Land and Environment Court of New South Wales CITATION : Tela Pty Ltd v Council of the City of Sydney [1989] NSWLEC 184 APPLICANT Tela Pty Ltd PARTIES : RESPONDENT Council Of The City Of Sydney FILE NUMBER(S) : 10620 of 1987 CORAM: Cripps J KEY ISSUES: :- LEGISLATION CITED: Land And Environment Court Act Environmental Planning and Assesssment Act CASES CITED: DATES OF HEARING: DATE OF JUDGMENT: 05/01/1989 APPLICANT Mr Wilson LEGAL REPRESENTATIVES: RESPONDENT Mr Davidson JUDGMENT: His Honour: This is an appeal pursuant to the provisions of s 56A of the Land and Environment Court Act against a decision of an assessor dismissing an application for development consent. The appeal is limited to questions of law. On 16 September 1988, the assessor refused development consent for the use of premises at 56-70 George Street, Redfern, for the purpose of panel beating and spray painting. The assessor made the following orders: is dismissed. use panel beating and spray painting at the level of 56-70 George Street, development consent is granted for use to continue for a period of 60 days the date of this order subject to consent granted by the Council by notice determination dated 27 January 1982, and use shall be discontinued before the 3. ... ". The subject site has a long and complex planning history. In 1959, Hardie J in the Land and Valuation Court gave judgment in favour of the applicant and gave consent under the County of Cumberland Planning Scheme Ordinance for erection of a three storey building and a suspended driveway and to use the land and structures for a service station and ancillary activities including the nominated ancillary activity of "carrying out of minor running repairs to motor cars". On 6 June 1973, Council granted consent for the carrying out of "motor vehicle repairs" between certain hours provided that no panel beating or spray painting was carried out and that the use should cease without compensation if at any time it resulted in adverse effect on the amenity of the area. There was a dispute in the proceedings as to whether the use consented to in 1973 commenced. However that may be, on 27 January 1982, the Council granted consent for the use of the land the subject of the present proceedings for panel beating in conjunct ion with the existing use of the balance of the premises for mechanical repairs subject to certain conditions, the most important one of which for present purposes was condition 10: "That the consent shall be limited to a trial period of two years and shall be subject to review at the expiration of that period". The assessor took the view, apparently, that the consent granted on 22 January 1982 was defective because it contravened a standard in the relevant deemed LEP with respect to prescribed maximum areas. It was said in the judgment (p.9) that the parties had agreed that the consent in January 1982 was invalid because there had been no dispensation granted pursuant to SEPP No 1. Mr Davison and Mr Wilson informed me that, in fact, no such concession was made. For reasons which will appear later, nothing, in my opinion, turns upon the mistake if mistake it be. As will be seen, I have come to the conclusion that on the material before the assessor, it was open to him to conclude that, with the exception of a period of two years between 1982 and 1984, any panel beating and spray painting of the type the subject of the present application was in breach of the planning laws. It would seem to me, therefore, the circumstance that even if, as the assessor apparently thought, there was also a breach between 1982 and 1984 b ecause the consent was void, had no relevance to the outcome of the appeal. In February 1984, the applicant applied for consent which he described as being necessary to "revive" his "panel beating" consent. In October 1987, the Council refused consent and gave notice to the applicant that the use must cease within sixty days of 13 October 1987. The appellant appealed to the Court. The assessor carefully reviewed the evidence and the submissions made by both parties. He expressed the opinion that during the period 1982 to 1984 (the period when the applicant believed and, in my opinion, correctly that he had received consent to undertake the activity) thepanel beating and spray painting then undertaken was conducted in such a way that it unreasonably affected the amenity of the neighbourhood. The assessor was not satisfied that the operators of the business would be able to comply with the conditions that would have to be imposed to protect the amenity. In short, he concluded that what was proposed in the application for development consent would unreasonably affect the amenity of the area and therefore should be refused. He referred to spray painting fumes, loud and intrusive noises etc. At the end of his lengthy judgment, the assessor said: "The past use of the subject premises for the separate and distinct purpose of panel beating and spray painting has not been authorised by any valid town planning consent. Assuming (without deciding the point) that motor vehicle repairs may lawfully be carried out in the subject workshops, how would the various noises created by such repairs compare with the various noises related to panel beating and smash repairs? Some of the noises of the two uses would clearly be similar, but overall the noises from a panel beater's workshop are likely to be more noticeable and offensive. George Street has a reasonably good residential amenity for an inner city locality. There are some non-residential uses in the street, but these uses are not in obvious conflict with that amenity, unlike the proposed development. For the above reasons, I have come to the same conclusion as the Council that the continuance of the panel beating and spray painting use of the subject premises is not appropriate". He thereupon dismissed the appeal and made the order I have referred to above. Although eleven grounds of appeal were filed, not all were relied on. It was submitted that the assessor erred in finding that the parties had agreed that the consent given in January 1982 was invalid. Mr Davison, on behalf of the Council, does not dispute that the assessor made an error in stating that the parties had agreed but submits that that error had no significance in the circumstance of the case and, in any event, could not be characterised as an error of law. It was also submitted that the assessor had no power to make order 2. Mr Davison conceded that the assessor had no power to make order 2 but points to the fact that the sixty days referred