NSW Caselaw
Reported Decision : (2008) 158 LGERA 116
Land and Environment Court of New South Wales
CITATION : Reading Properties Pty Ltd v Auburn Council [2007] NSWLEC 186
APPLICANT: Reading Properties Pty Ltd PARTIES : RESPONDENT: Auburn Council
FILE NUMBER(S) : 10934 of 2006
CORAM: Biscoe J
KEY ISSUES: Existing Use Rights :- development consent approves development of building complex for specified purposes including shops - condition that further individual applications be submitted for specific uses - shops later prohibited under local environmental plan - development consent later granted approving fit-out of a tenancy in the building as a retail shop subject to a condition restricting it to sporting goods - deemed refusal by council of further development application for a shop fit-out of the tenancy for clothing/fashion/sports apparel - whether continued use of the tenancy for purpose of a shop is lawful as a use pursuant to either development consent pursuant to s109B of Environmental Planning and Assessment Act 1979 - whether continued use of the tenancy for the purpose of a shop is lawful as an existing use pursuant to Part 4 Division 10 of the Act - whether the tenancy may be used for the purposes of a shop of another kind pursuant to cl 7 of State Environmental Planning Policy No. 4 - whether consent can be granted to the development application
LEGISLATION CITED: Environmental Planning & Assessment Act 1979 ss 4, 81A, 96, 106, 107, 109B, 109H, 109M, 109N Environmental Planning and Assessment Regulation 2000 Division 3 of Part 8, cl 155(e)
Auburn Council v Constanti (2000) 109 LGERA 355; Botany Bay City Council v Workmate Abrasives Pty Ltd (2003) 126 LGERA 326; Caltex Australia Petroleum Pty Ltd v Manly Council [2007] NSWLEC 105; Carr v Finance Corporation of Australia Ltd (1982) 150 CLR 139; Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493; Currency Corporation Pty Ltd v Wyong Shire Council [2006] NSWLEC 692; Dorrestijn v South Australian Planning Commission (1984) 59 ALJR 105; 54 LGRA 99; Dosan Pty Ltd v Rockdale City Council (2001) 117 LGERA 363; CASES CITED: Harris v Hawkesbury Shire Council (1989) 68 LGRA 183 ; House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGERA 173; North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50; Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1; Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305; Shire of Perth v O'Keefe (1964) 110 CLR 529; Steedman v Baulkham Hills Shire Council [No 1] (1991) 87 LGERA 26; Steedman v Baulkham Hills Shire Council [No 2](1993), 31 NSWLR 562; Willoughby County Council v Dasco Design and Construction Pty Ltd (2000) 111 LGERA 422; Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299
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