Walsh, Jason Patrick v Tamworth City Council

[2006] NSWLEC 652

Land and Environment Court

of New South Wales

CITATION:	Walsh, Jason Patrick v Tamworth City Council [2006] NSWLEC 652
PARTIES:	APPLICANT Jason Patrick Walsh RESPONDENT Tamworth City Council
FILE NUMBER(S):	10539 of 2006
CORAM:	Talbot J
KEY ISSUES:	Planning Instruments - Question of Law :- effect of notification of change of use on existing development consent.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
DATES OF HEARING:	05/10/2006
EX TEMPORE JUDGMENT DATE:	10/05/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr J B Maston (barrister) SOLICITORS MacLean & Curtis RESPONDENT Mr P Thompson (solicitor) SOLICITORS Tamworth City Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

5 October 2006

10539 of 2006 Jason Patrick Walsh v Tamworth City Council

EX TEMPORE JUDGMENT

1 Talbot J: The reasons for the following findings can be distilled from the exchanges between the parties during submissions. It is not necessary to formally reiterate those reasons as they appear in cogent form on the record.

2 I find that cl 50 of Tamworth LEP 1996 applies to the building erected on the subject land and that accordingly that building may be used for the purposes of commercial premises other than a hairdressing salon including a funeral parlour without consent.

3 I find further that the use of that building and the premises generally is otherwise controlled and regulated by the terms and conditions of development consent granted in respect of the property 6 Byrnes Avenue, Tamworth on 28 July 1989.

4 Thirdly, I find that the development application the subject of the present proceedings relates only to that part of the premises where the building additions and alterations are proposed but that nevertheless, subject to meeting a test of relevance and reasonableness, conditions can be imposed that relate to the use of the whole premises or such other premises in accordance with s 80A(1)(f) and or modification of the existing consent in accordance with s 80A(1)(b) and (c).

5 I answered the questions in that way. It will be seen that s 80A actually contemplates the very matters discussed, namely modification of existing consent as it relates to the subject or to other land and it also deals with the impact of conditions on other land. I specifically mention those in these findings to make it clear as to where the road ahead lies.

6 The Court takes the attitude that unless otherwise agreed, the raising of what might be generally recognised as a question of law in Class 1 often attracts the usual rule in relation to a costs order rather than the specific rule in the Land and Environment Court Rules, which deal with more precisely the determination of appeals on the merit. However, in this case the parties have agreed that they both sought the clarification that has been provided by the Court in relation to the legal position and that in those circumstances there should be no order as to costs. I therefore make the order that there be no order as to costs. The exhibits may be returned.