Reported Decision : 114 LGERA 27 Land and Environment Court of New South Wales CITATION : Signorelli Investments Pty Ltd v Sutherland Shire Council [2001] NSWLEC 78 APPLICANT: Signorelli Investments Pty Ltd PARTIES : RESPONDENT: Sutherland Shire Council FILE NUMBER(S) : 10042 of 2000; 10988 of 2000 CORAM: Talbot J KEY ISSUES: Development Application :- whether can be in respect of completed works - retrospective consent - use of site dependant on availability of external car park not under applicant's control - overdevelopment Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Local Government Act 1993 Sutherland Shire Local Environmental Plan 1993 Sutherland Shire Local Environmental Plan 2000 Kouflidis & Ors v City of Salisbury (1982) 49 LGRA 17; Lirimo Pty Ltd v Sydney City Council (1981) 66 LGRA 47; CASES CITED: Longa v Blacktown City Council (1985) 54 LGRA 422; Tynan v Meharg and Newcastle City Council (No. 2) (1998) 102 LGERA 119; Willoughby City Council v Dasco Design and Construction Pty Ltd & Anor [2000] NSWLEC 257; Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299 DATES OF HEARING: 09/04/2001, 10/04/2001, 11/04/2001, 12/04/2001, 17/04/2001 DATE OF JUDGMENT: 04/24/2001 APPLICANT: Mr T S Hale SC with Mr T M Thawley (Barrister) SOLICITORS: The Law Firm of Solari's LEGAL REPRESENTATIVES: RESPONDENT: Mr J E Robson (Barrister) SOLICITORS: Abbott Tout JUDGMENT: IN THE LAND AND Matter Nos. 10042 of 2000 ENVIRONMENT COURT And: 10988 of 2000 OF NEW SOUTH WALES Coram: Talbot J Decision Date: 24 April, 2001 Signorelli Investments Pty Ltd Applicant v Sutherland Shire Council Respondent REASONS FOR JUDGMENT 1. The hearing relates to two appeals against the refusal of development applications lodged by the applicant with the respondent council in respect of premises at 223 Belgrave Esplanade, Sylvania Waters. The premises, known as Doltone House, are used as a function centre, primarily for functions such as wedding receptions. 2. A two storey building is constructed on the site. The ground floor presently comprises a foyer, two bars, a brideroom and a boardroom, offices, toilets and a storage area with an undercroft used for parking at the eastern and western extremities. 3. The first floor consists of two large function rooms and a kitchen. 4. Apart from the limited parking provided on site under the building, patrons depend upon an open area owned by the council at the rear of the building for the parking of cars. 5. The subject site is zoned 3(b) under the Sutherland Shire Local Environmental Plan 1993 ("LEP 1993"). 6. Sutherland Shire Local Environmental Plan 2000 ("LEP 2000") was gazetted on 15 December 2000. The reception centre is a use permitted with development consent in the 3(b) zone under LEP 2000 which, in any event, contains a savings provision whereby it is to be considered as a draft LEP for the purposes of the subject applications. The relevant provisions of LEP 2000, in the present context, impose development standards in respect of height and floor space ratios. Matter No 10042 of 2000 7. This development application seeks approval for alterations and additions to the existing reception centre. These alterations and additions have already been undertaken without the benefit of development consent. 8. The notice of determination dated 13 January 2000 states that the council is precluded under the provisions of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") from approving an application for development that has already been carried out. 9. The following chronological history assists to place this development application in context:- 10 September 1968 Development consent No 2292/68 granted for the erection of a structure containing two wedding reception lounges and a three bedroom residential flat. 4 July 1985 Development consent No 0178/85 granted for the enclosure of a verandah and the erection of two garages. 15 May 1995 Development consent No 950292 granted for alterations and additions to the building to provide an enlarged entrance foyer and emergency stairs. 7 August 1995 Development consent No 95808 granted to the present applicant for the cement rendering and painting of part of the building facade. 2 May 1996 Development consent No 960196 granted to the present applicant for alterations and additions to function room. 23 March 1998 The present applicant caused development application No 980824 for extensions to a function room to be lodged with the council. Correspondence in support of this development application indicated that in order to meet increasing demand it was proposed to extend the first floor function room No 2 into the existing residence. Reference is also made to car parking spaces within the site and others located within council's open space reserve at the rear of the premises. Development application No 980824 has not been determined by council. Notification of development application No 980824 attracted a significant number of objections. 1 October 1998 Development consent No 990487 granted to the present applicant for the re-roofing of existing residence and extension to the front awning, subject to the condition that the dividing wall between the dwelling and what is described as Reception Room 3 shall not be removed. 6 November 1998 The council issued a construction certificate for the raising of the roof which was expressly limited to external works and excluded any proposal for internal works or the proposed front awning extension. 