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Caltex Australia Petroleum Pty Ltd v Manly Council [2007] NSWLEC 105 (14 March 2007)

Last Updated: 20 March 2007

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION: Caltex Australia Petroleum Pty Ltd v Manly Council [2007] NSWLEC 105


PARTIES:
APPLICANT
Caltex Australia Petroleum Pty Ltd
RESPONDENT
Manly Council


FILE NUMBER(S): 10592 of 2005


CATCHWORDS: Existing Use Rights :- whether development consent under County of Cumberland Planning Scheme Ordinance continued in force under later PSO - does development consent in force exclude existing use rights


LEGISLATION CITED:
Auburn Planning Scheme Ordinance 1970
County of Cumberland Planning Scheme Ordinance 1951
Environmental Planning and Assessment Act 1979 s 82A,
s 106, s 107, s 109, s 109A, s 109B
Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005
Environmental Planning and Assessment (Miscellaneous Amendments) Act 1992
Environmental Planning and Assessment Regulation 2000
Environmental Planning Legislation Amendment Act 1995
Interpretation Act 1897
Land and Environment Court Rules 1996 Pt 13 r 16(h)
Local Government Act 1919 Pt 11
Local Government (Amendment) Act 1951 s 2(3)
Manly Local Environmental Plan 1988
Manly Planning Scheme Ordinance 1968
Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 cl 7 Sch 3
State Environmental Planning Policy 55
Strata Titles Act 1978
Warringah Planning Scheme Ordinance 1963
Windsor Planning Ordinance Scheme 1973
Wyong Planning Scheme Ordinance1968
Wyong Planning Scheme (Amendment No 2) Ordinance 1976

CASES CITED:
Auburn Council v Constanti [2000] NSWLEC 194; (2000) 109 LGERA 355
Auburn Council v Nehme [1999] NSWCA 383; (1999) 106 LGERA 19
Bankstown City Council v House of Peace Pty Ltd (NSWLEC, Sheahan J, 9 October 1998, unreported
Botany Bay City Council v Workmate Abrasives [2003] NSWLEC 85; (2003) 126 LGERA 326
Boyts v North Sydney Municipal Council (1989) 16 NSWLR 50
Calvary Health Care Tasmania Inc v Hobart City Council [2006] TASSC 10; (2006) 144 LGERA 107
Council of City of Gosford v Dillon (NSWLEC, Bannon J, 13 May 1994 unreported)
Currency Corporation Pty Ltd v Wyong Shire Council [2006] NSWLEC 692
Dosan Pty Ltd v Rockdale City Council [2001] NSWLEC 252; (2001) 117 LGERA 363
Eaton & Sons Pty Limited v Warringah Shire Council [1972] HCA 33; (1972) 129 CLR 270
Harris v Hawkesbury Shire Council (1989) 68 LGRA 183
Hillpalm Pty Ltd v Heavens Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472
House of Peace v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498
McIlveen v Baiada [2003] NSWLEC 174; (2003) 131 LGERA 129
Lederer v Sydney City Council [2001] NSWLEC 272; (2001) 119 LGERA 350
Penrith City Council v Penrith Waste Services Pty Ltd, (NSWLEC, Talbot J, 19 December 1995, unreported)
Steedman v Baulkham Hills Shire Council (1991) 72 LGRA 265
Steedman v Baulkham Hills Shire Council [No 2] (1993) 31 NSWLR 562
Vitality Care Pty Ltd v Director-General, Department of Natural Resources [2006] NSWLEC 506
Winn v Director General of the National Parks and Wildlife Service [1995] NSWLEC 199
Woollahra Municipal Council v TAJJ Investments Pty Ltd (1982) 49 LGRA 123

CORAM: Pain J

DATES OF HEARING: 27/07/2006, 28/07/2006, 14/08/2006, 15/08/2006, 04/09/2006, 17/11/2007 (written submissions), 27/11/2006 (written submissions)

JUDGMENT DATE: 14 March 2007


LEGAL REPRESENTATIVES

APPLICANT
Mr M Craig QC with Mr D Wilson
SOLICITOR
Middletons
RESPONDENT
Mr T Robertson SC
SOLICITOR
Abbott Tout


JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES


Pain J


14 March 2007


10592 of 2005 Caltex Australia Petroleum Pty Ltd v Manly Council


JUDGMENT

1 Her Honour: In the course of a s 97 appeal before Senior Commissioner Roseth the issue of whether the Applicant enjoyed existing use rights at 2 Clontarf Street, Seaforth (the land) arose. This issue was referred by the Commissioner for determination as provided for by Pt 13 r 16(h) of the Land and Environment Court Rules 1996. If no existing use rights for a service station exist or these have been abandoned the Applicant’s development application for a carwash/cafe must be refused. There are two broad issues:
(i) whether existing use rights exist at all because a 1953 development consent continues in force,
(ii) alternatively, if there are existing use rights, have these been abandoned?

History of development consents issued by Manly Council
1953 – Development consent 194/53
2 Manly Council (the Council) granted Building Application No 194/53 pursuant to Pt 11 of the Local Government Act 1919 (the LG Act 1919) on 16 June 1953 in relation to the land. Pursuant to s 41(2) of the County of Cumberland Planning Scheme Ordinance 1951 (CCPSO) which came into effect on 27 June 1951 this is considered to be a development application. The land was zoned “Living Area” under the CCPSO. The use of the land for a service station was permissible with consent. The development was carried out in or about 1954 and assumed to commence trading at about this time.

1961 – Development Application 120/1961
3 On 24 March 1961 Ampol Petroleum Ltd made an “Application for Approval to Build” development described in the application as “additions to existing [service] station comprising of brick cavity walls, corrugated iron roof with reinforced concrete floor”. The application was approved in or about April 1961 and was for the addition of a service bay in brick and corrugated galvanised iron. The approved development was carried out in or about 1962.

1968 – Development Application DA115/68 and Building Application BA503/68
4 On 29 November 1968, Ampol Petroleum Ltd made application to the Council to carry out development described as “new sales rooms, pumps, islands and canopy”. The Council approved the development application and the building application on 16 January 1969 and 3 February 1969 respectively.

5 Further development consents were issued in 1977 and 1986 but are not material to these proceedings. The principal consent in issue is the 1953 consent.

6 The land was used as a service station from about 1954 until on or about 25 July 2003. The most recent operator of the service station was P Richards Pty Ltd under a dealer agreement which expired on 30 October 2001.

7 By agreement dated on or about 18 May 2001, between the Applicant and P Richards Pty Ltd, the dealer agreement was extended indefinitely beyond 30 October 2001 in accordance with the terms of a letter dated 2 April 2001. Either party could give one month’s notice of termination.

8 A Notice to Quit dated 20 May 2003 was served by the Applicant on P Richards Pty Ltd. On 4 June 2003, the Applicant approved a “divestment proposal” for the land. P Richards Pty Ltd executed a Deed of Termination on 25 July 2003 and vacated the land in or about July 2003.

9 On 30 July 2003 a pre-development application meeting was held at Manly Council with representatives of the Applicant.

10 On 14 October 2003, the Applicant gave notice under State Environmental Planning Policy 55 (SEPP 55) to carry out Category 2 remediation work on the land.

