Ashfield Municipal Council v Armstrong [2002] NSWCA 269 (23 August 2002)

Last Updated: 26 August 2002

NEW SOUTH WALES COURT OF APPEAL

CITATION: Ashfield Municipal Council v Armstrong [2002] NSWCA 269

FILE NUMBER(S):

41049/01

HEARING DATE(S): 30/07/02, 01/O8/02

JUDGMENT DATE: 23/08/2002

PARTIES:

Ashfield Municipal Council (Appellant)

Leonard Armstrong & Christina Armstrong (Respondents)

JUDGMENT OF: Mason P Handley JA Davies AJA

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): LEC 40184/01

LOWER COURT JUDICIAL OFFICER: Talbot J

COUNSEL:

M G Craig QC/ J A Pickles & D Parry (Appellant)

D P Wilson (Respondents)

SOLICITORS:

Pike Pike & Fenwick (Appellant)

Wilshire Webb (Respondents)

CATCHWORDS:

LOCAL GOVERNMENT - Town Planning - whether existing use - distinction between the use of the premises and the physical attributes of the premises discussed - ambit of Council's approval discussed - whether use continuous - maxim omnia praesumuntur rite esse acta applied - presumption of continuance applied. D

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, ss 106, 107

Local Government Act 1919, s 309(2)

Miscellaneous Acts (Planning) Repeal and Amendment Act 1979, Schedule 3 cl 7(1)

Environmental Planning Legislation Amendment Act 1995, s 3

Local Government (Regulation of Flats) Act 1949

Local Government (Regulation of Flats) Act 1955

DECISION:

See paragraph 51.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 41049/01

LEC 40184/01

MASON P

HANDLEY JA

DAVIES AJA

Friday 23 August 2002

ASHFIELD MUNICIPAL COUNCIL v LEONARD ARMSTRONG & CHRISTINA ARMSTRONG

Judgment

1 MASON P: I agree with Davies AJA.

2 HANDLEY JA: I agree with Davies AJA.

3 DAVIES AJA: This is an appeal from a judgment of a judge of the Land and Environment Court of New South Wales, Talbot J.

4 The respondents Leonard and Christina Armstrong had commenced Class 1 proceedings by way of appeal against a refusal by the Ashfield Municipal Council of a development application for alterations and additions to a residential flat building, No 6 Kensington Road, Summer Hill. An issue arose in those proceedings as to whether the use of the premises was an "existing use" for the purposes of ss 106 and 107 of the Environmental Planning and Assessment Act 1979 (the "EPA Act").

5 The EPA Act provides, inter alia:

"106. Definition of "existing use"

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

...

107 Continuance of and limitations on existing use

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

6 The subject premises were a residential flat building comprising four flats. The Ashfield Local Environment Plan ("the Ashfield LEP") came into force on 20 December. Its terms prohibited such a use of the premises. The issue raised, therefore, was whether the use of the premises as a residential flat building was a lawful use in December 1985 and therefore permitted by s 107 of the EPA Act.

Existing use - 1985

7 The respondents instituted a class 4 application seeking the following:

"A declaration that the use of land known as Lot 1 in DP 908000, 6 Kensington Road, Summer Hill is an `existing use' for the purpose of a residential flat building under the provisions of The Environmental Planning and Assessment Act 1979."

8 On 7 December 2001, after hearing the parties, the learned trial judge made the following declaration.

"The use of the building on land known as Lot 1 in DP 908000, 6 Kensington Road, Summer Hill for the purpose of multiple occupancy residential accommodation including a residential flat building is an existing use within the meaning of Section 106 of the Environmental Planning and Assessment Act 1979."

9 The premises had been in existence for many years and pre-dated the Ordinance No 105 Town and Country Planning - General Interim Development ("Ordinance 105"), which was proclaimed on 9 November 1945 pursuant to Pt XIIA of the Local Government Act 1919 and came into operation on 12 July 1946. A few years later, the County of Cumberland Planning Scheme Ordinance ("the Planning Scheme") came into effect as from 27 June 1951.

10 The crux of the submissions presented by Mr Malcolm Craig QC, with whom Mr J A Pickles and Mr David Parry of counsel appeared for the Council, was that, in the proceedings before the trial judge, the respondents had the onus of proof of establishing that the use of the premises as a residential flat building comprising four flats was one which commenced prior to the introduction of Ordinance 105 on 12 July 1946, or was one which had been sanctioned by a development consent prior to the commencement of the Ashfield LEP in December 1985.

