E S Turnbull Pty Ltd v The Council of the City of Wollongong [1988] NSWLEC 17

Land and Environment Court of New South Wales

CITATION : E S Turnbull Pty Ltd v The Council of the City of Wollongong [1988] NSWLEC 17 APPLICANT E S Turnbull Pty Ltd PARTIES : RESPONDENT The Council of the City of Wollongong

FILE NUMBER(S) : 10091 of 1988 CORAM: Holland J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act, 1979 Interpretation Act 1987 CASES CITED: DATES OF HEARING: DATE OF JUDGMENT: 09/27/1988

LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: These are Class l proceedings in which the applicant is appealing under s.97 of the Environmental Planning and Assessment Act, 1979, against the respondent Council's refusal of its application for development consent to the use of part of a building for the retailing of general merchandise.

The ground of refusal was that the proposed use was prohibited under the provisions of the Wollongong Local Environmental Plan No. 38.

The applicant contends that the proposed use was not prohibited and that the Council should have approved its application.

At the time of the hearing a draft L.E.P. No. 140, amending in a material respect L.E.P. No. 38, had reached the stage that the Minister had made the plan under s.70 of the Environmental Planning and Assessment Act, 1979, the Council had given notice of it pursuant to s.70(7) and it was expected to be gazetted any day.

Counsel for both parties invited the Court to proceed with the appeal and decide the question whether the proposed use was prohibited and, if not, whether it should be approved, as if L.E.P. No. 140 was already in force; but asked the Court to withhold the delivery of judgment and the making of orders until L.E.P. No. 140 was published in the Gazette and had taken effect pursuant to s.34(5) of the Act.