11 On 20 October 2003, Foster & Associates, architects, on behalf of the Applicant lodged a development application with the Council for the construction of a carwash and cafe (DA97/04). Foster & Associates on behalf of the Applicant also lodged a development application with the Council for the demolition of existing buildings and related structures (DA507/03).

12 The underground tanks and fuel lines were removed from the land in or about early March 2004. All other above ground structures, other than petrol bowsers, remain on the land.

13 By Notice of Determination dated 6 September 2004, the Council notified approval of DA507/03. The development approved in DA507/03 has not been carried out.

14 Notification by Manly Council of the refusal of DA 97/04 was given on 6 September 2004.

15 On 15 November 2004 an application to review the determination in DA97/04 pursuant to the provisions of s 82A of the Environmental Planning and Assessment Act 1979 (the EP&A Act) was lodged. On or about 24 March 2005, the s 82A Review was determined by confirming the refusal of DA97/04.

16 On 15 June 2005 Class 1 appeal proceedings were commenced in this Court.

Relevant legislation
Environmental Planning and Assessment Act 1979
17 The relevant sections of the EP&A Act concerning existing use rights are s 106, s 107, s 109(1) and s 109B as follows.

Definition of existing use
18 Section 106:

In this Division, existing use means:

(a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4A of Part 3 or Division 4 of this Part, have the effect of prohibiting that use, and

(b) the use of a building, work or land:

(i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and

(ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.


Continuance of and limitations on existing use
19 Section 107 provides:

(1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use.

(2) Nothing in subsection (1) authorises:

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

(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, or

(c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or

(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 80A (1) (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 is to 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.

Continuance of and limitations on other lawful uses
20 Section 109(1) provides:
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.

Use unlawfully commenced
21 Section 109A provides:
(1) The use of a building, work or land which was unlawfully commenced is not 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, work or land that was unlawfully commenced is, and is taken 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.

Saving of effect of existing consents
22 Section 109B provides:

(1) Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force.

(2) This section:

(a) applies to consents lawfully granted before or after the commencement of this Act, and

(b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and

(c) has effect despite anything to the contrary in section 107 or 109.

(3) This section is taken to have commenced on the commencement of this Act.
(Section 109B was added in 1992 by the Environmental Planning and Assessment (Miscellaneous Amendments) Act 1992 (the 1992 EP&A Amendment Act) with retrospective effect from 1 September 1980.)

23 Section 108 provides that regulations may be made in relation to existing use rights.

Local Government Act 1919
24 Section 342L of the Local Government Act 1919 provided the power for the making of the Manly Planning Scheme Ordinance 1968 (Manly PSO) and stated:

(2)(a) In this subsection -

“local scheme” means a scheme prepared by the council of an area wholly or partly included in the County of Cumberland or by an Authority in respect of any such area.

...

(d) On the date on which the local scheme comes into operation the County of Cumberland Planning Scheme shall be revoked to the extent to which it applies in respect of the land to which the local scheme applies.

(Clause 2(d) is the clause referred to in cl 66 of the Manly PSO)

25 Clause 7 Sch 3 of the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 (1979 Miscellaneous Amendment Act) provides:
(1) Any consent, approval or permission granted in respect of an application made under a former planning instrument, and in force immediately before the appointed day, [1 September 1980] shall, subject to subclause (2), continue in full force and effect subject to:

(a) the operation of any provision of that instrument or any term or condition of that consent, approval or permission governing or relating to the currency, duration or continuing legal effect of that consent, approval or permission, and
(b) the operation of any condition (other than that referred to in paragraph (a)), restriction or limitation, subject to which that consent, approval or permission was granted.
...

(4) A consent, approval or permission referred to in subclause (1) is taken to be a development consent within the meaning of the Environmental Planning and Assessment Act 1979.

(Subsection (4) was inserted in 1995 by the Environmental Planning Legislation Amendment Act 1995 (1995 Amendment Act), s 3, with retrospective operation from 1 September 1980, s 2)

Environmental Planning and Assessment Regulation 2000
26 Clause 41 provided at the relevant time:
(1) An existing use may, subject to this Division:

(a) be enlarged, expanded or intensified, or
(b) be altered or extended, or
(c) be rebuilt, or
(d) be changed to another use, including a use that would otherwise be prohibited under the Act.
...

Planning instruments subsequent to the CCPSO
Manly Planning Scheme Ordinance 1968
27 On 20 December 1968 the Manly PSO was gazetted, under which the land was zoned Residential A. Service stations were prohibited in that zone.

28 Clause 2 of the Manly PSO provides:
The planning scheme referred to in subclause (2) of clause 1 varies in certain respects the County of Cumberland Planning Scheme and incorporates all such provisions of that Scheme relating to land within the Municipality of Manly as are not inconsistent with the provisions of the former Scheme.

29 “Appointed day” is defined in cl 4 as “the day upon which this Ordinance takes effect”. “Existing use” is defined as:
a use of a building, work or land for the purpose for which it was used immediately before the appointed day and, in the case of a building or work erected, constructed or carried out in accordance with clause 67 of this Ordinance, the use of such building or work for the purpose for which the erection of the building or the carrying out of the work, as the case may be, was approved.

30 Clause 25 of the Manly PSO provided:
Subject to the provisions of Part IV and to any other special provisions of this Ordinance -

(a) land, included in a zone, whether forming the site of a building or not, shall not be used without the consent of the responsible authority for any purpose for which a building in the same zone may be erected or used only with the consent of the responsible authority;
(b) land, included in a zone, whether forming the site of a building or not, shall not be used for any purpose for which a building in the same zone may not be erected or used.

Part IV Existing buildings, existing works and existing use of land
31 Clause 27 of the Manly PSO provided:
Notwithstanding the provisions of Part III and Part VII but subject to the provisions of Part II of this Ordinance, an existing building or an existing work may be maintained and may be used for its existing use and an existing use of land may be continued notwithstanding that such existing use is for a purpose for which buildings or works may not be erected or used or for which land may not be used under Part III of this Ordinance in respect of the Zone in which such existing building or existing work or such land is situated.

Part VIII General Rights under CCPSO
32 Clause 66 of the Manly PSO provided:
(1) Subject to subclause (2) of this clause the revocation, pursuant to paragraph (d) of subsection two of section 342L of the Act, of the County of Cumberland Planning Scheme to the extent to which it applies in respect of all land within the Municipality of Manly shall not affect –

(a) the previous operation of that Scheme in respect of the said land or anything duly suffered, done or commenced to be done under that Scheme or under the Act in relation to that Scheme;
(b) any right, privilege, obligation or liability acquired, accrued or incurred under that Scheme or under the Act in relation to that Scheme

...

(Subsection 2 is not relevant to this case)

Application of Scheme to development incomplete at commencement of Scheme
33 Section 67 of the Manly PSO provided:
Nothing in this Ordinance shall prevent the erection of a building or the carrying out of work and the use of such building or work in accordance with the terms of the Town and Country Planning (General Interim Development) Ordinance or of any permission granted under Division 7 of Part XIIIA of the Act and under that Ordinance or of any consent granted under the County of Cumberland Planning Scheme if the erection of the building or the carrying out of the work was commenced, but not completed, before the appointed day or is substantially commenced within a period of twelve months after that day.