11 In specifying "four flats' as a component part of the "use", Mr Craig's submission elided the distinction between use and building. The provisions of the EPA Act set out above are concerned with "existing use", that is, the "use ... for a lawful purpose" of premises. They are not concerned with the issue as to whether all alterations and additions to the premises over the years have been lawfully made or whether the Council may call upon the respondents to remove any works which may have been effected without approval.

12 Mr Craig submitted that it is necessary to identify the relevant use. I agree that, insofar as a declaration is made as to existing use in December 1985, it is proper to identify the use actually being made of the premises. In the application of s 106 of the EPA Act, it is necessary to look at the actual use as at the date of the coming into operation of the planning scheme, and not at other uses which may have been permitted under the superseded planning scheme.

13 In Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529, Kitto J expressed the general principle in these terms, at 535:

"[I]t is necessary to observe that the `existing use' by-laws take two steps which should be kept distinct from one another. First it is required that a purpose be identified as the end for which it can be seen that the premises are being used at the date of gazettal of the by-laws. Then the provision is made that the land may continue to be used for that purpose: not that the precise manner of use for that purpose may alone continue but that use generally for that purpose may continue. The application of the by-law in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date. This question being answered, it remains only to inquire, when a use that is being made of the premises at a later date is challenged as not being authorized by by-law 372, whether that use is really and substantially a use for the designated purpose. That will often be a question of fact and degree: cf. Marshall v Nottingham Corporation [1960] 1 WLR 707; and for that reason border-line cases will inevitably arise in which opinions will differ. But to seek more precise guidance from the by-laws is vain.

If premises were being used as professional offices at the commencement of the by-laws, no greater degree of particularity in defining the purpose is likely to appeal to practical minds as appropriate in the application of town-planning legislation than is involved in saying that the purpose is that of professional offices: the particular profession of the occupant would not ordinarily be adverted to by a person speaking in a town-planning context. The answer is perhaps not so easy in the case of a shop. As to a butcher's shop, for example, I should be inclined to think that while it would be immaterial to inquire into the details of the user the `purpose' in the relevant sense would be the purpose of a butcher's shop, and not of a shop generally."

In Shire of Perth v O'Keefe, Kitto, Menzies and Owen JJ held that the use of the premises at the relevant time was that of pottery making.

14 In Woollahra Municipal Council v Banool Developments Pty Ltd [1973] HCA 65; (1973) 129 CLR 138, Mason J, with whom Barwick CJ, McTiernan J and Gibbs J agreed, cited at 145-6 the words of Kitto J which I have set out and said, at 145, that the fact that s 309(2) of the Local Government Act 1919 was a provision:

"which makes lawful a continuation of a use which would otherwise be in breach of the proclamation supplies an indication that the purpose which is there referred to is specific rather than general."

15 In Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305, McHugh JA, with whom Hope JA and Samuels JA agreed, said at 309-10.

"The object of `existing use' provisions in town planning legislation is to permit the continuation of the use of land for any purpose for which it was used immediately before the passing of the legislation even though the terms of the legislation prohibit that purpose wholly or partly or upon conditions. The rationale of these saving provisions is that it is unjust to deprive an owner of the right to use his land for an existing purpose. Because `existing use' provisions are incompatible with the main objects of the legislation of which they form part, the courts have had to develop principles which reconcile the right of owners to have the full benefit of the existing use of the land with the right of the local authority to enforce the conflicting objectives of town planning legislation. The courts have done so by refusing to categorise an `existing use' so narrowly that natural changes in the method of using the land or carrying on a business or industry will render an existing use right valueless. At the same time, the courts have been concerned not to categorise the purpose of an existing use so widely that the land or premises could be used for a prohibited purpose which was not part of its use at the commencement of the legislation. Accordingly, a test has been devised which requires the purpose of the use of land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. Thus the test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. But it is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land."

16 Applying these principles, I am satisfied that the declaration made by the trial Judge was too wide. I would limit the declaration by excluding the reference to multiple occupancy residential accommodation. Accordingly, the declaration should read:

"The use of the building on land known as Lot 1 in DP 908000, 6 Kensington Road, Summer Hill for the purpose of a residential flat building is an existing use within the meaning of s 106 of the Environmental Planning and Assessment Act 1979".

I would not include in the declaration any reference to the physical characteristics of the premises.