8 January 1999 The council advised the applicant by letter that the council officers had observed that the dividing wall between the manager's residence and function room 2 had been removed, contrary to the condition of development consent No 990487 and that the new floor area had been remodelled and used as a function room. Other unauthorised work included enclosure of the front balcony and new stairway to the ground floor. The applicant was directed to take specified remedial action including ceasing the use of the manager's residence as a function room. 25 February 1999 Notice of intention pursuant to s 121H of the EP&A Act to give an order pursuant to s 121B(2)(a) and (b) for the demolition and removal of the unauthorised building work issued by council. 9 April 1999 The applicant made an offer to the council to upgrade and maintain the area of public reserve used for car parking and to upgrade a courtyard area on council land at the eastern end of the building. 14 April 1999 The council made an order pursuant to s 121B of the EP&A Act. 1 June 1999 Council advised the applicants that as the land the subject of the offer is zoned for public recreation purposes and classified as community land, the council is unable to accept the offer to carry out the works. 10. It is common ground that works have been carried out on the public reserve under the control of council and that no action has been taken by the applicant to comply with the order made pursuant to s 121B of the EP&A Act. 11. Until 16 May 1999 the applicant held a Certificate of Approval for Place of Public Entertainment issued pursuant to s 68 of the Local Government Act 1993 ("the LG Act 1993") which approved a capacity of 250 persons for Reception Room 1 and 200 persons for Reception Room 2. There is no current certificate. 12. As the alterations and additions to the building have already been undertaken without the granting of development consent the applicant must persuade the Court that notwithstanding existing authority to the contrary, the Court has the power to grant a retrospective consent. Although the development application itself does not make the distinction, Neil Ingham, who is the applicant's consultant town planner, states in his written statement of evidence that it is the use of the areas created by the completed work that is the subject of the current appeal. Mr Hale SC, appearing for the applicant, reiterates that the development application for the works as executed involves the future use of the works and a retrospective consent for the completed works. 13. Mr Hale also explained that the applicants rely on an existing use of the public reserve area for car parking to justify the continued reliance upon the use of that area by the patrons of Doltone House for the parking of cars. There is some evidence to support an argument that the council land was in use as a car park between 1968 and 24 April 1980. The Sutherland Planning Scheme Ordinance ("the PSO") was gazetted on the latter date. The council land was suspended from the operation of the County of Cumberland Planning Scheme on 10 February 1961. It remained unzoned until the commencement of the PSO on 24 April 1980. It is obvious that the use of the council reserve for car parking in conjunction with the use of Doltone House is essential. If the patrons of Doltone House are prevented from using the land as a car park in the future the inevitable consequence would be that they would park in the surrounding residential streets. 14. Apart from a setback along the street frontage the building is, in effect, constructed up to the boundaries of the land. As a matter of practicality, therefore, the council land is also used for the purposes of loading, unloading, storage and disposal of rubbish and an outdoor reception area unlawfully constructed by the operators of the business. 15. The works as executed have provided an additional 442 square metres for the function rooms together with an additional floor area of 190 square metres elsewhere, principally by reducing the car spaces on site from 46 to 28. 16. Mr Robson, appearing for the council, makes the point in final submissions that the effective use of the premises has been significantly intensified by the works. Whereas previously there was a modest reception centre with extensive caretaker's accommodation there is now a significantly overdeveloped and intensely reconfigured site with significant and inappropriate environmental consequences. 17. The council asserts that the nature and content of the unlawful works can lead to no other conclusion than that a deliberate, carefully planned and improper decision was made to present the Court with a "fait accompli" (as per King CJ in Kouflidis & Ors v City of Salisbury (1982) 49 LGRA 17 at 19 - 20) and that, accordingly, the applicant, as the unlawful user of the land, should gain no advantage from having established an unlawful use. Mr Robson has described the work as a blatant example of unauthorised conduct motivated by commercial greed. The Court accepts that although past unlawful conduct should not be an impediment to a consideration of the planning merits of a proposal, nevertheless, the unlawful user is not entitled to gain an advantage in a planning context as a consequence of its unlawful acts. 18. Notwithstanding the obiter remarks made by Cripps J in Lirimo Pty Ltd v Sydney City Council (1981) 66 LGRA 47, there has been a consistent line of authority in this Court which establishes that development consent may not be obtained in order to regularise something that has already occurred ( Tynan v Meharg and Newcastle City Council (No. 2) (1998) 102 LGERA 119, Handley JA at 121). In Lirimo Cripps J was apparently led to the view that an applicant is not precluded from obtaining a proper and valid application for consent to the use of land or the