SYDNEY SERVICED APARTMENTS PTY LTD v THE COUNCIL OF THE MUNICIPALITY OF NORTH SYDNEY [1993] NSWCA 259

SYDNEY SERVICED APARTMENTS PTY LTD v THE COUNCIL OF THE MUNICIPALITY OF NORTH SYDNEY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and CRIPPS JJA 5 February, 1993, 22 February 1993

[1993] NSWCA 259

TOWN PLANNING — development consent — interpretation — extrinsic documents — whether relevant — whether incorporated. TOWN PLANNING — injunctions — form of. On 11 April 1960 the Cumberland County Council granted a development consent for the erection of a "twentyfour storey residential building" which later became known as Blues Point Tower. The appellant commenced to use some of the units as serviced apartments. The Council sued to restrain such use as being contrary to its Local Environmental Plan. Bignold J in the Land and Environment Court made a declaration and granted an injunction to restrain such use, both orders being limited to the units then owned or being managed

by the defendant. On appeal by the defendant and cross appeal by the Council. Held:

(1) The consent on its true construction was for the erection of a residential flat building so that use of the subject home units by the defendant as serviced apartments was not within the consent.

North Sydney MC v Sydney Serviced Apartments (1990) 71 LGRA 432 (CA) followed.

(2) Development consents should be construed without reference to extrinsic evidence unless the terms of another document have been incorporated into the consent expressly or by necessary implication.

Auburn MC vy Szabo (1971) 67 LGRA 427 followed.

(3) Since the question of possible development consents and existing use rights in relation to other units in the building had not been litigated it was not appropriate to grant an unqualified general injunction in relation to all units in the building. In view of the differing onuses of proof in relation to other development consents and existing use rights it was difficult to formulate the terms in which a qualified general injunction might be granted.