A La Turko Pty Ltd v Canada Bay City Council [2005] NSWLEC 14

Land and Environment Court of New South Wales

A La Turko Pty Ltd v Canada Bay City Council [2005] NSWLEC 14 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT A La Turko Pty Ltd

PARTIES : RESPONDENT Canada Bay City Council

FILE NUMBER(S) : 10588 of 2004

CORAM: Hoffman C

Development Application :- Conversion of existingshops to restaurant and takeaway shop - on-site parking - existing use rights - preliminary finding of fact KEY ISSUES:

Environmental Planning and Assessment Act 1979 (as amended) Drummoyne Local Environmental Plan Amendment No. 3 (1990) LEGISLATION CITED: Drummoyne Local Environmental Plan 1986 Drummoyne Planning Scheme Ordinance 1969 County of Cumberland Planning Scheme Ordinance 1951

DATES OF HEARING: 24/11/04, 26/11/04 and 12/01/05

DATE OF JUDGMENT: 01/12/2005

APPLICANT Mr G Graham, solicitor SOLICITORS Guy & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr S Patterson, solicitor SOLICITORS Wilshire Webb

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

12 January 2005

10588 of 2004 A La Turko Pty Ltd v Canada Bay City Council JUDGMENT

1 This was a class 1 appeal No 10588 of 2004 between A La Turko Pty Limited and Canada Bay City Council in regard to the refusal of an application for a restaurant and takeaway kebab shop with on-site parking at Nos. 201 to 205 Lyons Road, Drummoyne. It was on the corner with Janet Street. 2 The whole of the site had been zoned Residential 2A in 1990 under the Drummoyne Local Environmental Plan Amendment No. 3. 3 Prior to that under the Drummoyne Local Environmental Plan 1986 the front section of the site containing existing single storey shops had been zoned 9B Reservation Arterial Road Widening and the rear section of the site, containing a single storey Federation or Californian bungalow house, a back yard and a garage, had been zoned Residential 2A. 4 Prior to that, the same front section of the site to Lyons Road was zoned Reservation 2B County Road Widening, and the rear section zoned Residential 2A under the Drummoyne Planning Scheme Ordinance 1969. 5 Prior to that again, the whole site had been zoned as "Living Area" under the County of Cumberland Planning Scheme Ordinance 1951. 6 At the time of this appeal the current Residential 2A zone over the whole site prohibited shops and restaurants and takeaway food outlets, but the parties agreed that the shops at the Lyons Road frontage had existing use rights under Div 10 of the Environmental Planning and Assessment Act 1979. 7 The shops had been built around the 1920s and their rear walls abutted the front wall of the house. The layout of the house indicated it had been built first with a front yard to Lyons Road. Some time later the shops were erected in the front yard. 8 The parties' major point of disagreement was whether or not existing use rights extended to the whole site rather than just the area containing the existing shops. The parties asked the Court to determine that question as a preliminary fact before any time was spent on the merits of the proposal. 9 The overall proposal was to alter the existing shops to become a single restaurant and takeaway food shop, to retain the existing house and to demolish the garage and build an eight-car car park in the back yard with landscaping and a driveway off Janet Street. 10 The historical statutory position, disregarding the existing use rights, was in summary that prior to the Cumberland Planning Scheme Ordinance 1951 shops had been permissible with the consent of the responsible authority on the whole of the site. 11 Under the Cumberland Planning Scheme Ordinance houses were permissible without development consent except for building approval, but shops required development consent and could have been approved over the whole site. The use, predating the Cumberland Scheme by some thirty years, had probably never received consent, nor needed it at the time it commenced. 12 Under the Drummoyne Planning Scheme Ordinance 1969 shops were prohibited in the Residential A zone but in the County Road Widening Reservation 2B zone, shops were permissible with the consent of council pursuant to cl 17 of that instrument. 13 Under the Drummoyne Local Environmental Plan 1986 shops were prohibited in both the Residential 2A zone and the zone 9B Reservation Arterial Road Widening. However, cl 15(4) of that instrument permitted exceptions to allow any purpose at all in the reservation, with the consent of the council and the concurrence of the Main Roads Commissioner. 14 The Local Environmental Plan was amended in 1990 under Amendment No. 3 and under it the arterial road widening reservation was eliminated and the whole site became residential zoning in which shops were prohibited. 