34 Section 69 of the Manly PSO provided:
Where permission to erect any building or to carry out any work or to use any building, work or land or to do any other act or thing has been granted under Division 7 of Part XIIA of the Act or under any Ordinance made under that Part or where any consent for any such purpose has been granted under the County of Cumberland Planning Scheme and conditions have been imposed which are not inconsistent with any provisions of this Ordinance, the conditions shall have effect as if they were conditions imposed under this Ordinance and may be enforced accordingly.

Manly Local Environmental Plan 1988
35 On 16 September 1988 Manly Local Environmental Plan 1988 (Manly LEP) was gazetted, under which the land was zoned residential. Service stations were prohibited in that zone.



Issue 1: No existing use rights because 1953 development consent still in force
Council’s submissions
36 The Council submitted no existing use rights attach to the land. The 1953 approval, while a building consent, was a development consent under the CCPSO, cl 41(2). The CCPSO was a prescribed scheme under Pt 12A of the Local Government Act 1919, by virtue of s 2(3) Local Government (Amendment) Act 1951. It is therefore a former planning instrument within cl 1 Sch 3 of the 1979 Miscellaneous Amendment Act. An approval, granted in respect of an application under a former planning instrument, which was in force before 1 September 1980, continues in force: cl 7(1), Sch 3, 1979 Miscellaneous Amendment Act. That approval is taken to be a development consent within the meaning of the EP&A Act; cl 7(4), a provision which was retrospective to 1 September 1980 by virtue of s 2 1995 Amendment Act. The transitional provisions in cl 66 and cl 69 of the Manly PSO applied so that the consent granted under the CCPSO continued in force under the Manly PSO. The 1953 consent is therefore a consent within the meaning of cl 7(1) of Sch 3 to the 1979 Miscellaneous Amendment Act, and continues in force as a development consent under the EP&A Act by virtue of cl 7(4).

37 Section 4 of the EP&A Act defines “development consent” as “consent under Pt 4 to carry out development”. For these reasons, the 1953 approval is a development consent taken to have been granted under the EP&A Act. Consequently it is an existing development consent and by virtue of s 109B the use authorised by that consent is not prohibited by the Manly LEP and therefore is not an existing use within the meaning of s 106 of the EP&A Act. Development consent for use of the site as a service station continues to exist and consequently the Applicant has no existing use rights under s 106(a). According to the Council, if s 109B applies there cannot be an existing use as defined in s 106(a). This argument was based on the novel submission, according to the Applicant, that existing use rights cannot arise from a development consent.

38 Section 109B was enacted in 1992 but is retrospective to 1 September 1980, the date the EP&A Act commenced as provided by s 109B(3). It applies to consents in force before or after 1 September 1980; s 109B(2)(a). It has effect notwithstanding s 107 and s 109; s 109B(2)(c).

39 Section 109B(1) provides that nothing in an environmental planning instrument prohibits the carrying out of development in accordance with a consent that has been granted and is in force. The “development” being carried out on the land is said (for the purposes of s 106) to be the use of the land and buildings for a service station. That “development” on the subject land is not prohibited by the Manly LEP (the only relevant “prohibiting” environmental planning instrument for the purposes of s106) because of s 109B(1). If it is not prohibited by the Manly LEP, then no environmental planning instrument has the effect of prohibiting the service station use within s 106(a). Subsection (b) is not relevant. This argument is is consistent with Bannon J in Winn v Director General of the National Parks and Wildlife Service [1995] NSWLEC 199, and the Minister’s Second Reading Speech when s 109B was introduced. This argument may be inconsistent with the approach in Dosan Pty Ltd v Rockdale City Council [2001] NSWLEC 252; (2001) 117 LGERA 363.

Applicant’s submissions
40 The Applicant submitted that use of the land for a service station is a lawful existing use as defined in s 106(a) of the EP&A Act. Section 107 permits the continuance of the existing use. The regulations made pursuant to s 108 permit, with development consent, a change of use from an existing use to another use. “That use” in s 106(a) means that use as a service station, which is prohibited in the relevant zone under the Manly LEP. The Manly LEP is the relevant planning instrument for the purpose of s 106(a); Auburn Council v Nehme [1999] NSWCA 383; (1999) 106 LGERA 19.

41 The lawfulness of the use is derived from the development consent of 1953. In Nehme, Handley JA with whom Meagher and Beazley JJA agreed, held that in the absence of transitional provisions the effect of a consent will not extend beyond the life of the planning instrument under which it was granted. The development consent granted under the CCPSO no longer applied when, on 20 December 1968, the Manly PSO was made. Clause 66 of the Manly PSO does not operate as a transitional savings provision, as the Council argued, to continue “in force” the 1953 and subsequent development consents. Rather cl 27 of the Manly PSO applied (par 24) as that provides for existing use rights in relation to the service station use on the land.

42 The 1953/1961 consents were not in force for the purpose of cl 7 Sch 3 on the appointed day, 1 September 1980. Those consents were granted under the CCPSO. The CCPSO had expired by 1 September 1980 and was not at any relevant time in force for the purposes of s 109B.

43 Section 109B applies to consents lawfully granted before or after the commencement of the EP&A Act and in force. The savings provisions in Pt VIII of the Manly PSO (cl 66 and 69), relied on by the Applicant, do not affect the application of Nehme.

44 Further, an existing use which derives its lawfulness from a development consent is no less an existing use within the meaning of s 106. That section also applies to uses which are lawful by reference to a consent.

Further submissions
45 In further submissions after the main hearing, Vitality Care Pty Ltd v Director-General, Department of Natural Resources [2006] NSWLEC 506 Biscoe J at par 29 was relied on by the Applicant. His Honour relied on Stephen J in Eaton & Sons Pty Limited v Warringah Shire Council [1972] HCA 33; (1972) 129 CLR 270 at 293 - 294, in holding that a development consent does not create a right or privilege of the type referred to in s 8 of the Interpretation Act 1897 which provided:
Where an Act repeals in the whole or in part a former Act, then, unless the contrary intention appears, the repeal shall not:
...
(b) affect any right, privilege, obligation, or liability acquired, accrued, or incurred under an enactment so repealed, ...

This section is similar to s 30(1)(c) of the Interpretation Act 1987. The Council argued that there was conflicting Court of Appeal authority; Harris v Hawkesbury Shire Council (1989) 68 LGRA 183. The legal issues in Vitality Care were different to those before me and his Honour was not referred to the numerous authorities which I have considered. I do not need to refer to this decision further.

46 Currency Corporation Pty Ltd v Wyong Shire Council [2006] NSWLEC 692 was handed down on 3 November 2006. That decision considered similar arguments to those relied on by the parties in this case and referred to Eaton once again and the conflicting case law in Harris and House of Peace v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498. The parties in this matter were asked if they wished to make further written submissions on Currency Corporation and did so.

Finding on issue 1
47 In order to determine the issue of whether the Applicant has existing use rights it is necessary to determine firstly whether the 1953 consent (the primary consent for the purpose of these proceedings) continues in force now. Secondly, if it does, whether the Applicant nevertheless has existing use rights under s 106 of the EP&A Act must be determined.

(a) Does the 1953 consent continue in force?
48 The first matter to consider is whether cl 66(1)(a) and (b) and s 69 of the Manly PSO 1958 apply to continue in force the 1953 development consent granted under the CCPSO. If they do, cl 7 Sch 3 of the 1979 Miscellaneous Amendment Act applied from September 1980 and the 1953 consent continued in force, as argued by the Council. If the 1953 consent did not continue in force when the Manly PSO was introduced, the Council’s argument fails at that point.

