Reported Decision : 143 LGERA 311 Land and Environment Court of New South Wales CITATION : Brown v Gosford City Council [2006] NSWLEC 56 APPLICANT Brett Brown PARTIES : RESPONDENT Gosford City Council INTERVENOR Minister for Planning FILE NUMBER(S) : 10968 of 2005 CORAM: Pain J KEY ISSUES: Question of Law :- existing uses - whether they can be changed to another non-conforming use Environment Planning and Assessment Act 1979 s76B, s106, s108(1), s108(2), Pt 4 Div 10 The Environmental Planning and Assessment Regulation 1980 cl 54 LEGISLATION CITED: Environmental Planning and Assessment Regulation 1994 cl 39 Environment Planning and Assessment Regulation 2000 cl 41(1)(d), Gosford Local Environment Plan 314 Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council (2001) 114 LGERA 345 ; Chambers v Maclean Shire Council (2003) 126 LGERA 7 ; Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373 ; CASES CITED: Warringah Shire Council v Caltex (Australia) Pty Limited (1989) 68 LGRA 206 ; Kremer & Associates v North Sydney Municipal Council (1982) 47 LGRA 209 ; North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 67 LGRA 344 ; Star Property v Leichhardt Municipal Council (2000) 111 LGERA 95 DATES OF HEARING: 10/02/2006 DATE OF JUDGMENT: 02/14/2006 APPLICANT No appearance RESPONDENT Mr M Fraser (barrister) LEGAL REPRESENTATIVES: SOLICITOR PJ Donnellan & Co INTERVENOR Mr A Galasso (barrister) SOLICITOR Department of Planning JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pain J 14 February 2006 10968 of 2005 Brett Brown v Gosford City Council JUDGMENT 1 Her Honour: The preliminary question of law I must determine in these Class 1 proceedings is: Whether cl 41(1)(d) of the Environment Planning and Assessment Regulations 2000 , made pursuant to the Environment Planning and Assessment Act 1979 , is ultra vires in that it purports to permit the giving of a development consent to the carrying out of prohibited development contrary to the provisions of s 76B of the Environment Planning and Assessment Act 1979 . The Applicant did not appear at the hearing. The Minister has participated pursuant to s64(2) of the Land and Environment Court Act 1979 (NSW) to argue against the Council's submissions. Background 2 The land the subject of these proceedings in known as Lot 210 in Deposited Plan 1000167. It is located on the south-western side of the Scenic Road, McMasters Beach. It has an area of 10,000m2 and contains an approved attached dual occupancy. 3 The land is zoned 7(c2) Conservation and Scenic Protection (Scenic Protection – Rural Small Holdings) under the provisions of Interim Development Order 122 ("IDO 122") of the City of Gosford and is situated within the catchment of Cockrone Lake. 4 Development consent was given to an attached dual occupancy by Gosford City Council ("the Council") on 9 February 1988. At the time consent was given an attached dual occupancy was permitted to be developed with Council consent on the land. 5 By virtue of cl 23 of IDO 122, which commenced on 20 October 1995, development for the purpose of a dual occupancy on the land was prohibited by subclause 3(b) as it is within the catchment of Cockrone Lake. As the existing use of an attached dual occupancy is now prohibited under IDO 122, that use is an existing use pursuant to s 106 of the Environmental Planning and Assessment Act, 1979 ("the EP&A Act"). 6 Clause 23A of IDO 122 was introduced into this instrument by Gosford Local Environment Plan 314 ("Gosford LEP 314") published in the Government Gazette on 20 October 1995. Gosford LEP 314 commenced on 20 October 1995, and from that date subdivision of dual occupancies was prohibited. Pursuant to cl 23A of the IDO the subdivision of the existing development on the land if it is categorised as a dual occupancy is prohibited. 7 The Applicant proposes to change the existing use of dual occupancy to another prohibited use, a residential flat building. Development that is prohibited on the land includes residential flat buildings. Relevant legislation 8 Section 108 of the EP&A Act provides for regulations to be made in regard to existing use. Section 108(1) states: 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. 9 Section 108(2) provides: 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. 10 The Environmental Planning and Assessment Regulation 2000 ("the 2000 Regulation") was published in Gazette No 117 on 8 September 2000 and commenced on 1 January 2001. Clause 41 of the 2000 Regulation provides: Certain development allowed (cf clause 39 of EP&A Regulation 1994) (1) An existing use may, subject to this Division: (a) be enlarged, expanded or intensified, or (b) be altered or extended, or (c) be rebuilt, or (d) be 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. 11 Clause 41 has not been amended since the 2000 Regulation commenced on 1 January 2001, and is in the same form as cl 39 of the repealed Environmental Planning and Assessment Regulation 1994. The Environmental Planning and Assessment Regulation 1980 ("the 1980 Regulation") generally provided at cl 54: (1) For the purposes of section 108 (1) (b) of the Act, an existing use may, with consent under the Act being obtained therefore, be changed to another use … (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 therefore, be changed to another use. It appears that the 1980 Regulation was amended to reflect the wording of cl 41(1)(d) in 1993. 