Land and Environment Court of New South Wales CITATION : Marrickville Municipal Council v Xuereb [1989] NSWLEC 170 APPLICANT Marrickville Municipal Counci PARTIES : RESPONDENT Xuereb FILE NUMBER(S) : 40187 of 1988 CORAM: Bignold J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Factories, Shops and Industries Act, 1962 Woollahra Municipal Council v. T.A.J.J. Investments Pty. Ltd. (1982) 49 LGRA 123; CASES CITED: Woollahra Council v. Banool Developments Pty. Ltd. (1973) 129 CLR 138; Tehidy Minerals v. Norman (1971) 2 QB 528 at p.553); Treweeke v. 36 Wolsely Road Pty. Ltd. (1973) 128 CLR 274. DATES OF HEARING: DATE OF JUDGMENT: 03/23/1989 LEGAL REPRESENTATIVES: JUDGMENT: Bignold J.: These are class 4 proceedings in which the Applicant claims a declaration that the use by the Respondent of premises known as No. 138 Marrickville Road, Marrickville for the purposes of a Solicitor's office is unlawful and an injunction permanently restraining that use. The aforesaid premises comprise a single storey dwelling-house built in 1915 and used as a dwelling from that time until the end of 1987 when they were acquired, by purchase by the Respondent. The land on which the dwelling-house is erected is, in common with land in its vicinity zoned 'Light Industrial" 4(b) under the Marrickville Planning Scheme Ordinance (which came into force on 22nd December, 1972 and which continues under the Environmental Planning and Assessment Act 1979 as a deemed environmental planning instrument). In terms of cl.23 of that Ordinance within that zone the purposes for which buildings may not be used (the prohibition is absolute) include "dwelling-houses (other than those used in conjunction with industry and situated on the same land as the industry)" and 'commercial premises'. It is common ground that the dwelling-house was an 'existing building' in terms of the Ordinance and its use as a dwelling-house was an 'existing use' in terms of that Ordinance. The terms 'existing building' and 'existing use' were omitted from the Ordinance following the commencement of the Environmental Planning andAssessment Act which in Division 2 of Part IV (as supplemented by Part VI of the Regulation made thereunder) provides its own code for 'existing uses'. It is common ground that the use of the dwelling-house as a dwelling was an 'existing use' within the meaning of s.106 of the Act. In terms of s.107(1) except where expressly provided nothing in the Act or an environmental planning instrument prevents "the continuance of an existing use". Section 107(2) makes such express provision. For example it provides in paragraph (d) that nothing in s.107(1) "authorises the continuance of the use therein mentioned where that use is abandoned". Section 107(3) provides:- "Without limiting the generality of subsection (2)(d) a use shall be presumed, unless the contrary intention is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months." Section 108(1) enables regulations to make provision "for or with respect to existing use" including "(b) the change of an existing use to another use". Clause 54(1) of the Regulation provides:- "For the purpose of Section 108(1)(b) of the Act, an existing use may, with the consent under the Act being obtained therefor, be changed to another use, including a use which would otherwise be prohibited under the Act." After these class 4 proceedings were commenced on 26th August, 1988 the Applicant determined a development application made by the Respondent on 19th August, 1988 seeking consent to the change of use "under Regulation 54(1) from dwelling-house to professional chambers for legal practice" by refusing development consent on the ground that "Council has no power to approve the proposed change of use in that the premises existing use rights have been abandoned ............" On 7th October, 1988 the Respondent brought an appeal under s.97 of the Environmental Planning and Assessment Act 1979 to this Court against the Applicant's determination (proceedings No. 10516 of 1988). That appeal, has, by consent of the parties, been heard together with the present proceedings. It is common ground that the issues raised by the two proceedings are integrally related. For the sake of simplicity it can be said that the fundamental issue common to both proceedings is whether the 'existing use' of the dwelling-house as a dwelling, has been abandoned as contended by the Applicant so as to deny application to this case of cl.54(1) of the Regulation. Although a negative answer to this question does not, strictly speaking, provide a defence to the Applicant's class 4 proceedings (which are directed against the use of the existing building by the Respondent as a Solicitor's office) the parties have proceeded on the basis that if it is held in the class 4 proceedings that there has been no abandonment of the existing use then the outcome of the class 4 proceedings should await the outcome of the s.97 appeal (which if successful would inevitably lead to the dismissal of the class 4 