Council of the Municipality of Ku-Ring-Gai v Mobil Oil Australia Limited

The Council of the Municipality of Ku-Ring-Gai, as the applicant, sought special leave to appeal from a decision concerning Mobil Oil Australia Limited. The dispute centred on the interpretation and application of provisions within the Environmental Planning and Assessment Act relating to "existing use" rights.

The High Court was required to determine the precise meaning of "existing use" as defined in the Act, and how this definition compared to previous planning instruments, specifically the County of Cumberland Planning Scheme Ordinance. Further, the Court needed to consider the relationship between the limitations on existing use rights imposed by section 107(2) of the Act and the broader powers granted to make regulations under section 108, particularly in relation to alterations, extensions, rebuilding, changes of use, and enlargement or intensification of existing uses.

The applicant argued that the definition of "existing use" in the Environmental Planning and Assessment Act was substantially the same as in the preceding County of Cumberland Planning Scheme Ordinance, with minor differences that did not alter the core meaning. The Court was presented with the argument that section 107(2) circumscribed existing use rights, drawing on established High Court precedent, but that section 108 empowered regulations to relax these limitations. The regulations made under section 108, specifically regulations 52A, 53, and 54 of the Environmental Planning and Assessment Regulation 1980, were central to the proceedings, as they potentially permitted activities that would otherwise be excluded by section 107(2). The Court considered how these regulations interacted with and potentially expanded upon the rights established by section 107(1).