Calleja v Botany Bay City Council

The appeal in *Calleja v Botany Bay City Council* concerned the characterisation of a use of land for the purpose of existing use rights under section 106(a) of the *Environmental Planning and Assessment Act 1979* (NSW). The dispute arose from the respondent council's contention that the appellants' use of their property, which comprised a single structure containing two separate domiciles with shared internal walls, was not an "existing use" as defined by the Act and the relevant Local Environmental Plan (LEP). The matter came before the Court of Appeal of New South Wales, comprising Tobias and Basten JJA and Young CJ in Eq.

The primary legal issues before the court were whether the use of the land constituted an "existing use" within the meaning of section 106(a) of the Act, and how that use should be characterised with sufficient particularity. This involved determining whether the structure, containing two distinct residences, fell within the LEP's definition of a "dwelling house," and whether that definition was confined to detached housing. The court also considered the applicability of the definition of "building" found in section 4 of the *Environmental Planning and Assessment Act 1979*.

The Court of Appeal allowed the appeal, setting aside the orders of Talbot J. The court reasoned that the use of the land for a building containing two dwellings was an existing use within the meaning of section 106(a) of the Act. The court found that the definition of "dwelling house" in the LEP did not restrict its application to detached dwellings and that the structure in question, despite containing two separate residences, could be characterised as one or more "dwelling houses" for the purposes of the LEP. Consequently, the court declared that the use of the land as described was an existing use as at the relevant date. The respondent council was ordered to pay the appellants' costs.