Land and Environment Court of New South Wales CITATION : Caltex Oil (Australia) Pty Ltd v Warringah Shire Council [1988] NSWLEC 19 APPLICANT Caltex Oil (Australia) Pty Ltd PARTIES : RESPONDENT Warringah Shire Council FILE NUMBER(S) : 10490 of 1987 CORAM: Cripps J KEY ISSUES: :- LEGISLATION CITED: Land and Environment Court Act Environmental Planning and Assessment Regulation, 1980. Caltex Oil (Australia) Pty. Limited v. Canterbury Municipal Council, 50 LGRA 1; CASES CITED: Food Plus v. Warringah Shire Council, 50 LGRA 76; Golden Fleece Petroleum Pty. Limited v. Rockdale Municipal Council, 52 LGRA 202; Food Plus Pty. Limited v. Warringah Shire Council, (1983) DATES OF HEARING: DATE OF JUDGMENT: 10/01/1988 APPLICANT Mr. Thompson LEGAL REPRESENTATIVES: RESPONDENT Mr. Tobias JUDGMENT: His Honour: This is an appeal pursuant to the provisions of s.56A of the Land and Environment Court Act against the decision of Assessor Jensen published on 12 February 1988. The grounds of appeal are: 1. That the Assessor erred in law in holding that the development proposed constituted an existing use change to another use in accordance with cl. 51(1) of the Environmental Planning and Assessment Regulation, 1980. 2. The Assessor erred in law in finding that the provision of an acoustic barrier between the subject land and the premises, No. 1513 Pittwater Road, should be the subject of the orders of the Court yet failed to impose a condition of consent requiring provision of such a barrier. 3. The Assessor erred in law in failing to impose a condition requiring the western carpark be closed to traffic at 10.00 p.m. on Sundays and week nights and 11.00 p.m. on Friday and Saturday nights. With respect to the second and third ground of appeal, I was informed by Mr. Tobias, on behalf of Warringah Shire Council, and Mr. Thompson, on behalf of Caltex Oil, that the failure of the Assessor to include the conditions therein referred to was an oversight as is evident from a reading of the judgment. I was asked in this appeal to correct that oversight by imposing conditions 39 and 40 as follows: "39. The western carpark shall be closed to vehicular traffic from 10.00 p.m. until 6.00 a.m. on the following days, Sunday to Thursday nights inclusive and from 11.00 p.m. until 6.00 a.m. on the following days, Friday and Saturdays nights. For this purpose during the hours of closure a chain barrier shall be maintained across the northernmost driveway to Garden Street and from the north western extremity of the main building to the northern end of the middle driveway to Garden Street. 40. The applicant shall submit for the approval of the Council with the building application a detailed design of the transparent polycarbonate acoustic barrier to be erected on the land described in fig. 2 of Report No. 5467-2-87 prepared by Challis and Associates Pty. Limited and such barrier shall be erected in accordance with the building approval upon the registered proprietors of the property known as No.1513 Pittwater Road, North Narrabeen, advising the Council in writing within 60 days from the date of building approval that the registered proprietors desire the erection of the barrier. Section 56A(2)(b) empowers the Court on the hearing of an appeal to "make such other order in relation to the appeal as seems fit". I am satisfied that it is appropriate on the hearing of the appeal to make orders with respect to the second and third grounds of appeal. The substantial matter to be determined in the appeal concerns three decisions of the Court. Caltex Oil (Australia) Pty. Limited v. Canterbury Municipal Council, 50 LGRA 1, Food Plus v. Warringah Shire Council, 50 LGRA 76 and Golden Fleece Petroleum Pty. Limited v. Rockdale Municipal Council, 52 LGRA 202. In Caltex Oil, I was of the opinion that the decision of the Court of Appeal in Randwick Municipal Council v. John G. Simpson & Associates Pty. Limited, 47 LGRA 188, required the conclusion that cl.54(1) of the Environmental Planning and Assessment Regulation, 1980 did not permit the Court to consent to a change of use of land from use A to use A and use B. I was of the opinion, however, that although the Court could not consent to the use of land from use A to use A and use B, it could consent to a change of use of a building erected on land from use A to use A and use B. I was of the opinion on the facts of that case that it was open to the Council and hence the Court to grant development consent to the de velopment application submitted by Caltex to Canterbury Council. In Simpson, the Court of Appeal by a majority (Hope JA and Mahoney JA) considered that it was legitimate to change a use under the relevant clause of the Randwick Planning Scheme Ordinance from use A to use A and use B because of the presence in the clause of the words "any part thereof". The absence of these words in cl. 54 led me to the conclusion in Caltex that, conformably with the reasoning of the Court of Appeal, cl. 54 should be read down to prohibit a change of use of land from use A to use A and use B. As was made clear