COUNCIL OF THE SHIRE OF WARRINGAH v JENNINGS GROUP LTD [1992] NSWCA 50

COUNCIL OF THE SHIRE OF WARRINGAH v JENNINGS GROUP LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and Cripps JJA 21 April 1992, 18 June 1992

[1992] NSWCA 50

TOWN PLANNING — development application — model or exhibition home — residential A zone — whether prohibited development as "commercial premises" — local authority refuses development consent claims that development is prohibited being for "commercial premises" — on application to the Land and Environment Court, Bannon J holds that "commercial premises" exclude dwelling houses, whether used as dwellings or not — held: (On appeal to the Court of Appeal) (per Cripps JA; Clarke JA concurring; Kirby P dissenting): Upon a true construction of "commercial premises" as applied to zone 2(a) under CL9 of the Warringah Local Environmental Plan as defined in CLS of the plan, the subject premises, being used for a commercial purpose, they were a prohibited development and the local authority could give no consent for such use — appeal allowed.

Foodbarn Pty Ltd v The Solicitor General (1975) 32 LGRA 157 (CA) applied; Leichhardt Municipal Council v Mansfield (1985) 57 LGRA 214 (CA) considered.

Environmental Planning and Assessment Act 1979, s76. Warringah Local Environmental Plan 1985, CLS, CL9.

Kirby P In the expanding sprawl of the suburbs of a modern metropolis, it is not uncommon to see exhibition or model homes.

Model or exhibition homes: a prohibited use

Typically, such homes are displayed in a prominent position in housing developments awaiting the erection of new dwellings built according to designs chosen by the purchasers. Typically, they provide a place to which potential purchasers can come to inspect the neighbourhood, assess the facilities, view such homes as have been erected by earlier purchasers, choose a design amongst several on offer, negotiate finance and commit themselves to the erection of a new dwelling house of their choice on a nearby lot or the acquisition of a dwelling already erected. The exhibition model home usually provides an office. But it also provides for the potential purchasers an idea or a concept of what the home, formulating in their minds, might look like when completed nearby. Because, in this way, exhibition or model homes tend to make real the dreams and aspirations of purchasers, often of the first home they own, they fulfil a useful purpose, as anyone having contact with members of the younger generation of modest means will be aware.