is thus: it depends upon the particular facts and circumstances. In the present case the last residential use was thought to have been in 1996. Since then it was used for a brothel, then for a charities' collection agency and is now I assume vacant. Although the use as a brothel and the use as a charity's collection agency were unlawful, the fact remains that the last residential use must have been no later than early 1996. It is now February 1999. That is a period of about three years since the last residential use. At the appointed day, 24 April 1998, the period since the last residential use was about two years. Even if one were to assume that the premises were vacant since early 1996, I do not think it could be said that the building was used as a dwelling house at the appointed day, some two years after the date when it was thought that it was last used for residential purposes. 11. Mr Hawkes also relies upon the objectives of the zone within which lie the subject premises. He submits that those objectives are to preserve residential amenity. That, however, is a matter for consideration on any development application. The objectives do not bear on the question of whether particular premises were being used for a particular purpose on a particular date. 12. The answer to the so-called question of law raised by the respondent is as follows: Question: Whether Clause 37(1) of South Sydney LEP 1998 applies to a building which was vacant at the appointed day but was last lawfully used as a dwelling house, boarding house, private hotel or multiple dwelling prior to the appointed day." Answer: This is not a question of law but a question of fact which depends upon the facts and circumstances in each case. On the particular facts of the present case the answer to the question is in the negative. 13. The matter is stood over to the Registrar's callover for the fixing of a further hearing before the Assessor. I certify that this and the 6 preceding pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd. Associate Dated: 04/02/99 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.