Land and Environment Court of New South Wales CITATION : Pikoulas v Canterbury City Council [2007] NSWLEC 747 APPLICANT Aristomenis Pikoulas PARTIES : RESPONDENT Canterbury City Council FILE NUMBER(S) : 10619 of 2007 CORAM: Preston CJ KEY ISSUES: Appeal :- Section 56A of the Land and Environment Court Act 1979 - Commissioner decision rejecting application to modify a development consent - misdirection as to application Environmental Planning and Assessment Act 1979, s 96(1), s 96(1A), s 96(6) LEGISLATION CITED: Land and Environment Court Act 1979, s 56A Local Government Act 1919 CASES CITED: Pikoulas v Canterbury City Council [2007] NSWLEC 648 DATES OF HEARING: 9 November 2007 EX TEMPORE JUDGMENT DATE : 9 November 2007 APPLICANT Mr A Pikoulas (In Person) LEGAL REPRESENTATIVES: RESPONDENT Mr D Baird (Solicitor) SOLICITORS Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES PRESTON CJ 9 NOVEMBER 2007 10619 OF 2007 ARISTOMENIS PIKOULAS V CANTERBURY CITY COUNCIL JUDGMENT 1 HIS HONOUR: Mr Pikoulas appeals under s.56A of the Land and Environment Court Act 1979 against the decision of a Commissioner of this Court to dismiss his appeal under s.96(6) of the Environmental Planning and Assessment Act 1979. Such an appeal under s 56A is confined to questions of law only but before dealing with the grounds of Mr Pikoulas' appeal, I will outline the circumstances of the appeal under s.96(6) of the Environmental Planning and Assessment Act. 2 Mr Pikoulas owns and resides at 17 Crinan Street, Hurlstone Park. Erected on the land are two buildings separated in the middle by an open courtyard. In the front of the allotment fronting Crinan Street is a two-storey building comprising a shop and a dwelling. I will refer to this building as the shop building. On the ground floor of the shop building is, going from front to back, the shop, a dining room and a kitchen, with a toilet and shower and a laundry and toilet outside in the open courtyard. The stairs to the first floor are also located in this courtyard area at the rear of the ground floor of the building. On the first floor, again going from front to back, is a living room, toilets, shower, study and two bedrooms and a balcony which serves in part as the landing for the rear stairs. 3 At the rear of the allotment, past the open courtyard, is another building. This building started its life as a single storey garage but after approval of a development consent for alterations to it, became a two-storey building (with the first floor being split with a mezzanine level), still with the garage on the ground floor but with a games room and bar on the first floor and a bedroom and bathroom on the mezzanine floor. I will refer to this building as the garage building. 4 The origin of the appeal to this Court under s.96(6) of the Environmental Planning and Assessment Act is the application Mr Pikoulas lodged with Canterbury City Council on 22 August 2006 under s.96(1A) of the Environmental Planning and Assessment Act to modify the development consent that authorised the additions to the garage building to which I have earlier referred. That development consent was number R8256/96. It approved the erection on top of the existing garage of, on the first floor, a games room with a bar area, and on a mezzanine floor above, a bedroom and bathroom. The development consent was subject to conditions, one of which was condition 4 which provided as follows: "4. The rear building being used in conjunction with the existing dwelling and not as a separate dwelling. No kitchen facilities being provided within the proposed additions." 5 Mr Pikoulas' application under s.96(1A) proposed to change the use of the first floor of the garage building in, firstly, the area described as "games room" to "living/dining" and, secondly, the area described as "bar" to "kitchen". The terms of the s.96(1A) application are important. Mr Pikoulas stated in the application as follows: "I desire modification of DA457/97 to change the compart (GAMES ROOM) to LIVING/DINING ROOM and the compart (BAR) to kitchen as this proposal for food facilities of service." 6 It can be seen that the s.96(1A) application did not expressly request modification of condition 4 of the development consent. However, by reason of the application seeking to substitute a kitchen for the bar, the application must impliedly seek to modify by deletion the second sentence of condition 4. However, it is not implied that the application seeks to modify the first sentence of condition 4. The change in the designation of the areas on the first floor of the garage building as sought does not necessarily demand that the garage building not be used in conjunction with the shop building. 7 The Council refused the s.96(1A) application on 9 November 2006. In the Notice of Determination dated 15 November 2006, the Council gave two reasons: "1. The separate occupation of the dwelling at the rear of the site will require additional off street parking. The proposal does not demonstrate that the site can accommodate adequate and accessible parking for the site in accordance with the requirements of Council's Car Parking Code – DCP 20. 2. The use of the dwelling at the rear of the site as separate dwelling to the dwelling above the existing shop is not in keeping with the intent of the original Development Consent with specific reference to Condition 4 of Development Consent R8256/1996 dated 30 May 1996, given that two dwellings will be accommodated on the site when only one dwelling has been approved." 