Grace v Thomas Street Café Pty Ltd

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.