THE TURNBULL GROUP v. NORTH SYDNEY COUNCIL [1998] NSWLEC 253 (14 October 1998)

Land and Environment Court of New South Wales

Record of hearing

Judge Sheahan J

No. 10352 of 1998

Applicant THE TURNBULL GROUP

Respondent NORTH SYDNEY COUNCIL

No.40016 of 1998

Applicant PALMYRA PACIFIC PROPERTIES PTY LIMITED

Respondent NORTH SYDNEY COUNCIL

No.40043 of 1998

Applicant NORTH SYDNEY COUNCIL

Respondent PALMYRA PACIFIC PROPERTIES PTY LIMITED

Key issues
* Characterisation of use - principles - "refreshment room" - "shop" - continuation of use - intensification - Environmental Planning & Assessment Act 1979 s 109 - declaration - injunction - pending Class 1 proceedings - unapproved building works - discretion

Statutes
* Environmental Planning & Assessment Act 1979

* County of Cumberland Planning Scheme

* North Sydney Local Environmental Plan

Hearing dates 3, 4 and 5 August 1998

Judgment Reserved

Date of judgment 14 October 1998

Appearances Applicant Mr P Larkin, Barrister

Respondents Ms S Duggan, Barrister

Solicitors Applicant Steven Klinger Solicitor

Respondents Mr M Gilligan of Mallesons Stephen Jaques

Number of pages 35

Summary of orders

Matter 40016 of 1998:

* The application is dismissed.

* The question of costs is reserved.

Matter 40043 of 1998:

* Declaration that the use of lot 1 in DP 110687, known as 147 Blues Point Road, McMahons Point, for the operation of a refreshment room is in breach of s 76(2) of the Environmental Planning & Assessment Act 1979.

* Ordered that the respondent, its servants and agents, be restrained from carrying out, permitting, or suffering the carrying out of, the said use on the said land, unless and until development consent is obtained for the said use.

* The question of costs is reserved.

Matter 10352 of 1998:

* The hearing of this matter is ordered to be expedited.

* The matter is adjourned to be called over by the Registrar on Friday 16 October 1998.

* There will be no order as to costs.

CONTENTS

INTRODUCTION 1

THE ISSUES 2

THE COMPANY'S FACTUAL EVIDENCE 9

What was the use in 1951? 9

What was the use 1950-1986? 13

The position since 1986 14

THE COUNCIL'S EVIDENCE 16

THE COMPANY'S TOWN PLANNING EVIDENCE 19

CONSIDERATION OF THE FACTUAL EVIDENCE 20

THE QUESTION OF DISCRETION 30

CONCLUSION AND ORDERS 33

IN THE LAND AND 				Matter Nos:10352, 40016,

and 40043 of 1998

ENVIRONMENT COURT			Coram: Sheahan J

OF NEW SOUTH WALES			14 October 1998

No. 10352 of 1998

THE TURNBULL GROUP

v

NORTH SYDNEY COUNCIL

No.40016 of 1998

PALMYRA PACIFIC PROPERTIES PTY LIMITED

v

NORTH SYDNEY COUNCIL

No.40043 of 1998

NORTH SYDNEY COUNCIL

v

PALMYRA PACIFIC PROPERTIES PTY LIMITED

JUDGMENT

INTRODUCTION

1. These three separate proceedings concern a building erected in about 1930 on lot 1 deposited plan 110687, occupying street addresses 143-147 Blues Point Road, McMahons Point.

2. As the building faces Blues Point Road, at the corner of King George Street, it presents as a two-storey building, and now houses some residential units upstairs (No.145 accessed between two shops), an antique shop (No.143 on the corner), and "Café Zee Too - Eat in and Take out" (No.147).

3. The subject land slopes generally downwards to the rear/east so that there is at the rear of the building a third storey below the level of Blues Point Road. Immediately to the north of the subject property, separated by one or two narrow laneways/entrance paths, is a similar property, 149-151 Blues Point Road, which has a florist shop and a beauty salon at street level, and also has residential flats above.

4. Palmyra Pacific Properties Pty Limited ("Palmyra") owns the subject property and the Turnbull Group is a consultant to Palmyra. Matter 40016 formerly stood in the name of Helen Rigney, who is a Director of Palmyra, which might be described as a Rigney family company. The Rigney family bought the subject property at the end of 1985. Rigney family members live in the units upstairs, and now operate both the antique shop and the "Café". (At the time of the commencement of Matter 40043, the café business was conducted under a lease, but when that lease ended, the company re-entered the premises and the proceedings were discontinued against the former lessee).

THE ISSUES

5. In the Class 1 proceedings, the Turnbull Group, on behalf of Palmyra, appeals against the deemed refusal by the Council of a development application confined to seeking consent to use 147 Blues Point Road ("147") for the purpose of "refreshment room" 8am to 9pm 7 days a week.

6. In those Class 1 proceeding, the following questions of law have been raised in a preliminary way, but not yet determined:

"If the Applicant establishes that the subject land enjoys rights to any extent pursuant to section 109 of the Environmental Planning & Assessment Act:

1. Is the Council, and the Court on appeal in Class 1 proceedings, bound to take into account, in deciding whether or not to grant consent and in deciding what conditions to impose, the extent of the rights under section 109 of the Environmental Planning & Assessment Act?

2. Is the Council, and the Court on appeal in Class 1 proceedings, bound to decline to impose any condition which is not proportionate to the incremental change between the use as protected by section 109 the Environmental Planning & Assessment Act, and the use as described in the development application or to be approved of by any consent?"

7. On 17 July 1998, Talbot J ordered that the two Class 4 proceedings be heard concurrently on 3, 4 and 5 August 1998, and that the Class 1 proceedings be stood over, for mention or hearing, until the conclusion of the hearing of the two Class 4 proceedings.

8. The parties agreed that the evidence in each of the Class 4 proceedings be evidence in the other, but they disagreed as to whether the Class 1 proceedings should be heard concurrently with, even immediately at the end of, the two Class 4 proceedings.

9. At the conclusion of the hearing of the two Class 4 proceedings, I reserved my judgment in them and adjourned the Class 1 proceedings to a date to be fixed, without any commitment on the question of who should hear them.