Clause 34 consent - 1953

17 I turn to the issue as to whether the use of the premises as a residential flat building immediately prior to the coming into operation of the Ashfield LEP was a use for a lawful purpose. I do not propose to deal with the facts in great detail. I have not been persuaded by counsel for the appellant that there was any error in the findings of fact of the trial judge. Moreover, I do not agree with counsel's submission that it is necessary to find an identical use of the premises from 1946, prior to the coming into operation of Ordinance 105, continuously through to the present day.

18 Immediately prior to the coming into operation of the County of Cumberland Planning Scheme in 1951, the premises were being used for flatettes, that is to say, units which were self-contained save that there was a common bathroom.

19 Clause 32 of the Planning Scheme provided, inter alia,:

"An existing building or existing work may be maintained and may be used for its existing use and an existing use of land may be continued:

"Provided that -

...

(b) where there is an existing use of an existing building or existing work which would have contravened some provision of this Ordinance if such use had been commenced after the appointed day or had been continued after that day without the consent of the responsible authority; or"

...

the responsible authority may subject to the provisions of clauses 33 and 34 serve on the owner and occupier of the building, work or land and on any other person who in the opinion of the responsible authority may be affected thereby, notice (in this Part of this Ordinance referred to as `warning notice') that, at the expiration of a period of one month or such longer period as is determined by the responsible authority and specified in the notice, the retention of work or land will be a contravention of the provisions of this Ordinance."

No such notice was served upon the owner and occupier of the premises.

20 Clause 34 of the Planning Scheme provided, inter alia:

(1) If an existing building or existing work is such that had it been erected or carried out after the appointed day its erection or carrying out would have been permissible with the consent of the responsible authority or if an existing use of an existing building or existing work would have been permissible with such consent had the building been erected or the work carried out after that date, or if an existing use of land is such that if it had been commenced after that date it would have been permissible with the consent of the responsible authority, the owner or occupier of or any person having an estate or interest in, the building or work or land may apply to the responsible authority for its consent to the retention of the building or work or to the continuance of the existing use of the building, work or land, as the case may be.

Any application under this subclause may be made at any time before service on the applicant of a warning notice or at any time after service of such notice and before the prescribed notice under s 342P of the Act takes effect.

(2) In any case where the application under this clause is made to the responsible authority the operation of a warning notice whether served before or after the making of the application shall be suspended pending the decision of the responsible authority on such application and, in any case where an appeal against the decision of the responsible authority is made as hereinafter provided, the operation of the notice shall be suspended pending the determination of the appeal.

An appeal may be made by the applicant against the decision of the responsible authority under this clause in accordance with the provisions of section 341 of the Act, and the provisions of that section shall extend, mutatis mutandis, to and in respect of any such appeal.

(3) If consent is given under this clause to the retention of the building or work or to the continuance of the existing use of the building, work or land, the responsible authority shall not serve a warning notice, and in the case where any such notice may have been already served, such notice shall cease to have effect."

21 Clauses 35 and 36 of the Planning Scheme provided, inter alia:

"35(1) Notwithstanding the foregoing provisions of this Ordinance, an existing building, the erection of which would have contravened some provision of this Ordinance if it had taken place after the appointed day or had taken place after the appointed day without the consent of the responsible authority, may be altered, enlarged, or extended, or added to by the erection of new buildings, provided -

(a) the responsible authority having regard to the circumstances of the case and the public interest approves the alteration, enlargement, extension or addition unconditionally or subject to conditions;

...

36. The right conferred by this Part of this Ordinance to continue the use of an existing building shall where such building was immediately before the appointed day used for more than one purpose include a right to alter the proportion in which the several parts of such building were used immediately before that day."

22 An application under clause 34 was made by a bank which claimed to have an estate or interest in Nos 4 and 6 Kensington Road, Summer Hill. The application said:

"The Bank is interested in the properties described hereunder and desires consents under Clause 34 of the above Ordinance for the continued use and/or development of the properties as flatettes:-

No 4 Kensington Road, Summer Hill - present owner H R Feather - being parts of Lots 15, 16 and 17 of Section 5.

No 6 Kensington Road, summer Hill - present owner Mrs C M Feather - being parts of Lots 15, 16 and 17 of Section 5."

23 A Works Committee's report which went to the Council for its consideration read as follows:

"Clause 6134. Commonwealth Bank, Dungog. Kensington Road Nos 4 and 6. Approval sought to the continued use of the premises as flatettes. Report by the Town Planner:

`I recommend approval be given to the continued use of these premises as residential buildings.'

Recommendation: That the report be adopted and approval be granted."

