Powell Holdings Pty Limited v. Hornsby Shire Council [1998] NSWLEC 105

Land and Environment Court of New South Wales

CITATION : Powell Holdings Pty Limited v. Hornsby Shire Council [1998] NSWLEC 105 APPLICANT Powell Holdings Pty Ltd PARTIES : RERSPONDENT Hornsby Shire Council FILE NUMBER(S) : 10032; 10033; 20004 of 1998 CORAM: Pearlman J KEY ISSUES: :- LEGISLATION CITED: Hornsby Planning Scheme Ordinance Hornsby Shire Local Environmental Plan 1994 Foodbarn Pty Ltd and Ors v Solicitor-General (1975) 32 LGRA 157 at 161); CASES CITED: Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 at 409); Londish and Anor v Knox Grammar School and Ors (Court of Appeal, 22 December 1997 DATES OF HEARING: 30/03/98 DATE OF JUDGMENT: 06/02/1998

APPLICANT Mr P R Clay, Barrister Stephen Doyle & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr P J Schofield, Solicitor Pike, Pike & Fenwick

JUDGMENT:

A preliminary question of law has arisen for determination in these proceedings. Before coming to the actual question, it is necessary to set out the context in which it has arisen.

The applicant, Powell Holdings Pty Ltd, conducts a nursery upon its property. It has development consent for that use. It also has development consent for use of part of the property as a coffee shop. It wishes to convert the coffee shop into a restaurant. Use of the property as a restaurant is prohibited under the current local environmental plan.