to in order 2 has long since expired and submits no useful purpose would be served in remitting the matter to the assessor in the event that this was the only error of law. It was agreed between the parties before me that if the grounds of appeal are rejected, otherwise than the ground with respect to order 2, the Court ought, in dismissing the appeal, exerci se the jurisdiction pursuant to s 56A(2)(b) and delete order 2. Mr Wilson's principal submission, if I understand him correctly, was that the assessor erred in law in that he wrongly assessed the effect on amenity of the proposed development because he misunderstood what might lawfully be conducted on the premises without any further consent of the Council. He submits that the assessor was bound to have regard to the fact that the consent given by Hardie J with respect to part of the land in 1959 permitted its use for some panel beating and spray painting. He submits that the words "minor running repairs" did not exclude certain forms of panel beating and spray painting. Furthermore, he submits that even if the activity the subject of the present application was not an activity that might be lawfully carried out by reason of the consent in 1959, it became lawful by the consent in 1982. He submits that condition 10 was "invalid and of no effect" with the result that the consent was unlimited as to time and that the activities the subject of the application before the Court were permitted by the consent granted in 1982. (I should mention, of course, that if this were so, there would have been no need for Mr Wilson's client to have sought development consent in the present proceedings.) In particular, Mr Wilson relied upon the words in the third last paragraph of the assessor's judgment: "The past use of the subject premises for the separate and distinct purpose of panel beating and spray painting has not been authorised by any valid town planning consent". Mr Wilson submits that the 1959 consent and/or the 1982 consent relevantly permitted the use of the premises for spray painting and panel beating for an unlimited period of time and that the assessor in concluding that the 1959 consent did not and that the 1983 consent was void because it offended against a development standard without dispensation, he took into account irrelevant considerations in the disposition of the appeal. I accept that the assessor should not have characterised the 1982 consent as invalid because Council failed to have regard to a development standard and no application for dispensation under SEPP No 1 had been made and granted. The validity of the 1982 consent was not before the assessor for consideration. The consent had issued and had been acted upon and its validity had not been challenged in any proceedings in a court competent to declare it invalid. In my opinion, it was not open to challenge in the present Class 1 proceedings, being proceedings to be heard by an assessor, notwithstanding the provisions of s 91(5) of the Environmental Planning and Assessment Act. The 1982 consent expired in 1984 and for reasons which I will endeavour to explain shortly, the assessor did not err in law in coming to the conclusion that spray painting and panel beating on the subject premises of the type the subject of the present application was not permitted by the 1959 consent and was unlawful from 1984 until the hearing of the application. Mr Wilson submits that the 1982 consent was, in law, unlimited as to time because cl 10 was not authorised according to law and, therefore, had no effect. As I have said above, the validity of the 1982 consent (or any aspect of it) was not before the Court for determination. If it were before a court of competent jurisdiction and it was determined that the imposition of condition 10 was not authorised by law then, subject to matters of discretion, the Court might have declared the consent void with the result that any activities that were undertaken of the type referred to in these proceedings would have been unlawful. In 1982, s 91(5) (since repealed) of the Environmental Planning and Assessment Act provided that a consent granted otherwise than in accordance with the Act or any environmental planning instrument applying to the land to which the application might relate was void. So it is not easy to see what comfort Mr Wilson gets even if the imposition of cl 10 was not authorised. Clause 10 could not have been severed from the consent. But, in my opinion, cl 10 was not unauthorised and accordingly the consent was limited to a period of two years. In my opinion, the activities the subject of the application before the assessor could not be characterised as the ancillary activity of "carrying out of minor running repairs to motor cars" notwithstanding that those words may, in certain circumstances, encompass some spray painting and some panel beating. From 1984 to 1986 the premises were being used for panel beating and spray painting. The assessor had a clear idea of what would be undertaken in the future if development consent was granted. In my opinion, a fair reading of his decision makes it clear that he dealt with all merit considerations and came to the conclusion the subject premises should not be used for panel beating and spray painting. That conclusion was clearly open to him. I accept the criticism that the assessor made an error in assuming that panel beating and spray painting were illegal between 1982 and 1984. But that error was not, relevantly, an error of law. But even if it were an error of law, it had no bearing on the merit decision. The assessor was required to determine whether the activity should be permitted and, if so, subject to what conditions and he came to the firm conclusion that it should be refused. His decision had nothing to do with the legality of the activity between 1982 and 1984. It was based upon his opinion that what was proposed would unreasonably affect the amenity of the neighbourhood. The assessor found that the noise likely to be generated from the proposed panel beating and spray painting activity was unacceptable and on planning merit grounds dismissed the application. In my opinion, no error of law has been demonstrated having the effect of vitiating his decision. For these reasons, the order I make is that the appeal be dismissed. Conformably with the agreement between the parties, I make the following orders: 1. Appeal dismissed. 2. The order of Assessor Nott be varied by deleting order 2. 3. The appellant to pay the costs of the appeal. 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.