THE COUNCIL OF THE CITY OF SYDNEY v VALAISIS [1988] NSWCA 31

THE COUNCIL OF THE CITY OF SYDNEY v VALAISIS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, PRIESTLEY and MCHUGH JJA 4 February 1988, 20 May 1988

[1988] NSWCA 31

Land and Environment — appeal from decision of Land and Environment Court allowing an appeal against the Council's refusal of development consent — construction of "existing use" provisions of s106(a) of the Environmental Planning & Assessment Act 1979 and CL51 and CL54(2) of the Environmental Planning & Assessment Regulations1980 — North Sydney Municipal Council v Bevillesta Pty Limited (CA, 19 March 1987, unreported) applied — appeal allowed.

"Existing use" Statute - construction - Environmental Planning & Assessment Act 1979 - s106. Environmental Planning & Assessment Regulations1980 - CL51 and CL54(2). ORDERS Appeal allowed and orders below set aside orders substituted dismissing the Appellant's appeal to Bignold J and refusing development consent. Respondent to pay Appellant's costs of the appeal and to have a certificate under the Suitors Fund Act.

Samuels JA This was an appeal from a decision of Bignold J in the Land and Environment Court by which he allowed an appeal by the present respondent against the present appellant's determination refusing consent to a development application to use premises known as No 304A Chalmers Street Redfern for the purpose of a refreshment room or restaurant. When the appeal came on the respondent appeared in person as indeed he had done below. The Court informed him that on 19 March 1987 (Bignold J's decision was given on 27 August 1986) it had delivered judgment in North Sydney Municipal Council v Bevillesta Pty Limited (unreported) which might well determine the appeal against him; and the respondent was urged to consider obtaining legal assistance. However, he preferred to continue the case in person and it is evident from the record of the proceedings below that he is no stranger to the role of advocate. So the case proceeded and we should acknowledge the assistance which we, and the respondent also, for that matter, received from the detached and capable argument of Mr Ayling of counsel for the appellant, who not only protected his own client in the most competent fashion, but laid out with scrupulous fairness the arguments which could possibly be urged for the respondent.