Jojeni Investments Pty Ltd v Mosman Municipal Council

The New South Wales Court of Appeal considered an appeal by Jojeni Investments Pty Ltd against Mosman Municipal Council concerning the existing use rights of a property at 7 Arbutus Street, Mosman. The dispute arose from a development application for a building containing three flats, with the Council asserting it was not empowered to consent to the application. The core of the disagreement centred on whether the property retained existing use rights as a building containing flats, despite subsequent changes in planning legislation.

The Court was required to determine the appropriate level of generality or particularity for describing an existing use, and whether the use of the property as a residential flat building was prohibited from 1937. Further issues included the relevance of subsequent alterations to the planning regime, the applicability of principles established in cases such as *Shire of Perth v O'Keefe* and *Botany Bay City Council v Workmate Abrasives Pty Ltd*, and the interpretation of specific provisions of the *Environmental Planning and Assessment Act 1979* (NSW), particularly the effect of a retrospective amendment inserting section 109B into Division 10 of Part 4.

The Court reasoned that the Council's literal construction of the legislation, which led to anomalous results and displaced existing development consents, was contrary to the purpose of the Act. It rejected this literal construction, emphasising the necessity to identify leading and subordinate provisions within Division 10, and approving the approach taken in *Currency Corporation Pty Ltd v Wyong Shire Council* while disapproving the reasoning in *Caltex Australia Petroleum Pty Ltd v Manly Council*. The Court found that the property had the benefit of existing use rights as a building containing flats.

Consequently, the Court allowed the appeal, set aside the orders made at first instance, and declared that the property has the benefit of existing use rights as a building containing flats. The summons filed at first instance was otherwise dismissed, with directions given for the parties to agree on short minutes of order regarding costs.