10. In matter 40016, Palmyra sought a declaration that the subject land enjoys rights, pursuant to s 107 and/or s 109 of the Environmental Planning & Assessment Act 1979 ("EPAA"), "as a delicatessen, food and non-alcoholic beverage outlet and café", and a declaration that the subject land enjoys rights, pursuant to those sections, "to serve food and non-alcoholic refreshments for customers upon the land". In opening the case for the company, Mr Larkin, of Counsel, indicated that his client relied now on s 109 only, but he contended that nothing in the current North Sydney planning instruments operates so as to require consent to be obtained from the respondent for its proposed use of the premises.

11. In the late 1940's and early 1950's, 147 provided the then traditional milk bar type fare and services, alongside the sale over the counter of smallgoods, grocery items, milk, etc. These days the business seeks to serve cappuccinos, croissants, light meals, etc.

12. The Council contends that the premises have lost the protection of section 109 which provides as follows:

"(1) Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained.

(2) Nothing in subsection (1) authorises:

(a) any alteration or extension to or rebuilding of a building or work,

(b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned,

(c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of the use therein mentioned,

(d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 91(3)(b), or

(e) the continuance of the use therein mentioned where that use is abandoned.

(3) Without limiting the generality of subsection (2)(e), a use shall be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months".

13. The company, in short, denies that it has changed the use and also denies that it has intensified the use. Mr Larkin concedes that there have been changes in the precise activities carried on in the premises, but contends that, for planning purposes, the present use is the same as the use that has always been carried on. Accordingly, he submits that such use is entitled to the protection of s 109.

14. In matter 40043, the Council seeks a declaration that to now use the property for "refreshment room" is in breach of s 76(2) of the EPAA, as that use may be carried on only with development consent, and no consent has been obtained. Council seeks an order that the company be restrained "from carrying out, causing, permitting or suffering the carrying out of the Use on the property, unless and until development consent is obtained for the Use". The term "Use" is specifically defined in the Class 4 application to mean "the operation of a refreshment room (restaurant) trading as Cafe Zee Too".

15. Section 76 of the EPAA provides as follows:

"76. Restriction on development

(1) Subject to this Act, where an environmental planning instrument provides that development specified therein may be carried out without the necessity for consent under this Act being obtained therefor, a person shall not carry out that development on land to which that provision applies except in accordance with the provisions of that instrument.

(2) Subject to this Act, where an environmental planning instrument provides that development specified therein may not be carried out except with consent under this Act being obtained therefor, a person shall not carry out that development on land to which that provision applies unless:

(a) that consent has been obtained and is in force under this Act, and

(b) the development is carried out in accordance with the provisions of any conditions subject to which that consent was granted and of that instrument.

(3) Subject to this Act, where an environmental planning instrument provides that development specified therein is prohibited, a person shall not carry out that development on land to which that provision applies."

16. The company denies its alleged breach of s 76.

17. In its Points of Claim in matter 40016, the company contends that its use of the premises as a delicatessen, food and non-alcoholic beverage outlet and café lawfully commenced before the County of Cumberland Planning Scheme ("CCPS") came into effect on 27 June 1951.

18. The parties agree on the relevant planning regime as it has developed over the years, until the North Sydney Local Environmental Plan ("the LEP") came into effect in 1989, namely:

Date Planning instrument and Zoning of the Land

27 June 1951 County of Cumberland Planning Scheme

- Living Area

19 April 1963 North Sydney Planning Scheme Ordinance 1963

- Neighbourhood Business 3(c)

29 August 1975 Interim Development Order No.60

- Neighbourhood Business 3(f1)

3 November 1989 North Sydney Local Environmental Plan 1989

- Residential 2(d)

19. As Counsel agreed and said on 5 August (at T1 lines 34ff):

"at all times under all of the previous planning scheme instruments the use was either a continuing use or in the case of one of them an existing use, but that distinction doesn't make any difference for the purposes of the proceedings because there were in each of the instruments provisions which protected existing uses and continuing uses".

20. EPAA s 109 commenced operation on 3 February 1986, prohibiting for the first time "expansions and intensifications and the like" (T1 lines 42f).

21. Under the LEP the subject property is zoned 2(d), as is 149-151. They are surrounded to the east and north by residential 2(c) zone, and opposite them there is some 2(c) and some 2(f) residential/light industrial.

22. In zone 2(d) the only development possible without development consent is dwelling houses and home occupation, and development requiring consent relevantly includes refreshment rooms, shops, and take-away food shops, which are relevantly defined in the LEP as follows:

" `refreshment room' means a restaurant, café, tea room, eating house or the like, but does not include a building or place elsewhere specifically defined in this clause;

`shop' means a building or place used for the purpose of selling, exposing or offering for sale by retail, goods, merchandise or materials, but does not include a building or place elsewhere specifically defined in this clause or a building or place used for a purpose elsewhere specifically defined in this clause;

`take-away food shop' means a milk bar, sandwich shop or the like but does not include:

(a) a drive-in take-away food shop; or

(b) a building or place elsewhere specifically defined in this clause."

23. The particular objectives of zone 2(d) are as follows:

"(a) to permit a range of residential development within a two storey height limit;

(b) to provide opportunities for the establishment and retention of retail facilities and related services to serve the needs of the surrounding residential areas;

(c) to prohibit development for the purposes of commercial premises in order to encourage the retention of neighbourhood shops; and

(d) to permit a form of development which is compatible with the scale and character of the surrounding residential area."

24. The Council contends that the intended 1998 use is not the same use as the use made of the land before 27 June 1951. In Ms Duggan's words "whatever they had in 1951 is what they were permitted to continue through to the current day", but only that. Council characterises the business/use in 1951 as "shop", and contends that in recent times the use has significantly altered. Council does not oppose its continued use as take-away shop, but it does oppose, in the absence of consent, its use as a restaurant or refreshment room.

25. In 1951 the "shop" sold groceries, smallgoods and some take-away food. There were some "booths" fixed to a wall but no separate tables and no table service ("the original use"). From approximately March 1992, it was used for the purpose of "restaurant", with "table service" to approximately two tables, with chairs, inside the premises, and up to four tables, with chairs, on the footpath adjoining Blues Point Road, generally in front of 147 ("the new use"). After December 1997, the new use was expanded by an increase in the 1992 number of tables, with chairs, to approximately 8-10 ("the current use").