in the judgment, I reached my conclusion with no enthusiasm because no good town planning argument was advanced for the section to operate that way. In Food Plus Pty. Limited v. Warringah Shire Council, (1983) 50 LGRA 76 McClelland CJ, without reference to the then unreported decision in Caltex, distinguished Simpson and concluded that notwithstanding the omission of the words "or any part thereof", the inclusion of the words "another" entitled a council and hence the Court to consent to a change of use under cl.54(1) from use A to use A and use B. McClelland CJ referred to the definition of the word "another" and said: "In the light of the admonition of Gibbs J, as he then was, in Parramatta City Council v. Brickworks Limited, 26 LGRA 437, at 455 that clauses designed to preserve and protect existing use rights ought to be liberally construed and in the context of the new planning legislation I believe that it is reasonable to give the word "another" the widest meaning it will bear. It is arguable that all of the meanings assigned to the word by the Shorter Oxford English Dictionary would make permissible a consent to another use as well as that which already inheres in the subject land. In any event it is, in my view, indisputable that if the word is given the meaning "an additional" or "a different" no barrier exists to the grant of the council's or the court's consent to the proposed development". In Golden Fleece Petroleum Limited v. Rockdale Municipal Council (1984) 52 LGRA 202, I considered whether I should follow the observations made by me in Caltex or the decision of the Chief Judge in Food Plus. Food Plus was directly in point and decided after Caltex. I considered I should follow the decision of the Chief Judge because, it seemed to me, that his conclusion was in accordance with the evident purpose behind the new environmental planning and assessment legislation. I am asked in this case to not follow Food Plus and Golden Fleece. I do not think I should accede to the submission. The decision in Food Plus is, in my opinion, in accordance with good planning principles. Clause 54 gives the Council a discretion to permit a change of use. No good planning reason has been demonstrated why the word "another" should not be given its widest possible meaning. If Caltex is correct, an existing use can be changed from use A to use B and from use A to use B and use C and from use A to use B, use C and use D but may not be changed directly from use A to use A and use B or from use A to use A, use B and use C etc.. I say directly because under the Regulation a use can be changed from use A to use B and use C, then from use B and use C to use D and finally from use D back to use A and use B. In my opinion, in each case, the matter should be determined in accordance with planning principles and having regard to considerations set out in the Environmental Planning and Assessment Act. There is another reason why I would not depart from my conclusion in Caltex. Since 1984, there have been cases where councils have consented to uses being changed from use A to use A and use B. Many of the cases are concerned with facts similar to or identical with the facts in the earlier cases and in the case presently under appeal. Golden Fleece has stood for nearly five years. People have organised their affairs in the belief that it is correct. Councils have granted development consents upon the assumption that Caltex represents the law. It was also submitted that the decision in Caltex, namely, that the Council was entitled to grant consent to the change of use of the building from us A (for a service station) to use A (in part for a service station) and use B (a shop) was incorrect. Of course, if Food Plus is correct, the question does not arise. However, if Food Plus is not correct, the question remains whether the use of a building as opposed to change of use of the land can be changed in the manner referred to. I adhere to the opinion I expressed in Caltex. In that case, I expressed the opinion that I was conscious of the criticism that the type of refinement adopted did not assist the practical application of planning law. In that case, I made the following observation: "I am, however, encouraged in my interpretation by the fact that counsel representing the council could advance no good town planning reasons why, in the context of the present legislation, a change of use ought be restricted by first requiring that the existing use disappear entirely. The absence of the words "or any part", in relation to the land, means that although the use of this site could, with the consent of the Council, be changed to an abattoir, it could not, with the consent of the council be changed in the manner proposed". For the abovementioned reasons, I am of the opinion that the decision of the Assessor be varied by adding to the conditions of consent granted by the Assessor conditions 39 and 40 referred to above. Otherwise, appeal dismissed. Appellant to pay respondent's 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.