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Moore Development Group Pty Limited v Pittwater City Council

Moore Development Group Pty Limited v Pittwater City Council

Case [2003] NSWLEC 130 29 May 2003

Adverse Possession

Easements & Covenants

Equitable Estoppel

Existing Use Rights

Interpretation of Legislation

Planning & Development Law

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Reported Decision: 127 LGERA 27

Land and Environment Court

of New South Wales

CITATION: Moore Development Group Pty Limited v Pittwater City Council [2003] NSWLEC 130

PARTIES:
APPLICANT:
Moore Development Group Pty Limited
ACN 003 395 471
RESPONDENT:
Pittwater City Council

FILE NUMBER(S): 10710 of 2002

CORAM: Lloyd J

KEY ISSUES:
Existing Use Rights :- extent - liberal interpretation of consent - nature and extent of existing use - three floors of building interdependent - single "unit" for practical purposes
Words and Phrases:- "the land on which the existing use was carried out"

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 4, s 106, s 107, s 108
Environmental Planning and Assessment Regulation 2000 cl 41, cl 42(2)(b),
Land and Environment Court Rules 1996 Pt 6 r 1
Pittwater Local Environmental Plan 1993
Supreme Court Rules 1970 Pt 31 r 2(a)

CASES CITED: Armstrong v Ashfield Council [2002] NSWLEC 237;
Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404;
Council of the City of Parramatta v Brickworks Ltd (1972-3) 128 CLR 1;
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157;
House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498;
Lemworth Pty Ltd v Liverpool City Council (2001) 53 NSWLR 371;
Mona Vale Pty Ltd v Pittwater Council [2003] NSWLEC 74;
North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 67 LGERA 344;
Salvation Army v Newcastle City Council (2000) 107 LGERA 40;
Scully v Leichhardt Council (1994) 85 LGRA 109;
Starray Pty Ltd v Sydney City Council [2002] NSWLEC 48;
Steedman v Baulkham Hills Shire Council [No. 1] (1991) 87 LGERA 26

DATES OF HEARING: 07/05/2003

DATE OF JUDGMENT:
05/29/2003

LEGAL REPRESENTATIVES:

APPLICANT:
Mr G B Newport (barrister)
SOLICITORS:
N/A
RESPONDENT:
Ms J M Jagot (barrister)
SOLICITORS:
Mallesons Stephen Jaques

JUDGMENT:

- 10 -

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10710 of 2002

Lloyd J

29 May 2003

MOORE DEVELOPMENT GROUP PTY LIMITED

ACN 003 395 471

Applicant

PITTWATER CITY COUNCIL

Respondent

JUDGMENT

Introduction

1 This is the separate determination of a question raised in an appeal against the deemed refusal of a development application, as permitted by Pt 31 r 2(a) of the Supreme Court Rules 1970 (and which applies in this Court by Pt 6 r 1 of the Land and Environment Court Rules 1996). The question for determination is the extent of existing use rights which apply to the development site. The question was re-phrased during submissions as: what is “the land on which the existing use was carried out”, for the purposes of cl 42(2)(b) of the Environmental Planning and Assessment Regulation 2000 (“the EP&A Regulation”) in the facts and circumstances of the present case?

The legislation

2 The existing use provisions of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) are found in Pt 4 Div 10 (ss 106-109B). Section 106 defines an existing use as follows:

106.…

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.

Continue reading Moore Development Group Pty Limited v Pittwater City Council

Details

AGLC: Moore Development Group Pty Limited v Pittwater City Council [2003] NSWLEC 130
Case: [2003] NSWLEC 130
Decision Date: 05/29/2003

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the case of Moore Development Group Pty Limited v Pittwater City Council, file number 10710 of 2002, was presided over by Lloyd J. The primary issue in this case was the extent of existing use rights applicable to a development site. Specifically, the court needed to determine what constitutes "the land on which the existing use was carried out" for the purposes of clause 42(2)(b) of the Environmental Planning and Assessment Regulation 2000.

The court reviewed the existing use provisions under the Environmental Planning and Assessment Act 1979 and related regulations. The applicant, Moore Development Group, sought to demolish and rebuild a building used for an existing use and to change the use of the building to another purpose. The applicant argued that the entire building and the land upon which it stands should be considered as the same unit for practical purposes, as the various uses within the building are interdependent. Conversely, the respondent, Pittwater City Council, contended that only a specific portion of the building should be considered for existing use rights.

Lloyd J concluded that the existing use in question was that of a motel, encompassing the restaurant and ancillary uses. The court found that the physical, operational, and financial interdependence of the restaurant and motel rendered them inextricably linked, thereby justifying the consideration of the entire building and the land it occupies as a single unit for existing use rights. This conclusion was reached by applying a practical assessment of the circumstances, including a liberal interpretation of the 1961 consent granted to the development. The court distinguished this case from previous decisions by highlighting the unique interdependencies present here. Consequently, Lloyd J ruled that the entire building, along with the land it stands on, should be considered as the land on which the existing use was carried out. The case was to proceed to a merits hearing based on this determination.

Orders