Land and Environment Court of New South Wales CITATION : Yan v Marrickville Council [2001] NSWLEC 71 APPLICANT PARTIES : Xia YAN RESPONDENT Marrickville Council FILE NUMBER(S) : 10156 of 2000 CORAM: Sheahan J KEY ISSUES: Question of Law :- existing use - change of use of premises to brothel Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Environmental Planning and Assessment Regulation 1980 Environmental Planning and Assessment Regulation 1994 Marrickville Planning Scheme Ordinance Auburn Council v Constanti (2000) 109 LGERA 355; CASES CITED: Auburn Council v Nehme (1999) 106 LGERA 19; Shire of Perth v O'Keefe (1963) 10 LGRA 147; Woollahra Municipal Council v T.A.J.J. Investments Pty Ltd (1982) 49 LGRA 123 DATES OF HEARING: 08/02/2001 DATE OF JUDGMENT: 04/19/2001 APPLICANT Barrister Mr A Pickles Solicitors LEGAL REPRESENTATIVES: Bowen & Gerathy RESPONDENT Mr A Hudson Solicitor Solicitors Wilshire Webb JUDGMENT: IN THE LAND AND Matter No: 10156 of 2000 ENVIRONMENT COURT Coram: Sheahan J OF NEW SOUTH WALES 19 April 2001 XIA YAN Applicant v MARRICKVILLE COUNCIL Respondent JUDGMENT Introduction 1. Mr Yan wishes to use premises at 260 Unwins Bridge Road, Sydenham for the purposes of a brothel. 2. The premises have a long-standing history as a "shop". 3. The Council rejected Mr Yan's development application and he lodged a class 1 appeal on 25 February 2000. 4. On 26 October 2000, the Council filed Class 4 proceedings (40166 of 2000), seeking, against Mr Yan, orders restraining the use of the subject premises for the purposes of a brothel or massage parlour, or as commercial premises, including as a brothel or massage parlour. Consequential relief requiring removal of beds, etc. associated with such use, and an order for costs, are also sought. 5. In the Class 1 appeal the following "preliminary questions of fact and law" have been raised: 1 Given that the property has the benefit of a consent in force and acknowledging that the use for which consent was granted is not continuing, whether on the hearing of the appeal, the Court may grant consent to change the use of the premises from the use for which consent was granted to another use prohibited under the Marrickville Planning Scheme Ordinance pursuant to s108 of the EP&A Act and clause 39 of the Environmental Planning and Assessment Regulation. 2 If the answer to question 1 is "no", does the premises have the benefit of existing use rights within the meaning of s106 of the EP&A Act. 3 If the answer to question 2 is "yes", whether the existing use rights [sic] been abandoned. 6. As Duty Judge on 4 December 2000, I ruled that these preliminary questions in the class 1 proceedings should be dealt with first, and ordered that the Class 4 proceedings stand adjourned until the delivery of the court's judgment on those questions. 7. This judgment deals now with the preliminary questions. The factual background 8. The parties agreed upon a statement of facts, from which the following are noted. 9. The premises on land at 260 Unwins Bridge Road, Sydenham ("the land") comprise a two storey brick building. 10. In 1941, prior to planning controls over the land, a "shop" lawfully existed on the lower floor with a first floor "dwelling" above. The land was zoned as "living area" in June 1951, in accordance with the County of Cumberland Planning Scheme Ordinance. Residential buildings and shops were permissible in the zone, with consent. 11. A butcher's shop operated from 1959 to 1986 on the ground floor of the building, and the first floor was used as a residential dwelling. 12. On 22 December 1972 the Marrickville Planning Scheme Ordinance came into effect ("the MPSO"). The MPSO remains the current planning instrument for the subject land, and, under it, the land is zoned residential "A". Commercial premises and shops were and continue to be prohibited in that zone, and "existing use" rights to use the ground floor as a "shop" were established upon the commencement of the MPSO. 13. The Council Town Planner's Statement of Evidence, filed in the class 1 proceedings, states: Clause 60A(1) "Premises Used for Prostitution" of the MPSO, states: 'The use of land to which this Ordinance applies (except in Zone No.3(a), 4(a) or 4(b) for the purpose of a brothel is prohibited.' (p15 par 20) Clause 60A(2) of the MPSO states that a brothel is permitted only with the consent of Council in the following zones: · Business General · Industrial General · Industrial Light · In a dwelling house as a 'home occupation' in any zone, but not in a residential flat building. (p22-23 par 59) 14. Mr Spiros Agathos and his wife bought the subject property in 1975 and still own it. The ground floor butcher's shop and first floor dwelling uses continued after their purchase. 15. The Council consented to a change of the ground floor use on 3 September 1986, from butcher's shop to newsagency, but there have been no further consents issued by the Council since 3 September 1986. 16. From September 1986 until June 1997 the ground floor of the premises was used as a newsagency, whilst the first floor of the building continued to be used as a residential dwelling. 17. During the period from June 1997 through to April 1998 the ground floor shop was vacant. 18. The ground floor shop was then used as a second-hand refrigerator and furniture shop from 18 April 1998 to 20 November 1998, without the approval of Council. 19. From 20 November 1998 until August 1999 the ground floor shop was again vacant for a period of nine months. 20. Since August 1999 the ground floor and the first floor areas have been used as a massage parlour/brothel, uses which are prohibited under the zoning. 21. A development application was lodged by Mr Yan on 20 September 1999, for consent to use the whole of the premises as a massage parlour. 