26. Council has at no time granted consent for any of these three uses, or for any change in, or intensification of, the original use. The commencement of the new use in approximately March 1992 (as altered to the current use in December 1997), constitutes, in Council's submission, a change of use from the original use and/or an intensification of the original use. The current use is agreed to be "refreshment room", which, as noted above, is permissible, with development consent.

27. The Council, however, does more than deny Palmyra continuous use rights; it says that even if Palmyra has existing use rights (which they deny), the current use is an intensification of the use which has those rights, an intensification which is neither authorised nor protected by s 109, and which occurs in both the use itself (the number of tables, etc.) and also in relation to the area of the building used for the relevant purpose, namely restaurant.

28. The case, therefore, turns on characterisation issues, and Mr Larkin contends that authorities such as Shire of Perth v O'Keefe & Anor [1964] HCA 37; (1964) 110 CLR 529 ("O'Keefe") and North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd and Ors (1989) 67 LGRA 344 ("Boyts Radio") establish that it is not appropriate to take a narrow or pedantic approach to the characterisation of use, nor to look at the precise activities going on, but rather to the broad purpose for which the use was exploited at the relevant date. On this approach the company submits there has been neither change nor intensification of use.

THE COMPANY'S FACTUAL EVIDENCE

What was the use in 1951?

29. The only evidence before the Court in respect of the use as at 1951, is the evidence of Gary Evans, who swore an affidavit, was called to give evidence and cross-examined, swore a subsequent affidavit, and was re-called to be cross-examined again. He impressed the court as a reliable and independent witness, having had no connection with the property for many years. By chance he had made a rare return visit in 1996 and met the Rigneys.

30. Mr Evans' father conducted, as a tenant of a Mr Price (who "lived upstairs"), "a milk bar and mixed business" at 147 from 1944 until 1950. 143 was a newsagency in those years. The Evans business operated 8am-8pm Monday to Friday, Saturday morning and Saturday afternoon, and Sunday morning. In approximately September 1950 Mr Evans Snr sold the business to a Mr Harris.

31. Mr Evans described the premises as a fairly traditional type of shop, with the family occupying a small residence on the ground floor at the rear. He sketched the basic layout of the ground floor as it stood at about 1950 (Exhibit N1). Behind the shop area, moving east, there was a living room, then a kitchen, a bathroom, and two bedrooms.

32. The shop had extensive counters and shelving displaying grocery products. It had a "counter fridge" which displayed small goods, but was accessible only from behind. The counter fridge was driven by a motor which appears to have been housed under the stairs accessing 145. There was a sink and an over-sink hot water system of some sort within the shop, but no cooking facility such as a hotplate - any toasting was done in the kitchen. There was a "Silent Knight" domestic refrigerator in the lounge room, serving the needs of both shop and residence. Extra drinks, hams, etc. were stored there in summer. Extra supplies of other products, such as eggs, etc., were stored within the shop area behind the painted front windows.

33. On the northern wall of the shop area at the front of the ground floor there were three milk bar type booths, with seating accommodation for 4-6 people each.

34. Mr Evans was 5 years old when the business was purchased, and 11 when his family moved on. When not at school, he did deliveries, including of workers' lunches, cleaned the shop, and from time to time served food and drinks to people sitting in the booths.

35. Mr Evans did not accept the definition "delicatessen" and used the term "ham and beef shop" to describe the 1950 use. At T 28 line 54 he said: "It was classified a mixed business and it wasn't really a tea room, but milk bar would be the general sort of term, I think, to describe it" then.

36. Mr Evans estimates that a lot of his father's income came from lunches which were freshly cut, sold, and in many cases delivered, at lunchtime on working days. People could obtain sandwiches on request over the weekend. Coffee, tea, and sandwiches were made in the kitchen behind the shop. Toasted sandwiches were available, but there were no pies, sausage rolls or hamburgers. The shop sold virtually only "smallgoods, groceries and cut sandwiches". Messenger boys used to come in with orders and take cut sandwiches back to factories, etc. in the area.

37. Mr Evans' mother and father and a couple of neighbourhood women - "a very floating sort of staff" - basically attended to all the duties in the business, but there was no person dedicated specifically for attendance on the booths. "It was a small family business so everybody pitched in". On the average day it was usually his parents and a Mrs Maroney on duty.

38. When customers were served with food to be taken away from the premises, the sandwiches were put into paper bags. When customers indicated they intended to eat on the premises, the food was served on brown china plates, and any tea and coffee in green china pots. There were regular customers who ate at the premises. People whose food was served in a paper bag were still permitted to eat at a booth. "It was a very informal way that business was done ..." (T.61 line 51f).

39. Mr Evans referred to the booths and the provision of table service as being "really, merely providing a facility so that people didn't have to go and stand in the street and eat their sandwiches or go back to work", and as "provided for people who were regular customers" who had a business affiliation with Mr Evans Snr, in so far as "the majority of their workers were also ordering their lunch in the shop".

40. It is clear from Mr Evans' evidence that as at 1950 the business was conducted from only part of the ground floor. The lounge room and kitchen of the residence behind were partly used for shop purposes. Presumably staff used the bathroom from time to time, but there were also the two bedrooms at the rear of the ground floor.

41. As at the date of sale of the business in 1950, I am satisfied that the shop fulfilled four functions:

* the marketing and sale of packaged food and non-alcoholic drinks

* the marketing and sale of refrigerated fresh food, known generically as "ham and beef" or "smallgoods"

* the provision of a take-away luncheon service including some toasting of sandwiches and provision of tea and coffee

* the provision of limited facilities for similar products to be consumed on the premises

42. I am not satisfied that catering for the three booths accommodating between four and six people each was a major proportion of the Evans business between 1944 and 1950. Nonetheless, Mr Evans' evidence is the only real evidence we have of the position regarding the use of the premises just prior to 1951 when the CCPS came into effect.

What was the use 1950-1986?

43. The Court received affidavit evidence from Jennifer Rae Rigby who testified that there were at least two booths along the northern wall of the shop throughout the 1950's and 1960's. She purchased ice cream and milk shakes at the business and consumed them sometimes in those booths. It is not clear whether she enjoyed the facilities of the shop as a customer or as a guest, nor whether the food she consumed was on a plate or not. When she returned to the district in 1991, the booths had been removed and at that stage there were free standing tables and chairs at which she observed customers having coffee and eating snacks and other food.

