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Jonah Pty Limited v Pittwater Council

Jonah Pty Limited v Pittwater Council

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Reported Decision: (2006) 144 LGERA 408

Land and Environment Court

of New South Wales

CITATION: Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99

PARTIES:
APPLICANT
Jonah Pty Limited
RESPONDENT
Pittwater Council

FILE NUMBER(S): 10284 of 2000

CORAM: Preston CJ

KEY ISSUES:
Development Consent :- modification of court-granted development consent for restaurant - deletion of condition restricting use of terrace for dining - past unlawful use of restaurant raised as issue on appeal - motion to strike out issue as irrelevant - fact of unlawfulness of past use not relevant - issue struck out
Practice and procedure:-issues on planning appeal - past unlawful use raised as an issue - motion to strike out issue as irrelevant - fact of unlawfulness of past use not relevant - issue struck out

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 79C(1)(e), s 96(2)

CASES CITED: Auburn Municipal Council v Szabo (1971) 67 LGERA 427;
District Council of Mallala v M & B Farmer Nominees Pty Ltd (2000) 107 LGERA 346;
Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270;
House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498;
Hubertus Schuetzenverein Liverpool Rifle Club Ltd v Commonwealth of Australia (1994) 85 LGERA 37;
Ireland v Cessnock City Council (1999) 103 LGERA 285;
Ireland v Cessnock City Council (1999) 110 LGERA 311;
Kouflidis and Jenquin Pty Ltd v Corporation of the City of Salisbury (1982) 29 SASR 321; 49 LGERA 17;
Longa v Blacktown City Council (1985) 54 LGERA 422;
Low v Swan Cove Holdings Pty Ltd (2003) 127 LGERA 36;
Miller-Mead v Minister for Housing and Local Government [1963] 2 QB 196;
Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGERA 321;
Willoughby City Council v Dasco Design and Construction Pty Ltd (2000) 111 LGERA 422;
Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299

DATES OF HEARING: 02/03/2006

EX TEMPORE JUDGMENT DATE: 03/02/2006

LEGAL REPRESENTATIVES:
APPLICANT
Mr P R Clay (barrister)
SOLICITORS
BTS Lawyers
RESPONDENT
Mr R P Lancaster (barrister)
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

2 MARCH 2006

10284 of 2000

JONAH PTY LIMITED V PITTWATER COUNCIL

JUDGMENT

1 HIS HONOUR: The applicant, Jonah Pty Limited, moves the Court to strike out an issue raised by the respondent, Pittwater Council (“the Council”), in a statement of issues filed in Class 1 proceedings in the Court.

2 The Class 1 proceedings are an application by the applicant under s 96(2) of the Environmental Planning & Assessment Act 1979 (“the EPA Act”) to modify a development consent granted by the Court. The applicant has elected to apply to the Court directly under s 92(8) of the EPA Act rather than to the Council under s 96AA(1) of the EPA Act.

3 The consent granted by the Court was for alterations to Jonah’s restaurant/motel at 69 Binya Road, Palm Beach. The application to…

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: [2006] NSWLEC 99
Decision Date: 03/02/2006

CaseChat Overview and Summary

Jonah Pty Limited, the applicant, sought to modify a development consent granted by the Land and Environment Court of New South Wales for alterations to their restaurant/motel at Palm Beach. The primary issue before the Court was whether the past unlawful use of the restaurant, specifically serving meals before approved trading hours and providing dining on an unauthorised terrace, should be considered when deciding whether to modify the existing development consent. The respondent, Pittwater Council, argued that the past unlawful use should influence the Court's discretion in modifying the consent, suggesting it could predict future non-compliance and potentially lead to cumulative impacts if the modification was approved.

The Court reviewed several precedents which consistently held that past unlawful use is not a relevant factor in determining whether to grant or modify a development consent. The Court held that planning and development consents focus on the acts done or to be done and the use, not the identity or past conduct of the operator. The unlawfulness of past use is irrelevant in the merit determination of a development consent, and the Court should not make assumptions about the success of civil enforcement proceedings or the continuation of unlawful use. The Court determined that the past unlawful use, as pleaded by the Council, was not a relevant factor in the modification application and, therefore, struck out the relevant issue from the proceedings. The Court ordered that the Council pay the applicant's costs of the motion.

Orders