S GAUCI PTY LTD v BLACKTOWN CITY COUNCIL [1996] NSWCA 462

S GAUCI PTY LTD v BLACKTOWN CITY COUNCIL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER and COLE JJA and GILES AJA 12 November 1996, 12 November 1996 [1996] NSWCA 462

TOWN PLANNING — development application — consent refused by Council — "existing use" of business — Environmental Planning and Assessment Act 1979 s106-s108

Sheller JA The appellant, S Gauci Pty Ltd, has operated a road side stall or shop on premises known as lot 403, Great Western Highway, Minchinbury since 1960. On 6 May 1977 the Local Government Appeals Tribunal decided an application by the appellant seeking, in essence, to erect a building for use for retail of fruit and vegetables and certain ancillary items on the site. The Tribunal saw no reason to refuse the application but confined or restricted the use of the building on the site to the retail sale of fresh fruit and vegetables as primary or dominant items and the retail sale of soft drinks, cigarettes, cigars, tobacco and cigarette papers, confectionery, homemade jams, homemade or home-produced honey, eggs and like items as ancillary or secondary items.

The Tribunal granted the application subject to the condition that no use other than that to which I have just referred, should at any time be made of or carried out on the subject properties at or in relation to the building without the prior written consent of the Council.

In 1993 the appellant submitted a development application for the sale and display of small goods at "our existing retail shop". The details of the proposed development were described in the development application as: "The sale and display of small goods such as coffee, tea, canned goods, sauces, iced confectionery, bread, dairy items, etc within the existing retail area."

By notice of determination of 3 August 1993 the respondent, Blacktown City Council, refused to consent to the development described in the notice of determination as expansion of the existing Minchinbury Fruit Market for the sale of small goods and groceries. Various grounds of refusal were set out: