New South Wales
Court of Appeal
CITATION: Grace & Anor v Thomas Street Café Pty Ltd & Ors [2007] NSWCA 359 HEARING DATE(S): 10 September 2007
JUDGMENT DATE:
12 December 2007JUDGMENT OF: Spigelman CJ at 1; Beazley JA at 2; McClellan CJ at CL at 140 DECISION: 1. The appeal be allowed;; 2. The matter is remitted to the Land and Environment Court for determination of the orders that should be made on the appellants’ application;; 3. The respondents are to pay the appellants’ costs. CATCHWORDS: ENVIRONMENT AND PLANNING – existing use rights – characterisation – liberal approach to be adopted – land to be described only at level of generality necessary and sufficient to cover individual activities – characterisation not to be so general that it embraces activities or transactions which differ in kind – existing use can evolve over time – town planning purposes to be emphasised when characterising existing use – whether trial judge erred in characterising existing use at relevant date - ENVIRONMENT AND PLANNING – refreshment room prohibited under local planning instrument – change of use permitted under incorporated provisions of Environmental Planning and Assessment Regulations 2000 – development application lodged with local council to install awning for use as a café – premises contained no existing use rights – whether trial judge erred in finding development application effected a change of use - ENVIRONMENT AND PLANNING – development consent – Environmental Planning and Assessment 1979 s 81A - development consent did not make permissible use of land otherwise prohibited under relevant planning instrument - ENVIRONMENT AND PLANNING – privative clause – Environmental Planning and Assessment Act 1979 s 101 – validity of development consent cannot be challenged after three months from date of public notice – proceedings brought out of time – s 101 applies to a challenge to a grant of consent not to construction of consent LEGISLATION CITED: Environmental Planning and Assessment Act 1979 ss 76B, 79C, 80, 81A, 96, 101, 104A, 106, 107, 108, Pt 4 Div 10
Environmental Planning and Assessment Model Provisions 1980
Environmental Planning and Assessment Regulation 1994
Environmental Planning and Assessment Regulation 2000 cls 43, 124, Pt 5
Land and Environment Court Act 1979 s 58(1)
North Sydney Local Environmental Plan 2001
North Sydney Planning Scheme Ordinance
Supreme Court Act 1970 s 75ACASES CITED: Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404
Bonus Pty Limited v Leichhardt Municipal Council (1954) 19 LGR (NSW) 375
Dorrestijn v South Australian Planning Commission [1984] HCA 76; (1984) 59 ALJR 105
Epivision Pty Ltd v Blacktown City Council (Commissioner Brown, LECNSW, 5 May 1999, unreported)
Foodbarn Pty Limited & Ors v Solicitor-General (1975) 32 LGRA 157
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Gameplan Sports and Leisure Pty Ltd v South Sydney City Council (NSWLEC, Pearlman J, 4 October 1996, unreported)
Grace & Anor v Thomas Street Café Pty Limited & (3) Ors [2006] NSWLEC 547
North Sydney Municipal Council v Boyts…
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Details
- Case
- [2007] NSWCA 359
- Decision Date
CaseChat Overview and Summary
The parties in this matter were Grace (the appellant) and Thomas Street Café Pty Ltd (the respondent). The dispute concerned whether the respondent had existing use rights for its café operations at the relevant time, which would permit it to continue operating as a refreshment room, a use prohibited under the local planning instrument. The appeal was heard by the Court of Appeal of New South Wales.
The primary legal issues before the Court of Appeal were whether the trial judge had erred in characterising the existing use of the premises at the relevant date, and whether the trial judge had erred in finding that a development application lodged by the respondent effected a change of use. Specifically, the court considered whether the premises possessed existing use rights for a refreshment room, or if the development application constituted a prohibited change of use.
The Court of Appeal adopted a liberal approach to characterising existing use rights, emphasising that land should be described at a level of generality necessary and sufficient to cover individual activities, but not so general as to embrace activities that differ in kind. The court noted that existing uses can evolve over time and that town planning purposes are paramount when characterising such uses. The court found that the trial judge had erred in their characterisation of the existing use and in their finding that the development application effected a change of use.
Consequently, the appeal was allowed. The matter was remitted to the Land and Environment Court for determination of the orders that should be made on the appellants' application, and the respondents were ordered to pay the appellants' costs.
The primary legal issues before the Court of Appeal were whether the trial judge had erred in characterising the existing use of the premises at the relevant date, and whether the trial judge had erred in finding that a development application lodged by the respondent effected a change of use. Specifically, the court considered whether the premises possessed existing use rights for a refreshment room, or if the development application constituted a prohibited change of use.
The Court of Appeal adopted a liberal approach to characterising existing use rights, emphasising that land should be described at a level of generality necessary and sufficient to cover individual activities, but not so general as to embrace activities that differ in kind. The court noted that existing uses can evolve over time and that town planning purposes are paramount when characterising such uses. The court found that the trial judge had erred in their characterisation of the existing use and in their finding that the development application effected a change of use.
Consequently, the appeal was allowed. The matter was remitted to the Land and Environment Court for determination of the orders that should be made on the appellants' application, and the respondents were ordered to pay the appellants' costs.
Orders
Orders of the court
1. The appeal be allowed;; 2. The matter is remitted to the Land and Environment Court for determination of the orders that should be made on the appellants' application;; 3. The respondents are to pay the appellants' costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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