44. Rigby was required for cross-examination but unable to be present due to her absence overseas (see Exhibit N4). In the circumstances disclosed as to her arrangements to go overseas, I am satisfied that her evidence should not be discounted, even though, regrettably, it was not able to be tested. She is at best a neutral witness and covers a relevant critical period.

45. Gary Morton gave affidavit evidence in respect of his observation, commencing in 1961, as part of a life-long association with McMahons Point. In the 1960's he frequently attended the premises and consumed banana sundaes while observing other people having coffee, tea, sandwiches, hamburgers, snacks and meals. He also observed in that period the sale of smallgoods such as sausages and cheese.

46. He testifies that the seating arrangements were changed sometime during the 1970's when a counter with some stools was installed. Later again he observed the internal arrangement of the business changed further with the provision of free standing tables and chairs. Later again chairs and tables were placed on the footpath. Nonetheless, take-away sandwiches, etc. have continued to be available since his observation commenced in 1961.

47. Raymond Henry Lawrence has been in the real estate business in Blues Point Road since February 1978, at various street numbers. He started regularly shopping at 147 soon after commencing business in the area. He has patronised the business for consumption of food on site and for purchase of take-away. He personally has ordered hot food over the years, but has also seen other products offered for sale, including home-made cake and biscuits.

48. He corroborates the evidence of three booths attached to the northern wall. He has sat and consumed food and drink at those booths and seen others do so. He cannot remember precisely when the booths were removed but he does remember a bench and stools being installed. He also used them and saw others do so. Still later, a wall was demolished and the bench and stools removed to be replaced by free standing tables and chairs. Tables and chairs were placed on the footpath in about 1993. He has used the tables and chairs and seen other customers do so.

49. The premises were sold to the Rigney Family and its corporate interests in late December 1985 with settlement in January 1986. Helen Rigney gave evidence about the layout of the shop at the time of the acquisition. There was a single room at the front of the premises with three counters. Customers were served on either side and could sit at the third counter across the back eastern wall.

The position since 1986

50. Helen Rigney testified that since 1986 the business at 147 has continued to operate as a shop selling food including sandwiches, roast meats, smallgoods and drinks including milk shakes, coffee and tea. Until recently it has been conducted by tenants. As landlords, the Rigneys did not interfere in the day-to-day running of the tenant's business, but from time to time they visited the shop and observed people eating and drinking inside. On occasions they themselves also purchased food and drink.

51. They obtained consent from the Council in 1990 to undertake certain alterations to the shop at a time of change in tenancy. An internal wall was demolished and the shop refitted. Subsequently free standing tables and chairs were installed. In about 1993 the then tenant of 147 obtained Council approval to locate tables and chairs on the footpath. That permission was renewed on a yearly basis up to the end of June 1997.

52. There are corroborative affidavits also from Doreen Khandekar, J P Austin and Benjamin Pron, all of which cover the period from 1985 to the present day. Khandekar has shopped at the business since 1986. On several occasions when she has purchased food she has been invited to sit down and have coffee. Austin has worked as a real estate agent for about 12 years and lived in the area for about 10 years. He has frequented the business. Benjamin Pron has been a real estate agent in the vicinity for 10 years. The Court also had an affidavit from Kate Holman who has worked as a secretary in the area for about 5 years.

53. Mrs Joan Rigney, mother of Helen, also gave evidence indicating that she has lived upstairs in the premises since February 1986. These days there is no residence on the ground floor behind the shop and all of the ground floor area is relevantly used for the purposes of the business. The rear of the ground floor (formerly the residence) now contains a kitchen, preparation area, storage areas, "WC", and a cool room.

THE COUNCIL'S EVIDENCE

54. The Council relied upon the affidavit and oral evidence of Teressa Colleen O'Brien, a Council Town Planner occupying the position of Team Leader - Assessments, and Mrs June Doreen Marshall who resides at Unit 3, 149-151 Blues Point Road.

55. Marshall has lived in her unit, next door to 147, since 1980. She had a change of lifestyle in March 1992 following major illness and surgery, as a result of which she retired from full-time work. It was only on return to her unit in about May 1992 that she noticed that 147 provided seating accommodation and that cooking facilities and a new counter had been installed, along with tables and chairs inside the premises and out on the footpath.

56. In 1995 she observed patrons eating at the tables and consuming alcohol in the early evening between 6-8pm, but the premises stopped operating as a café in about June 1997. In December 1997 she observed a galvanised steel ventilation duct installed on the northern wall of the property and a motor below the duct at ground level. She observed the café business in operation on 18 December 1997 and the ventilation system commenced operation, and complains of several environmental detriments as a result of these works.

57. Marshall is the only neighbourhood witness who did not see booths, tables or chairs, or customers eating in the premises, between her arrival in the district in 1980 and her departure for hospital at the end of April 1992. As such her evidence is wholly inconsistent with much that has been led on behalf of Palmyra, including a number of witnesses referred to above, none of whom were required for cross-examination. I make no adverse finding about Mrs Marshall's credit, but I simply cannot accept her evidence on use prior to 1992, other than her admission that she purchased occasional grocery items and take-away sandwiches during those years.

58. There is no other evidence of any essential change in the nature of the use which coincides with Marshall's chosen date, namely April/May 1992, and I must therefore also reject her suggestion that some substantial change took place at about that time. Prior to her illness she worked full-time outside the home. At about the time of her retirement, tables and chairs began obstructing her property and she and the florist downstairs both objected. Prior to that she had no intrusions from or objections to the "little small goods shop" (T.58). Her evidence is quite clear that there was no cooking done on the premises during the 1980's (T.55). It would seem that to her knowledge the shop was in the same ownership from 1971 into the 1980's.

59. Mr Larkin tested her on her recollection of people eating in the premises, but not on her recollection that a residence remained behind the shop until 1991, which is well into the period after s 109(2) came into effect (see T.55-60).