15 A Court-appointed planning expert, Mr Goodyear, had prepared a report and gave evidence. A summary of his evidence is that following Lemworth Pty Limited v Liverpool City Council 2001 NSWCA 389 the site uses could be divided into units, one being the existing use rights unit of the existing shops on the corner of Lyons Road and Janet Street, and the residential use of the house, yard and garage off Janet Street. He believed the residential unit did not enjoy existing use rights associated with the shops and therefore could not be used to accommodate the car park required by the change of use to restaurant and fast food takeaway shop. 16 The respondent's evidence was heard by affidavits and oral evidence on-site from: § Mr K H Hocking of 199 Lyons Road, neighbour of the proposal on the north side; § Dr T Ling of 62 Janet Street, neighbour of the proposal on the east side; § Mr C T Drury of 18 Lenore Street, a nearby resident to the site; § Mr P B Stebbing of 2 Lenore Street, a nearby resident on the corner of Janet and Lenore streets, and § Ms J Bathur of 46 Burnell Street, Russell Lea, a previous resident of the house on the subject site. 17 The applicant's evidence was heard by affidavits or written statements and oral evidence from: · Mr H Kyrikos of 6 Lymbarra Avenue St. Ives, previous owner and resident of the subject site and operator of the shop on the site as a supermarket; · Mr T Tufan-Boga of Unit 3 No. 45 St George's Crescent, Drummoyne, one of the registered proprietors of the subject property and a shareholder of the applicant company; · Mr D J Paul of 22 Brays Road, Concord, a previous resident of the subject site and son of the owners prior to Mr Kyrikos. He had been a shop assistant on-site when his parents operated a grocery shop there. He has also owned and lived in No. 62 Janet Street for a number of years from 1969 until 1987. Number 62 was adjoining the rear boundary of the subject site. 18 The evidence of Mr Paul was in summary that during his association with the premises parts of the house had always been used for storage of some of the goods sold in the grocery store. Also the garage in about 1965 had extensions during his period of residence so it acted like a loading bay and storage area. It had toilets in it for use of the employed staff of the shop. 19 He believed council had granted consent to the garage extensions as he recalled visits by council staff and the requirement for a wall above the sewer to be built in lightweight materials instead of brickwork. The existing garage had one wall like that. The garage was in the residential zone. 20 Stored goods were carried through the yard and house and down stairs that had been cut into the original front veranda of the house. The stairs gave direct access from the house to the shop. He recalled also his father had a desk in the living room and it was used as an office. 21 Some time just after 1965, extensions to the shop were built along the Janet Street frontage on land that was zoned Residential A at the time. This extension cut off the external stairs up to the original front veranda of the house from Janet Street. After that, all access to the house was via the back yard. He also recalled an aboveground tank for bulk kerosene that was erected in the back yard near the house. Kerosene was sold in the shop. He showed the Court a concrete pad and locations of pipes used to fill and to lead from the tank into the shop. 22 He said his parents sold the business in about 1971 but retained ownership of the property. They leased the shop to the buyer of the business, Mr Kyrikos. The parents lived in the house until 1973 when the property was also sold to Mr Kyrikos. Mr Paul believed whilst his parents lived in the house, they leased the garage to the shop as it was needed for storage to operate the business. 23 Mr Kyrikos did not recall the Kerosene tank in the back yard. However he did operate the shop for about five years between 1973 and 1978, after which he moved to St Ives. During that time he used the garage for storage of goods to be sold in the shop and had deliveries to the garage two or three times per week. He said the garage was the only place he used for storage and the goods were carried through the back yard and house to go via the internal stairs to the shop. He also said employees used the toilets in the garage. He agreed that except for those operations the house and back yard were only used for residential occupation. 24 When he moved to St. Ives he rented out the shop and rented the house out separately. He eventually put a toilet into the shop for the tenants so the garage toilets were not needed. Mr Kyrikos said the kitchen showroom tenant also rented the garage for storage. 25 It was put to him the residents of the house used the garage for cars and their own storage. He said there were so many tenants he could not recall if some did that. It was put to him that Ms Bathur was a resident of the house in 2001 when the kitchen showroom was still operating, and her evidence was she rented and used the garage along with the back yard and house. Mr Kyrikos said that was not his recollection. 26 But later in his evidence Mr Kyrikos said the kitchen showroom tenant had rented the garage and the toilets in it for the first two years of the tenancy until Mr Kyrikos installed the toilet in the shop. 27 He said the door from the internal stair into the shop from the house was screwed shut in 1984 when the shop became a video store. In a refit of the shops, three years before this hearing, the door was covered over with gyprock to seal it off although it and the stairs still existed. 