49 The arguments at the primary hearing focussed on Nehme. The Applicant relied on Nehme to argue that the 1953 development consent did not continue in force after the Manly PSO came into operation in 1968. Nehme was concerned with the Auburn Planning Scheme Ordinance 1970 (Auburn PSO). At issue was whether a development consent continued to have effect once the Auburn PSO came into effect and prohibited the use the subject of the development consent. The case considered the application of s 109B(1) of the EP&A Act. The judgment does not set out the relevant provisions of the Auburn PSO under consideration.

50 At [26] – [28] Handley JA (with whom Beazley and Meagher JJA agreed) states:
The use of land which is authorised by a valid consent is lawful while the planning instrument under which it was granted remains in force. In the absence of appropriate transitional provisions, the effect of a consent will not extend beyond the life of the planning instrument under which it was granted. The repeal of that planning instrument, and its replacement by another, will, without more, deprive that consent of further effect.

Where the new planning instrument absolutely prohibits the use previously authorised by a consent, that consent can have no direct operation on that prohibition. The irrelevance of that consent as a protection against that prohibition will not be affected by a transitional provision which continues that consent in force, or deems it to have been granted under the new planning instrument. The prohibition being absolute, the existence of a past consent is an irrelevance.

A party with the benefit of an existing consent therefore requires further protection against the absolute prohibition in the new planning instrument. This has been given in the past by existing use provisions either in the new planning instrument or in the Act. Such provisions enable existing uses which were lawful, immediately before the new planning instrument came into effect, to be continued. A former consent remains important because it may establish a lawful origin for an existing use, but it will have no further effect under the new planning instrument. In particular it cannot as a mere consent prevent the enforcement of an absolute prohibition on that use in the new planning instrument.


51 The Council distinguished Nehme on the basis that the decision rested on a finding that the Auburn PSO did not have transitional provisions (such as cl 66(1)(a) and (b) and s 69 of the Manly PSO). In other words, that Handley JA considered the Auburn PSO provisions were an absolute prohibition on the type of development in question. Further, as a secondary issue, although decided in 1999 after the amendment of cl 7, Sch 3 of the 1979 Miscellaneous Amendment Act was amended in 1995 by the 1995 Amendment Act which inserted subsection (4), no reference is made to that subsection in the judgment. The Council argued that cl 25 of the Manly PSO is expressed to be subject to Part IV of the PSO and special provisions, such as cl 66 and 69. Consequently cl 25 of the Manly PSO is not an absolute prohibition on development and the decision in Nehme should be distinguished on its facts.

52 Nehme has been distinguished in this Court in Auburn Council v Constanti [2000] NSWLEC 194; (2000) 109 LGERA 355, Lederer v Sydney City Council [2001] NSWLEC 272; (2001) 119 LGERA 350 and Botany Bay City Council v Workmate Abrasives [2003] NSWLEC 85; (2003) 126 LGERA 326 at [40] – [42].

53 In Constanti Pearlman J also considered the Auburn PSO to determine if two development consents granted under the CCPSO continued in force under the later PSO. Her Honour considered they were preserved by the operation of cl 26(1) and (2) of the Auburn PSO which stated:
(1) Notwithstanding the provisions of Part III but subject to the provisions of Part II of this Ordinance, an existing building or an existing work may be maintained and may be used for its existing use and an existing use of land may be continued notwithstanding that such existing use is for a purpose for which buildings or works may not be erected or used or for which land may not be used under Part III of this Ordinance in respect of the zone in which such existing building or existing work or such land is situated.

(2) Where, in accordance with subclause (1) of this clause, an existing building or an existing work may be maintained and used for its existing use or an existing use of land may be continued, and such use is permissible by virtue of a consent granted under the County of Cumberland Planning Scheme Ordinance, such consent and any conditions attached thereto may be enforced as if it were a consent granted under this Ordinance, or such conditions were attached to a consent so granted.

54 Pearlman J held the two consents were “in force” for the purposes of s 109B by virtue of cl 26(2). Pearlman J distinguished Nehme on the facts because she considered there were appropriate transitional provisions in force under the Auburn PSO. The transitional provisions she had to consider are similar to cl 67 and 69 of the Manly PSO before me.

55 In Lederer Lloyd J considered whether a development consent issued under s 80(1) and s 79C of the EP&A Act at [122], rather than under an environmental planning instrument before the introduction of the EP&A Act, continued in force when an environmental planning instrument was subsequently repealed. His Honour considered s 34(4)(i) and (ii) of the EP&A Act which state:
(4) The amendment or the alteration, variation or repeal, whether in whole or in part, of any environmental planning instrument does not affect -

(i) the previous operation of the instrument or any thing duly suffered, done, or commenced under the instrument;
(ii) any right, privilege, obligation or liability acquired, accrued or incurred under the instrument; or ...

(since repealed by the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005)

56 His Honour considered these sections applied to give continued effect to a development consent granted in 1993 under the EP&A Act and was still in force for the purposes of s 109B. These sections are similar to cl 66(1)(a) and (b) of the Manly PSO before me.

57 Lloyd J referred to Nehme at [119] – [121] and distinguished the findings of Handley JA that “the effect of a consent will not extend beyond the life of the planning instrument under which it was granted” at [121] on the basis that Nehme was concerned with a consent granted under an earlier ordinance, not under the EP&A Act. In Botany Bay Council Cowdroy J applied the reasoning in Lederer to a development consent granted under the EP&A Act to conclude that it was still in force.

58 Shortly after the hearing in this matter the Applicant provided the Court with the provisions of the Auburn PSO which would have been in force when Nehme was decided. These included cl 64(a) and cl 67(1) which are virtually in identical terms to cl 66(1)(b) and cl 69 in the Manly PSO. The Council submitted that the arguments raised by the parties in Nehme were concerned with whether there had been abandonment of an existing use and consequently the provisions of the Auburn PSO were not provided to the Court. The appeal books prepared in Nehme were provided in support of this submission. It therefore appears that the finding of Handley JA in Nehme was directed at a planning instrument which contained an absolute prohibition.

59 On the basis of this case law I would have concluded that if there are appropriate transitional provisions in force under a PSO replacing the CCPSO a deemed consent granted under the CCPSO continues in force.

60 In light of later submissions received from the parties it is necessary however to determine if, or how, I should apply the obiter findings of Stephen J in Eaton (1972) or the Court of Appeal in Harris (1989) and House of Peace (2000) in relation to whether a development consent can continue in force. Eaton and Harris were not referred to in Nehme. There is no reference to Eaton and Harris in Constanti or Botany Bay Council.

61 The primary finding in Eaton was in relation to the existence of an existing use of a timber reselling yard, per Barwick CJ, Walsh and Gibbs JJ, McTiernan and Stephen JJ dissenting. Whether the provisions of the Shire of Warringah Planning Scheme Ordinance 1963 (Warringah PSO) protected as a right or privilege a permit issued under the CCPSO was a further argument considered by Stephen J. The provision in issue was cl 65(1)(b) of the Warringah PSO. Clause 65(1) of the Warringah PSO states that:
(1) ... the revocation, pursuant to paragraph (d) of subsection (2) of section 342L of the Act, of the County of Cumberland Planning Scheme to the extent to which it applies in respect of all land within the Shire of Warringah shall not affect
...
(b) any right, privilege, obligation or liability acquired, accrued or incurred under that Scheme or under the Act in relation to that Scheme:
...