22. Council refused Mr Yan's development application on 2 February 2000. The relevant sections of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") 23. For completeness, and despite their length, the relevant provisions of the EP&A Act regarding "existing use" issues are now set out. 24. According to s106, "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. 25. The following sections of the EP&A Act deal with "existing uses": 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. (2) The provisions (in this section referred to as "the incorporated provisions") of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument. (3) An environmental planning instrument may, in accordance with this Act, contain provisions extending or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force. (4) Any right or authority granted by the incorporated provisions or any provisions of an environmental planning instrument extending, expanding or supplementing the incorporated provisions do not apply to or in respect of an existing use which commenced pursuant to a consent of the Minister under section 88A to a development application for the consent to carry out prohibited development. 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. 109A Uses unlawfully commenced (1) The use of a building, work or land which was unlawfully commenced is not rendered lawful by the occurrence of any subsequent event except: (a) the commencement of an environmental planning instrument which permits the use without the necessity for consent under this Act being obtained therefor, or (b) the granting of development consent to that use. (2) The continuation of a use of a building, work or land that was unlawfully commenced is, and is taken always to have been, development of the land within the meaning of and for the purposes of any deemed environmental planning instrument applying, or which at any time applied, to or in respect of the building, work or land. 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. The Relevant Regulations 26. Clause 39 of the Environmental Planning & Assessment Regulation ("EPAR"), as it stood in 1994 (subject to numbering changes over the years), is relevant to the application before the court, and provided as follows: (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. 27. The 1980 version of the EPAR is also pertinent, and, in particular, cl 54 provides: (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. (2) Where a building, work or land is being used for more than one existing use, the proportions in which the several parts of the building, work or land are being so used may, with consent under the Act being obtained therfor, be changed. (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. The arguments 28. Stripped to their essence, the disputes between the parties come down to the following. 29. When characterising uses, "shop" has not been regarded as specific enough, and the description of the use must indicate the type of shop use referred to. Shire of Perth v O'Keefe (1963) 10 LGRA 147. 30. The Council submits that, for the purposes of s 107, the "existing use" changed from "butcher's shop" to "newsagency" in 1986. 31. In 1986, Council granted the relevant consent, on the basis of "existing use" rights, but the "newsagency" use was abandoned in 1997. 32. There is absolutely no evidence of intention to resume it, but there is evidence of the premises having now been twice leased for other uses, and now being used for a brothel. 33. Accordingly, there is now no "existing use" right which can be asserted to found a change to another prohibited use, namely "brothel", as provided by s 108. 34. Section 109B can be relied on only to reactivate the newsagency use, as a lawful use subject of a valid and current consent, not as an existing use. It cannot be relied upon to again change the use. See Woollahra Municipal Council v T.A.J.J. Investments Pty Ltd (1982) 49 LGRA 123, Auburn Council v Nehme (1999) 106 LGERA 19, and Auburn Council v Constanti (2000) 109 LGERA 355. 35. For the applicant to succeed, the court needs to be satisfied that the above interpretation of the effect of the two Auburn Council decisions is wrong, and that, if the newsagency use can be reactivated, it can equally also be changed again, under the "existing use" scheme in the EP&A Act. 36. Mr Pickles argues that if s 109B applies at all, we need have no regard to s 107, upon which Mr Hudson relies for the above argument. 37. The applicant's submission is that so long as the newsagency consent was taken up, and commenced, use as "newsagency" satisfies the definition of "existing use", and the use can be changed again now to another prohibited use, namely "brothel", in reliance on the "existing use" provisions. Conclusion 38. I think that the applicant's contention in this regard works a direct negative of the point clearly and firmly made by the cases relied on by the Council, especially in Constanti, despite Pearlman J's reservations regarding the Court of Appeal's reasoning in Nehme. 39. It follows that I, therefore, conclude that the Council's submissions, as summarised above, are correct. 40. The applicant cannot now, in the circumstances disclosed by the agreed facts, seek to change the use of the shop (and dwelling?) from "newsagency" to "brothel" in reliance on the "existing use" provisions, given that the "existing use" underpinning the 1986 Council consent has been abandoned, but the consent still stands. 41. Accordingly, the answers to the questions posed are as follows: 1. No. 2. No. 3. Does not apply. 42. Both the class 1 and class 4 proceedings will be listed for callover by the Registrar on Friday 27 April 2001. 43. Exhibit M1 should remain in the class 1 file. 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