24 On 13 October 1953, the Council adopted that part of the Works Committee's report.

25 Subsequently, on 14 October 1953, the Town Clerk wrote to the respondent as follows:

"Replying to your letter of the 23rd ultimo, I wish to advise that the Council offers no objection to the continued use of premises Nos. 4 and 6 Kensington Road, Summer Hill as flatettes."

26 Notwithstanding the Town Clerk's reference to flatettes, it is clear that the Council approved the use of the premises, Nos 4 and 6 Kensington Road, as residential buildings.

27 The consent granted was an effective consent to the existing use of the premises. Part VI of the Planning Scheme makes provision with respect to the making of application for consent and the granting of consent. There is no reason to restrict the provisions of that Part to applications for a new or varied use. In Felt & Textiles of Australia Pty Ltd v Sydney City Council (1954) 19 LGR 238, Sugerman J explained this when he said at 241-2:

" On a consideration together of the provisions of cll.26, 28, 29, 32, 34 and 41 of the Ordinance the responsible authority in my opinion has under cl.34 a discretion to determine whether or not it will grant consent to the retention of an existing building, & c., or the continuance of an existing use, within Column IV in the Table to cl.26, subject, of course, to the appeal to this Court, which is provided for by cl.34(2). Existing column IV buildings and uses, as well as existing Column V buildings and uses, are expressly included within the power of the responsible authority to serve warning notices under the proviso to cl.32. No provision is made for consent to the retention or continuance of a Column V building or use. That the existing building or use should fall within Column IV, and not Column V, is a condition governing the right to apply under cl.34, and not a measure of the responsible authority's discretion thereunder. Even apart from the provisions of cl.41(3), cl.34 itself contains ample indication that the responsible authority is to have a discretion in deciding an application, which, if it is to be brought at all, must relate to a Column IV use; see the reference in sub-cl.(2) to `the decision of the responsible authority upon such application', and the terms of sub-cl.(3) which import that consent may or may not be given to the retention or continuance of the building or use, which, ex hypothesi, is a Column IV building or use."

His Honour's reference to cl 41(3) was a reference to one of the provisions in Part VI of the Planning Scheme.

28 In South Sydney City Council v M & D Cooper [1997] NSWLEC 72 Bignold J expressed the same view when he said:

"However, it is tolerably clear in my judgment that consent granted under cl.34 of the County Scheme for the retention of an existing building is equivalent to a consent to erect that type of building."

29 In any event, subsequent legislation now provides that the consent granted on 13 October 1953 shall be treated as a development consent for the purposes of the EPA Act. Clause 7(1) of Schedule 3 of the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 provided:

"7(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, 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."

30 The Environmental Planning Legislation Amendment Act 1995 provided, inter alia:

"3. The Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 is amended by inserting after clause 7(3) in Schedule 3 the following subclause:

(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."

31 The terms of those provisions encompass the consent granted under cl 34 of the Planning Scheme.

32 In my opinion, the Council was entitled to express its consent in the terms which it would have used had an application been made to it for consent to a new or altered use. Clause 34 empowered the Council to grant consent "if an existing use of land is such that if it had been commenced after that date (the appointed day for the commencement of the Planning Scheme) it would have been permissible with the consent of the responsible authority."

33 The Council was entitled to refuse its consent or to grant consent on such conditions as it saw fit and was entitled to express its consent in such terms as it considered appropriate to the circumstances. This was not a circumstance where the principle which I have earlier discussed had application. This was a circumstance where a use was permissible with the Council's consent. That consent was applied for and the Council had power to grant its conditional or unconditional consent in such terms as it saw fit. See the discussion by Sugerman J in Felt & Textiles of Australia Pty Ltd v Sydney City Council at 241-2.

34 The Council gave its consent to the continued use of the two buildings as residential buildings. There was a sound basis for the use of that description. Clause 26 of the Planning Scheme provided that the purposes for which buildings may be used were set out in Parts I and II of the Table to the clause. In Table I, Column I specified "Living Area". Column III provided that the purpose for which buildings in the zone may be used without consent was "Dwelling-houses". Column IV provided that the purposes for which buildings in the zone may be erected or used only with the consent of the responsible authority were:

"Residential buildings; places of public worship; places of assembly; places of instruction; public buildings; hospitals; shops; commercial premises, other than warehouses and bulk stores; professional chambers; local light industries; utility installations other than generating works; any other purpose not referred to in Column III or Column V."

Column V specified certain purposes which were prohibited.