28 So the video store use preceded the kitchen showroom use. Prior to the video store the original use as a grocery shop or a mini supermarket had persisted. Mr Kyrikos said when he bought the premises it was as a going concern including the convenience of living in the house next to the shop and having the garage for storage. The council never questioned those uses, although he was unaware if the council ever approved them. 29 There was another shop on the opposite corner of Lyons and Janet streets and council had approved its becoming a restaurant with car parking in the back yard. Its allotment was about the same size as No. 201-205 Lyons Road. Mr Kyrikos thought that he could do the same. He renovated the shops and the house in 2001 as his daughter was to move in. However, he had a stroke and heart bypass and a good offer was made on the property so he sold it. 30 Mr Tufan-Boga said he and his co-owners paid $1.34 million for the property. The shops were empty when he first saw it in 2003. The daughter of Mr Kyrikos occupied the house but moved out on settlement. 31 He said the council rates notice classified the property as business and the garbage charge was at business rates, not residential. His enquiries at the council never indicated that there were different legal uses applicable to the shops and the house and yard. He was aware the house was separate to the shops as the internal stair was blocked off at the time of purchase. 32 Council staff were made aware of the proposed use prior to settlement and initially did not require any on-site parking. That only arose after settlement of the purchase. 33 He always intended to use the loading dock with the garage for a freezer. The operation of the chain of A La Turko restaurants was done using a central kitchen. As a result food was delivered to the shops in a frozen state and stored until use. Mr Tufan-Boga had only abandoned that plan when council staff said on-site car parking was needed and he prepared the plan in Exhibit D, demolishing the garage and showing the back yard areas as an eight-car car park. 34 His solicitor had advised him the site had existing use rights but never clarified there was a difference between the shops and the house and yard. Mr Tufan-Boga did know the site was zoned residential and was listed in the Drummoyne Comprehensive Development Control Plan in cl 1.7 and Development Control Plan No. 11 as having existing use rights. That was why he consulted council staff. 35 Mr Hocking has lived at 199 Lyons Road since 1985. He objected to the proposed use. The shop was a video store in 1985 and changed some years after that to a kitchen showroom. When that ceased some years before this hearing the shops remained vacant. Since 1985 he believed the house, yard and garage were used only for residential purposes. He could observe the back yard from his own property. The only non-garage use was one tenant conducting a garage sale from it four years prior to this hearing. 36 Dr Ling and her husband had lived in No. 62 Janet Street since 1992. They also object to the proposal. During that time she had observed the house, the yard and garage being used but only for residential occupation. She recalled each tenant by name except for the current tenants. One of the earlier tenants of the house had a lawn mowing business and the utility truck and mowers were kept in the garage. She had never observed a commercial use of the garage unless that constituted one. 37 Mr Drury and his family lived at 18 Lenore Street since 1986. It was just around the corner from the subject site and Mr Drury walked past it many times each week. He travels to work by bus, and the bus stop requires walking down Janet Street to Lyons Road. Access to the local shops and service station also require a walk or a drive past the subject site. Over the eighteen years he had seen No. 201-205's garage open with a vehicle in it many times. The storage bay was visible too but he only saw domestic items there. Frequently he had observed the house and seen activity through its windows and on the Janet Street terrace and items such as the clothes line visible over the fence. The house, yard and garage had always been used for residential occupation in that period and no other use from what he saw. The shop was a video shop when he first saw it, then changed to a kitchen showroom. He had not seen any other use of the shop. 38 Mr Stebbing had lived at No 2 Lenore Street since 1992. Being on the corner just uphill of the subject site he could see the Janet Street side from his property and the back of the house and the garage. When the shop was a video shop, the house, yard and garage were used for residential occupation with the garage used for the house residents' vehicles. After the change of the shop to a kitchen showroom the house, yard and garage continued to be used for residential occupation except in periods of vacancy between tenants. About two years before this hearing the kitchen showroom closed and renovations were done to the shop, including the division of it into two separate shops. 39 Ms Bathur lived in the house on the subject site for eighteen months from April 2001. She was the leaseholder of the house and the lease included the yard and the garage that were used only for residential purposes. The shop was used as the kitchen showroom during her occupation of the house. About a year before she left the house the kitchen showroom closed and a couple of months later renovations to the shop commenced but she never saw the shops reoccupied. Towards the end of 2002 she received a notice to vacate and was told the owner's daughter wanted to move into the house. 