Sevenex Pty Limited v Blue Mountains City Council

Sevenex Pty Limited (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the Land and Environment Court. The dispute concerned the appellant's intention to change the use of premises from a shop and café to a "mixed media exhibition". The appellant contended that this proposed use was covered by existing use rights, and that a development consent for the "establishment of a commercial development" was sufficient to permit this change.

The primary legal issues before the Court of Appeal were whether the proposed use as a "mixed media exhibition" constituted a lawful use of the premises, and whether the appellant could rely on a former section 91(4) of the *Environmental Planning and Assessment Act 1979* (now section 81A(1)) in relation to the purpose of the development consent, given that the consent itself was not tendered in evidence. The court was also required to consider the meaning of terms such as "purpose", "retail premises", and "business premises" in the context of the development consent and the relevant planning instruments.

The Court of Appeal, comprising McColl and Young JJA and Sackville AJA, ultimately dismissed the appeal. The court reasoned that the appellant had failed to establish that the proposed use fell within the scope of the existing development consent or constituted a lawful use. The court also found that the appellant could not rely on the provisions of the former section 91(4) of the *Environmental Planning and Assessment Act 1979* without the development consent being properly before the court. Consequently, leave to appeal was granted, but the appeal was dismissed with costs ordered in favour of the respondent, Blue Mountains City Council.