erection of a building, notwithstanding that the use or erection preceded the application for consent, following the removal from the relevant planning schemes of the local successors to cl 27 of the PSO and the inclusion of s 124 in the EP&A Act. 19. I have some difficulty in appreciating the role that s 124 has to play in that line of reasoning. Section 124(2) identifies three categories of breach, namely, the use of any building, work or land, the erection of a building or the carrying out of a work and altering the condition or state of any building, work or land. Section 124(3) cannot, in my view, be read to extend to each of those categories. Depending upon the provisions of the relevant planning instrument there could be instances where a breach of the Act would not have been committed but for the failure to obtain a consent to any of the three categories referred to in subsection (2). However, s 124(3)(b) clearly contemplates an activity which is continuing. Where the breach comprised the erection of a building there could be no interlocutory order which would "restrain the continuance of the commission of the breach" . In the case of the erection of the building or the alteration of the condition or state of a building the breach is complete. 20. Accordingly, the discretion to adjourn the proceedings to enable a development application to be made under Pt 4 to obtain a consent can relate only to circumstances where the breach is continuing. There has been nothing put to me in argument which would persuade me to change the established view that development consent can only be granted prospectively. The whole scheme of the Act demands that the effects and impacts of development be considered pursuant to the Act and in accordance with planning instruments made pursuant to it before consent is granted. 21. I agree with Mr Hale that decisions such as Longa v Blacktown City Council (1985) 54 LGRA 422; Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299; Willoughby City Council v Dasco Design and Construction Pty Ltd & Anor [2000] NSWLEC 257 do not deal with the grant of development consent. The argument by Mr Hale relies upon the distinctive provisions in the LG Act for regularising building works to submit that it is hardly surprising to find a provision such as s 124 which enables the Court to remedy a breach retrospectively because of failure to obtain a development consent. That situation has now changed following the amendments made to the EP&A Act by Act No 152 of 1997 with the introduction of ss 149A - 149G facilitating the issue of building certificates. Even if the 1997 amendments had not been made to the EP&A Act, I would remain convinced that s 124 cannot be relied upon to develop an argument in favour of a grant of development consent retrospectively. 22. Nevertheless, it is open for the Court to give consideration to the development application on the basis that it seeks only a consent to the future use of that part of the building which has been constructed or altered without development consent. 23. I agree that the glazing to the eastern side of the building and around part of the northern side is excessive, inappropriate and out of context. However, notwithstanding that the Court agrees with the council in this respect, it is not such that would justify the withholding of a consent to the use of the additional floor area in the future. Similarly, in relation to the impact of noise arising from the use of the area enclosed by the eastern wall, it is not such that development consent, subject to a condition that requires acoustical treatment to the stairway leading to the lower level, should be refused. 24. The council rightly observes that on any view of the facts the alterations resulted in an 80 per cent increase in function room area. The number of car parking spaces provided on site is at least 20 less than the number required by the 1996 approval. The unlawful works not only increase the need for parking but delete some of the parking already provided. 25. The applicant relies upon the availability of the land in the council public reserve at the rear for the provision of parking. There is no doubt that adequate parking space is provided on the council land. Nevertheless, there cannot be and indeed there is not any guarantee or even an acceptable expectation that the council land can be made available legally to the patrons of Doltone House whilever the reception centre use continues. Notwithstanding the attempt to establish existing use rights, for the time being its use for the purpose of a car park to be used in connection with the reception centre is expressly prohibited by the relevant planning instrument and is contrary to its classification as community land. Furthermore, the council obviously does not embrace the use. 26. Until such time as the use of the public land, or for that matter some other land, is regularised to the extent that the Court can be satisfied it will be available for the use of patrons on a permanent and legal basis, the Court would be approving a use of the premises which is clearly and critically deficient in the provision of parking on site. 27. Whilever that state of affairs continues it is not necessary to give consideration to other peripheral issues that have arisen in the course of these proceedings including an objection made pursuant to SEPP 1 in respect of an exceedence of the prescribed development standard for floor space ratio. In the light of the Court's finding, the development application must be refused. Matter No 10988 of 2000 28. During the course of the hearing the applicant was granted leave to rely upon an amended set of plans, notwithstanding that the council's case had been prepared on the basis of the original plans. 