GEMSTED PTY LTD v THE COUNCIL OF THE CITY OF GOSFORD [1993] NSWCA 106

GEMSTED PTY LTD v THE COUNCIL OF THE CITY OF GOSFORD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, HANDLEY and Cripps JJA 4 December 1992, 25 February 1993

[1993] NSWCA 106

The issue on appeal was whether the use of a building with an attached jetty to be used for certain purposes was a "designated development" for the purposes of the Environmental Planning and Assessment Act.

Held: The development was a designated development, it being a "marina" as described in Schedule 3 of the Regulation. Meaning of "marina" discussed. Land and Environment Court procedure discussed, the role of judges and assessors in that Court in its Class 1 and Class 4 jurisdictions referred to.

Environmental Planning and Assessment Act 1979: s77(3)(d), s158

Environmental Planning and Assessment Regulation: CL70, Schedule 3

Land and Environment Court Act 1979: s36(5), s22, s38

The Australian Gas Light Co v Valuer General (1980) 40 SRC(NSW) 126 Bendixen v Coleman, Scott, Croft and Ors (1943) 68 CLR 401 Scott v Moses (1957) 74 WN(NSW) 101 HA Bachrach Pty Ltd v Council of the Shire of Caboolture (Queensland Court

of Appeal, 12 November 1992, unreported) Leichhardt Municipal Council v Daniel Callaghan Pty Ltd (1981) 48 LGRA 29 British Ceylonese Ltd v Courtlands Ltd (1935) 52 RPC 173

Priestley JA I agree with Cripps JA. Handley JA I agree with Cripps JA.

Cripps JA This is an appeal from Pearlman J in the Land and Environment Court declaring that development being:

"A two storey building, with 25 metre jetty attached, to be used for the purposes of boat chandlery, kiosk, shipwright, outboard motor sales and services, marine upholsterer, yacht brokerage, sailing school, waterfront real estate agent, boat hire, marine engineer and marine electrician" was relevantly "designated development" as prescribed pursuant to s158 of the Environmental Planning and Assessment Act 1979 (the Act) and CL70 of the Environmental Planning and Assessment Regulation and that the development application made by Gemsted Pty Ltd (the appellant) to the Council of the City of Gosford (the respondent) was not validly made.