Brown v Gosford City Council - [2006] NSWLEC 56

Reported Decision: 143 LGERA 311

Land and Environment Court

of New South Wales

CITATION: Brown v Gosford City Council [2006] NSWLEC 56

PARTIES: APPLICANT
Brett Brown
RESPONDENT
Gosford City Council
INTERVENOR
Minister for Planning

FILE NUMBER(S): 10968 of 2005

CORAM: Pain J

KEY ISSUES: Question of Law :- existing uses - whether they can be changed to another non-conforming use

LEGISLATION CITED: Environment Planning and Assessment Act 1979 s76B, s106, s108(1), s108(2), Pt 4 Div 10
The Environmental Planning and Assessment Regulation 1980 cl 54
Environmental Planning and Assessment Regulation 1994 cl 39
Environment Planning and Assessment Regulation 2000
cl 41(1)(d),
Gosford Local Environment Plan 314

CASES CITED: Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council (2001) 114 LGERA 345 ;
Chambers v Maclean Shire Council (2003) 126 LGERA 7 ;
Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373 ;
Warringah Shire Council v Caltex (Australia) Pty Limited (1989) 68 LGRA 206 ;
Kremer & Associates v North Sydney Municipal Council (1982) 47 LGRA 209 ;
North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 67 LGRA 344 ;
Star Property v Leichhardt Municipal Council (2000) 111 LGERA 95

DATES OF HEARING: 10/02/2006

DATE OF JUDGMENT:
02/14/2006

LEGAL REPRESENTATIVES: APPLICANT
No appearance
RESPONDENT
Mr M Fraser (barrister)
SOLICITOR
PJ Donnellan & Co
INTERVENOR
Mr A Galasso (barrister)
SOLICITOR
Department of Planning

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

14 February 2006

10968 of 2005 Brett Brown v Gosford City Council
JUDGMENT

1 Her Honour: The preliminary question of law I must determine in these Class 1 proceedings is:

Whether cl 41(1)(d) of the

, made pursuant to the

Environment Planning and Assessment Act

, is ultra vires in that it purports to permit the giving of a development consent to the carrying out of prohibited development contrary to the provisions of s 76B of the

Environment Planning and Assessment Act

Land and Environment Court Act 1979 (NSW)

Background

2 The land the subject of these proceedings in known as Lot 210 in Deposited Plan 1000167. It is located on the south-western side of the Scenic Road, McMasters Beach. It has an area of 10,000m2 and contains an approved attached dual occupancy.

3 The land is zoned 7(c2) Conservation and Scenic Protection (Scenic Protection – Rural Small Holdings) under the provisions of Interim Development Order 122 (“IDO 122”) of the City of Gosford and is situated within the catchment of Cockrone Lake.

4 Development consent was given to an attached dual occupancy by Gosford City Council (“the Council”) on 9 February 1988. At the time consent was given an attached dual occupancy was permitted to be developed with Council consent on the land.

5 By virtue of cl 23 of IDO 122, which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWLEC 56
Decision Date: 02/14/2006

CaseChat Overview and Summary

In the matter of Brown v Gosford City Council, the applicant, Brett Brown, sought a determination regarding the legality of clause 41(1)(d) of the Environment Planning and Assessment Regulation 2000, specifically whether it allowed for the change of an existing use to another use, even if that use was prohibited. The Gosford City Council opposed this application, arguing that the clause was inconsistent with section 76B of the Environment Planning and Assessment Act 1979, which prohibits the carrying out of prohibited development. The Minister for Planning intervened, supporting the applicant’s position.

The court had to decide whether clause 41(1)(d) of the 2000 Regulation was ultra vires, that is, beyond the powers granted by the enabling Act. The Council argued that allowing a change to a prohibited use would be inconsistent with section 76B, which prohibits specified development. They relied on the principle that subordinate legislation cannot be inconsistent with the enabling Act. The Minister, on the other hand, argued that clause 41(1)(d) was valid and that section 108(1)(b) of the Act, which permits changes to an existing use to another use, should be broadly construed. The court examined relevant cases and legislation to determine the correct interpretation of the Act and its regulations.

The court concluded that clause 41(1)(d) was not ultra vires and was consistent with the Act. The term "another use" in section 108(1)(b) was interpreted broadly, allowing for changes to both permissible and non-permissible uses. The court found that the enabling Act and its regulations, particularly Division 10, provided for existing use rights and the possibility of changing an existing use to another use. This interpretation was supported by previous cases such as Star Property and Kremer, which also allowed for changes to non-conforming uses. The Council’s arguments, which focused on a narrow interpretation of existing use rights and the prohibition in section 76B, were not persuasive in light of the clear statutory language and the existence of Division 10. The court ordered that clause 41(1)(d) was valid and that costs were reserved.

Orders