proceedings) whereas if it is held that there has been an abandonment of the existing use the s.97 appeal proceedi ngs must be dismissed because other than cl.54(1) of the Regulation there is no source of power available to the Court to grant development consent. (i) HAS THE EXISTING-USE BEEN ABANDONED? The relevant facts can be briefly stated. The Respondent is a Solicitor who has carried on a practice as a sole practitioner at the subject premises since the end of January 1988. Prior thereto for a period of some 5 years he conducted his practice from the next-door premises (No. 136 Marrickville Road) portion of which he leased. The Respondent learned in mid 1987 that the subject premises were for sale on the market. He made an offer and on 27th November, 1987 he entered into a contract to purchase the premises. That contract was completed on 4th January, 1988 and the Respondent immediately undertook repairs, renovations and refurbishing of the subject premises rendering the greater part of them suitable for use as a Solicitor's office. He commenced to practice from the premises on 25th January, 1988. Prior to entering into the aforesaid contract the Respondent wrote to the Applicant on 6th October, 1987 in these terms:- "Re: 138 Marrickville Road, Marrickville The writer, Charles Richard Xuereb, intends to purchase the abovementioned property and use the same for his legal practice under "Home Occupation". Would you please advise whether the Council has any objection thereto." On 15th October, 1987 the Applicant replied in these terms:- "Re: 138 Marrickville Road, Marrickville I refer to your letter by Council dated 6th October, 1987. You are advised that Council would have no objection to the subject dwelling house being used for a legal practice in a home occupation so long as such use complied with the following definition of a 'home occupation':- 'Home occupation' means an occupation carried out on in a dwelling house, or a dwelling in a residential flat building by the permanent residents of the dwelling house or such dwelling which does not involve any of the following:- (a) the registration of the building under the Factories, Shops and Industries Act, 1962; (b) the employment of persons other than such residents; (c) interference with the amenity of the neighbourhood by reasons of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit, oil or otherwise; (d) the display of goods, whether in a window or otherwise; or (e) the exhibition of any notice, advertisement or sign other than a note or sign exhibited on such dwelling house or such dwelling to indicate the name and occupation of the resident. The use of a dwelling-house for a home occupation does not require development consent." I accept the Respondent's evidence that when he wrote his aforesaid letter he did not know "that if a dwelling had existing use rights as a dwelling-house a person who wished to change the use of the entire building to another non-conforming use could seek development consent". I accept the Respondent's evidence that when he wrote his aforesaid letter he intended to take up residence in the rear portion of the subject premises. I also accept that this intention continued until after he had completed the contract and after he had undertaken the aforesaid repairs, renovations and refurbishment to render the bulk of the premises suitable for use as a Solicitor's office and after he had commenced to practice from the premises. These facts are attested to in paragraph 8 of his affidavit sworn on 25th October, 1988which I also accept:- "Before I completed my purchase of the premises I had intended to use the third bedroom, kitchen and bathroom at the rear for residential purposes and to use the front section of the building for my office. However, when I actually took up occupation it became clear that the third bedroom was too small to be used as a separate residence and accordingly I have continued to reside at my parents' home. In addition to this, there was a burglary at the premises shortly after I took up occupation of my office and this necessitated the installation of a burglar alarm system connected with a security organization which precluded the use of the premises for residential purposes." This evidence is clarified by the Respondent's evidence under cross-examination when he conceded that by the end of February 1988 ("it may have been some time in March 1988") he had abandoned any intention to use the subject premises for residential purposes. The Respondent went on to say that at this time he was unaware of the relevant existing use provisions of the Act. On 9th March, 1988 the Respondent received a notice from the Applicant calling for the discontinuance of his "unauthorised use of a residential dwelling for office purposes". Thereafter the Respondent spoke to the Mayor and correspondence between the parties ensued including the Applicant's threat of legal proceedings and leading eventually to the Respondent making the aforesaid development application for change of