Land and Environment Court of New South Wales CITATION: Dennis Foster Insurance Brokers Pty Ltd -V- Sydney City Council [1999] NSWLEC 53 PARTIES Applicant: Dennis Foster Insurance Brokers Pty Ltd Respondent: Sydney City Council NUMBER: 10759 of 1998 CORAM: Talbot J :- KEY ISSUES: Development - whether subsequent approval of use validates unlawful work Evidence - relevance of existing work without approval Question of law - development application - whether existing work without approval a relevant consideration LEGISLATION CITED: Development - whether subsequent approval of use validates unlawful work Evidence - relevance of existing work without approval Question of law - development application - whether existing work without approval a relevant consideration DATES OF HEARING: 03/10/1999 DATE OF JUDGMENT DELIVERY: 03/15/1999 Applicant: Mr D P Wilson (Barrister) with: Mr M S Campbell (Barrister) Solicitors: n/a LEGAL REPRESENTATIVES: Respondent: Mr C J Leggat (Barrister) Solicitors: Abbott Tout JUDGMENT: IN THE LAND AND MATTER No. 10759 of 1998 ENVIRONMENT COURT CORAM: Talbot J OF NEW SOUTH WALES DECISION DATE: 15 March 1999 DENNIS FOSTER INSURANCE BROKERS PTY LTD Applicant v SYDNEY CITY COUNCIL Respondent REASONS FOR JUDGMENT 1. The council prior to the hearing had formulated two versions of a so-called point of law which it seeks to have determined by a Judge prior to the hearing on the merits. 2. Following argument at the commencement of the hearing, it became clear to the Court that some refinement to the question was required. 3. The council seeks to rely upon evidence that demolition work and building work undertaken on the premises, known as Quarryman's Hotel, in Pyrmont have been carried out without approval. The applicant objects to this evidence on the grounds of relevance. Accordingly the gravamen of the point of law is whether the carrying out of demolition work and building work within the space upon which the proposed use in the development application relies without the necessary approvals is a relevant matter to be taken into account when considering an application for the use of the space. 4. Following further discussion, the question was formulated as follows:- Upon the assumption that demolition work and building work in the area where the proposed use is intended to be conducted were carried out without approval whether such matters are relevant matters to be considered in the determination of the development application for proposed use. 5. The applicant does not admit that any work was carried out unlawfully. The development application 6. The proposed development is described in the development application received by the council on 30 June 1998 as follows:- existing bar area since 1940? approx continuous use: we wish to change use to cocktail bar. Recently upgraded to comply with current Fire Regulations. 7. The number of staff/employees is to be maintained at six and the trading hours will not change. 8. It is alleged by the council that following an inspection of the premises after the lodgment of the development application, its officers found that demolition and building work had been carried out. There is no record of a consent or approval in respect of the demolition or the other work. 9. The council is concerned to have the Court take into account the unlawfulness of the work as a relevant consideration because the effect of determining the development application by the grant of consent will allegedly give retrospective approval to the unauthorised development and building work. 10. In Hooper & Anor v Lucas & Ors (1990) 71 LGERA 27 it was common ground that a building permit for the erection of decking and fencing approved the erection of building works upon and over a building which was in part unauthorised and erected in contravention of the provisions of the Local Government Act. 11. Hemmings J said it was open to council to determine that the building application was for the erection of a new building within the meaning of Pt XI notwithstanding that the works incorporated a building that had been previously erected. The applicant contended the council could not entertain an application to alter or add to an unauthorised structure. Hemmings J accepted that council had no power to receive and consider a building application merely to grant a building permit to retrospectively authorise a building that had been already erected ( Tennyson Textile Mills Pty Ltd v Ryde Municipal Council (1952) 18 LGR (NSW) 231). 12. Because the retaining wall had been inspected by council officers, experts and aldermen, the Court was persuaded that council and its officers were completely satisfied as to the structural stability, height, length and appearance of the unauthorised building work. If there had been a breach of the public law, which his Honour did not expressly find, the Court would have exercised its discretion not to make the orders sought or grant injunctive relief because that would work such an injustice as to be disproportionate to the ends secured by the enforcement of the legislation. 13. Recent decisions of this Court in Steelbond (Sydney) Pty Ltd v Marrickville Municipal Council (1994) 82 LGERA 192; Ross Connell v Armidale City Council (Pearlman J unreported 25 September 1996 No. 10272 of 1996 and 20068 of 1996); and Herbert v Warringah Council (1997) 98 LGERA 270 confirm the long established principle that a retrospective consent or approval cannot be obtained under the Environmental Planning and Assessment Act 1979 (EPA Act) or the Local Government Act 1993 (LG Act). 14. Mr Wilson responds on behalf of the applicant that there is no point of law to be determined as whether or not there is a consent or approval in existence. It is a question of fact. Furthermore, it is not appropriate for the issue of unlawfulness to be raised in these class 1 proceedings. If the council does not elect to acquiesce, it can take proceedings in either class 4 or class 5 of the Court's jurisdiction. 15. As Stein J said, in Bodyline Spa and Sauna (Sydney) Pty Ltd v South Sydney City Council (1992) 77 LGRA 432, the Court should be wary of determining whether a criminal offence has been committed in a planning appeal. As a matter of public policy such a course would be undesirable. Furthermore, that a jury might convict could not, in his Honour's opinion, lead to a conclusion that the activities proposed to be carried out on the premises are unlawful or constitute a reason why consent cannot be granted. 