Land and Environment Court of New South Wales CITATION: Roberts V Snowy River Shire Council [1999] NSWLEC 81 PARTIES Applicant Glenn Roberts Respondent Snowy River Shire Council NUMBER: 10672 of 1998 CORAM: Sheahan J KEY ISSUES: :- Existing use - prohibited use LEGISLATION CITED: Existing use - prohibited use DATES OF HEARING: 02/01/1999 DATE OF JUDGMENT DELIVERY: 04/01/1999 Applicant Mr Glenn Roberts (in person) LEGAL REPRESENTATIVES: Respondent Mr A Bradbury (Solicitor) of Deacons Graham & James JUDGMENT: IN THE LAND AND Matter Nos: 10672 of 1998 ENVIRONMENT COURT Coram: Sheahan J OF NEW SOUTH WALES 1 April 1999 ROBERTS Applicant v SNOWY RIVER SHIRE COUNCIL Respondent JUDGMENT Introduction 1. These Class 1 proceedings, like those in matter No.10522 of 1997, which preceded it on the hearing date, concern the uses that can be made of various parcels of land comprising parts of the land holdings which were the subject of my judgments of 24 July 1998 and 26 November 1998. Those two judgments dealt mainly with matters Nos. 40170 and 40299 of 1997 between the same Council and Sericott Pty Limited, who are also the parties in matter No.10522. The complex factual background to all these proceedings is set out in some detail in those earlier judgments and need not be repeated here. 2. The precise issues involved at this stage in the two current Class 1 proceedings are not identical, and the parties and the Court agreed that they could conveniently be dealt with on the same day, but not actually heard together . 3. Mr Roberts appeared for himself. He agreed that I should deal first with matter No.10522 and he sat in the Court throughout the hearing of that matter. He and the Council then agreed that, in this matter, I should have regard to the evidence that had been tendered in matter No.10522, if I needed to do so, in determining the issues in matter No.10672. (This is a different situation from that recently dealt with by the Court in Pancho Properties Pty Limited v Wingecarribee Shire Council [1999] NSWLEC 49 and no questions of bias or prejudgment arise here). 4. This judgment concerns only matter No. 10672 of 1998, and the use of Lot 14 in DP 868116 ("lot 14"), which was part of "the lands" referred to in the following declarations made in the Class 4 proceedings on 26 November 1998: "1. A declaration that the works carried out upon the lands described in the Schedule to these declarations ("the lands"), and relating to Development Consent 55/92 ("the works"), have been "physically commenced" within the meaning of s 99 of the EPAA. 2. A declaration that the works constitute an "existing use", within the meaning of s 106 of the EPAA, for the purpose of the subdivision of some of the lands into 14 freehold lots for the purpose of an integrated tourist resort, as referred to in development consent 55/92, granted by the respondent on 3 December 1992. 3. A declaration that the lands have the benefit of "existing use" rights, pursuant to Part 4 Division 2 of the EPAA, for the purpose of the subdivision of some of the lands into 14 freehold lots for the purpose of an integrated tourist resort, as referred to in development consent 55/92, granted by the respondent on 3 December 1992. Schedule "The lands" comprise the whole of the land described and referred to in: (a) Lot 13 and lot 14 in DP 868116; (b) Lots 1-3 inclusive in DP 868117; (c) Lot 1 in DP 270133." These proceedings 5. This appeal was commenced on 6 October 1998 and concerns a development application ("DA"), made on 24 or 25 August 1998 by Mr Roberts, who has had a long-standing association with the lands dealt with in my earlier judgments of 24 July and 26 November 1998. 6. Mr Roberts' DA seeks permission to carry out on lot 14 " alterations and additions to existing shed for use of (sic) a dwelling ". Council refused the application and the instrument of its refusal refers to the proposal as being for " conversion of a shed to a dwelling-house ". 7. The following preliminary questions of law have been raised in Council's Statement of Issues filed 12 January 1999 (c.f. the Notice of Motion filed 8 January 1999): Whether the DA is legally capable of being approved. In particular:- (a) Whether the use of the existing shed building is prohibited by the Snowy River LEP 1997 within the meaning of s 106 of the EPAA. (b) Whether a provision of an environmental planning instrument which imposes development standards relating to the minimum area of an allotment on which development may be carried out is a provision which has "the effect of prohibiting" the carrying out of the development within the meaning of s 106 of the EPAA. (c) Whether the existing use of the land, of which the subject land forms part, for the purpose of the subdivision of the land into fourteen (14) freehold lots for the purpose of an integrated tourist resort enables the development application to be approved pursuant to Part 5 of the Environmental Planning & Assessment Regulation 1994. 8. Before the Court there is also a Notice of Motion from the applicant seeking the expedition of the hearing of this appeal, and its listing before a Commissioner of the Court in Sydney . The Council has expressed no opposition to such orders if the Court is satisfied they should be made. 9. One of the distinctions between this matter and matter No.10522 is that the subject land here, namely lot 14, is not vacant . It has an area of 8514 square metres and has on it the shed, which was approved when Council granted consent to DA 18/90. That DA is included in Exhibit C2 at tab 4, as is the Council's "Assessment and Evaluation Report", which makes clear that the shed was to be used for the purpose of storage (of household effects) during the adjustment of boundaries between the then existing allotments adjoining Lake Jindabyne. The house on lot 13, with which the shed was associated, was sold when the land was divided. 