35 Clause 24 defined "Residential building" as:

"'Residential building' means a building, other than a dwelling-house, designed for use for human habitation together with such outbuildings as are ordinarily used therewith, a residential flat building, a hostel, an hotel designed primarily for residential purposes and a residential club, but does not include any building mentioned, whether by inclusion or exclusion in the definitions of `places of instruction' and `institution'".

36 As can be seen, Column IV specified the uses for which building may be used with consent. One of those purposes was "Residential buildings". The Council granted consent to the use of No 6 Kensington Road, Summer Hill for that purpose. That was an appropriate description of both the existing use of the premises and the use proposed.

37 It was submitted by Mr Craig that the consent was invalid in that it had not been proved that the use of the premises as at the coming into operation of the Planning Scheme was a lawful use. There are several answers to this submission. One is that the fact the electoral rolls from 1943 to 1949 disclose that between 3 and 5 persons with unrelated names were residing in the premises at the same time. By 1949 the premises were described as "flats" in the records of the Valuer-General. These facts suggest the continuous use of the premises as a residential building since prior to the coming into operation of Ordinance 105.

38 Another answer is that clause 34 should be interpreted according to the words which it used. It provided that, if an existing use of the land was such that, if it had been commenced after the date of the commencement of the Planning Scheme, it would have been permissible with the consent of the responsible authority, then the owner or occupier may apply to the responsible authority for its consent to the continuance of the use. That is precisely what happened in the present case. As consent was required, there is no call to place a restrictive interpretation upon the clause.

39 In Wilcox's The Law of Land Development in New South Wales, 1967, the learned author said, at pp 266-7:

"What then of a use which, immediately prior to the scheme, was unlawful because carried out without interim-development approval? It might be cogently argued, on the principle of Grozier v Tate (1946) 64 WN (NSW) 1; 16 LGR (NSW) 57 as adopted in Bourne v Marrickville Municipal Council (1954) 19 LGR (NSW) 218, that such a use should likewise be denied the protection of cl.32. This was indeed argued for the respondent council in H & W Hurdis Pty Ltd v Lane Cove Municipal Council (1956) 20 LGR (NSW) 322 but to no avail. Hardie J held that the phrase `existing use' was not to be so limited. In doing so he referred to cll.33,34 and 54(1) and (2). Although his Honour did not elaborate it would appear that he regarded cl 54 as critical. That clause, by sub-clause (1), declares development which was carried out between 12th July, 1946 and the appointed day otherwise than in accordance with the Town and Country Planning (General Interim Development) ordinance or of any permission under that ordinance or under Div 7 of the Act and which does not conform with the County ordinance to be deemed to be in contravention of the County ordinance. Sub-clause (2), as it then was, went on to apply to such development the provisions of Pt IV (ie the existing use provisions) of the ordinance. The implication was that illegal interim development, though deemed a breach of the County ordinance, was to be protected as an existing use."

In my opinion also, cl 54(2) of the Planning Scheme expressly subjected unlawful development during the period of Ordinance 105 to the provisions of Part IV of the Planning Scheme, including cl 34.

40 A final point is that the principle omnia praesumuntur rite esse acta presumes that, in the absence of cogent proof to the contrary, formal acts, particularly official acts, that were done were rightly done. It is very late to be challenging the validity of the consent of October 1953. Back in 1953, the officers of the Council would have been in a position to check the history of the subject premises. It is contrary to the maxim to require the respondents at the present time to prove what was the state of affairs with respect to the premises back in the 1940's. Had the Council's officers had any concern about the property at the time they could have raised it and the Council could have refused its consent. The consent granted in 1953 has stood for many years and is strong evidence of the fact that the Council legally and regularly consented to the use of the premises as a residential building. To my mind, the challenge made by the Council to the consent which it granted on 13 October 1953 is an extraordinary one.

Continuous use

41 Mr Craig submitted that the use from 1953 to 1985 was not continuous. The letter from the Town Clerk of 13 October 1953 and the letter of application for consent indicated that the use of premises was as "flatettes". However, it does not appear that the distinction between flatettes and flats had any significance for the purposes of the Planning Scheme.

42 It may have been debatable as to whether the individual occupancies in the premises each constituted a "flat" for the purposes of the Local Government (Regulation of Flats) Act 1949 and the Local Government (Regulation of Flats) Act 1955. However, that issue does not appear to have arisen.

