Land and Environment Court of New South Wales CITATION : Kendall Street Developments Pty Limited v Byron Shire Council [2004] NSWLEC 227 APPLICANT: Kendall Street Developments Pty Limited PARTIES : ACN 101 278 282 RESPONDENT: Byron Shire Council FILE NUMBER(S) : (4)0059 of 2002 CORAM: Lloyd J Existing Use Rights :- prior lawful consent - consent lapsing pursuant to condition - construction of condition of consent KEY ISSUES: Construction and Interpretation: - conditions of development consent - relevant principles LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Pt 4 Div 10 s 106 Byron Local Environmental Plan 1988 cl 32 Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528; 36 LGRA 159; CASES CITED: Gill v Donald Humberstone 7 Co Ltd [1963] 1 WLR 929; [1963] All ER 180; Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322 DATES OF HEARING: 01/03/2004 and 02/03/2004 EX TEMPORE 03/02/2004 JUDGMENT DATE : APPLICANT: Mr J A Ayling SC and Mr J B Maston (barrister) SOLICITORS: Wroth Wall LEGAL REPRESENTATIVES: RESPONDENT: Ms S A Duggan (barrister) SOLICITORS: Abbott Tout JUDGMENT: - 6 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES (4)0059 of 2002 Lloyd J 2 March 2004 KENDALL STREET DEVELOPMENTS PTY LIMITED ACN 101 278 282 Applicant v BYRON SHIRE COUNCIL Respondent EX TEMPORE JUDGMENT HIS HONOUR: 1 The applicant claims a declaration that certain land at Byron Bay, being lots 1 and 2 in deposited plan 209133 and lot 1 in deposited plan 543882 ("the land"), enjoys existing use rights which permit the continued use of the land for commercial purposes generally, or for certain commercial uses which it has particularised. 2 The applicant relies upon a development consent granted by Byron Shire Council ("the council") on 19 February 1991, for the commercial use of existing buildings on the land. The land was then and still is within Zone No. 7(f2) (Urban Coastal Land Zone) under the Byron Local Environmental Plan 1988, which commenced on 22 April 1988. The use of the land within such zone for commercial purposes was permissible with development consent. 3 It is said by early 1993 the development consent was implemented and the use of the land pursuant to the development consent had commenced. On 9 March 2001, however, Byron Local Environmental Plan 1988 - Amendment No. 66 commenced, under which commercial premises were a prohibited use on the land: see cl 32(4). 4 It is thus said that the present commercial use of the land has thereby become an existing use within the meaning of Pt 4 Div 10 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). An existing use is defined in s 106(a) of that Act as follows: 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, …. 5 The council has raised as an issue the lawfulness of the use. It says that the development consent had lapsed before the relevant date, 9 March 2001, by the operation of condition D2 of the consent; and since the development consent had lapsed, the use of the land is not a use for a lawful purpose within the meaning of s 106 of the EP&A Act. 6 Condition D2 of the development consent is as follows: This development consent shall cease if at any time the erosion escarpment as defined by the Shire Engineer, comes within 50 metres of any building associated with this development. 7 Mr J A Begovic, who has been employed by the council as Development Engineer since about January 2000, states in an affidavit sworn 16 December 2003, that in that capacity he performs the functions previously assigned to the Shire Engineer. He states that in ascertaining the operation of condition D2, he defines erosion escarpment to mean: "The landward limit of erosion in the dune system caused by storm waves. It is measured from the top of the bank". Mr Begovic states that this definition is consistent with the definition of "scarp" in the council's Coastline Hazard Definitions Study prepared by WBM Oceanics Australia dated 1 October 1999 and adopted by the council on 11 December 2000. 8 An aerial photograph tendered as part of the evidence shows the subject land as being proximate to a beach and the ocean. A survey dated 17 March 1998, carried out for the council by Canty's Consulting Surveyors Pty Limited, shows the erosion escarpment as being 46.4 metres from one of the buildings on the land. A plan of the Coastal Hazard Definition Study shows the erosion escarpment in 1999 as being approximately 46 metres from a building on the land. A further survey in December 2003 shows this distance as having reduced further to 38.4 metres. 9 The applicant submits that condition D2 does not apply. Three reasons are advanced in support of the submission. 10 Firstly, it is submitted that such a condition is not authorised by the Act. At the time the condition was imposed, 19 February 1991, the power to impose conditions was set out in s 91(3) of the EP&A Act which relevantly provided that a condition of development consent may be imposed, inter alia, if: (c) it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or (d) it limits the period during which development may be carried out in accordance with the consent so granted. 11 These sub-sections have since been re-enacted as sub-ss 80A(1)(c) and (d) of the EP&A Act. According to the submission, as I understand it, the subsections do not authorise the cessation of a development consent or limit the period during which a development consent may operate: they only authorise a condition to require the development to cease or limit the period during which the development may be carried out. It is submitted that condition D2, however, purports to limit the development consent, so that the development consent shall cease upon the happening of the particular event, which is beyond the power in s 91(3) to impose conditions. 