8 On 3 July 2007, Mr Pikoulas lodged an appeal against the Council's refusal of his s.96(1A) to the Court. The class 1 application lodged with the Court had attached to it the s.96(1A) application dated 22 August 2006. 9 The appeal was heard on 13 September 2007. Commissioner Bly, presided at the hearing. Mr Pikoulas appeared for himself while the Council was represented by Ms P Hudson, solicitor. 10 At the conclusion of the hearing, Commissioner Bly delivered an ex tempore judgment: Pikoulas v Canterbury City Council [2007] NSWLEC 648. Commissioner Bly's reasons were essentially as follows: (a) The change in use of the areas on the first floor of the garage building would not result in the prohibited development of dual occupancy as the development could fall within the permissible category of development of "dwelling(s) with office premises or shop(s)". In the applicable 3(a) General Business zone under Canterbury Local Environmental Plan 138 - Canterbury Precinct: paragraph 7 of the reasons for judgment. (b) There were no submissions received as a result of public notification and hence the test under s.96(1A)(c) and (d) were satisfied: paragraphs 3 and 9 of the reasons for judgment. (c) Commissioner Bly was not satisfied that the proposed modification would be substantially the same development as that which was originally approved, and hence the test under s.96(1A)(b) was not satisfied: paragraph 10 of the reasons for judgment. The reason Commissioner Bly gave was that the modification would result in a severing of the relationship between the use of the garage building and the use of the shop building. Commissioner Bly said: "However, I have considerable doubt that the second dwelling would have the same relationship with the shop as does the existing dwelling. There is nothing to stop this second dwelling from being rented to persons having no relationship with the shop and a change in character would result. Moreover, the essence of the development would be different, there being two rather than one dwelling and this is in my view, a material change. As a consequence, I am not satisfied that the proposal would be substantially the same development as that which was originally approved." (d) Commissioner Bly was not satisfied that the proposed modification would have a minimal impact, and hence the test under s.96(1A)(a) was not satisfied: paragraph 11 of the reasons for judgment. The reason Commissioner Bly gave was related to that he gave for his conclusion that that the development would not be substantially the same development as originally approved, namely that the modification would sever the relationship between the use of the garage building and the use of the shop building. Commissioner Bly found that three car parking spaces would be satisfactory for two dwellings and a shop, rejecting the Council's argument that four spaces would be required. The current garage can accommodate three car parking spaces, but in what the Commissioner described as a triple tandem arrangement. Commissioner Bly found such an arrangement to be satisfactory for an interrelated dwelling and shop but not if the garage building were to be used independently of the shop building. Commissioner Bly said: "In my view, having noted the size of the two dwellings, and taking into account the requirements of the DCP, four car parking spaces would not be essential and that three spaces, one for each of the dwellings and one for the shop, would be sufficient, but given the configuration, this would nevertheless, be unsatisfactory. Whilst a tandem parking arrangement would be satisfactory for an interrelated dwelling and shop it is reasonable to expect that at least two of the three spaces could be utilised independently. This cannot occur and as a consequence an increased use of on-street parking to the detriment of the commercial locality is likely. Hence, I do not accept that the proposal would have a minimal environmental impact.": Paragraph 11. (e) On the merits, the application had an unsatisfactory car parking arrangement: paragraph 12 of the reasons for judgment. 11 Accordingly, Commissioner Bly dismissed the s.96(6) appeal. 12 Mr Pikoulas has appealed under s.56A of the Land and Environment Court Act against the Commissioner's decision. 13 The Council and Mr Pikoulas tendered all of the exhibits that were tendered before Commissioner Bly. In addition, Mr Pikoulas tendered a variety of other documents, many of which I admitted subject to relevance. 14 Mr Pikoulas' arguments, as I understand them, are as follows: (a) The Commissioner erred in treating the land as zoned 3(a) General Business rather than residential, because the land has been classified as residential for rating purposes; (b) The Commissioner erred because he dealt with the wrong s.96 application, namely the s.96(1A) application made on 22 August 2006, rather than an earlier application under s.96(1) that Mr Pikoulas had lodged with the Council on 11 July 2005; (c) The Commissioner erred in his findings in relation to car parking because: (i) he did not give credit for the fact that Mr Pikoulas' land offers three off-street car parking spaces whilst other land in the neighbourhood does not have any or as many off-street car parking spaces; (ii) all that is required is to provide off-street car parking and how it is provided (such as a tandem arrangement) is not relevant; and (iii) the s.96 application did not seek to have individual car parking for independent uses of the garage building and the shop building. 