40 From the evidence, and dealing only with the question of existing use rights, Mr Goodyer had concluded prior to 19 December 1969 under the provisions of the County of Cumberland Planning Scheme Ordinance, the use of the whole site including house, yard and garage, could have been considered for a shop but only the existing shop structure appeared to have that use. On 19 December 1969 gazettal of the Drummoyne Planning Scheme Ordinance zoned the house, yard and garage Residential 2A and a shop or commercial use became prohibited in that zone. A small part of the original front veranda of the house was in the Reservation 2B County Road Widening Zone. The shop was entirely in the zone except for the 1963 extension of the shop on the Janet Street frontage that was in the residential zone. That section of the shop obtained existing use rights in 1969. 41 Somewhere between 1961 and 1970 the garage was extended to provide the loading bay in which goods for the shop were stored. It was probably around 1965 in Mr Paul's recollection. The Court also saw on-site in the garage small rooms that used to be toilets and from appearances they had long been removed. Under either the Cumberland County Planning Scheme Ordinance or under the Drummoyne Planning Scheme Ordinance in those years the use of the garage for that commercial use would have required council development consent, whereas if it was only for use in conjunction with the dwelling, no development consent would be needed except for building approval. There was no record of any application or any consent for the commercial use of the garage, whereas in 1963 there was such documentation for the shop extension. 42 In 1979 the council dealt with the development application for a veterinary hospital in the shop with residence attached. Consent was never acted upon. The application sought to use the garage and loading dock for staff and supplies and parking of cars. 43 The next development application on the site was in 1980 for an interior design showroom. That was approved by council with the condition that the rear yard be used as a four-car car park. That consent was never acted upon. 44 The next development application on the site was for the use as a video shop in 1984. This appeared to apply only to the shop, although a file note in council's records indicated a staff toilet was available in the rear yard as part of the proposal. 45 The next development application on the site was in 1993 for the kitchen showroom, and it appeared to refer only to the shops. 46 The renovations development applications for the shops in 2002 also appeared to refer only to the shops. 47 The applicant put that the council had consistently dealt with the site on the basis that the commercial use applied to the whole site. Prior to 1969 commercial use was permissible use on the whole site, so the extension of the shops in 1963 and the garage for storage and loading in 1965 acknowledged that use of the whole site. 48 After 1969, the applicant said, the only valid legal way the council could consent to the veterinary hospital in 1979 and the interior design showroom in 1980 and the video store in 1984, all of which used the garage, was if existing use applied to the residential zoning of the site. 49 Commercial use in the road widening zone was a permissible use until 1990. It was only the residential zone where the existing use provisions arose. 50 The consent of 5 June 2002 for replacement of windows in the shop stamped a plan that showed the garage as "garage and office". That confirmed council's continuing to deal with the site as if existing use rights applied to the whole of it. Drummoyne Development Control Plan No. 11 which identified the site, and others in Drummoyne, as having existing use rights made no statement about it being only part of the site. The council staff negotiations on the subject application were consistent with that approach up until purchase of the property by the applicant. 51 The applicant submitted case law that such a consistent approach gave the applicant a claim that existing use rights still applied to the whole site. 52 In coming to its conclusion the Court has the following in mind: Up until gazettal of the Drummoyne Local Environmental Plan Amendment No. 3 on 7 September 1990 the shops on the Lyons Road frontage were still a permissible use in the road widening reservation zone. But between gazettal of the Drummoyne Planning Scheme Ordinance 1969 up until the amendment No. 3 gazettal, the only way consent could be granted validly by the council to commercial uses of the house, yard and garage, was by the acceptance that existing use rights applied to the whole site. 53 The facts are, in that period the council did grant consents involving commercial use of parts of the site in the residential zone. 54 The critical question in this appeal was whether the council could validly accept existing use rights over the whole site now in connection with this current application. The reason this is critical came from the applicant's submissions that the fact of those consents in the previous period showed under the Lemworth test that the whole site was a single unit of use. 55 The respondent's submission, in effect, was that even if the council granted consent in the previous periods, it did not disturb the contention that the more recent changes to the legislation and the Lemworth test revealed the site was now in two units of use, namely the shops on the Lyons Road frontage and the residential use of the house, yard and garage. The respondent said that consents for the veterinary hospital and the interior design car park did not extend the existing use rights because the actual uses did not commence. 