12 It must be remembered, however, that a development consent such as the present one, is not a document drafted by lawyers. It was drafted by town planners, to be read by town planners and non-legally trained people. The development consent and the conditions must be read in a common sense way so as to give effect to the obvious intention of the draftsperson. Conditions of a development consent are to be construed, not as if the words were the language of a statute, but from a practical viewpoint: see Gill v Donald Humberstone & Co Ltd (1963) 1 WLR 929; Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528 at 531; and Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322 at 323. 13 Moreover, a court will strive to give effect to the words used rather than strike down a clause or condition. Accordingly, if necessary to give effect to the condition, I am prepared to read it in the way that the Act allows. The condition obviously requires that the development which is the subject of the consent must cease upon the happening of the particular event. This is what is clearly intended by the condition. A reading of the condition in this way does not, however, assist the applicant. The effect is the same as if the development consent were to cease. If the condition requires the development which is the subject of the consent to cease, then the continued carrying out of that development is unlawful and thus outside the definition of existing use. 14 Secondly, it is submitted that the event to which condition D2 refers has not occurred. According to the submission, Mr Begovic was not and is not the Shire Engineer and if it could be said that he was performing the role of the Shire Engineer, he did not define the escarpment until he swore his affidavit on 16 December 2003. 15 I do not accept the submission. As I have already observed, when construing conditions of a development consent, the Court must be concerned with practical considerations and adopt an interpretation which leads to a reasonably practical result: see, in particular, Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council at 323. The clear intention of condition D2 is that the erosion escarpment be defined by a person performing the functions of the Shire Engineer. 16 According to his affidavit, Mr Begovic has been performing the functions of the Shire Engineer since his employment with the council, which seems to have commenced in about January 2000. I am thus prepared to accept that in construing the condition in a practical way, he is the person described in the condition. Moreover, he states in his affidavit that "in ascertaining compliance or otherwise with condition D2 I define erosion escarpment to mean…", that being a definition which the council had adopted on 11 December 2000. He then states that as at 17 March 1988, and as at 1 October 1999, the erosion escarpment thus identified was within 50 metres of a building associated with the development. Moreover, the words "at any time" in condition D2 refer to the position of the erosion escarpment - not to the definition of it by the shire engineer. 17 Thirdly, it is submitted that condition D2 is meaningless and incapable of operation. According to the submission, the condition does not have an obvious or discernible meaning. Again, I am unable to agree with this submission. The development consent states a number of reasons for the imposition of the conditions. Those reasons include the following: 2. To comply with the provisions of L.E.P. 1988 Shire of Byron (E.P.A. Act Section 90(1)(a). … 7 To ensure that the building is not destroyed due to coastal erosion or storm activity (E.P.A. Act Section 90(1)(g)). 18 The second of the stated reasons, that it is to ensure that the building is not destroyed due to coastal erosion or storm activity, reflects the provisions of the Byron Local Environmental Plan 1988. Those provisions include the objectives of Zone No. 7(f2) (Urban Coastal Land Zone), which include "the need for development consent to be limited to a particular period": see the zoning table to cl 9. Clause 32(2) of the Byron Local Environmental Plan 1988 states that a person shall not carry out development within Zone No. 7(f2) without the concurrence of the Director. Clause 32(3) states that the Director, in deciding whether to grant concurrence, shall take into consideration "the need for the development consent to be limited to a particular period". 19 In construing the condition in a practical way rather than striking it down, it is clear that it is intended to give effect to these provisions of the Byron Local Environmental Plan 1988 and to the practical consideration that when a development site is threatened with coastal erosion then the use should cease. That is the development ceases when the 50-metre distance is infringed by the erosion escarpment. 20 As I have observed, the words "at any time" in condition D2 refer to the infringement of the 50 metre distance by the erosion escarpment. That is consistent with the intention of the condition. The person performing the functions of Shire engineer, Mr Begovic, stated that the escarpment, as he defines it, infringed the 50 metre distance on 17 March 1998, when it was at 46.4 metres and at 17 December 1999 when it was at 44.5 metres, and it has been less than 50 metres from at least 17 March 1998. Since then condition D2 has applied. 21 The applicants' construction of the condition would be contrary to the clear intent and purpose of the condition and contrary to the clear intent and purpose of the provisions of the Byron Local Environmental Plan 1988 to which I have referred. 22 I find, therefore that the development allowed by the development consent of 19 February 1991 is unlawful and became unlawful prior to 9 March 2001 when Byron Local Environmental Plan 1998 - Amendment No. 66 commenced. It follows that the applicant cannot rely on the use or uses authorised by that development consent as existing uses within the meaning of Pt 4 Div 10 of the EP&A Act. I hereby certify that the preceding 22 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd. 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. 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