Calleja v Botany Bay City Council [2004] NSWLEC 660

Land and Environment Court of New South Wales

CITATION : Calleja v Botany Bay City Council [2004] NSWLEC 660 APPLICANT William Calleja and Tessie Calleja PARTIES : RESPONDENT Botany Bay City Council FILE NUMBER(S) : 40820 of 2004 CORAM: Talbot J KEY ISSUES: Existing Use Rights :- distinction between purpose or use and description of building. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 4, s 81A, s 106 Botany Local Environmental Plan 1995 cl 14 North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd And Others (1989) 67 LGRA 344 ; CASES CITED: North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd And Another (1990) 21 NSWLR 532 ; Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 ; Shire of Perth v O'Keefe And Another (1964) 110 CLR 528 DATES OF HEARING: 17/11/04 DATE OF JUDGMENT: 12/01/2004

APPLICANT Mr P C Tomasetti (Barrister) SOLICITORS Storey and Gough LEGAL REPRESENTATIVES: RESPONDENT Mr T S Hale SC SOLICITORS Houston Dearn O'Connor

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Talbot J

1 December 2004

40820 of 2004 Calleja W & T v Botany Bay City Council

JUDGMENT 1 Talbot J: The property known as 46 Denison Street, Hillsdale comprises Lot 24 in Deposited Plan 13108, Lot B in MPS(RP) 56586 and Lot C in MPS(RP) 89262 now the whole of the land in Certificate of Title Volume 6908 Folio 8. 2 It is not in dispute that prior to September 1948 a single dwelling house was erected on the property pursuant to a consent issued by the respondent Council. Furthermore it is not in dispute that on 15 September 1948 the Council approved the erection of additions to the existing residence in accordance with approved plans pursuant to Part XIIA of the Local Government Act 1919 and Ordinance No. 105. 3 The plans approved in September 1948 show that there was an intended provision for separate accommodation in two distinct living areas sharing a common or party wall. Each depicted living area has its own entrance off what appears to be a common pathway leading from the street. The proposed additions wholly comprised one of the distinct living areas. 4 When the County of Cumberland Planning Scheme Ordinance was introduced in 1951 the subject land was placed in the Industrial Area, Class "A" zone. In that zone dwelling houses and residential buildings, other than those required for use or occupation by persons whose residence is essential to the industry established or to be established in the zone, were purposes for which buildings may not be erected or used. It is again common ground that no relevant industry was established or was proposed to be established on the land. However pursuant to cl 32 of the County of Cumberland Planning Scheme Ordinance an existing building or an existing work could be maintained and could be used for its existing use and an existing use of land could be continued. 5 The County of Cumberland Planning Scheme Ordinance was suspended in respect of the subject land on 22 July 1960. 6 In 1962 Model Provisions were adopted and included the following definitions of a dwelling house and a residential flat building:- " Dwelling-house" means a building designed for use as a dwelling for a single family, together with such outbuildings as are ordinarily used therewith, and includes a dwelling in a row of two or more dwellings attached to each other such as are commonly known as semi-detached or terrace buildings. "Residential flat building" means a building containing two or more flats, but does not include a row of two or more dwellings attached to each other such as are commonly known as semi-detached or terrace buildings and "Flat" means a room or suite of rooms occupied or used or so constructed, designed or adapted as to be capable of being occupied or used as a separate domicile.