10. At the time DA 18/90 was assessed by Council the land was zoned Rural Environment Protection 7(c) Water Catchment under Snowy River Local Environmental Plan No.4 ("LEP No.4") (gazetted 18 December 1981 - see Exhibit C2 tab 5), and it was designated as " land of high scenic quality " under Kosciusko Regional Environmental Plan - Snowy River ("the REP") (made 14 November 1998 - see Exhibit C2 tab 6). 11. It would appear that the application was treated as development ancillary to a dwelling house and so permissible at the relevant time. 12. Consent was granted to DA 18/90, subject to conditions which relevantly included " 5. That the proposed shed is not used for habitable purposes or separate occupation " (see notice dated 15 February 1990 in Exhibit C2 at tab 4). 13. Mr Bradbury comments (T.4 L.24-29) that: " It appears … with the benefit of hindsight that the development consent may not have been required at the time that it was granted but it was sought and granted ." 14. Document 6 in Exhibit C1 in matter No.10522 (Byrnes' Statement of Environmental Effects for the overall resort project), at page 4 paragraph 3.5, notes that: " there exists a contemporary house on lot 13, the effect of sub-division being to reduce the allotment size on which that house stands. Similarly, a modern shed has been constructed on lot 14, which it is proposed to adapt to a residence ". Relevant "Statutory" Provisions 15. State Environmental Planning Policy No.4 clause 10(1)(b): " (1) This clause applies to development on land for a purpose that is ancillary or incidental to a purpose for which the land may be used, being development - … (b) which consists of the erection of fences, garages, fuel sheds, tool houses, milking bails, haysheds, stables, fowl houses, pig sties, barns and the like". 16. Regard must be had to the relevant sections of the EPAA: Section 4 " development means: (a) the use of land, and (b) the subdivision of land, and (c) the erection of a building, and (d) the carrying out of a work, and (e) the demolition of a building or work, and (f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument, but does not include any development of a class or description prescribed by the regulations for the purposes of this definition. Section 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 (b) the use of a building, work or land: (i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and (ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse. Section 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. Section 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 shall 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." 17. Regard must also be had to Clause 39 of the Environmental Planning & Assessment Regulation 1994 ("the Regulation") as follows: "39(1) An existing use may, in accordance with this Division, be: (a) enlarged, expanded or intensified; or (b) altered or extended; or (c) rebuilt; or (d) changed to another use, including a use that would otherwise be prohibited under the Act. (2) 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." 18. Under cl 29 of the 1998 EPA Regulations, development consent would now be required for the shed, but that recent change does not impact upon this proposal. 19. The initially relevant planning instruments were LEP No.4 and the REP (see par 10). 20. Snowy River LEP No.71 ("LEP No.71") ( Exhibit C2 tab 7) was site-specific to the "resort lands" and was gazetted 13 March 1992, with a "sunset" date 5 years later. It accordingly came into force after consent was granted for the shed and lapsed prior to the present application for its conversion. Although of little relevance in these proceedings, it played a key role in the Class 4 proceedings and in Mr Roberts' submissions. 21. Snowy River LEP 1997 ("LEP 1997") ( Exhibit C2 tab 8) replaced all other LEPs and came into effect on 15 May 1998. Clause 19 provides for Zone 7 - Environmental Protection. All development within that zone other than agriculture, bushfire hazard reduction and home based childcare, requires development consent. Dwelling houses require consent pursuant to cl 19(3). Clause 26 lists some requirements for the erection of dwellings on land within Zone 7: " (2) The Council must not grant consent to the erection of a dwelling on land to which this clause applies unless the land has no dwelling erected on it and the land: (a) has an area of at least 800 hectares, or (b) consists of an allotment that was created under an environmental planning instrument (or deemed environmental planning instrument) in force on the appointed day, and the dwelling could, immediately prior to the making of this plan, have been erected on the allotment under the provisions of that instrument, have been erected on the allotment, [sic] or (c) comprises the whole of an existing holding having an area of less than 800 hectares and on which the dwelling could have been erected under any environmental planning instrument applying to the land at 26 September 1985. (3) In considering any application for consent to development on land to which this clause applies, the Council must take into account whether the dwelling-house or any other structures that will result from the proposed development are sited, designed and constructed in a manner that will avoid any adverse impact on the natural and scenic character of the locality." The Council's Submissions 22. The subject DA seeks consent for additions and alterations to an existing shed to facilitate its use as a dwelling. 