Hunt v Blacktown City Council

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.