60. O'Brien has worked for the Council for only one year, but is familiar with the property, which is registered in Council's records as "premises which sells smallgoods". The Council file refers regularly to the use of the premises as a "delicatessen", but Council officer Sarah Gray inspected the premises on 17 November 1997 and came to the view that the "deli/shop has been completely renovated and the deli set out has been removed from the shop. The internal set-up existing is obviously a café with several new tables and chairs, coffee making machine and new café/bar". Gray came to the view that there had been unauthorised works and an apparent unauthorised change of use.

61. Annexed to O'Brien's affidavit is a series of development consents and building approvals given in respect of the subject premises since 13 January 1987, including building approval 90/104 for the removal of the wall, dated 14 March 1990. None of the approvals seems to involve a Restaurant/Café operation and there is no approval for the recently added ventilation system, which O'Brien observed as "an air-conditioning/exhaust ventilation duct and motor ... which extended from the second storey occupied by the premises up to and above the roof of the building. It was open to the atmosphere".

62. The café now has seating capacity for about 35 people. Behind a servery and a counter is a commercial kitchen where food is prepared for patrons. She noted the mechanical ventilation equipment which discharges gases through a duct in the northern wall and concluded that this duct was connected to the new ventilation system. O'Brien's affidavit evidence expresses an expert opinion that the premises now have the character of a restaurant/refreshment room, and that there is a significant difference between a delicatessen use and such a present use. She also expressed her expert opinion that the current use as restaurant/refreshment room fails to satisfy objectives (b) and (c) of the 2(d) zone. The capacity is greater than required by the needs of the surrounding residential area and it is no longer a neighbourhood shop.

63. O'Brien would describe the use depicted in Mr Evans' drawing of the 1950 configuration (Exhibit N1), from a town planning point of view, as "a shop with residence". The booths in the shop she would believe to be a "very subsidiary part of the usage of the premises for the sale of smallgoods and general grocery items" (T.40-41). She would describe the use in the 1998 plan, which is annexed as Exhibit B to Helen Rigney's affidavit of 5 May 1998, as "a refreshment room" having 11 tables and 35 chairs. That layout and configuration "would indicate that it is more suited towards serving people at tables and people consuming food at those tables". In her opinion the use has changed, despite the evidence and submissions on behalf of Palmyra.

THE COMPANY'S TOWN PLANNING EVIDENCE

64. Peter Andrew LeBas expressed the opinion that there had been no change of use, and that, even if there had, the former use would be less likely to further the needs of the local community than the present use. The present use is permissible with consent and does not infringe the zone objectives. It is a service-oriented use envisaged by the LEP and consistent with its objectives. It is also compatible with the scale and character of the surrounding area.

65. His researches of the Council file, which contains no plans of the earlier configuration, convinced him to characterise the use as "a shop, café, delicatessen, refreshment room for a significant period" (T.13). He agreed that a shop does not become a refreshment room simply by selling food - there must be the opportunity to consume food on the premises. An element of preparation is also required. However, table service, and/or the "dedication" of particular staff, while fairly common, are not essential. Food is presented to a consumer in a way which encourages consumption on the premises, but any one of these elements on its own will not necessarily lead to characterisation as a refreshment room. In some cases even preparation on the premises may not be essential.

66. LeBas concluded (at T.19) "the provision of food for consumption and places for that consumption to take place could constitute a refreshment room" in particular circumstances. I expressed the distinction by comparison of the requirement that the food consumed be provided and one that the food provided be consumed. He agreed with Ms Duggan that one element of a refreshment room was that the food one purchased at the premises was also consumed at the premises. She got him to agree that there were three essential elements that must all be present to categorise the use as a refreshment room - provision of food or beverage, provision of facilities to consume that food or beverage, and a requirement that the food provided at the premises be consumed on the premises. If any one of those elements is missing, the use would not be properly characterised as a refreshment room.

67. LeBas sees the plan of the current layout of 147, which is attached to Helen Rigney's affidavit, as indicating that all the ground floor is dedicated to use as either refreshment room or take-away food shop. Refreshment rooms and take-away food shops can operate simultaneously - food of both types would normally be prepared in the same areas. While a take-away food shop does have a retail component, a refreshment room is not a retail facility.

CONSIDERATION OF THE FACTUAL EVIDENCE

68. As Palmyra does not accept that there has been a change or intensification of use, the onus is on Council to prove those elements of its case.

69. Section 109(1) permits a use to continue despite a planning instrument prohibiting its commencement. The task the section throws up for the Court is characterisation. Characterisation cannot be completely regulated by definitions in environmental planning instruments such as LEPs. The authorities urge the Court not to look at the precise activities that are carried out in too close a fashion. Mr LeBas in his evidence did not allow himself to be so narrowed into a meticulous examination of the details of processes or activities within the premises.

70. The relevant authority on such issues is O'Keefe. In particular, reliance is traditionally placed on the following lengthy extract from the judgment of Kitto J (at 534-5):

"Once depart from the broad categories that are found in the prohibitory by-laws, it is said, and there is no limit to the minuteness of detail that may enter into the description of a purpose so as to form an essential part of it. But at the outset it is necessary to observe that the `existing use' by-laws take two steps which should be kept distinct from one another. First it is required that a purpose be identified as the end for which it can be seen that the premises are being used at the date of gazettal of the by-laws. Then the provision is made that the land may continue to be used for that purpose : not that the precise manner of use for that purpose may alone continue but that use generally for that purpose may continue. The application of the by-law in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date. This question being answered, it remains only to inquire, when a use that is being made of the premises at a later date is challenged as not being authorised by by-law 372, whether that use is really and substantially a use for the designated purpose. That will often be a question of fact and degree: cf. Marshall v Nottingham Corporation (1); and for that reason border-line cases will inevitably arise in which opinions will differ. But to seek more precise guidance from the by-laws is vain. The general considerations that have been mentioned will suffice for most cases. If premises were being used as professional offices at the commencement of the by-laws, no greater degree of particularity in defining the purpose is likely to appeal to practical minds as appropriate in the application of town-planning legislation than is involved in saying that the purpose is that of professional offices: the particular profession of the occupant would not ordinarily be adverted to by a person speaking in a town-planning context. The answer is perhaps not so easy in the case of a shop. As to a butcher's shop, for example, I should be inclined to think that while it would be immaterial to inquire into the details of the user the `purpose' in the relevant sense would be the purpose of a butcher's shop, and not of a shop generally. In the case of a general store, wide variations in the use as regards the nature of the stock carried and the methods of merchandising might occur before one would say, in an ordinary use of language, that the premises were not being used for the same purpose as before. In the case of premises used for pottery making, however, it seems to me to be clear that while changes in methods and designs would be immaterial a use of the premises for making anything other than pottery would be, in a substantial and relevant sense, a use for a different purpose."

