Minister for Planning v Rose Bay Marina Pty Ltd

The Minister for Planning appealed to the New South Wales Court of Appeal against a declaration made by the primary judge concerning the existing use rights of Rose Bay Marina Pty Ltd. The dispute centred on whether Rose Bay Marina Pty Ltd was lawfully using its premises as a "marina" under the relevant planning instrument, notwithstanding the existence of a subsequent planning instrument that defined a "large marina" and the fact that the entire area required for the marina's operation was not physically occupied at any given time.

The Court of Appeal was required to determine whether the description of the existing use as a "marina" was sufficiently general to encompass the actual use of the premises, and whether the use as a public waterway excluded its use as a marina. Furthermore, the Court had to consider the extent of the actual and physical use of the premises, particularly where a large area was required for the use but less than that area was physically occupied at any one time.

The Court reasoned that the description of the existing use as a "marina" was sufficiently general to encompass the activities undertaken by the respondent. It held that the use of the premises as a public waterway did not necessarily exclude its use as a marina, as these uses could co-exist. The Court applied the principle that the extent of actual and physical use should be assessed by reference to the nature of the use and the area reasonably required for its operation, rather than solely by the area physically occupied at any particular moment.

The Court of Appeal substituted its own declaration for that of the primary judge and otherwise dismissed the appeal, ordering the appellant to pay the respondent's costs of the appeal.