62 Stephen J, with whom McTiernan J at 276 and Walsh J at 277 concurred (Barwick CJ and Gibbs J expressed no view), firstly considered the decision of the trial judge and stated that he agreed with his reasoning whereby cl 65 was informed by cl 66 of the Warringah PSO. Clause 66 provided that nothing in the Ordinance prevented the erection or use of a building or the carrying out of work in accordance with any consent under the CCPSO if the erection or carrying out was commenced but not completed within twelve months of the appointed day (this clause is in similar terms to cl 67 of the Manly PSO in this case). He considered this part of cl 66 would have been unnecessary if cl 65 preserved rights under permits granted under the CCPSO.

63 Stephen J considered there were further reasons why cl 65(1)(b) did not preserve rights under permits issued under the CCPSO. He held at 293-294:
... there are two features of consents granted under schemes such as those here in question which appear to me to make it inappropriate to speak of them as conferring either a ‘right’ in the narrow or wide sense or a ‘privilege’. First, although a consent will no doubt result from an application by an individual it is essentially impersonal in the sense that it does not concern itself with and is not limited to the applicant but is a consent to the world at large in relation to the land which is its subject. Once granted it makes lawful, in a town planning context, what would otherwise be unlawful but does so by reference to the acts done and not to the identity of the actor; I would think that a mere trespasser could justify his use of land in terms of town planning controls by reference to some prior consent successfully applied for by a prior lawful occupier. For this reason it appears to me to be inappropriate to regard such a consent as conferring rights or privileges in the sense in which I understand those words to be used in cl. 65 (1) (b). It is well established that in provisions such as cl. 65(1)(b) no alleged right can be protected so long as it is one common to the community as a whole. As it was said in Abbott v. Minister for Lands [1895] AC 425 at 431, there must be an ‘act done by an individual towards availing himself of that right’ before it can be said to be ‘a `right accrued' within the meaning of the enactment’. What are protected are rights which have been acquired by or have accrued to an individual; consents under the present schemes do not confer rights of this character.

Secondly, I doubt whether it is proper to regard as a ‘right’ or ‘privilege’ acquired or accrued under the County Scheme what is no more than the relaxation of a prohibition imposed by that very Scheme. The Scheme took away the liberty at general law of occupiers of land to use their land as they saw fit but in relation to the appellant's land enabled the renewed exercise of that liberty in a very qualified way if a consent from the responsible authority was first sought and obtained. To describe that situation as one in which a right or privilege had accrued to or been acquired by the appellant under the Scheme appears to me to be a misuse of language; the effect of the Scheme when a permit is issued under it is merely that users of relevant land are in part remitted to their former liberties at general law.”

64 The statements of Stephen J relied on by the Applicant were obiter. Two other judges agreed with him and his findings should be accorded persuasive but not decisive weight.

65 The Council argued Stephen J’s statements should not be applied because his views no longer represent the law in relation to the legal nature of development consents as currently accepted. Stephen J held the context is impersonal and not a personal right but a right belonging to the whole community. This is contrary to Hillpalm Pty Ltd v Heavens Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472. The submission that a development consent was in rem for which Eaton was cited in support was rejected by McHugh CJ, Hayne and Heydon JJ (Kirby and Callinan JJ dissenting) holding that this was a personal right [50] - [55].

66 Further, the purpose of cl 66 of the Warringah PSO (cl 67 Manly PSO) was to overcome, according to the Council, the problem of a consent lapsing where a consent would be void if not substantially commenced within two years. It enabled such lapse to be avoided if work were commenced before the Manly PSO came into effect, provided it was substantially commenced within twelve months after the Manly PSO came into effect. This further suggests the reasoning in Eaton is not necessarily applicable.

67 There is contrary authority to Eaton. In Harris, relied on by the Council, Clarke JA, with whom Samuels and Priestley JJA concurred, held that a consent deemed to be made under the CCPSO in 1971 for a shop continued to operate after the Windsor PSO came into effect in 1973 and prohibited what the CCPSO had permitted. If it did continue to operate, the parties agreed that cl 7 Sch 3 of the 1979 Miscellaneous Amendment Act operated to further preserve it. Clarke JA firstly considered cl 27 of the Windsor PSO 1973 which states:
(1) Notwithstanding the provisions of Part III but subject to the provisions of Part II, an existing building or an existing work may be maintained and may be continued notwithstanding that such existing use is for a purpose for which buildings or works may not be erected, carried out or used under Part III in respect of the zone in which such existing building or existing work or such land is situated.
(2) Where, in accordance with subclause (1), an existing building or an existing work may be maintained and use for its existing use or an existing use of land may be continued, and such use is permissible by virtue of a consent granted under the County of Cumberland Planning Scheme Ordinance, such consent and any conditions attached thereto may be enforced as if it were a consent granted under this ordinance, or such conditions were attached to a consent so granted.

His Honour considered that cl 27(2) preserved the original consent granted under the CCPSO. Clause 27(2) is similar but not identical to cl 69 of the Manly PSO which states:
... where any consent for any such purpose has been granted under the County of Cumberland Planning Scheme and conditions have been imposed which are not inconsistent with any provisions of this Ordinance, the conditions shall have effect as if they were conditions imposed under this Ordinance and may be enforced legally. [emphasis added]

68 Clarke JA considered his conclusion was also supported by cl 83 of the Windsor PSO which states:
The revocation, pursuant to s 342L(2)(d) of the Act, of the County of Cumberland Planning Scheme to the extent to which it applies in respect of all land within the Municipality of Windsor shall not affect--

(a) the preservation, continuance or enforcement of any right, privilege, or obligation or liability acquired, accrued or incurred under that Scheme in respect of any land to which this scheme applies before such revocation. (emphasis added)

69 His Honour held that the consent which the appellants had did give rise to a “right” or “privilege” in relation to their land. Clarke JA noted that his findings may appear to be inconsistent with Eaton, Stephen J at 293. He distinguished the statements of Stephen J on the basis that the Windsor PSO was significantly different to the planning scheme ordinance (Warringah PSO) considered in Eaton. At 190 – 191 of Harris Clarke JA stated:
The relevant clause in the Warringah ordinance simply provided that the relevant revocation did not effect any right etc acquired under an earlier scheme in relation to that scheme. The words "in respect of any land to which this scheme applies before such revocation" were not to be found in cl 65(1)(b).

The words which appeared in the Windsor scheme emphasise that the right or privilege which is preserved is one enjoyed in respect of any land to which the scheme applies. It would appear to me that the privilege to use premises in a particular way following the granting of a consent under a particular scheme is appropriately described as a privilege, or even right, acquired under that scheme in respect of that land. Indeed the submission by counsel for the appellants that unless privileges acquired under consents granted in respect of land were included within the ambit of cl 83(a) it was difficult to see what operation it had was not answered by counsel for the respondent who was unable to indicate any other area of operation for the clause.