12 Section 76B of the EP&A Act currently provides: Development that is prohibited If an environmental planning instrument provides that: (a) specified development is prohibited on land to which the provision applies, or (b) development cannot be carried out on land with or without development consent, a person must not carry out the development on the land. 13 Section 76C of the EP&A Act currently provides: Relationship of this Division to this Act This Division is subject to the other provisions of this Act, unless express provision is made to the contrary. The Council's Submissions 14 The Council argued that part of cl 41(1)(d) is ultra vires or, more accurately, is repugnant to the provisions of s 76B of the EP&A Act by permitting the change of a use with existing use rights, a prohibited use, to another prohibited use. This was said to be contrary to s 76B of the Act. The offending words in cl 41(1)(d) are "… including a use that would otherwise be prohibited under the Act." 15 The Council argued that where subordinate legislation is made pursuant to an enabling Act, it cannot be inconsistent with the terms of that Act or go beyond it. Here, the enabling Act is the EP&A Act, in particular s 108, which allows existing uses to be changed to "another use". What constitutes "another use" must be determined in the context of Act as a whole informed by s 76B. Clause 41(1)(d) of the 2000 Regulation is partly inconsistent with this. The Council relied in Court on Pearce and Argument, Delegated Legislation in Australia (3rd ed), par 19.1 at p 219 to support this argument. 16 The Council argued that the Act as a whole operates to deny Council's power to consent to the present development application, because the current application is for prohibited development. The regime for the control of development, as identified in Chambers v Maclean Shire Council (2003) 126 LGERA 7 at 14 [33] - [38], does not contemplate that prohibited development will be permitted in these circumstances. 17 Section 108 permits the making of regulations specific to the circumstances outlined in subsections (a) - (c). The phrase in s 108(1) "for or with respect to existing uses" does not give broad discretion to the regulation draftsman to expand the power granted in s 108. 18 The Council argued that this approach is consistent with the concept of "existing use rights" which has evolved under the EP&A Act as identified by Kirby J in North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 67 LGRA 344 at 352 - 353, and other cases. Because these cases emphasise that a narrow approach should be taken to the identification of the scope of existing use rights and their expansion and intensification, a narrow approach should also be taken when changing an existing use to another use so as to ensure that the land is not used for a different prohibited purpose. 19 There are no express words in s 108 which displace s 76B to allow the carrying out of prohibited development if a change of use from an existing use is considered. Section 108 does not specifically provide for an existing use to be changed to a prohibited one. By not mirroring the words of s 108, the additional words imported into cl 41(1)(d) are repugnant to the enabling Act. 20 Furthermore, s 108(2) required the incorporation of the regulations made pursuant to s 108(1) into IDO 122, the applicable environmental planning instrument. This required that the existing use provisions in the regulations must be read side by side with the other provisions prohibiting, permitting with consent and permitting without consent, development in particular zonings. 21 The Council also submitted that the findings in Star Property v Leichhardt Municipal Council (2000) 111 LGERA 95 and Kremer & Associates v North Sydney Municipal Council (1982) 47 LGRA 209 are not authorities for the present case and can be distinguished from it. The Minister's Submissions 22 The Minister argued that the current question of law before the Court has previously been settled in the cases of Star Property and Kremer. These cases are binding, and correctly address the current issues. 23 Clause 41(1)(d) of the 2000 Regulation makes provision "for or with respect to existing use", in accordance with s 108 of the Act, and is valid. Section 108(1)(b) permits the making of regulations with respect to "the change of an existing use to another use". Section 108 is broadly expressed and does not constrain what "another use" can be. The adjective "another" is wide enough to contemplate any use, whether permissible or otherwise. The absence of any further words is of no significance since the words "another use" alone are broadly intended. 