56 Mr Goodyer agreed with this latter position but with a further reason. He said if any existing use rights had continued to apply to the house, yard and garage, they had been abandoned prior to this development application by A La Turko Pty Limited. Having been abandoned by a previous owner of the property, A La Turko could not revive them. 57 Based on the evidence of the objectors the house, the yard and the garage had not been used in conjunction with the shop for many years. The toilet in the garage had been removed and since around 1995, when Mr Kyrikos put the toilet in the shop, the last historical justification for the garage to be operated with the shop was deleted. After twelve months, abandonment occurred under the current existing use right provisions of the Act. Since 1996 and between 1996 and 2004, the evidence of the local residents and a past tenant of all three items, the house, yard and garage, attested to that abandonment. 58 There was no evidence that the house, the yard and garage had been held in reserve for the expansion of the existing use. 59 Even if the council's consents in 1963, 1980 and 1984 were an acknowledgment of existing use applying to the whole site at that time, the existing use rights provisions changed with the gazettal of the Drummoyne Local Environmental Plan 1986 and the existing use provisions changed under the Environmental Planning and Assessment Act in 1986 also. Further changes to the Act occurred in 1994. They resulted in a narrowing of the existing use rights provision such that they only apply to the area or unit within which the existing use continued since the time it became prohibited. 60 Even if there was substantiation that the commercial use of the garage had continued up until the video store commenced, circa 1984, it was a permissible use with consent at that time. However, unlike the extensions to the shop in 1963 there was no evidence of a development consent for the garage. And even if there was consent, and the kitchen showroom rented and used the garage for two years after 1993, the evidence indicated the house and yard were certainly not used for commercial purposes since the video store commenced and the garage ceased to be used, at the latest, in 1995. 61 But of most relevance to this case was the changes to the Environmental Planning and Assessment Act in 1994 and the area within which the existing use rights have operated since that date. That area is certainly the area of the shops and not the area of the house, yard and garage. The stamping of the plan in 2002 to renovate the shops does not constitute actual use of the garage for commercial, just because the plan nominates the building in the back yard as garage and offices. It was shown during the hearing that that particular plan was one which originated many years prior and actually had been used in one of the previous applications. 62 Actual use is the crucial fact of the matter, notwithstanding any recent dealings with the council staff. The council itself in the end did not treat the subject application as if existing use applied to the whole site. Its current status only came into question with this development application. 63 Given the overall purpose of the changes to the legislation explained in Lemworth v Liverpool City Council the long term intention is to confine existing uses since they are by nature contrary to the purposes of the current zoning; that, in this case, is residential uses. The expansion of commercial uses within the residential zone is therefore undesirable and with existing use rights unproven, the orders of the Court must be: (1) The appeal is dismissed. (2) The exhibits are returned to the parties, except for exhibits 3, 10, 11, D and E. (3) Costs are reserved. 64 In handing down the oral decision on the preliminary question of facts sought by the parties I had assumed the parties had sought the question on the usual basis that if it was unfavourable to the applicant the answer could be determinative of the whole appeal. As a result I had framed Order 1 as a dismissal of the whole appeal since the finding of fact was that existing use rights apply only to the existing shops. 65 Both parties have put to me that the finding may not be fatal to the whole appeal. Since I had not heard any submissions on the finding of the preliminary question it is reasonable that I do not finally determine the appeal until submissions and perhaps further evidence is heard. Since the finding was delivered orally and no written orders issued by the Registrar under Pt 15 Rule 4, it is appropriate to apply Pt 15 Rule 9(b) of the Land and Environment Court Act 1979 and thereby I set aside Order 1 and refer the file to the Registrar for callover on 2 February 2005 to set a date for resumption. 66 The directions of the parties are: 1. The parties to appear at callover on 2 February 2005 to set a date for resumption.

2. The exhibits are returned to the parties, except for Exhibits 3, 10, 11, D and E.

3. Costs are reserved.

____________________ K G Hoffman Commissioner of the Court rjs

20/01/2005 - slip rule correction of text - Paragraph(s) 65

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