71. Menzies and Owen JJ agreed with Kitto. Menzies J said (at 536-7):

"The purpose for which the premises were being used at the relevant time was pottery making. It is conceded that pottery making falls within the description of light industry but it does not follow, either in logic or in town planning, that use for one purpose which falls into the category of light industry is to be regarded as use for any purpose which falls into that category.

....

I agree with the judgment of Kitto J which I have had the advantage of reading but I would prefer to express no opinion upon a question such as whether greater particularity than use for a shop is requisite. As at present advised, it seems to me that it may be, for instance, that premises used as a butcher's shop at the relevant time could subsequently be used as a small goods shop. It is, of course, common for shops in a shopping centre in a residential area to be used from time to time for the sale of different wares and I would not wish to say anything here to cast any doubt upon the lawfulness of such changes".

72. Different principles apply in the characterisation of uses in existence, as compared with uses proposed in new development applications. The distinction is clearly present in Boyts Radio, and in the recent Court of Appeal decision in Macquarie International Health Clinic Pty Ltd v The University of Sydney & Anor (CA 40216/98, 24 July 1998). When one approaches the task of characterising an existing use one adopts a liberal and broad construction in favour of the user, but when one characterises a development application, one closely examines the precise activities proposed.

73. In Boyts Radio Kirby P said at 345:

"Behind the competing legal arguments of the parties in this appeal lies a conflict between private and social rights. A wide definition of, and generous approach to, existing use rights tends toward the protection of private interests in land where these conflict with the social interests represented by the generally applicable planning law. A stringent approach to the proof of abandonment of an existing use right tends to favour private over social claims to the use of land. Identifying and defining existing use rights with specificity and precision tends to uphold the social interest represented by planning law and to confine derogations from that interest to a narrow class of case. The readier acceptance of abandonment of existing use rights conduces to the absorption of land, which exceptionally departs from the requirements of general planning law, into the code which otherwise generally applies. Seen in this way, existing use rights are a transitional derogation designed, for a time only, to cushion the impact of new general planning laws upon private owners with established use of their land which has continued without abandonment."

After discussion, lengthy quotation from Kitto's judgment, and reference to some other cases, such as RAS v Sydney City Council (1987) 61 LGRA 305, Kirby P said (at 353):

"From these authorities the following matters of approach emerge:

1. Defining the `existing use' depends upon a detailed examination of the facts of each case. Inevitably there will be borderline cases where the characterisation of the use which is protected will be controversial and upon which minds may differ.

2. Nevertheless, the general approach to be taken is one of construing the `use' broadly. It is to be construed liberally such that confining the user to precise activity is not required. What is required is the determination of the appropriate genus which best describes the activities in question.

3. In determining that genus, attention should be focused on the purpose for which the determination is being made. This is a town planning purpose. It therefore considers the use from the perspective of the impact of the use on the neighbourhood. This is because the regulation of the use within the neighbourhood is the general purpose for which planning law is provided".

74. Mr Larkin submits that, from a town planning point of view, one does not draw a distinction between the type of food sold and consumed on the premises in the 1950's (toasted sandwiches, soft drinks, milk shakes, sundaes and that sort of thing) and the type of food served now in a modern café, such as croissants, cappuccino, etc. This is not the case of a butcher shop becoming a restaurant or a completely different type of retail activity. Boyts Radio requires that we look at the genus, not the precise species, or activity undertaken.

75. In so far as 147 is used for the retail sale of take-away food, it is common ground that that use receives the protection of s 109. Food was "taken away" in 1951 and continuously since.

76. However, in 1951 there were also people who chose to eat in the building and there are now people who choose to do so as well. Compared with 1951, however, there is now no sale of grocery lines, tinned food and the like. In Larkin's submission all that this change means is that the range of permitted uses may have narrowed, not changed in substance. For it to lose the protection of s 109 it must do more than narrow, it must change in substance. The modern sale of croissants, coffee, etc. does not place the use in a different genus from the 1951 sale of sandwiches and soft drinks. Inevitably the nature of food and fashion changes over time (e.g. Evans gave evidence that the hamburger had not been introduced when he worked in the shop, but eventually they were sold in these premises).

77. The booths appear to have remained in the shop premises beyond 1978 (Lawrence), although the counter and stools may have been installed during the 1970's (Morton). The booths were definitely gone by 1991 (Rigby), and Helen Rigney says they were gone by the time the Rigney family acquired the property at the end of 1985. I am, however, satisfied that the counter and stools were installed between 1978 and 1985, probably about 1982, ie before s 109 commenced. They accommodated no more people, and possibly even fewer people, than the booths.

78. The substantial change to the operation occurred with the demolition of the wall in 1990. It appears that at about that time the grocery shelves, the counter fridge, and other grocery/smallgoods type counter facilities from Evans' day, also went. It is clear from the evidence that the servery area now present in 147 is situated where the lounge room used to be, that the "WC" is the old bathroom, and that the preparation area and cool room are located where the bedrooms used to be. In consequence, the refreshment room component of the ongoing use could cater for greater numbers, a wider catchment area, a wider range of products, BYO alcohol, and longer customer stays.

79. As well, such a change in use appears to have given rise to some complaints of adverse environmental impacts.

80. I am satisfied that the business use of the ground floor of the premises expanded in 1990, but we have Mrs Marshall's uncontradicted evidence that there was still a residence at the back of the ground floor until 1991. She is a bit vague about some of her evidence and it is reasonable to infer that it is at least possible that the ground floor residence disappeared at the same time as the wall did in 1990.

81. I am satisfied on the evidence that there has been, since 1986, an intensification or expansion of the refreshment room use in so far as it may have existed in 1951. I reject Mr Larkin's submission that I should find that the whole of the ground floor premises enjoy the protection of s 109. While the lounge room, kitchen and bathrooms that primarily existed for the benefit of the residence at the back of the ground floor may have been partially used for the purposes of shop as at 1951, I do not believe that the bedroom accommodation, even though it formerly accommodated the shopkeeper, but now has business functions, should be entitled to the benefit of the section.