15 Mr Baird, solicitor for the Council, submitted that none of the above alleged errors were in fact errors or amounted to questions of law amenable to review under s.56A. 16 I agree with the Council that the alleged errors raised by Mr Pikoulas do not provide a basis for review under s.56A of the Commissioner's decision with one exception which, whilst not perhaps encapsulated in Mr Pikoulas' arguments, nevertheless provide the prompt for it. I will come to this point shortly but I will first explain my reasons for rejection of the other arguments of Mr Pikoulas. 17 As to the first argument, the relevant inquiry that the Commissioner was required to undertake in the s.96(6) appeal is as to the zoning of the land under the applicable local environmental plan made under the Environmental Planning and Assessment Act. That plan is Canterbury Local Environmental Plan 138 - Canterbury Precinct and the relevant zone for Mr Pikoulas' land is 3(a) General Business. The classification for rating purposes of Mr Pikoulas' land under the Local Government Act is irrelevant to the inquiry that the Commissioner was bound to undertake. Hence, the fact that the land has been rated on a residential basis is irrelevant. 18 As to the second argument, the simple answer is that Mr Pikoulas himself attached the s.96(1A) application dated 22 August 2006 to his class 1 application which commenced the s.96(6) appeal in this court and not the earlier s.96(1) application dated 11 July 2005. 19 As to the third argument, Commissioner Bly's findings in relation to car parking turned on the severability of the use of the garage building from the shop building. He did not find adversely to Mr Pikoulas by reason of the matters Mr Pikoulas raises and that I have set out above. There is no error in Commissioner Bly not considering or making findings as to those matters. 20 This brings me to the point about which I consider there is concern. I have noted earlier that Mr Pikoulas' s 96(1A) application was limited to changing the name of the use of certain areas on the first floor of the garage building, namely the games room to living and dining room and the bar to kitchen. The latter change would impliedly necessitate modification of the second sentence of condition 4 of the development consent. Mr Pikoulas did not seek, either expressly or by necessarily implication, in the s.96(1A) application, modification of the consent by deletion of the first sentence of condition 4 of the development consent. This would mean that, even if Mr Pikoulas' proposed change in name and use of the areas on the first floor of the garage building were to be made, the garage building would still need to be used in conjunction with the existing dwelling and not as a separate dwelling. 21 Commissioner Bly, however, proceeded on the assumption that Mr Pikoulas' s 96(1A) application involved also deleting the first sentence of condition 4. This assumption explains Commissioner Bly's reasons for holding, first, that the development as modified would not be substantially the development as originally approved and, secondly, that there would not be minimal environmental impact because the car parking would need to be separate and not tandem in order to serve the independent uses of the garage building and the shop building. In so assuming, Commissioner Bly misdirected himself in a material manner. He has determined an application other than the s 96(1A) application that was made by Mr Pikoulas and that was the subject of the s 96(6) appeal. Nowhere does Commissioner Bly consider the application Mr Pikoulas did make of changing the name and use of the areas on the first floor of the garage building (with the necessary deletion of the second sentence of condition 4) but keeping the restriction imposed by the first sentence of condition 4 that the rear building be used in conjunction with the existing dwelling and not be used as a separate dwelling. 22 The first sentence of condition 4 can also be seen to serve another purpose. I have noted that Commissioner Bly held that the use of the garage building, together with the existing use of the shop and dwelling in the shop building, falls within the permissible category of development of "dwelling(s) with office premises and shop(s)". Condition 4 can be seen as serving the purpose of ensuring that the rear dwelling maintain the connection with the shop required by this category of permissible development. If there were to be a complete severance of connection between the garage building and the shop, it is arguable (although I do not need to finally decide it) that the rear dwelling might no longer be able to be characterised as being for the purpose of "dwelling(s) with...shop(s)". 23 The misdirection that I have identified is a question of law and is material to the decision of the Commissioner. Accordingly, the appeal should be upheld. Orders 24 The orders of the court are: 1. The appeal is upheld. 2. The decision of Commissioner Bly dated 13 September 2007 is set aside. 3. The proceedings are remitted to be determined according to law. 4. The exhibits may 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. 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