Characterisation of existing uses where no consent

In the case of Jojeni Investments Pty Ltd v Mosman Municipal Council [2015] NSWCA 147 (Jojeni) the CoA was asked to determine whether a building had existing use where there was no record of any consents.

First the CoA confirmed that contemporaneous documents could be used to infer the terms of a development consent where none could be located – in this instance they were the stamped plans – to be read in light of the applicable legislative regime (see [27] – [70]).

The CoA then helpfully summarised the principles of characterising the nature of an existing use without the benefit of a consent as follows (see [71] – [90]).

This case was distinguishable from cases where physical consents specifically provided for uses, as there was no physical consent – all contemporaneous document could merely show was that consent was granted.

In these cases Councils must characterise the purpose of the use.  Not by a meticulous examination of the details of the activities undertaken on the land, but by reference to the purpose served by those activities.  A general approach should be taken in then determining the actual use.

In Jojeni, the CoA applied these characterisation principles to determine that the building in question which was approved as flats, albeit only two flats were ever built, as enjoying existing use as building containing flats, as opposed to the Council’s submission that the building the use was of a building containing two flats.

They came to this conclusion firstly in the context of the legislative regime in place at the time of the original consent in 1933 – as the documents stated the approval was for flats and there was no definition of such and inferred the building must have been approved as a residential flat building.

The CoA could not accept that residential flat building containing 8 flats, could be different from on containing 7 or 9.  It also did not accept Council’s argument that what was built was more akin to a duplex or dual occupancy because that was not a class of use separately recognized at the time of the consent.

Second the level of generality which the CoA applied was that which was permitted by the definition in 1933 – that is not to be restricted to the number of flats, height, or area of land occupied.

Thirdly the CoA said that the existing use was for more than one occupancy, which in 1933 was given the description of a residential flat building.  The fact that subsequent planning regimes distinguish between dual occupancies and RFBs is no sound basis for characterizing a use any more narrowly.

Fourthly the CoA followed its approach in an earlier case where the Council sought to confine a building to 4 flats, the court concluded it was in fact a RFB. The Court declared that Jojeni had the benefit of existing use rights for a building containing flats, however that did not permit Jojeni to build any number of flats due to the the existing use provisions restricting this.

17th June, 2016