Hunt v Blacktown City Council - [2001] NSWCA 216

Reported Decision:
(2001) 116 LGERA 356

New South Wales

Court of Appeal

CITATION: HUNT v. BLACKTOWN CITY COUNCIL [2001] NSWCA 216

FILE NUMBER(S): CA 40957/99

HEARING DATE(S): 13/04/01

JUDGMENT DATE:
14 August 2001

PARTIES :

Lindsay Hunt (Appellant)
Blacktown City Council (Respondent)

JUDGMENT OF: Meagher JA at 1; Powell JA at 2; Beazley JA at 52

LOWER COURT JURISDICTION : Land & Environment Court

LOWER COURT
FILE NUMBER(S) : L & EC 10427/99

LOWER COURT
JUDICIAL OFFICER : Cowdroy J

COUNSEL: W.R. Davison SC (Appellant)
J.A. Ayling (Respondent)

SOLICITORS: Pike Pike & Fenwick (Appellant)
Taylor Kelso (Respondent)

CATCHWORDS: TOWN PLANNING - Land used for purposes of a poultry farm - Land situated with Residential 2(a) and Special Uses zones under LEP - Whether use as poultry farm an existing use for purposes of LEP - Application for development approval for shopping centre complex - Shops as prohibited purpose in Residential 2(a) and Special Uses 5(a) zones - Whether change of use permitted pursuant to s.108 of EP & A Act D

DECISION: Appeal dismissed.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40957/99
L & EC 10427/99

MEAGHER JA

POWELL JA

BEAZLEY JA

14 August 2001

HUNT v. BLACKTOWN CITY COUNCIL
JUDGMENT

1 MEAGHER JA: I agree with Powell JA.

2 POWELL JA: This is an appeal from a Judgment delivered by Cowdroy J in the Land and Environment Court on 12 November 1999, in which Judgment his Honour recorded his findings on certain preliminary issues which had been argued before him in relation to an appeal by the present Appellant against the refusal by the present Respondent of a Development Application which had earlier been lodged by the Appellant in respect of certain land at Lot 82, Lalor Road, Quakers Hill. Although the Judgment delivered by Cowdroy J was clearly in the nature of an interlocutory decision - the final order dismissing the Appellant's appeal to the Land and Environment Court not being made until 5 March 2000 - s.57(1) of the Land and Environment Court Act 1979 ("the Court Act") permits a party to proceedings in Class 1 of the Land and Environment Court's jurisdiction - as the Appellant's appeal was - to appeal to this Court against an interlocutory decision on a question of law.

3 Although the materials which are before the Court do not contain a copy of the Application for Development approval - DA 97-6724 - which had been lodged by the Appellant with the Respondent, such materials as are before the Court make it tolerably plain that what the Appellant sought was approval to change the use of the land from that of - to use a comparatively neutral phrase - a poultry farm to that of a shopping centre complex. Since the land was situate in part within a Residential 2(a) zone and in part in a Special Uses 5(a) zone under the Blacktown Local Environmental Plan 1988 ("BLEP 1988") in the former of which zones…

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.

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Details

Case: [2001] NSWCA 216
Decision Date: 14 August 2001

CaseChat Overview and Summary

The case of *Hunt v Blacktown City Council* concerned an appeal to the New South Wales Court of Appeal regarding the lawful use of land. The appellant, Mr Hunt, sought to develop a shopping centre complex on land that was zoned Residential 2(a) and Special Uses 5(a) under the relevant Environmental Planning and Assessment (EP&A) Act. The primary dispute revolved around whether the existing use of the land as a poultry farm constituted a lawful "existing use" for the purposes of the Local Environmental Plan (LEP), and consequently, whether the proposed shopping centre, a prohibited purpose in those zones, could be permitted under section 108 of the EP&A Act.

The Court of Appeal was required to determine two principal legal issues. Firstly, whether the operation of a poultry farm on the land constituted an "existing use" within the meaning of the LEP, notwithstanding the zoning of the land for residential and special uses. Secondly, if it was an existing use, whether the proposed development of a shopping centre represented a "change of use" that could be permitted under section 108 of the EP&A Act, which allows for the continuation of an existing use even if it is prohibited in the relevant zone, subject to certain conditions.

In its reasoning, the Court of Appeal considered the nature of the poultry farm operation and its compliance with the relevant planning instruments at the time of its establishment. The Court affirmed that for a use to be considered an "existing use" under the EP&A Act, it must have been lawfully established and operating at the relevant time. Furthermore, the Court examined the scope of section 108, clarifying that it permits the continuation of an existing use but does not necessarily permit a fundamental change to that use, particularly one that introduces a prohibited purpose. The Court found that the proposed shopping centre was not a continuation or intensification of the existing poultry farm use, but rather a distinct and prohibited use in the subject zones. Consequently, the appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	HUNT v. BLACKTOWN CITY COUNCIL [2001] NSWCA 216
FILE NUMBER(S):	CA 40957/99
HEARING DATE(S):	13/04/01
JUDGMENT DATE:	14 August 2001
PARTIES :	Lindsay Hunt (Appellant) Blacktown City Council (Respondent)
JUDGMENT OF:	Meagher JA at 1; Powell JA at 2; Beazley JA at 52

LOWER COURT JURISDICTION :	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	L & EC 10427/99
LOWER COURT JUDICIAL OFFICER :	Cowdroy J

COUNSEL:	W.R. Davison SC (Appellant) J.A. Ayling (Respondent)
SOLICITORS:	Pike Pike & Fenwick (Appellant) Taylor Kelso (Respondent)
CATCHWORDS:	TOWN PLANNING - Land used for purposes of a poultry farm - Land situated with Residential 2(a) and Special Uses zones under LEP - Whether use as poultry farm an existing use for purposes of LEP - Application for development approval for shopping centre complex - Shops as prohibited purpose in Residential 2(a) and Special Uses 5(a) zones - Whether change of use permitted pursuant to s.108 of EP & A Act D
DECISION:	Appeal dismissed.