Walsh, Jason Patrick v Tamworth City Council [2006] NSWLEC 652

Land and Environment Court of New South Wales

CITATION : Walsh, Jason Patrick v Tamworth City Council [2006] NSWLEC 652

APPLICANT Jason Patrick Walsh PARTIES : RESPONDENT Tamworth City Council

FILE NUMBER(S) : 10539 of 2006

CORAM: Talbot J

KEY ISSUES: Planning Instruments - Question of Law :- effect of notification of change of use on existing development consent.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

DATES OF HEARING: 05/10/2006

EX TEMPORE JUDGMENT DATE : 10/05/2006

APPLICANT Mr J B Maston (barrister) SOLICITORS MacLean & Curtis LEGAL REPRESENTATIVES: RESPONDENT Mr P Thompson (solicitor) SOLICITORS Tamworth City Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Talbot J

5 October 2006

10539 of 2006 Jason Patrick Walsh v Tamworth City Council

EX TEMPORE JUDGMENT 1 Talbot J: The reasons for the following findings can be distilled from the exchanges between the parties during submissions. It is not necessary to formally reiterate those reasons as they appear in cogent form on the record. 2 I find that cl 50 of Tamworth LEP 1996 applies to the building erected on the subject land and that accordingly that building may be used for the purposes of commercial premises other than a hairdressing salon including a funeral parlour without consent. 3 I find further that the use of that building and the premises generally is otherwise controlled and regulated by the terms and conditions of development consent granted in respect of the property 6 Byrnes Avenue, Tamworth on 28 July 1989. 4 Thirdly, I find that the development application the subject of the present proceedings relates only to that part of the premises where the building additions and alterations are proposed but that nevertheless, subject to meeting a test of relevance and reasonableness, conditions can be imposed that relate to the use of the whole premises or such other premises in accordance with s 80A(1)(f) and or modification of the existing consent in accordance with s 80A(1)(b) and (c). 5 I answered the questions in that way. It will be seen that s 80A actually contemplates the very matters discussed, namely modification of existing consent as it relates to the subject or to other land and it also deals with the impact of conditions on other land. I specifically mention those in these findings to make it clear as to where the road ahead lies.