Land and Environment Court of New South Wales CITATION : Nazero Constructions Pty Ltd v North Sydney Council [2002] NSWLEC 193 APPLICANT: Nazero Constructions Pty Ltd PARTIES : ACN 001 602 259 RESPONDENT: North Sydney City Council FILE NUMBER(S) : 10020 of 2002 CORAM: Lloyd J KEY ISSUES: Question of Law :- preliminary questions of law - development in contravention of previous development consent - prohibited use LEGISLATION CITED: North Sydney Local Environmental Plan 2001 cl 22(2) CASES CITED: DATES OF HEARING: 17/09/2002 EX TEMPORE JUDGMENT DATE : 09/17/2002 APPLICANT: Mr P J McEwen SC SOLICITORS: Windeyer Dibbs LEGAL REPRESENTATIVES: RESPONDENT: Mr S D Rares SC and Mr A M Pickles (barrister) SOLICITORS: Mallesons Stephen Jaques JUDGMENT: 1 IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10020 of 2002 Lloyd J 17 September 2002 NAZERO CONSTRUCTIONS PTY LTD ACN 001 602 259 Applicant v NORTH SYDNEY COUNCIL Respondent EXTEMPORE JUDGMENT 1. The Court is concerned with four preliminary questions of law that have been raised in the course of an appeal in class 1 of the Court's jurisdiction. 2. The questions of law are conveniently set out in a statement of issues prepared by the solicitors for the respondent, North Sydney Council ("the council"), dated 29 August 2002. They are as follows: 1 Whether the proposed development can be properly categorised as a "duplex" as defined in Schedule 2 of North Sydney Local Environmental Plan 2001 ( "NSLEP 2001" ). 2 Whether there is any permissible use for which consent can be granted in respect of the proposed development, if it cannot properly be classified as a "duplex" for the purposes of NSLEP 2001. 3 Whether the Consent granted by the Court on 23 February 2001 in Proceedings 10658/02 can be properly acted upon. 4 Whether clause 22(2) of NSLEP 2001 prohibits the proposed development because the "duplex" is proposed to be erected on a lot with another form of development, namely residential flat building. 3. The parties have sensibly agreed on the essential facts as set out in a statement of agreed facts filed on 12 September 2002. I set out below the whole of that statement, omitting references to the annexed and marked documents. 1 These proceedings relate to an application for development consent at a property known as 1A and 1B Lambert Street, Cammeray, being Lots 1 and 2 in SP14210 ("the Property "). 2A It's the Applicant's contention that the Applicant at all times intended and continues to intend to use the Property as a residential flat building or duplex. 2 On 23 February 2000 the Court granted a deferred development consent (the "Development Consent" ), in reliance upon existing use rights, for "a residential flat building comprising five units with parking". The residential flat building was to be achieved by way of alterations and additions to an existing duplex building on the Property. [This was a consent to development application No. 543/99.] 3 As at 23 February 2000, the Property was zoned 2(b) under the relevant environmental planning instrument at that time, namely the North Sydney Local Environmental Plan 1989 ( "NSLEP89" ). Residential flat buildings were prohibited in zone 2(b). Residential flat building was defined as follows: "residential flat building" means a building containing 2 or more dwellings but does not include a building elsewhere defined in this clause. 4 Duplexes were not elsewhere defined in the NSLEP89 and were accepted as being included in the definition of residential flat building and therefore prohibited on the Property. 5 As set out in paragraph 4 of the judgment of Commissioner Murrel, "The Development Consent provided largely for the retention of the external envelope of the duplex, that is the major part of the walls and roof of the duplex were to be retained with significant extensions down the block to more than double its length. From the street the approved development would read as a building with the same bulk and scale as the existing duplex with the front façade, the rear southern wall and side western wall, the concrete floor and main part of the roof remaining in situ." 5A. The Applicant contends that the development consent provided largely for the retention of part of the external envelope of the duplex. Parts of the walls and roof of the duplex were to be retained with part of the existing front façade, part of the western wall and part of the roof to remain. The elements to be demolished were the eastern wall, the southern wall, part of the western wall and roof and the floors. 6 By section 96 application dated 27 June 2000 the Applicant sought to modify the Development Consent in a number of respects but relevantly so as 'In addition to demolishing the existing eastern walls, demolish the other existing walls, part roof to Units 1 and 3 and rebuild in an identical position." In effect it was to permit the complete demolition of the existing duplex and its rebuilding in the front portion. 7 On 12 January 2001, the Court refused the Applicant's section 96 application on the basis that it did not constitute substantially the same development as that approved by the Court on 23 February 2000. The Court held that the retention of the existing structure in terms of the identified external walls, floor and roof was a material and essential feature of the development as approved by the Court. 8 On 1 June 2001, the North Sydney Local Environmental Plan 2001 ( "NSLEP2001" ) was made. Under NSLEP2001, a new category of development, being a duplex, was defined as follows: duplex means a single building containing only two dwellings, each dwelling attached to the other by a common wall or by the floor of one to the ceiling of the other. 9 By virtue of the NSLEP2001 the Property was zoned Residential A2 and duplexes became permissible on the Property. 10 As at 1 June 2001, the Applicant had not commenced physical work in reliance upon the Development Consent. By virtue of the Environmental Planning and Assessment Act 1979 the Applicant had 5 years to do so from 23 February 2000. 11 As set out in paragraph 8 of the judgment of Justice Cowdroy [see North Sydney Council v Nazero Contructions Pty Limited [2001] NSWLEC 238] , "In July 2001, the Applicant demolished the roof, floors and virtually all of the walls of the existing building leaving only a fragment of the northern wall facing Lambert Street remaining" (the "Works" ). 