82. The primary characterisation of the use as at 1951, is that of shop. That use is not

mutually exclusive of the use for another purpose such as refreshment room. The premises are now used for the dual purposes of refreshment room and take-away food shop. Neither of those uses has the benefit of any development consent. It is admitted that no consent is required for the take-away component, but in the meantime refreshment rooms were relevantly at one time prohibited. Duggan submits that what Palmyra has sought to do is roll up into one use what was, in fact, two.

83. "Shop" uses do tend to change and evolve over time. See, eg, the discussions in O'Keefe (per Kitto J at 535 and Menzies J at 537), and also in Thompson v Cash Clearances Pty Ltd (1967) 14 LGRA 437, Harris and Anor v Hawkesbury Shire Council (1989) 68 LGRA 183, and Cagliostro v Penrith City Council (1997) 97 LGERA 356 at 365-6.

84. In Foodbarn Pty Ltd & Ors v Solicitor-General (1975) 32 LGRA 157 Glass JA said (at 160-161):

"The purpose of the cottage was held to be industrial being ancillary to the dominant purpose gathered from a consideration of the character of the whole enterprise. ... where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts.... Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged".

Glass JA went on to consider O'Keefe and to discuss shop and warehouse uses.

85. In many of the leading cases there is an overlap between the questions of use, questions of expansion of use and questions of change of use, as well as the separability and the categorisation as independent or ancillary. Cases such as Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 ("O'Donnell") may be distinguished because two distinct uses were involved such as in that case riding school and extractive industry in circumstances where neither could be said to be dominant or ancillary, but co-extensive and co-existing. In O'Donnell, Meagher JA pointed out (at 409-410):

"Notwithstanding the principles laid down in Foodbarn, it does not follow that a use which can be said to be ancillary to another use is thereby automatically precluded from being an independent use of the land. It is question of fact and degree in all the circumstances of the case whether such a result ensues or not."

His Honour went on to consider parking a car at a house, installing a canteen in a factory and growing vegetables for home consumption. In those cases an independent use could not be identified. His Honour continued:

"But when one use of the land is by reason of its nature and extent capable of being an independent use it is not deprived of that quality because it is `ancillary to', or related to, or interdependent with, another use. If a book publisher opens a sales room at his publishing house to sell his products, the selling of books is an independent use although ancillary to the use of publishing. The series of cases dealing with dual uses ... show that a `convenience store' and a petrol station are two independent uses, although the former is clearly ancillary to the latter."

86. Mr Larkin submits that the use of the booths by regular customers to have their lunch was not ancillary to the purchase of groceries, as viewed either by the purchaser or the seller. He relies on the book publishing example of Meagher JA. I have come to the view that the use of the booths was indeed ancillary to the sale of at least those sale items which had been prepared as sandwiches, whether viewed as the occasional serving of lunch, or the more usual selling of take-away food. It was not an independent use as a refreshment room such as to underpin such a use in 1998. The small area dedicated to the booths was a relatively small part of the shop premises. The area used for such purposes has been expanded, and the proportion of 147 devoted to tables and chairs is a much higher proportion of the space now used by the business. Use of the booths was not independently inspired, but use of the tables and chairs is.

87. The consumption of some food on the premises from 1944 to 1978 or so was only ancillary to uses as "ham and beef shop" (aka now delicatessen), and as a take-away food shop aligned with the smallgoods/grocery business. With the admitted absence now of groceries and smallgoods, only the take-away food element is common to the uses of the premises in 1951 and 1998. To obtain the benefit of s 109, Palmyra must demonstrate that there were two separate and independent use of the premises in 1951, that of shop which the Council accepts, and that of refreshment room, which it does not. The 1951 use cannot be characterised even if part, as café. Consumption of food purchased and prepared on premises could not make those premises a refreshment room. There was never a requirement that any food purchased on the premises must be consumed on the premises. Such part of the use as could be characterised in 1951 as refreshment room is relevantly ancillary to the dominant use of shop. The protective provisions apply only to the dominant purpose, not the ancillary purchase in absence of that dominant purpose. Take-away food, groceries and smallgoods are all part of a dominant purpose, namely shop, and the booths cannot stand independently as a refreshment room use sufficient to sustain the proposed 1998 use.

88. The 1998 proposal cannot in any way be characterised as shop as distinct from take-away food shop. The 1998 proposal is a combination of refreshment room and take-away food shop. The three booths in 1951 were part of a shop use rather than, in their own right, a refreshment room use. The booth service of occasional customers was never table service in the true sense. The only food that could be consumed on the premises was the food that was otherwise exposed for sale to smallgoods/grocery customers and/or sold as take-away food in the form of sandwiches. All those purposes were shop purposes. There was no separate independent menu, no specifically allocated staff, no independent means of service, and no cooking of meals, etc. Capacity to eat the products of the retail business within the premises does not establish an independent use as a refreshment room.

89. Whichever of the above analyses is to be preferred, I arrive at the conclusion that the correct characterisation of the use of 147 as at 1951 is "shop", in the form of a "mixed business", comprising "ham and beef shop", grocery store, take-away food shop and sometime milk bar, in which were retailed groceries, smallgoods, milk, sandwiches (made from food products which were retailed for home consumption and some of which were toasted on the premises), non-alcoholic drinks, and cups of tea and coffee on request. Some of the sandwiches and drinks were consumed on the premises, and booths were provided to facilitate that. The retailing of food products was the dominant use and the serving of prepared light meals, as in toasted sandwiches and tea and coffee, at the booths, was an ancillary use, which in 1951 was inextricably bound up with the "mixed business" of the shop use and was not an independent use.

90. I am further satisfied that the use was intensified such that the applicant should be denied the protection of s 109. In Duggan's submission that change occurs either at the time of the installation of cooking facilities or relevantly at the time that the groceries and smallgoods items were completely removed from the premises and refreshment room functions became the exclusive province and object of the business. By around 1990 a cooking facility had been installed, and at apparently the same time the wall was removed and the space the business used expanded.