70 In House of Peace, a 1954 permit (deemed to be a development consent) was granted under the CCPSO for a church. The Bankstown Planning Scheme Ordinance (Bankstown PSO) later came into force. Mason P, Stein JA and Giles JA concurring, held at [35], [36]:
The issue is whether the use of the land by the appellants is "development in accordance with a consent that has been granted and is in force": (EPA Act, s109B(1)). No one suggests that the Consent is not continued in force by the transitional provisions of the BPSO. See also Miscellaneous Acts (Planning) Repeal and Amendment Act 1979, Schedule 4 cl 7, Harris v Hawkesbury Shire Council (1989) 68 LGRA 183. Cf Auburn Council v Nehme [1999] NSWCA 383. Accordingly, the appellants have the benefit of the saving provisions of that section, notwithstanding the repeal of the planning instrument under which the consent was given.

Since the consent has not lapsed or otherwise become unenforceable, it is the consent that sets the boundaries of the appellants’ authority to use the land, not the actual or more limited use of the land by the first appellant’s predecessor in title: see Harris.

71 This paragraph in House of Peace suggests that Nehme was not followed and Harris was. Stephen J in Eaton at 293 was referred to in House of Peace at [23] but that was in relation to the nature of a development consent, not the construction issue concerning “right” or “privilege” raised in Harris. The Court of Appeal decision in House of Peace does not refer to the terms of the Bankstown PSO in issue, nor does the first instance decision of Sheahan J (Bankstown City Council v House of Peace Pty Ltd (NSWLEC, Sheahan J, 9 October 1998, unreported)) so that the transitional provisions in that case are unknown. I will now consider Currency Corporation as these cases were considered there, as I refer to below at par 74 – 76.

72 In Currency Corporation Biscoe J had to consider similar arguments as to whether a consent continued in force. He held that s 109B did not apply to continue in force a 1974 approval by a council under s 37 of the Strata Titles Act 1973. The Applicant argued that the four reasons his Honour gave were applicable in this case, particularly at [35] – [37].

73 I do not agree that the first two reasons (at [32] –[33]) are applicable as they rely on a finding that the 1974 approval was not a “consent” under the Strata Titles Act. In this case the 1953 permit is a deemed development consent. At [34] his Honour held, thirdly, that assuming the 1974 consent was a “consent”, there was nothing left to be carried out under it. He distinguished between continuing a use and the carrying out of development. At [35] he stated that “the words “carrying out a development” in s 109B refer to an activity, permitted by a consent in force, which has not yet occurred”. He refers to an example in the Explanatory Note to s 109B in the 1992 EP&A Amendment Act stating that the section would apply where a consent for mining over land had issued and mining had commenced on part of the land, when an environmental planning instrument which prohibited mining came into effect before mining the rest of the parcel, to enable mining to continue. The facts in Currency Corporation did not give rise to a finding of “carrying out a development”. I will return to this issue.

74 The fourth reason, at [37] – [43], concerned the council’s argument that the 1974 approval was a consent under the Wyong Planning Scheme Ordinance 1968 (Wyong PSO) (Biscoe J assumed that was the legal position for the purpose of considering the argument). He refers to several provisions of the Wyong PSO and stated that cl 4(b) of the Wyong Planning Scheme (Amendment No 2) Ordinance 1976 (Wyong PSO Amendment 1976) did not say that old consents under the Wyong PSO 1968 remained in force. Clause 4 in Part II of the Wyong PSO Amendment 1976 provided:
Nothing in this Ordinance shall prevent

(a) the erection of a building or the carrying out of a work and the use of such building or work in accordance with the terms of any consent granted under the Shire of Wyong Planning Scheme if the erection of the building or the carrying out of the work was commenced, but not completed, before the day upon which this Ordinance takes effect or is substantially commenced within a period of twelve months after that day; or
(b) the use of a building or work erected or carried out after 3rd May, 1968, and before the date of commencement of this Ordinance, in accordance with the terms of any consent granted under the Shire of Wyong Planning Scheme.

75 His Honour considered this provision saved the use, not the consent itself. I note that these provisions are not like cl 66 and cl 69 of the Manly PSO before me. Biscoe J also considered the council’s argument that s 8 of the Interpretation Act 1897 continued the 1974 approval in force because the approval was a “right” or “privilege”. Assuming the 1974 approval was a development consent under the Wyong PSO 1968 Biscoe J noted there were differences of opinion between Eaton, Harris and Lederer on this issue (at [40] - [41]). His Honour observed that this aspect of Eaton was applied recently in Calvary Health Care Tasmania Inc v Hobart City Council [2006] TASSC 10; (2006) 144 LGERA 107 at 116 – 117 [28] without reference to Harris or Lederer.

76 Biscoe J considered the apparent conflict between Eaton and Harris (see [40] – [43]) without arriving at a conclusive view. His Honour’s tentative view at [43] was that s 8 of the Interpretation Act 1897 did not say that the source of a right or privilege, for example a development consent, remains in force. Rather a repeal does not affect the right or privilege. His Honour considered that weighed against the conclusion that it kept the consent in force as the source of the right or privilege. At [44] his Honour noted that it was unnecessary to resolve this debate. His findings at [40] – [43] are obiter.

77 Because of the facts in this matter it is necessary that I consider how these conflicting cases should be applied. As identified by the Council at par 65, the reasoning of Stephen J in Eaton concerning the nature of development consents was not adopted by the High Court in Hillpalm. The transitional provisions in the PSO considered in Eaton did not include a similar provision to cl 69 of the Manly PSO. I also agree with the Council’s argument about the function of cl 66 of the Warringah PSO (cl 67 Manly PSO is identical), see par 66. I would therefore only consider applying Eaton if the relevant clauses before me were identical and they are not in this case. As is clear from Harris and House of Peace in the Court of Appeal, and Constanti in this Court, appropriate transitional provisions in a PSO can continue in force a development consent granted under the CCPSO.

78 In order to answer the question of whether a consent continues under a new PSO, a close examination of the words of the relevant PSO which extinguished the CCPSO is required. If the wording in issue is identical or very similar to that in Harris I consider I should apply that decision. Considering clauses 66(1)(a) and (b) and 69 of the Manly PSO (at par 32, 34) the wording of the equivalent provisions in Harris (cl 27(2) and cl 83 Windsor PSO) at par 67 - 68 are not identical but are very similar. While the wording in relation to cl 66(1)(b) of the Manly PSO is the same as cl 65(1)(b) considered by Stephen J in Eaton, importantly cl 66(1)(a) includes words very similar to the words which were the basis for distinguishing Eaton in Harris (see the words emphasised in par 68).

79 There is some difference in wording between cl 27(2) of the Windsor PSO as considered in Harris and cl 69 of the Manly PSO (see the words emphasised in par 67). The latter states that conditions only continue to be enforceable if not inconsistent with any provisions of the Manly PSO. I do not consider this difference alters the substantive similarity between the conditions considered by the Court of Appeal in Harris and I consider I am bound to apply that decision. Accordingly the 1953 development consent continued in force under the Manly PSO 1958 and therefore cl 7(1) Sch 3 of the 1979 Miscellaneous Amendment Act applied to continue the consent in force from 1979. By virtue of the 1995 Amendment Act, cl 7(4) provides the consent is one deemed to be a development consent under the EP&A Act if in force at 1 September 1980, as in this case. Section 109B operates to prevent an environmental planning instrument, here the Manly LEP 1988, prohibiting the carrying out of development in accordance with a consent that is in force. The transitional provision in Constanti, cl 26 of the Auburn PSO (see par 53) which was held to continue a consent in force was also in similar terms to cl 69 of the Manly PSO.