23. Mr Bradbury's submissions note that consent for the shed was given on 15 February 1990. At that time the land was within Zone 7(c) under the LEP No.4 and it is now within Zone 7 under LEP 1997. The two LEPs had a similar range of permissible uses. Under both LEPs, pursuant to cl 10 of SEPP No.4, development for the purposes of a shed for use as a garage and storage shed was permissible without consent. 24. Mr Bradbury's primary submission is that any proposed change in the shed, and/or the development of any other dwelling house on lot 14, does not comply with cl 26, which makes a dwelling house not permissible on lot 14. For the purposes of EPAA s106, the relevant development proposal does not have existing use rights. If you could get around such minimum area provisions by saying that the lot was created at a time when you could have erected a house on it, it would make the minimum area provisions in all LEPs totally meaningless. 25. As the existing development is not prohibited by the provisions of LEP 1997, the current use of the shed as a shed is not an "existing use" within the meaning of s 106. Had consent not been obtained for it, the continuance of the use would have been protected by s 109, but s 109 does not authorise additions and alterations to enable its use to become that of a dwelling. The relevant parts of the 1994 Regulation do not apply. 26. Mr Bradbury's alternative submission is that LEP 1997 allows the development of dwelling houses within Zone 7 with consent. The development is not prohibited, but the DA relates to a lot of 8514 square metres and, therefore, cl 26(1)(a) operates as a development standard and not a prohibition. The project's failure to comply with that development standard does not mean that it is prohibited for the purpose of attracting any entitlement to existing use rights. 27. Lot 14 was created by subdivision registered on 15 May 1997. It forms part only of an existing holding which at the relevant date (26 September 1985) consisted at least of the whole of lot 2 DP 621340 being 100.2 ha in area. It, therefore, does not fall within cl 26(2)(c). The lot was created under LEP No.4, as amended by LEP No.71. While LEP No.4 was in force on the appointed day, a dwelling could not, immediately prior to the appointed day, have been erected on the land as the lot did not comply with cl 36 of the REP. 28. Mr Bradbury's third submission is that the development proposed is not protected by my earlier decisions in Class 4, as it does not form part of the subdivision in Stage 1 of the development. The effect of my decision in the Class 4 proceedings was to confine the existing use rights, which I identified, to the completion of the subdivision of 14 freehold lots. That subdivision was already complete in relation to lot 14. Accordingly, the existing use rights which the Court held existed, have been exhausted and do not otherwise enable the subject application to be approved. 29. Mr Bradbury submits that EPAA s 4 draws a clear distinction between the various activities which may be construed as "development" for the purposes of the Act. Section 106 in defining "existing use" refers to the "use of a building, work or land" and s 107 permits the continuation of such a use. Section 107, however, limits the benefits and provides that it does not authorise, inter alia, any alteration or extension to or rebuilding of a building or work. 30. Clause 39 of the 1994 Regulation envisages that consent may be given for an existing use to be (a) enlarged, expanded or intensified; (b) altered or extended; (c) rebuilt; or (d) change to another use. The subject DA comprises alterations and additions to an existing shed for use as a dwelling. It is not a continuation of the existing use (subdivision); nor an enlargement, expansion or intensification of the existing use (subdivision); nor an alteration or extension of existing use (subdivision); nor a rebuilding of the existing use (subdivision); nor a change in the existing use (subdivision) to another use. (par 26 of Mr Bradbury's submissions). 31. What is here proposed is the carrying out of development (s 4) which, while part of the development contemplated as a future stage of "Rush's Resort Development", is not authorised either by LEP 1997 or the existing use provisions. Applicant's submissions 32. In order to be completely fair to Mr Roberts and the position he has taken in these proceedings, I have obtained and thoroughly reviewed the transcript of the hearing, especially that of his submissions. 33. Mr Roberts recounted to the Court the lengthy history from his point of view of this overall proposal. The Council resolved to prepare the local environmental plan relevant to the subject lands in 1990 following lengthy negotiations for the development of an integrated tourist resort. LEP No.71 was gazetted on 13 March 1992 after much discussion. " After further lengthy submissions and refusals of the application, the Council again finally gave consent for the purposes of development of an integrated tourist resort on the land " (T.6 L48-51). 34. Mr Roberts submitted that that consent was for a broad range of uses over the subject land pursuant to a masterplan. He argues that the consent permitted the development in stages, of which stage 1 is the 14 freehold residential lots and some ancillary and related works (discussed in detail in the judgment of today's date in matter No. 10522). However, Mr Roberts contends that the consent for the purpose of integrated tourist resort was granted over all of the land and that " whenever the market demands or whenever a developer or an applicant sees fit, an application can be made to the council to carry out a phase or a stage of development and it can be approved, it's permitted, subject to the normal development criteria under section 90 of the Act ". (T7, L15-20). 