Throughout the period with which we are concerned, officers of the Council generally referred to the premises as a "residential flat building", a term consistent with the concept of "flatettes". In North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd [1990] 21 NSWLR 532, the Court distinguished a residential flat building from serviced apartments on the ground that the latter had temporary occupants. The concept of flatettes is one involving long-term occupation.

43 In 1974, a note in the Council's records recorded "six (6) residential flats of poor standard". In December 1974, another note recorded "Inspection of the premises has revealed that there is only one bathroom and one laundry for the five separate occupancies". That report noted "the approval of the continued use of the premises as a residential flat building" and recommended that steps be taken to raise the standard of the building to satisfactory residential accommodation.

44 In July 1974, the Council served a notice on the owners of the premises requiring them to cease the use and occupation of the land as a residential flat building as that such use and occupation had taken place without the consent of the Council. That notice was responded to by the owners' solicitor who drew attention to the consent granted in 1953. On 25 October 1974 the Town Clerk wrote to say:

"A check of the Council records does disclose that the subject premises has been approved as residential flats.

The notices served under the Local Government Act 1919, No 10547, and under Section 317B(1A) should therefore be disregarded."

45 Later records of the Council continued to refer to the premises as residential flats. By the early 1980's the premises were comprised of 4 self-contained flats.

46 Mr Craig referred to the fact that, during the early 1960's, the Council's Licence's and Permits Register recorded the premises as having a boarding house licence. He submitted that the premises were at that point of time more in the nature of a boarding house than in the nature of flatettes or flats. However, as the Council took no steps to close the premises during the 1960's, I am not satisfied that any change in use which then occurred was of sufficient significance to indicate that the premises were not a residential flat building, or that the continued use of the premises for that purpose had been abandoned.

47 Notwithstanding that the 1953 consent referred to "residential buildings", which encompassed the wide variety of activities referred in the definition in cl 24 of the Planning Scheme, I am of the opinion that the consent should be read in the context of the use as at 13 October 1953. Thus, I would not accept that the consent permitted, for example, the use of the premises as "an hotel designed primarily for residential purposes". However, the term "boarding house" was not referred to in the Planning Scheme. A boarding house was encompassed within the general terms of "residential buildings". Although the Council granted a licence to operate the premises as a boarding house, I am not satisfied either that the use of the premises in the early 1960's was outside the terms of the 1953 consent, or that the nature of the use of the premises had significantly changed. The inference to be drawn is that the Council's officers considered the use to be lawful. Although the precise facts of the position in the 1960's are not known, the records of the Valuer-General in the 1960's, during which time there was an increase in valuation, described the premises as "House. Used as Flats."

48 In my opinion, the facts raise a presumption of continuance and lawfulness. The use of the premises was the subject of a consent granted on 13 October 1953. In December 1985, on the coming into operation of the Ashfield LEP, the use of the premises met both the description "residential buildings" in that consent and the description "residential flat building" which appears to have been the use underlying the grant of the consent. The evidence does not suggest to me, nor did it suggest to the trial judge, that there was any such significant change of use during the period 1953 to 1985 that the 1953 approval was abandoned or, indeed, that the description "residential buildings" became inappropriate. As I have said, had the Council considered the use of the premises to be illegal, it had adequate means to prevent that illegal use.

49 The respondents had the overall onus of proof. However, the facts of the case raised a presumption of continuance. This is not a presumption of law but rather an inference of fact to be derived from the course and nature of events. There is often a pattern in the affairs of people. In the use of buildings, that pattern tends to be relatively stable.

50 These premises were described as flats in the records of the Valuer-General as far back as 1949. The premises were described as a residential flat building in Council's records on many occasions throughout the period. They are flats at the present time. They were flats during the 1980's. And they were described as flats or flatettes in 1953 and in 1974, when officers of the Council accepted that there was a lawful continuing use pursuant to the consent granted on 13 October 1953. There would need to be strong evidence to persuade me that the use of the premises significantly changed at some stage during the period. The trial judge was not so satisfied, nor am I. I am satisfied that the premises continued to be occupied pursuant to the consent of 13 October 1953.

Orders

51 I would allow the appeal to the extent of setting aside the declaration made by the trial judge. I would substitute the declaration that:

The use of the building on land known as Lot 1 in DP 908000, 6 Kensington Road, Summer Hill for the purpose of a residential flat building is an existing use within the meaning of s 106 of the Environmental Planning and Assessment Act 1979.

I would otherwise dismiss the appeal. I would order that the appellant pay the costs of the appeal.

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LAST UPDATED: 23/08/2002