16. Mr Wilson relies on this decision to support his argument that it would be undesirable and indeed inappropriate to determine any question of unlawfulness in these class 1 proceedings. 17. However, different questions arose in the Bodyline case. There the Court was dealing with the actual activity proposed, whereas the illegality in this case is once removed, being work already carried out and upon which the proposed use will rely. 18. Mr Leggat on the other hand submits that any finding of unlawfulness in class 1 proceedings will have no bearing or weight in other proceedings in class 4 or class 5 or any other jurisdiction where the rules of evidence apply. SREP 26 19. The council formally admits that the use proposed by the development application is permissible with consent pursuant to the applicable environmental planning instrument, SREP 26. 20. The council contends that the combined effect of cl 13 and Sch 3 to SREP 26 is that demolition of a heritage item requires consent. Clause 13 requires approval for building work. The relevance of the demolition and building work 21. The council's submission acknowledges that the significance of the work undertaken without lawful approval will determine the extent of its relevance. However, the Court should have regard to the public interest in upholding legislation and to create an awareness that the Court will not tolerate facile means of defeating the will of Parliament ( Holland v Bankstown Municipal Council (1957) 2 LGRA 143). 22. The Court was being asked in Holland , as an exercise of discretion, to bring about by indirection a result which could not have been brought about directly in the first instance. The effect of granting consent would have been to allow occupation and use of a building which, as a distinct building, could not have been approved by the council. The present case can be distinguished on the basis that the mere lack of approval does not mean that such an approval could not have been obtained. There is no contention to the contrary. 23. It is further suggested by the council, although not substantiated at this stage, that the development application is a subterfuge to obtain retrospective development consent to a use which is already occurring. Accordingly the applicant must be regarded as using the present application to circumvent the planning procedures and placing the applicant in a better position than it would have been before. 24. The applicant responds that the only relevant question for the Court is whether the area proposed is suitable for the use having regard to all of the s 90 matters. It is simply not relevant whether the area was created with or without any necessary approval. An approval to the use will not compromise any prospect of the council taking action to rectify any breach of the law which has already occurred. The consent to the use of the space is but one of the hurdles the applicant may have to overcome before all requirements of the law have been satisfied in that respect. For example, the applicant may need to obtain a building certificate. 25. The applicant concedes that it may be necessary to investigate aspects of structural integrity or fire safety before development consent to the use will be granted if these are matters about which neither the Court nor the council can be satisfied by relying on existing approvals or consents. That is a matter for evidence if the relevant issue is raised. Conclusion 26. The Court has not been referred to any authority that persuades it that any approval or consent given to development necessarily overcomes any existing breach of the law. At best, development consent can only authorise what occurs in the future. It cannot authorise what it does not encompass. This was expressly recognised by Hemmings J in Hooper . The effect of the subsequent approval did not provide any authority for the maintenance of the building erected earlier without consent. It was only because the council had been satisfied on the evidence before it that the pre-existing structure was acceptable in a relevant way that, by the exercise of the Court's discretion, it was allowed to remain. 27. Applying those principles to the present case, if the Court cannot be satisfied that the building in its present state is safe and suitable for the use, then it has an undoubted discretion to refuse the application. It may be lacking the confidence it might otherwise have in the integrity of the building if all other statutory approvals are in place. In that sense, the fact that demolition work and building work were carried out without approval may be a relevant matter to the extent that it directs the Court to an avenue of inquiry it may in other circumstances find it unnecessary to pursue. 28. It is only in that latter sense that the carrying out of demolition and building work without approval can be relevant. The Court is not satisfied that the absence of an approval on its own is a relevant matter which has determinative value. 29. It follows therefore that a strict answer to the question as it is finally framed should be in the negative. 30. However, the answer should be qualified to make it clear that evidence the work was carried out without approval may be admissible in order to show that the Court should be directed along another line of inquiry. It is not possible, nor is it appropriate, to finally decide the question of admissibility at this preliminary stage. 31. The formal answer to the question is as follows:- No, except to the extent of directing the Court to a relevant line of inquiry to enable it to consider any relevant matter pursuant to s 90(1) of the EPA Act. 32. The exhibits may be returned. 33. Having regard to the Practice Direction which applies to class 1 proceedings it is not appropriate to make any order as to costs in the absence of exceptional circumstances. I hereby certify that this and the preceding 7 pages are a true and accurate record of the reasons for judgment herein of the Honourable Justice R N Talbot. Associate 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.