35. Mr Roberts notes that his wife, Valerie Shaw, made a development application (DA154 of 1997) to convert the shed to a dwelling " which I believe we were committed to do because the Stage 1 of the development consent was for the purpose of an integrated tourist resort and that integrated tourist resort component permits dwellings " (T.7 L50-55). The Shaw application was refused on 17 September 1997 on the grounds that it could not be approved under LEP 71 due to the coming into force of cl 5 (the 5 year sunset provision), and the development did not conform to the requirements of LEP 4 or cl 36 of the REP. 36. Shaw did not wish to proceed with an appeal to the Court against the refusal of her application, but Roberts then made the subject application to the Council (on 24 or 25 August 1998, Exhibit R3 ), and lodged this appeal pursuant to its deemed refusal. 37. However, Shaw had obtained on 20 June 1997 a s 149 certificate ( Exhibit R1 ). Although the certificate was issued relevantly after the "sunset" clause took effect, Mr Roberts sees some significance in the fact that it says " Local Environmental Plan No 71 relates to the land and Clause 5(d) prohibits further development approval ". 38. Mr Roberts relies also on Ministerial directions under s 117, the objective of which is to " make the range of uses permissible and zones as flexible as possible " (T8 L27-28). Council's Reply 39. In reply to Mr Roberts, Mr Bradbury pointed out that: (i) LEP 1997 repeals all LEPs in force as at the date it was made, namely 15 May 1998. Accordingly, LEP 71 is no longer in force, and cannot be relied on; (ii) the s 149 certificate in fact indicates quite clearly in par (vii) that development of a dwelling house is prohibited on the land since well before the date of this application; (iii) if the shed is to be converted into a dwelling house, relying on existing use rights, it is the shed which needs to have an existing use, and whether there are existing use rights attaching to another subdivision, is irrelevant. The existing shed was lawful when it was approved and it continues to be lawful. It, therefore, does not have any existing use within s 106; (iv) " a dwelling house could have been erected on Lot 14 up until 13 March 1997, but immediately prior to the making of the 1997 LEP on 15 May 1998 it couldn't have been " erected (T12, L45ff). As it could not have been approved immediately prior to the making of a new plan, it does not fall within cl 26(2)(b) of LEP 1997; and (v) Regulation 39 has no work to do in relation to an existing use which comprises a subdivision of land. Conclusions 40. I regret to say that the relevant parts of Mr Roberts' submissions entail a revisitation of the decision the Court has already given, and of the interpretation the Court has already placed upon the events he recounted, and their legal effect. Mr Roberts persisted in falling back upon his argument that consent 55/92 embraced the whole of the resort development, not just stage 1, as I held in the Class 4 proceedings. With great respect to him he neither produced nor said anything that had not been before me during the Class 4 proceedings. 41. Mr Roberts was not a party to the Class 4 proceedings and arguably could make submissions in these proceedings canvassing the earlier decisions, despite the doctrines of res judicata and issue estoppel. However, he has advanced nothing which has not previously been considered in depth by the Court in regard to these lands. (See discussion by Talbot J in Lean v Ku-ring-gai Council , No.10346 of 1998, 24 September 1998). 42. The Court upholds the Council's primary submissions and answers the question of law in the negative , namely by holding that the Roberts Development Application is not " legally capable of being approved ". Sub-questions (a), (b) and (c) are answered as follows: Sub Question (a) " whether the use of the existing building the subject of the development application is a use of the building which is prohibited by the provisions of the Snowy River Local Environment Plan 1997 ('the LEP') within the meaning of s 106 of the Environmental Planning and Assessment Act 1979 ('the Act')." Answer The use of the existing shed building is not prohibited by LEP 1997 within the meaning of s 106 of the EPAA. Sub Question (b) " whether a provision of an environmental planning instrument which imposes development standards relating to the minimum area of an allotment on which development may be carried out is a provision which has 'the effect of prohibiting' the carrying out of the development within the meaning of s 106 of the Act." Answer No Sub Question (c) " whether the existing use of the land of which the subject land forms part for the purpose of the subdivision of the land into fourteen (14) freehold lots for the purpose of an integrated tourist resort enables the development application to be approved pursuant to Part 5 of the Environmental Planning & Assessment Regulation 1994." Answer No 43. These holdings would seem to bring an end to these proceedings but, if not, they should be expedited, and heard by a Commissioner of the Court in Sydney. I direct that the matter be listed for callover by the Registrar on Friday 9 April 1999. 44. All the exhibits may be returned, except Exhibit R3 which should remain in the Court file, and there will be no order as to costs. I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE T.W. SHEAHAN. Associate: Dated: 1 April 1999 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.