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
RESPONDENT
Jonah Pty Limited
Pittwater CouncilFILE 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 outLEGISLATION 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 299DATES OF HEARING: 02/03/2006 EX TEMPORE JUDGMENT DATE: 03/02/2006 LEGAL REPRESENTATIVES: APPLICANT
Mr P R Clay (barrister)
SOLICITORS
BTS LawyersRESPONDENT
Mr R P Lancaster (barrister)
SOLICITORS
Mallesons Stephen Jaques
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESPRESTON 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…
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- Case
- [2006] NSWLEC 99
- Decision Date
CaseChat Overview and Summary
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.
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