Land and Environment Court of New South Wales CITATION : South Sydney City Council v Kontogiannis & Anor [1989] NSWLEC 228 APPLICANT South Sydney City Council PARTIES : RESPONDENT Kontogiannis & Anor FILE NUMBER(S) : 40199 of 1988 CORAM: Stein J KEY ISSUES: :- LEGISLATION CITED: Local Government Act Environmental Planning and Assessment Act Vumbaca v. Baulkham Hills Shire Council ((1979) 141 CLR 614); Sydney City Council v. Ke-Su Investments ((1983) 48 LGRA 381).; CASES CITED: Lane Cove Municipal Council v. Lujeta ((1986) 58 LGRA 157); Warringah v. Sedevic ((1987) 10 NSWLR 335 at 339-41); ACR Trading v. Fat-Sel ((1987 11 NSWLR 67)). DATES OF HEARING: DATE OF JUDGMENT: 08/21/1989 APPLICANT Mr Wright LEGAL REPRESENTATIVES: RESPONDENT Mr Wilson JUDGMENT: HIS HONOUR: The applicant Council seeks orders restraining the respondents from using or causing or permitting to be used certain premises known as 445A Oxford Street, Paddington, as a hairdressing salon. In 1968 the respondents purchased premises at 445-447 Oxford Street. The first respondent had tenanted a hairdressing salon at No. 447 since 1962. During 1969 and early 1970 an upstairs flat on two levels was erected and this was occupied by the respondents and their family from March 1970 until 1978. The flat became known as 445A. From about March 1970 the respondents commenced using the lounge room of the flat for hairdressing work in association with the conduct of the salon in 447 at street level. In 1978 the respondents moved out of the flat to a home. After their departure the flat was leased to various tenants until the early 1980's. The leases did not include the lounge room which the respondents continued to use as a hairdressing salon in conjunction with the salon downstairs. From the early 1980's the balance of the upstairs flat remained vacant. In July 1987 the respondents lodged a development application for the use of 445A as a hairdressing salon and in December 1987 this was refused by the Council's predecessor for the area, the Council of the City of Sydney. No appeal has been lodged against the Council's decision. It is agreed between the parties that no development consent has ever been granted for the use of the land as a hairdressing salon. In February 1988 the Council issued the first respondent with a Notice to Comply requiring the use of the first floor hairdressing salon to cease forthwith. This was followed by a letter in April 1988 threatening legal action. In July 1988 the Council's solicitors wrote to Mrs. Kontogiannis intimating that the use was prohibited and requesting discontinuance of the use as a hairdressing salon or legal proceedings would be instituted. The subject application was filed in September 1988. Zoning history From 1951 to 15 July 1971 the subject land was zoned "living area" under the County of Cumberland Planning Scheme Ordinance. The use for the purposes of a hairdressing salon was permissible with consent. From 16 July 1971 to 24 November 1977 the land was zoned Residential 2(b) under the City of Sydney Planning Scheme Ordinance. The use of the land as a hairdressing salon was prohibited. From 25 November 1977 to date the land has been zoned Residential 2(g) under Interim Development Order No. 22 - City of Sydney. Under this deemed environmental planning instrument the use as a hairdressing salon is prohibited. The respondents' submission It is the submission of Mr. Wilson on behalf of the respondents that his clients still have the benefit of the principle enunciated in Vumbaca v. Baulkham Hills Shire Council ((1979) 141 CLR 614). By reference to the judicial interpretation of the definition of "development" in s.342T(1) of the Local Government Act it matters not that the pre-1977 Interim Development Order use was unlawful, and since there had been no change in the actual use since the Interim Development Order came into effect, there was no "development" within the definition. The use as a hairdressing salon, albeit unlawful, is protected. (See also Sydney City Council v. Ke-Su Investments ((1983) 48 LGRA 381). Mr. Wilson's submission would be on more solid ground prior to the insertion of s.109A by the 1985 amendments to the Environmental Planning and Assessment Act. This section provides as follows:- " (1) The use of a building, work or land which was unlawfully commenced shall not be rendered lawful by the occurrence of any subsequent event except - (a) the commencement of an environmental planning instrument which permits the use without the necessity for consent under this Act being obtained therefor; or (b) the granting of development consent to that use. (2) The continuation of a use of a building or work or of land that was unlawfully commenced is, and shall be deemed always to have been, development of the land within the meaning of and for the purposes of any deemed environmental planning instrument applying, or which at any time applied, to