THE COUNCIL OF THE MUNICIPALITY OF KU RING GAI v MOBIL OIL AUSTRALIA LTD [1992] NSWCA 48

THE COUNCIL OF THE MUNICIPALITY OF KU RING GAI v MOBIL OIL AUSTRALIA LTD

SUPREME COURT OF NEW SOUTH WALES

KIRBY P, MAHONEY and CLARKE JJA 15 April 1992, 3 June 1992

[1992] NSWCA 48

BUILDING CONTROL and TOWN PLANNING — existing use rights — proposed enlargement and expansion of service station and adjoining land whether local authority empowered to give consent for enlargement or expansion of established existing use — whether such consent should be granted in the instant case — whether matter should be remitted to Land and Environment Court for reconsideration in the light of reg52-reg54 Environmental Planning and Assessment Regulations 1980 — held: (Clarke JA; Kirby P and Mahoney JA concurring): (1) Upon the assumptions agreed to by parties that (a) the development application involved a rebuilding of the existing service station; (b) that where the word "allotment" appeared in the Regulations, it referred to a particular lot identified in the relevant plan deposited at the Registrar General; and (c) that it was conceded that the lot here in question was a single allotment at the critical date at which existing use rights were to be determined, the local government authority was empowered to grant consent, in appropriate cases, to applications for enlargement or expansion of such existing use rights; (2) Although, in reaching his decision, Stein J in the Land and Environment Court had not considered whether consent should be given under Reg53 and Reg54 of the Regulations, there was no point in returning the matter to that Court for decision on the merits as the manner in which Stein J had determined the application made it clear that it was, in his opinion, an appropriate case in which to give consent; (3) Accordingly, appeal dismissed. Vaughan Taylor v David Mitchell Melcann Pty Ltd and Anor (1991) 73 LGRA 366 (CA) considered.