RMB Lawyers’ Local Government Coordinator OLIVIA YEATMAN discusses the implications of an existing land use case, Saffioti v Kiama Municipal Council [2018] NSWLEC 1426, in the NSW Land and environment Court:

We have recently acted for a respondent consent authority in a series of cases in the Land and Environment Court (LEC) in relation to existing use rights and the meaning of 'derogation' from an applicant’s existing use rights.

The applicant commenced Class 1 proceedings in the LEC seeking to appeal the deemed refusal of her development application by Kiama Municipal Council.

The proposed development consisted of construction of a new dwelling, including residence and garage, shed and guest sleeping pavilion, decommissioning of an existing dwelling, decommissioning of an existing dwelling and provision of asset protection zones, a wastewater treatment facility and power/communications services.

The majority of the proposed development, including the new dwelling were intended to be located on that part of the land zoned E2 Environmental Conservation pursuant to Kiama Local Environmental Plan 2011 (KLEP 2011). 'Dwelling houses' were prohibited on that part of the land zoned E2 Environmental Conservation.

Separate preliminary question

Acting Justice Molesworth presided over the earlier judgment on the separate preliminary question and found that existing use rights applied to the proposed development in accordance with the provisions of clause 42 of the Environmental Planning and Assessment Regulation 2000.

In these proceedings, Commissioner Chilcott was required to consider and come to a determination on the meaning of 'derogate' and its application to the proposed development.

Derogation

Sections 4.65, 4.66, 4.67 and 4.68 of the Environmental Planning and Assessment Act 1979 (EP&A Act) set out the existing use rights provisions.

Specifically, section 4.67 of the EP&A Act states:

(1) The regulations may make provision for or with respect to existing use and, in particular, for or with respect to—

(a)  the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and

(b)  the change of an existing use to another use, and

(c)  the enlargement or expansion or intensification of an existing use.

(d)  (Repealed)

(2) The provisions (in this section referred to as 'the incorporated provisions') of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument.

(3) An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force.

(4) Any right or authority granted by the incorporated provisions or any provisions of an environmental planning instrument extending, expanding or supplementing the incorporated provisions do not apply to or in respect of an existing use which commenced pursuant to a consent of the Minister under section 4.33 to a development application for consent to carry out prohibited development

The applicant argued that section 4.67(3) of the EP&A Act should be applied such that any provision or standard of KLEP 2011 or Kiama Development Control Plan 2012 (KDCP 2012) that would have the effect of prohibiting the proposed development or presented a control that could not be satisfied should have no effect.

In the alternate, the respondent argued that the provisions of KLEP 2011 and the development control plan that applied to the proposed development did not derogate from the applicant’s existing use rights as they did not prevent the applicant from making a development application. However, whilst the relevant provisions did not prevent the making of a development application, the respondent was still required to carry out an assessment of the proposed development against those relevant provisions.

Outcome

Commissioner Chilcott held in the respondent’s favour in relation to submissions on derogation and the case overall.

In his judgement, Commissioner Chilcott concurred with the following comments of Justice Sheahan in oOh! Media Assets Pty Ltd v Council of the City of Sydney [2016] NSWLEC 47:

“I accept that the existing use rights are limited to the use of the structure, that is for displaying signage rather than the structure itself. This has a significant impact on the assessment of the impacts of the proposed sign. In accepting that the signage rather than the sign structure, has existing use rights, the general approach of the council experts that any s79C assessment must be made on the sign is a new structure and currently applying controls is the correct approach.”

The decision of Commissioner Chilcott was later confirmed by Chief Justice Preston in Saffioti v Kiama Municipal Council [2019] NSWLEC 57.

When preparing a development application, applicants should be aware that whilst their site may enjoy existing use rights, the consent authority must undertake an assessment of the proposed development in accordance with section 4.15 (previously section 79C) of the EP&A Act.