use, following the obtaining of Counsel opinion which indicated that the Respondent could invoke cl.54(1) of the Regulation. (ii) THE RELEVANT LAW In my opinion the relevant legal principles governing the present case are to be found in the judgment of the Court of Appeal in Woollahra Municipal Council v. T.A.J.J. Investments Pty. Ltd. (1982) 49 LGRA 123, a case dealing with cl.29 of the Woollahra Planning Scheme Ordinance which is not materially different from cl.54(1) of the Regulation. I shall confine citation to the following passage at p.125 of the judgment of Hutley JA:- "Though in the course of argument I expressed the view that there was no question of law disclosed in this appeal, on reconsideration, I think that the first question does involve a question of law, namely, the proper construction of cl.29 in conjunction with the definition of "existing use". The retention of an existing use involves two elements:- (1) how the premises are being used in fact; and (2) if they are not being used in fact, whether there is a relevant intention to continue the use in fact which once was used in fact. Existing use rights are not lost simply because they are not at one moment in time being used: Woollahra Council v. Banool Developments Pty. Ltd. (1973) 129 CLR 138, particularly, at p.148 et seq.; 28 LGRA 410, where existing use rights are not being exploited, intention is vital." (iii) APPLICATION OF THE RELEVANT LAW TO THE RELEVANT FACTS I find that by the end of February 1988 the Applicant had abandoned the existing use of the subject premises. His only use of the premises was as a Solicitor's office. He had abandoned his intention to use the rear portion of the premises as his residence. He had no intention to continue the existing use. I have been troubled by one aspect of this case, namely the clear fact that the Respondent was at all material times ignorant of any existing use right. I have asked myself the question - How can a person be held to abandon an existing use right at a time when he is ignorant of his possession of that right? I have carefully looked at the cases referred to by Counsel and have carried out my own research into this question. My conclusion is that the state of existing authority on the question of abandonment of existing use indicates that the question I have posed (which I confess has troubled me no small degree) is not the relevant question. The relevant question is abandonment of use. I am also left with the firm impression that existing authority on the question of abandonment of an existing use postulates a less rigorous standard than is to be found, for example in the law of easements, where it has been held (Tehidy Minerals v. Norman (1971) 2 QB 528 at p.553) that "(abandonment of an easement or of a profit a prendre can only, we think, be treated as having taken place where the person entitled to it has demonstrated a fixed intention never at any time thereafter to assert the right himself or to attempt to transmit it to anyone else" cf. Treweeke v. 36 Wolsely Road Pty. Ltd. (1973) 128 CLR 274. Counsel for the Respondent advanced the ad misericordiam plea that if the Court were to hold the existing use was abandoned it would mean that an old dwelling-house, carefully restored and renovated by the Respondent, could not be put to a dwelling-house use. This may indeed, be an unfortunate result. However it cannot be allowed to distort findings that are required by the relevant evidence and established legal principles. An avenue of possible relief for the Respondent may be recourse to s.100A of the Act. For the foregoing reasons I find that there is no 'existing-use' upon which cl.54(1) of the Regulation can operate. Accordingly the Applicant has made out its case for the relief claimed. (iv) THE COURT'S DISCRETION The Respondent submits that in the exercise of its discretion the Court will withhold the relief claimed. It points out that there is no evidence of local complaint and no evidence of environmental detriment caused by the Respondent's use of the subject property. The Applicant relies upon the statutory zoning and points to the fact that there is a nearby commercial zoning in which the Respondent could and should establish his business. The proceedings have been conducted with almost an exclusive focus on the question of "existing use". Perhaps because of this dominant feature of the case the Applicant has somewhat ill-advisedly perceived the case as not raising any issue concerning the consequences of the breach of the planning law. However in the circumstances I have come to the conclusion that an injunction should be granted subject to a generous period of suspension of the order, namely until the end of 1989. Accordingly I grant the relief claimed in paragraphs 1 and 2 of the class 4 application herein and order that the injunction be suspended until 31st December, 1989. I order the Respondent to pay the Applicant's costs and the exhibits to be returned. 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.