11A The Applicant contends that in July 2001, the Applicant commenced both authorised and unauthorised work on the site. The unauthorised demolished portions were those previously shown to be retained (see paragraph 5A above), save for a 3.2 metre length of the northern wall fronting Lambert Street and a small return along the western boundary. Otherwise the Applicant demolished part of the western walls, part of the front façade and part of the roof. 12 The Works were the subject of class 4 proceedings which were heard before His Honour, Justice Cowdroy on 5 October 2001 and 8 October 2001. By judgment dated 25 October 2001, the Court declared that development had been carried out without consent "by the demolition of portions of the walls of the building … and by the removal of the roof" and pending further order of the Court ordered that the Respondent (being the Applicant in these proceedings) be restrained from carrying out any development on the Property without development consent. Furthermore the Court ordered that the proceedings be adjourned to enable the Applicant to seek development consent for work for the reinstatement of the walls and roof of the building. 13 On or about 26 October 2001, the Applicant submitted a development application (the "Development Application" ) for consent to reinstate part walls and part roof as identified on the attached plans such reinstatement works to be carried out in conjunction with works approved in DA543/99". 14 By class 1 application dated 9 January 2002, the Applicant has appealed against the Council's deemed refusal of the Development Application (being these proceeding). 15 On 17 January 2002 the Council sent correspondence to the applicant. 16 Stephen Beattie, Manager Development Services, prepared a report dated 22 May 2002 with respect to the Development Application for the Council meeting of 17 June 2002. 17 On 21 June 2002, the hearing of a preliminary question of law commenced before His Honour Justice Talbot in relation to the following legal issue: "Whether existing use rights formerly attached to the site which allowed the granting of consent to DA543/99 continue to exist ……". 18 In accordance with the direction made by His Honour Justice Talbot on 21 June 2002, the Applicant provided the Respondent with a further Statement of Environmental Effects prepared by Andrew Smith of Byrnes & Associates on 31 July 2002. 4. It is convenient to deal with each legal issue separately. 5. The first question is whether the proposed development can be properly categorised as a "duplex" as defined in Sch 2 of the North Sydney Local Environmental Plan 2001. 6. The North Sydney Local Environmental Plan 2001 commenced on 1 June 2001. The subject property is within a Residential A2 zone of that instrument. The zoning table in cl 14 sets out respectively the objectives of the zone and the types of development which may be carried out in the zone. Development which may be carried out in the zone is as follows: development for the purpose of, inter alia, duplexes. 7. The present development application is described as being: Consent to reinstate part walls and part roof as identified on attached plans, such reinstatement works to be carried out in conjunction with works approved in DA 543/99. 8. That is to say, the development application is for the purpose of a residential flat building. That is a prohibited purpose. It is not for the purpose of a duplex as defined. It is, therefore, appropriate to answer question 1 in the negative. 9. The next question is whether there is any permissible use for which consent can be granted in respect of the proposed development if it cannot be properly categorised as a "duplex" for the purpose of the North Sydney Local Environmental Plan 2001. 10. The position is that the existence of parts of the existing duplex building was a pre-condition, and a fundamental pre-condition, of the consent. When the application for modification of the consent came before Commissioner Murrell (and which was dismissed) the Commissioner said: [27] In my assessment of the s 96 application for modification, the original proposal for the retention of the existing structure in terms of the identified external walls, floor and roof was a material and essential feature of the development as approved by the Court. Accordingly my factual finding in this application for modification is that the total demolition of what is known as the duplex structure forms a critical element in the development as approved by the Court, and therefore, I have not been persuaded by the evidence presented on behalf of the applicant and I am not satisfied that the development to which the consent relates is substantially the same development. 11. Commissioner Murrell then continues: [28] Based on a comparative analysis of the facts I am not satisfied that the modified development is essentially, materially and substantially the same as that approved by the court and therefore the modification power under s 96(2) is not available in the circumstances . 12. I therefore accept the submission made on behalf of the respondent council that erection of the remainder of the residential flat building cannot now be carried out without modification of that consent. 13. The next question is whether the consent granted by the Court on 23 February 2001 in proceedings 10658/02 can be properly acted upon. Again, in my opinion this question must be answered in the negative. The existence of parts of the existing duplex building was, as I have noted, a pre-condition (and a fundamental pre-condition) of that consent. The erection of the remainder of the residential flat building cannot be carried out without modification of that consent. 14. The next question is whether cl 22(2) of the North Sydney Local Environmental Plan 2001 prohibits the proposed development because a duplex is proposed to be erected on a lot with another form of development, namely, a residential flat building. I must confess I do not really understand this issue in the way it has been framed. The proposed development is not, however, for the purpose of a duplex. It is for the purpose of a residential flat building. I do not see how this question can arise. 15. Generally it has been suggested by Mr P J McEwen SC, appearing for the applicant, that the present development application is not for the purpose of its ultimate use, namely, a residential flat building. I must say I have some difficulty with that submission in the light of the clearly stated purpose of the use set out in the development application, namely a residential flat buidling. 16. The answers to these questions are determinative of the appeal to this Court. It would be pointless to allow the matter to proceed to a hearing on the merits. The appropriate order is that the appeal be dismissed. I will reserve judgment on the question of costs. 17. The formal orders are:- (1) The application is dismissed. (2) The hearing dates of 17 November 2002 and 18 November 2002 are vacated. (3) Judgment on the question of costs is reserved. I hereby certify that the preceding 17 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd. 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