AUSTEXX DEVELOPMENTS PTY LTD v. PENRITH COUNCIL [1998] NSWLEC 219 (14 September 1998) [1998] NSWLEC 15

Land and Environment Court of New South Wales

CITATION : AUSTEXX DEVELOPMENTS PTY LTD v. PENRITH COUNCIL [1998] NSWLEC 219 (14 September 1998) [1998] NSWLEC 15 PARTIES : AUSTEXX DEVELOPMENTS PTY LTD v. PENRITH COUNCIL [1998] NSWLEC 219 (14 September 1998) FILE NUMBER(S) : 10181 of 1998 CORAM: Lloyd J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979 ss 106, 107, 109B Earle Cameron Constructions Pty Ltd v Parramatta City Council (1981) 46 LGRA ; Hudak v Waverley Municipal Council (1990) 70 LGRA 130 (CA) ; In Woollahra MC v TAJJ Investments (1982) 49 LGRA 123; CASES CITED: Auburn Council v Nehme (Land and Environment Court of NSW, Bignold J, 15 April 1998, unreported; Londish v Knox Grammar School (Land and Environment Court of NSW, Talbot J, 13 May 1997, unreported; Londish v Knox Grammar; Auburn v Nehme DATES OF HEARING: 17, 18 August 1998 DATE OF JUDGMENT: 09/14/1998

D P Wilson LEGAL REPRESENTATIVES: D H Officer QC

JUDGMENT:

12 JUDGMENT

HIS HONOUR: In this proceeding the parties have raised some preliminary questions of law, pursuant to the Land and Environment Court Act 1979, s 36(5). Austexx Developments Pty Ltd ("the applicant") have appealed against the deemed refusal by the Council of development application 98006, which was submitted in relation to land being part lot 1 in DP 656838 and located at 574 Great Western Highway, Werrington (also known as Putland Street, Werrington, St Mary's or Claremont Meadows) ("the subject property"). The development application relates to a proposed subdivision and integrated housing development on the rear portion of the subject property by the applicant. There are eleven separate points raised for consideration in the statement of issues filed on behalf of the Council, however it is only necessary to refer to Nos 2-4, because the remaining points only arise for determination if those points are determined in the applicant's favour, and during the hearing the applicant abandoned ground number 1. The questions for the Court's consideration in this proceeding are as follows: "2. Whether the subject property currently enjoys any existing use rights. In particular: (a) did the subject property enjoy any existing use rights prior to the issue of development consent in 1995? (b) were any existing use rights enjoyed by the property prior to the issue of the 1995 consent extinguished by the issue of that consent? (c) were any existing use rights, enjoyed by the subject property after the issue of the 1995 consent, abandoned prior to the lodgement of the development application for the proposed development?