Doueihi v Randwick City Council - [2005] NSWLEC 527

Land and Environment Court

of New South Wales

CITATION:
Doueihi v Randwick City Council [2005] NSWLEC 527

PARTIES:
APPLICANT:
Michel Doueihi
RESPONDENT:
Randwick City Council

FILE NUMBER(S):
10732 of 2005

CORAM:
Lloyd J

KEY ISSUES:
Existing Use Rights :- factual determination of whether existing use rights extend to whole site or part thereof

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979 (NSW), ss 97, 106
Environmental Planning and Assessment Regulation 2000, Pt 5
County of Cumberland Planning Scheme Ordinance, cl 24, sub-cl 26(b) and (c), 31((b)(ii)
Randwick Local Environmental Plan 1998, sub-cll 10(2), (3) and (4), cll 26, 49, Schedule 1
Randwick Planning Scheme Ordinance, cl 31; sub-cll 4(1), 24(a) and (d), and 89(c)

CASES CITED:
Armstrong v Ashfield Municipal Council (2002) 124 LGERA 189;
Dorrestijn v South Australian Planning Commission (1984) 59 ALJR 105;
Eaton & Sons Pty Limited v Warringah Shire Council (1972) 129 CLR 270;
Lemworth Pty Ltd v Liverpool City Council (2001) 53 NSWLR 371;
Mona Vale Pty Ltd v Pittwater Council (2003) 124 LGERA 449;
North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1998) 67 LGRA 344;
Parramatta City Council v Brickworks Limited (1972) 128 CLR 1;
Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGERA 305;
Shire of Perth v O’Keefe (1964) 110 CLR 529;
Steedman v Baulkham Hills Shire Council (1991) 87 LGERA 26;
Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138

DATES OF HEARING: 06/09/2005

DATE OF JUDGMENT:

09/23/2005

LEGAL REPRESENTATIVES:
APPLICANT:
N A Hemmings QC (solicitor)
SOLICITORS:
Comino Prassas
RESPONDENT:
P R Rigg (solicitor)
SOLICITORS:
Deacons

JUDGMENT:

- 14 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

LLOYD J

Friday, 23 September 2005

LEC No. 10732 of 2005

DOUEIHI v RANDWICK CITY COUNCIL [2005] NSWLEC 527

JUDGMENT

Introduction

1 LLOYD J: The applicant, Michel Doueihi, has appealed under s 97 of the Environment and Planning Assessment Act 1979 (NSW) (the “EP&A Act”) against the deemed refusal of a development application by Randwick City Council for the re-development of land known as No. 152-156 Barker Street, Randwick (the “site”).

2 The parties have asked the Court to determine the following preliminary question said to be a question of law, separately from any other question in the proceedings:

Environmental Planning and Assessment Regulation 2000

EP&A Regulation

3 Part 5 of the EP&A Regulation applies to the development of land having the benefit of existing use rights. It is apparent, however, that the question that has been raised is one of fact.

Background

4 The development application involves a change of the existing use: namely, the demolition of existing dry cleaning business buildings and a brick house on the site and the erection of a…

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.

Continue reading Doueihi v Randwick City Council

Details

AGLC: Doueihi v Randwick City Council [2005] NSWLEC 527
Case: [2005] NSWLEC 527
Decision Date: 09/23/2005

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the applicant Michel Doueihi appealed against the Randwick City Council's deemed refusal of a development application for the re-development of land at No. 152-156 Barker Street, Randwick. The court was asked to determine whether the application concerning the development of the entire site, including No. 152 Barker Street, could be assessed under Part 5 of the Environmental Planning and Assessment Regulation 2000. The key issue was whether the existing use rights extended to the whole site or only a part of it.

The court found that the whole site, including No. 152 Barker Street, had the benefit of existing use rights. The court held that the site was a single unit, dominantly used as a commercial dry cleaning business and laundry. The house at No. 152 was an integral part of the site, serving the dry cleaning business as office administration, staff amenities, and storage for equipment and materials. The court rejected the council's argument that the house was a separate unit, and instead followed the principle that existing use clauses should be liberally construed. The court concluded that the house had been used in conjunction with the dry cleaning business for at least 30 years, making it an important part of the site's existing use.

Consequently, the court determined that the development application could be assessed under Part 5 of the Environmental Planning and Assessment Regulation 2000. The exhibits were returned, and the question of costs was reserved.

Orders