24 Section 76B does not invalidate cl 41(1)(d) of the 2000 Regulation. Although prima facie it does not allow prohibited development to be carried out, the EP&A Act does otherwise allow for this to occur through Pt 4 Div 10, a separate division dealing with existing uses. Further, s 76B is subject to Pt 4 Div 10 through s 76C. There is no inconsistency between s 76B and Div 10 of Pt 4. 25 The Minister further submitted that if the concept of "another use" in s 108 was not broadly construed, then there would be no utility in legislative provisions such as s 108(1)(b) or cl 41(1)(d). That is because if a restrictive view is taken of "another use" so that it pertained only to conforming uses, then there would be no need for the existing use provisions in the Act and applications would be made pursuant to 76A of the Act instead. 26 Pursuant to s 108(2) of the Act, regulations including cl 41(1)(d) must be incorporated into relevant environmental planning instruments. Therefore, any restrictions under the Gosford LEP relating to prohibited development are subject to the ability to permit a conversion of an existing use to "another use" with approval via cl 41(1)(d). Finding 27 Section 108 (1)(b) refers to change of an existing use to another use. "Use" is not defined in the EP&A Act. Section 180(1)(b) has been in its existing form since the Act commenced. Clause 41(1)(d) of the 2000 Regulation is in the same form as cl 39 of the 1994 Regulation. Clause 54 of the 1980 Regulation was in similar terms but did not include the words in cl 41(1)(d) which the Applicant argued are repugnant until 1993. 28 While this precise argument has not apparently been raised previously there have been several cases which have dealt squarely with the issue of whether the Act and regulations allow the change of use of an existing use to another non-conforming use. In Star Properties Talbot J held that the existing use provisions of Div 10 of Pt 4 of the Act could be relied on to make an application for change from an existing non-conforming use to another use, whether a conforming or non-conforming use. Justice Talbot followed Kremer, which dealt with the 1980 Regulation, cl 54. In Kremer McClelland J held that it was open to the applicant to seek to change the existing use as defined under the Act to another non-conforming use. I do not consider that the inclusion of the words said to be repugnant by the Council in cl 41(1)(d) of the 2000 Regulation render the statements in Kremer inapplicable. I consider I should apply both these cases. 29 There have been numerous cases before this Court which have dealt with the circumstance of an existing use changing to another nonconforming use. Cases such as Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373 and Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council (2001) 114 LGERA 345 recognised that this was legal. In Berowra RSL the Court had to consider existing use rights in the context of a dispute about whether the change was an enlargement or expansion of an existing use, or whether a new use was instead being added. Justice Pearlman applied Warringah Shire Council v Caltex (Australia) Pty Limited (1989) 68 LGRA 206 where Hope JA, (with the majority concurring) held that the word "change" can be construed to mean a change of use from purpose A to purposes A and B. Although Pearlman J held in Berowra that the proposed changes were an expansion of the existing use, she also adopted the view formed by Hope JA in Warringah that an existing use can be legally changed to add a new use. 30 The Council's argument is that s 108 and thereafter cl 41(1)(d) of the Regulation must be read as referring only to allowing changes to a permissible development because of s 76B of the Act. I do not find any of the Council's arguments persuasive, largely for the reasons articulated by the Minister and set out above at par 22 onwards, in addition to the application of the various cases I have outlined above and my further findings. 31 The Council's argument, based on an historical analysis of various secondary references and case authorities, and set out at par 68-75 of its further written submissions, that the general "policy" approach to the careful characterisation of existing use rights suggested that its interpretation of the Act was correct is no answer to the clearly expressed words of the Act and the presence of Div 10 in Pt 4 specifically providing for existing use rights. The findings in Chambers v McLean about the regime for development under the EP&A Act were not considering existing use rights as the facts of that case did not raise these. 32 While the Council argued the Act had to be considered as a whole, its arguments focussed on s 76B as the section to which s 108 must be subject. Although its counsel stressed in argument that s 76B was not pressed on this basis this was clearly the primary basis of the Council's argument. The general principles of statutory construction relied on to support the Council's argument do not lead to the conclusion that cl 41(1)(d) is repugnant to s 108(1) of the Act. 33 I answer the question posed in the negative. Orders 34 The Court makes the following order: 1. Costs are reserved. 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.