or in respect of the building, work or land." The section was inserted into the Act to overcome Vumbaca's case. However, to this proposition Mr. Wilson submits that the section is not retrospective in its operation, citing for support the Court of Appeal decision in Lane Cove Municipal Council v. Lujeta ((1986) 58 LGRA 157). Glass J.A. (with whom Hope and Mahoney J.J.A. agreed) held that s.107(2)(b1) (inserted by the same amendments) concerning intensification of an existing use could not operate restrospectively in relation to pre-1986 intensification. But this provision is a far cry from s.109A which was clearly intended to deal with the Vumbaca and Ke-Su situations. In my opinion the words of s.109A(2) are clear and unambiguous on their face. I reject the submission of the respondents. Should I be wrong in this conclusion then what is clear is that the actual use has changed since the Interim Development Order was gazetted. Immediately before the relevant date the lounge room of the flat was being used as a hairdressing salon in conjunction with the salon at 447 and the respondents and their family were living in the remainder of the upstairs flat. From 1978 to the early 1980's the use continued as before except that the balance of the flat was rented to tenants. From the early 1980's to mid 1987 the flat was vacant and the lounge room continued to be used in conjunction with the salon at 447. Since mid 1987 the lounge room has been used as a hairdressing salon independently of any other premises and the balance of the flat has remained vacant. It seems to me that the use has changed from the pre Interim Development Order one and is now for a different purpose from that which the land was "last being used". It is not a case of the repair of large vessels as opposed to small boats as was the case in Lujeta (p.159). Discretion It is the submission of the respondents that in the exercise of the Court's discretion no orders should be made restraining the use. Two principal reasons are advanced in support of this submission. Firstly, the use has continued now for around 19 years. Secondly, there is no real identifiable environmental harm caused by its continuation. Against this Mr. Wright, on behalf of the Council, submits that the use has at all times been unlawful and Council was unaware of the existence of the use until mid 1987. Since that time it has refused development consent (and no appeal was lodged) and consistently attempted to bring about a cessation of the unlawful use. The Council is trying to enforce the planning laws. On the issue of environmental harm Mr. Wright submits that while the effect of the use cannot be categorised as major it is not simply a matter of a technical breach. The use has an adverse effect on parking problems in Oxford Street and involves the loss of one residential unit in a time of housing shortage and a policy of urban consolidation. The Council also notes that the respondents have not pleaded personal hardship as a basis for resisting an order. The Council is also concerned at the establishment of a bad planning precedent if orders are not made in the discretion of the Court. Applying the principles collected by Kirby P. in Warringah v. Sedevic ((1987) 10 NSWLR 335 at 339-41) I have no hesitation in exercising the discretion in favour of the granting of relief. In weighing up all of the various factors going to the exercise of the discretion in my opinion the balance falls heavily in favour of making the injunction. This is not a case where the making of an order will work an injustice disproportionate to the ends secured by the enforcement of the legislation (ACR Trading v. Fat-Sel ((1987 11 NSWLR 67)). I accept the Council's case that the breach is far from being technical and the continuance of the unlawful use has and will involve some degree of environmental harm. In this respect I prefer the evidence in the Council's case to that relied on by the respondents. But in any event even if there was an absence of environmental harm it would still be appropriate to make an order. In my opinion, in the absence of a hardship case, the matter is more appropriately dealt with by a suitable suspension of the order. In this respect the respondents ask for 2 years postponement and the Council is prepared to agree to 6 months. The respondents have known for around 2 years that the use was unlawful and the Council wanted it to cease. I am unaware of any effort being made by the respondents to relocate their business. In my opinion a suspension of 12 months should be more than adequate to allow the respondents to make plans for their hairdressing business. I make orders 1 and 2 sought in the Application. The orders will be suspended until 21 August 1990. The respondents are ordered to pay the applicant's costs. 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. 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.