91. The Council has not sought an injunction restraining the intensification or requiring the containing of the use to the front room. The statutory prohibition upon expansion and intensification commenced in 1986. The partial use of the residential facilities behind the shop for the purposes of the shop occurred continuously from before 1951 until 1990 when the wall came down, the internal layout of the business changed, and the bench and stools were replaced with free-standing tables and chairs, sufficient to accommodate 35 people.

92. If we categorise the use(s) as multiple in 1951, the evidence indicates, in any event, the expansion and intensification, over time, of one use at the expense of the others. It would appear that in 1990 the emphasis changed away from the sale of retail packaged or fresh food items towards the provision of take-away and other prepared food. Joan Rigney's affidavit indicates the continued sale of cheeses, bacon, cold meats, etc. after 1990 when the refreshment room functioned (sale of frankfurts, sandwiches, pies, sausage rolls, soft drinks, tea and coffee, as referred to in her affidavit) was expanding. However, the Council's evidence would seem to indicate quite clearly that the premises had ceased to operate as a delicatessen shop by, at the very latest, November 1997.

THE QUESTION OF DISCRETION

93. While the focus of the hearing of the two Class 4 proceedings has been the use of the premises, the construction of the exhaust stack without the necessary building approval, and the various types of environmental harm it is alleged to cause, were the subject of substantial evidence, even though the Council has sought no order for its demolition, etc.

94. Mr Larkin reduced to writing and handed up to the Court an undertaking that should the Court declare 147 at the level fronting Blues Point Road to enjoy continuing use rights pursuant to s 109, Palmyra undertook not to use the premises for the purpose of refreshment room after 5pm on any given day without development consent.

95. Having concluded that the current and proposed use as refreshment room does not receive the benefit of s 109, Palmyra cannot be held to the undertaking, and the question of discretion clearly arises. Mr Larkin submits that the discretion should be exercised in favour of the applicant company, and I should decline to grant the Council the complete injunction it seeks, as the use is long-standing and creates no significant unacceptable impact, the premises being a low generator of odour and noise.

96. However, there was considerable evidence of various elements of environmental harm, mainly by way of complaints made by Marshall in respect of the installation of the ventilation system. She complained that the shaft created problems by way of noise, glare and an oily residue, that the motor associated with the system was also noisy, and that she was troubled by odour from the system as well. Joan Rigney lives directly above 147 and testified that since the installation of the system in 1997, she has not been able to smell food being cooked in the kitchen of 147. I am not convinced by the evidence of oily residue, but certainly the glare, noise and odour complained of by Marshall can be ameliorated. As O'Brien indicated, retrospective approval of their cause is not possible, but conditions could be imposed upon any decision to take no further action. LeBas agreed that the acoustic exceedence was unacceptable and that any suggested continued operation should be the subject of a condition requiring that the noise generated satisfy appropriate EPA guidelines. In another context, the company had itself proffered an undertaking not to operate past 5pm without specific approval.

97. Mr Larkin undertook from the Bar table that the applicant would do the ameliorative works suggested by the experts Gauld (noise) and Mann (odour), whose evidence had been prepared for the Class 1 proceedings but was abstracted to some degree in these. However, I note the Council's noise expert (Harrison) has some reservations about the particular works envisaged, and the inclusion of the property within a conservation area, and its possible listing in a heritage based LEP, would be relevant considerations in respect of securing the appropriate approvals for such works.

98. I am satisfied that the present use serves the needs of the local community to a very large extent, and a high proportion of people who would use any aspect of the business would walk, rather than generate additional traffic and require additional parking. This impression is substantiated by the evidence of Mr Hewitt.

99. EPAA s 124(3) provides:

"(3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may:

(a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and

(b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned."

100. The Court can either grant the relief or withhold it, and may either adjourn the proceedings or stay the relief until the Class 1 proceedings dispose of the merits questions, including the complaints of harm and the heritage and conservation issues. In any event the Class 1 proceedings should really be heard as soon as possible after the delivery of this judgment.

101. If discretion were to be exercised in favour of the company, its operation will be uncontrolled, and the unacceptable impact on Marshall, etc. (especially the corroborated impact of noise) will be unaltered.

102. However, it is not appropriate to grant relief more extensive than is necessary to ensure compliance with the Court's findings.

CONCLUSION AND ORDERS

103. I have determined that the subject land enjoys the protection of s 109 only in so far as it may continue to be used for the purposes of delicatessen, and not if used in the style of refreshment room or café. As I am not satisfied that the use as delicatessen continues, but I am satisfied that the subject land enjoys no rights under s 109 to serve "food and non-alcoholic refreshments for customers upon the land", the company's Class 4 application must fail, and the current use of the property must be held to be in breach of s 76(2) of the EPAA.

104. Accordingly, that use should be restrained, at least until the determination of the Class 1 proceedings, the hearing of which I am prepared to order be expedited. The parties should, perhaps, reconsider the preliminary questions of law raised in those proceedings in the light of these reasons, so that the outstanding issues between them may be speedily resolved.

105. As Palmyra has failed in 40016, and the Council has succeeded in 40043, costs should normally follow the event and be ordered in Council's favour in both proceedings. However, at the conclusion of the hearing, Counsel for the parties agreed that all questions of costs should be reserved, "whatever happens" (T.40), and I will do so.

106. The formal orders of the Court will, therefore, be as follows:

Matter 40016 of 1998:

(1) The application is dismissed.

(2) The question of costs is reserved.

Matter 40043 of 1998:

(1) Declaration that the use of lot 1 in DP 110687, known as 147 Blues Point Road, McMahons Point, for the operation of a refreshment room is in breach of s 76(2) of the Environmental Planning & Assessment Act 1979.

(2) Ordered that the respondent, its servants and agents, be restrained from carrying out, permitting, or suffering the carrying out of, the said use on the said land, unless and until development consent is obtained for the said use.

(3) The question of costs is reserved.

Matter 10352 of 1998:

(1) The hearing of this matter is ordered to be expedited.

(2) The matter is adjourned to be called over by the Registrar on Friday 16 October 1998.

(3) There will be no order as to costs.

107. All the Exhibits should remain with the Court papers until Matter 10352 of 1998, and any issues of costs in Matters 40016 and 40043 of 1998, have been determined, whereupon they may all be returned without further order.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 34 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE T.W. SHEAHAN.

Associate:

Dated: 14 October 1998