29. The applicant seeks approval to the installation of a lift, the extension of the building to provide lift lobbies at ground and first floor level within the present setback from Belgrave Esplanade and what is described as an acoustic enclosure at the western end of the building. 30. The original plans contemplated enclosing the parking area in the undercroft at the western end of the building and the provision of an open deck at the first floor level above the parking area. 31. The amended plans are an attempt to recognise the potential adverse impact on the adjoining residential property to the west by the perceived activities of staff and patrons on the new deck area. Furthermore, the amended plans reduce the length and depth of a proposed porte cochere at the front of the building. The provision of the enclosure at the western end of the building is promoted by the applicant as an acoustical measure to reduce the emission of vehicle noise in the parking area. Neither the original nor amended plans were developed after consultation with or in conjunction with the applicant's noise consultant. 32. The council's noise consultant agreed that the additions to the western end of the building, as depicted in the original plans, could provide some acoustical benefit for the occupants of the adjoining residence. However, it is his opinion that the amended proposal will provide no benefit in that respect. He is not confident that the proposed additions at the front of the building will provide any acoustical benefit. In cross-examination he agreed that it is desirable for there to be some acoustical treatment of the western function room. The possibility of placing a pitched roof over the parking area to impede access by people using the centre was canvassed in cross-examination. 33. Ultimately, Mr Hale made the submissions that the applicant is prepared to carry out such acoustical treatment to the western end of the building as the Court thinks most appropriate. It is not the Court's responsibility to participate in the design process. 34. The additions to the front of the building will facilitate disabled access. Otherwise, they appear to be no more than an attempt to improve the facilities for the benefit of patrons, thereby improving the amenity of the function centre and increasing the attraction for its commercial use. 35. Issues have been raised regarding the increased floor area, the visual impact of a projected glass wall along virtually the whole frontage of the building and the increase in the height of the centre of the building above the liftwell. Each issue bears some validity but does not amount to a cause for refusal of the development application given that the reception centre, although adjacent to residential areas, is within an appropriate zone. 36. The matter that most concerns the Court arises in the same context as it did in matter No 10042 of 2000. That is, that any improvement to the amenity of the building for the benefit of patrons, foreseeably can lead to intensification of the use. An intensification of the use in any respect raises the issue of the parking of motor vehicles. This issue has already been canvassed in detail in regard to the first development application. It is inevitable that the outcome will be the same and that development consent must be refused on that ground. 37. A number of other matters have been raised in the course of the hearing that demonstrate there are problems with the future functioning of the centre which need to be addressed. These include the use of an open terrace area at the eastern end which has been constructed on council land. Further, it is necessary to use council land in order to move goods around the site including by means of a forklift. A significant area of the council land is used for the storage of rubbish which at times is trajected from the rear of the kitchen on the first floor through a roller shutter door at that level. 38. Taking these matters into account, together with the problems associated with the necessity to use the council land for parking, it is the Court's view that the intensive use of the site results in an overdevelopment. 39. It is, therefore, not appropriate to approve further development on the site which does not address the consequences of the overdevelopment and, in the Court's opinion, will lead to further exacerbation of the problems that are already being experienced. 40. It is relevant and pertinent to note that the use of the site for the purpose of a reception centre is appropriate and that it has widespread support, even within the local community including some objectors. The problem for the applicant is that the intensity of the use has outgrown the site. In the absence of some drastic remedial measures, but particularly in respect of the parking arrangements, no new development should be permitted where the result is an exacerbation of the existing overdevelopment. 41. The Court has decided that the second development application must be refused. Orders 42. The formal orders of the Court are:- Matter No 10042 of 2000 1. Development application No 00/2138 for extension to the building at No 223 Belgrave Esplanade, Sylvania Waters is determined by refusal of consent. 2. The exhibits may be returned. Matter No 10988 of 2000 1. Development application No 01/0166 for additions and alterations to premises at No 223 Belgrave Esplanade, Sylvania Waters is determined by refusal of consent. 2. The exhibits may be returned. 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.