80 For s 109B to operate the consent must already be in force. Section 109B ensures that situation continues by preventing an environmental planning instrument from prohibiting the continuation of development under that consent. This was the approach in, for example, House of Peace, Dosan and McIlveen v Baiada [2003] NSWLEC 174; (2003) 131 LGERA 129.

81 In Harris (and House of Peace) the activity of building was undertaken and then the use of land for a particular purpose was held to continue under the relevant consent by virtue of cl 7 Sch 3 of the 1979 Miscellaneous Amendment Act. I should note that the operation of cl 7 Sch 3 was not disputed in either case. As set out above at par 70, House of Peace referred specifically to whether the use of land is “development in accordance with a consent that had been granted and is in force”, s 109B(1). Given that s 109B was introduced in 1992, and the Manly LEP was introduced in 1988, the 1953 consent was in force when the Manly LEP was introduced because of the 1979 Miscellaneous Amendment Act cl 7(1) Sch 3. By virtue of the introduction of cl 7(4) in 1995, retrospective to 1 September 1980, it was, at that date, a consent in force under the EP&A Act.

82 Lederer concerned the continuation of development consents under the EP&A Act, and distinguished Nehme on the basis that decision did not concern a development consent granted under that Act. Lederer does not consider consents granted before the EP&A Act so that it is not directly considering provisions relevant to this part of the case. It was considering s 34 in the EP&A Act which was in similar terms to cl 66(1)(a) of the Manly PSO, and cl 8 of the Interpretation Act 1897 (similar to cl 30 of the Interpretation Act 1987). His Honour’s finding that s 34 continued a development consent in force is generally supportive of the approach in Harris which I adopt.

83 For completeness and as referred to above at par 73, Biscoe J at [35] of Currency Corporation considered the words “carrying out a development” in s 109B refer to an activity permitted by a consent in force which has not yet occurred or which is continuing. His Honour held that the relevant action under the Strata Titles Act, the issue of a certificate of approval, was exhausted and therefore s 109B could not apply. The facts of this case are different. Cases such as House of Peace, Constanti, Penrith and Dosan held s 109B applied to continue a development consent for the use of land or a building, as is the case here. I consider s 109B does apply to the Manly LEP so that the 1953 development consent in issue continues in force to permit the use of land for a service station.

(b) do existing use rights exist under s 106,107 if there is a development consent in force?
84 The assumption in the Council’s case was that if the 1953 development consent continued in force then existing use rights could not also apply under s 106. I have held that the 1953 development consent continues in force under the EP&A Act. A further issue therefore arises of whether s 106(a) applies so that the Applicant has the benefit of existing use rights in any event.

85 This issue was considered in the context of s 109B and s 106(a) in greater depth in Currency Corporation than in the hearing before me. Biscoe J set out his reasoning, all of which is obiter given his finding that s 109B did not apply because there was no “consent” to continue in force, at [47] – [60]. At [48] he summarised the council’s argument as being that the introduction of s 109B in 1992 had a substantial effect on the definition of “existing use” in s 106 because previously an existing use could arise as a use which was lawful because no consent was required, and also as a use conducted in accordance with a planning consent. The council’s submission was that the latter category had disappeared.

86 Biscoe J concluded that s 109B does not affect the operation of s 106(a) as it does not affect the definition of “existing use” in s 106. Consequently existing use rights can also apply under s 107 or s 108 if a consent continues in force by virtue of s 109B (see [54]).

87 At [50], Biscoe J considered that s 106(a) is concerned with whether an environmental planning instrument has the effect of prohibiting the previously lawful use and does not refer in terms to “but for s 109B”. His Honour considered:
the effect of s 109B was that if any part of the development has not been “carried out” when the prohibition is introduced, then the “carrying out” of that part is not prohibited, provided that it is carried out in accordance with the terms of the consent.

He was mindful of the example given in the Second Reading Speech of the mining of part of land where development consent had been granted over the whole of the land. His Honour relied on the statements in the Second Reading Speech that s 109B was not intended to change the current legal position.

88 Biscoe J also set out the Explanatory Note in the 1992 EP&A Amendment Act [9]. He notes at [51] that the Explanatory Note gives no indication of an intention to affect the definition of existing uses in s 106. The limited operation of s 109B was confirmed in Winn and in Council of City of Gosford v Dillon (NSWLEC, Bannon J, 13 May 1994, unreported).

89 The following authorities were considered by Biscoe J to support his view at [54-57]; House of Peace per Mason P (Court of Appeal) at 507 [38]; Dosan per Lloyd J at 381 [76], Constanti per Pearlman J at 366 [48] – [49] and Penrith City Council v Penrith Waste Services Pty Ltd, (NSWLEC, Talbot J, 19 December 1995, unreported) and Lederer.



Parties’ submissions
90 The parties filed short written submissions in relation to Currency Corporation. The Council argued that Biscoe J’s premise that a use for a lawful purpose within s 106 encompassed both uses which were lawful because no consent was required and uses arising under planning consents (see [48]) was incorrect. There is no decision of the Court before the introduction of s 109B where an existing use was created by the grant of a development consent. The Second Reading Speech stated that the amendments only affected valid development consents and did not affect “operations relying on existing and continuing use rights which have no development consent” (see [8]).

91 Section 109B was declaratory of the existing law, as identified by Stein J in Steedman v Baulkham Hills Shire Council (1991) 72 LGRA 265 at 266-7. His Honour compares s 107 and s 109 on the basis that s 107 does not depend on a development consent while the latter does. Wilcox in Law of Land Development in New South Wales (1967) makes no reference to an existing use arising from a development consent.

92 The distinction made by Biscoe J that s 109B concerns a narrow issue of permitting the carrying out of development, rather than the continuation of a use to which s 106(a) is directed, is not correct. “Use” in s 106 is not used in the same sense as a use of land. “Carrying out the development” is used in s 109B because it is concerned with preserving consents.

93 The Applicant argued that the reasoning in Currency Corporation should be applied. Further an existing use could arise from a development consent for a use which was later prohibited under an environmental planning instrument as was the circumstance here.

94 The Applicant argued that “lawful purpose”’ in s 106 has the meaning considered in Steedman v Baulkham Hills Shire Council [No 2] (1993) 31 NSWLR 562 at 569 where Kirby P held in the context of s 109A:
I take ‘unlawfully commenced’ to mean that, at the time the activity said to constitute the use began, such a use or purpose was either:
(i) Prohibited; or
(ii) Permissible only with consent and consent had not been granted.

Finding on (b)
95 The parties’ submissions were directed to addressing Currency Corporation which considered the interaction of s 109B and s 106. As stated above at par 81, cl 7(1) and cl 7(4) Sch 3 of the 1979 Miscellaneous Amendment Act operate to continue the 1953 consent in force under the EP&A Act, and s 109B is complementary in continuing the 1953 consent in force by preventing the Manly LEP from prohibiting development, in this case the use of land, pursuant to the 1953 consent. There are two aspects of the Applicant’s case to consider. The first is the argument that existing use rights cannot arise from a use of land pursuant to a development consent as a result of s 109B. I understand that to be the novel part of the Council’s case. That argument is incorrect when the statute and the case law are considered. The second argument is that a consent which is still in force operates separately from the existing use rights regime under s 106 and s 107 so that the development consent holder does not also have existing use rights. That submission is correct.

