Posted on June 15, 2022 by Liam Mulligan and Megan Hawley 11

Existing uses – understanding the land being used

In any case involve existing use rights, one of the most critical issues is the extent of the land being used for the existing use. The determination of this issue is often a difficult exercise, requiring a detailed analysis of the history of uses and operations at the particular site against the background of the applicable planning controls and any relevant development consents. A recent decision of Commissioner Gray in the Land and Environment Court neatly illustrates the potential difficulty and complexity of the exercise.

The case concerned a development application by the operator of a fruit and vegetable store at Llandilo. The store operated under existing use rights, as fruit and vegetable stores were prohibited on the site. The DA sought consent for alterations and additions to the store, as well as consent to use an existing shed at the site for the storage of fruit and vegetables. The alterations and additions to the existing store were not controversial.

However, Council opposed that part of the application relating to the use of the existing shed for storage, on the basis that this would constitute an impermissible expansion or enlargement of the existing use. The Council’s position was that the existing use did not apply to the whole of the land from which the store operated, and did not include the existing shed on the site. On that basis, there was no power to grant consent for the expansion (or enlargement) of the existing use into the shed.

As with most existing use rights cases, the site and the particular use had a long and reasonably complex planning history (including cases in the NSW Land and Environment Court and NSW Court of Appeal). A number of consents were in force with respect to the site, some of which had been the subject of modifications.

For the purposes of this summary, it is sufficient to note that fruit and vegetables had been sold from the site since at least the 1980s. At that time, development for the purpose of a fruit and vegetable store was prohibited.

However, in 1992 an amendment to the then applicable LEP was made which had the effect of permitting fruit and vegetable stores with a floor area of 150sqm or less. A consent for a fruit and vegetable store was obtained, pursuant to the LEP amendment, in July 1992. In June 1992, a development consent for a “farm shed” had been granted. It was this farm shed which was the subject of these proceedings.

As a development consent for the use had been granted, the existing use arose under s 4.65(b) of the Environmental Planning and Assessment Act 1979, which provides:

In this Division, existing use means—
…
(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.

The DA, and accordingly the claim in the proceedings, relied on cll. 42 and 43 of the Environmental Planning and Assessment Regulations 2000 (now replaced by the 2021 Regulations). Those clauses provided that:

(1)  Development consent is required for any alteration or extension of a building or work used for an existing use.

(2)  The alteration or extension—

By clause 39 of the Regulation, the ‘relevant date’ was ‘the date when the building, work or land being used for the existing use was first erected, carried out or so used‘.

The Applicant’s primary case was that the unit of land on which the existing use was carried out was ‘the whole of the site‘. In the alternative the Applicant claimed that the unit was something less than the whole of the site but at least included the farm shed. The Council claimed that the relevant land was certainly less than the whole of the site, but did not include the farm shed (which it noted was the subject of a consent granted prior to the consent for the store).

Ultimately the Court accepted the Council’s case. Accordingly, the Court only partially upheld appeal, and approved that part of the DA seeking consent for alterations and additions to the store (which the Council did not oppose) but not the part seeking approval for the use of the farm shed for the storage of fruit and vegetables. In summary, the Court’s reasoning and findings were:

• the land to which existing use rights relate always depends on the facts of the case – it may be an entire cadastral lot, it may be the footprint of a particular building, or it may be somewhere in between;
• where the rights arise from a consent, the land to which the consent is expressed to relate will usually, but not always, determine the physical extent of the existing use rights. In this respect, the Court noted that the three existing consents were each expressed to relate to the entire site (that is, the lot and deposited plan reference for the site);
• The parties each focused attention on the 1992 store consent. The applicant noted that the consent authorised (and even required) activities to be carried out beyond the footprint of the store itself and across the site – such as the provision of landscaping and the use of a car park. The Council noted that the plans attached to that consent specifically demarcated areas for car parking and landscaping, which did not include the shed. The consent also included a condition specifically limiting the area that could be used for the sale of fruit and vegetables.

Ultimately, the Court accepted the Council’s case and held (at [70]-[71]):

The existing use “immediately before the relevant date” is therefore defined by the terms of the consent, including the approved plans and any conditions of consent. It is not informed by what might have actually occurred on the site after the use commenced. Nor is it informed by the manner in which an unlawful use operated before the development consent was granted.

I accept the Council’s position that the first development consent that authorised the use for the purpose of the fruit and vegetable store was the 1992 store consent. The mere fact that the whole of the deposited plan allotment is referred to in the determination of the 1992 store consent is not sufficient to establish that the whole site is the land to which the existing use applies in accordance with s 4.65(b) of the EPA Act, or on which the existing use was carried out in accordance with cll 42 and 43 of the EPA Regulation 2000. Instead, I accept the Council’s position that to determine the extent of the land to which the existing use applies and “on which the existing use was carried out immediately before the relevant date”, it is necessary to construe the consents that apply to the site, including by having regard to the approved plans and the conditions of consent

The Court’s decision is a timely reminder of the degree of precision required in identifying the specific land to which existing use rights relate.

You can read the Court’s decision – Agostino v Penrith City Council [2022] NSWLEC 1258 – at the link here.

If you wish to discuss the issues raised in this post, please contact Liam Mulligan on 8235 9715 or Megan Hawley on 8235 9703.