96 In relation to the first argument, numerous cases including Woollahra Municipal Council v TAJJ Investments Pty Ltd (1982) 49 LGRA 123, Dosan (at [26] – [28]), Harris (Court of Appeal at 189), Penrith and Nehme (at [32] see par 50) all recognise that existing use rights can result when a lawful use carried out under a development consent becomes prohibited under an environmental planning instrument. If that development consent does not continue in force the lawful use is likely to become an existing use by virtue of the existing use provisions in a PSO or LEP. The scope of the use will be determined by the conditions of development consent no longer in force.

97 The Council relied on Stein J in Steedman at 266 – 267 where his Honour said:
In construing s 109(1) it may first be noted that the marginal note reads ‘existing consent”. When examining Division 2 of Part 4 of the EPA Act it may be observed that s 107 applies to a use of land for a lawful purpose immediately before the coming into force of an EPI which could have the effect of prohibiting that use, and allow the continuation of that existing use. This is to be contrasted with s 109(1) which deals with the situation of a use of land for a lawful purpose for which it was being used immediately before the coming into force of an environmental planning instrument which requires the obtaining of consent, that is, not a prohibited use as in s 107 but a use which is permissible but requires consent or indeed one which is permissible without consent.

The two sections (107 and 109) therefore deal with different situations. Section 107 protects an existing use for a lawful purpose which becomes prohibited by an environmental planning instrument. It allows the use to continue subject to s 107(2). On the other hand, s 109(1) deals with uses which operated without the requirement of consent or had a consent and an EPI was enacted which required consent to be obtained. In either of these circumstances s 109(1) says that “the use for a lawful purpose does not require consent under the new planning instrument for its continuance”. (266-267)

98 This was said by the Applicant to be the understanding of the law at the time that s 109B was introduced, that is, that existing uses and development consents were mutually exclusive but I do not consider that is the precise distinction being made in Steedman, rather it is whether a planning instrument prohibits a use under s 106 or permits a use if development consent is obtained under s 109. I do not agree that leads to the conclusion that existing uses only arise from uses pre-dating planning controls.

99 This is further confirmed by Kirby J in Steedman (No 2) at 569, albeit in the context of s 109 in relation to the meaning of “lawful purpose”. Kirby JA held that “unlawfully commenced” in s 109A(1) means that “at the time the activity said to constitute the use began, such a use or purpose was either (i) prohibited or (ii) permissible only with consent”. Section 109(1) is not an exception to s 109A(1) so that reasoning informs the meaning of lawful purpose in s 109(1). Kirby JA refers to the Explanatory Memorandum at the time s 109B was introduced because of the ambiguity in the language used of lawful purpose. His Honour held that “use ... for a lawful purpose” means that the “actual use immediately before the coming into effect of the relevant planning instrument must be a lawful use”. The use for a lawful purpose must be shown to be a lawful use. If a use is found to have been commenced after the first planning instrument comes into effect it was unlawfully commenced in the absence of development consent. This view was confirmed in part by consideration of the Explanatory Note after s 109B in Sch 1 of the 1992 EP&A Amendment Act. Kirby J’s reasoning is also applicable to the meaning of “lawful purpose” in s 106.

100 The limited operation of s 109B was considered in Currency Corporation and I agree that s 109B was intended to confirm the existing legal position of development consents in force, not change the legal position under s 106. The Council’s argument that s 109B was intended to effect substantial change is not correct. Given that I have held that the 1953 consent does continue in force by virtue of s 109B the outcome of this case does not hinge on this argument in any event.

101 In relation to the second argument of whether a development consent in force and not able to be prohibited by an environmental planning instrument because of s 109B excludes the operation of s 106, I agree with the Council that it does. Section 109B reflects a desire by the legislature to clarify the legal position of existing development consents so that a later environmental planning instrument prohibiting development does not affect the right to carry out development pursuant to a development consent and hence s 107 is stated to be inapplicable (s 109B(2)(c)). It was also considered necessary by the legislature in 1992 to clarify that the restrictions on development in s 109(1) did not apply to consents in force (s 109B(2)(c)). The effect of the amendment was to ensure that the rights conferred by the consent were not affected by the existing use provisions, as the Council submitted. Development includes the use of land and “carrying out of the development” in s 109B is used as that accords with s 76A of the EP&A Act. I agree with the Council’s argument that “use of land” in s 106 does not have a narrow meaning of “use” of land only. The two sections do intersect.

102 In Harris (1989), which predates s 109B and the 1995 amendment of Sch 3 by cl 7(4), the 1979 Miscellaneous Amendment Act cl 7 Sch 3 was held to apply (its effect was not in dispute in that case) so that a development consent continued in force and the relevant use of the land was defined by that consent as being for a shop of any description. It was not a use for a shop of more limited scope as would have been the case if the existing use not related to the development consent had been relied on. While this use was described as an existing use (see Clarke JA at 187) a clear distinction is made between the two types of use based on their origin. In House of Peace the distinction was made by Mason P at [34] – [36] that it was not an existing use case but that the 1954 consent governed the relevant use of land. That was also the approach of Lloyd J in McIveen where he identified that a number of consents continued in force under cl 7 Sch 3 of the 1979 Miscellaneous Amendment Act (see par 10-12) and applied s 109B to preserve their effect while also finding that uses of other land relied on existing use rights under s 106. The uses are clearly separate and do not overlap. This follows similar reasoning by his Honour in Dosan.

103 In Dosan Lloyd J at [40] stated that a development consent in force rather than existing use rights protected the ongoing lawfulness of a particular use. That consent was granted under the incorporated provisions of the Regulation made under s 108. That use did not become unlawful when an LEP prohibiting the use was gazetted because of s 109B. Similar reasoning by his Honour is found at [76] and [134]. That reasoning applies here also in relation to the effect of s 109B.

104 In Constanti Pearlman J held that existing use rights existed pursuant to s 106 or, alternatively, that s 109B applied to continue a development consent. The two types of uses did not overlap. These cases suggest that the Council’s argument on this aspect is correct. The carrying out of development under the 1953 consent is not a use prohibited by the Manly LEP by virtue of s 109B and is not a use of land to which s 106 and therefore s 107 also applies. I make the general observation that if a development consent is in force the operation of existing use rights as a “transitional mechanism” (see Kirby J in Boyts v North Sydney Municipal Council (1989) 16 NSWLR 50 at 51) appears unnecessary.

105 This conclusion means that I have applied in part Biscoe J’s obiter conclusions on the application of s 109B in Currency Corporation in that I reject the Council’s argument that existing use rights under s 106 cannot arise from a development consent. Given my conclusion that a valid development consent in force under the EP&A Act cannot co-exist with an existing use under s 106 I have not adopted all of Biscoe J’s obiter findings on this aspect.

Finding
106 I therefore make the finding that the Applicant’s 1953 development consent for a service station continues in force. As the Applicant does not have existing use rights it cannot rely on the change of use provisions in cl 41(d) of the 2000 Regulation (as then in force). I do not need to consider the second issue of whether any existing use rights have been abandoned (see par 1(ii)).