HUNT v. BLACKTOWN CITY COUNCIL [2001] NSWCA 216

Reported Decision : (2001) 116 LGERA 356

New South Wales Court of Appeal

CITATION : HUNT v. BLACKTOWN CITY COUNCIL [2001] NSWCA 216 FILE NUMBER(S) : CA 40957/99 HEARING DATE(S) : 13/04/01 JUDGMENT DATE : 14 August 2001

PARTIES : Lindsay Hunt (Appellant) Blacktown City Council (Respondent) JUDGMENT OF : Meagher JA at 1; Powell JA at 2; Beazley JA at 52

LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT L & EC 10427/99 FILE NUMBER(S) : LOWER COURT Cowdroy J JUDICIAL OFFICER :

COUNSEL : W.R. Davison SC (Appellant) J.A. Ayling (Respondent) SOLICITORS : Pike Pike & Fenwick (Appellant) Taylor Kelso (Respondent) CATCHWORDS : TOWN PLANNING - Land used for purposes of a poultry farm - Land situated with Residential 2(a) and Special Uses zones under LEP - Whether use as poultry farm an existing use for purposes of LEP - Application for development approval for shopping centre complex - Shops as prohibited purpose in Residential 2(a) and Special Uses 5(a) zones - Whether change of use permitted pursuant to s.108 of EP & A Act D DECISION : Appeal dismissed.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40957/99 L & EC 10427/99 MEAGHER JA POWELL JA BEAZLEY JA 14 August 2001

HUNT v. BLACKTOWN CITY COUNCIL

JUDGMENT 1 MEAGHER JA: I agree with Powell JA. 2 POWELL JA: This is an appeal from a Judgment delivered by Cowdroy J in the Land and Environment Court on 12 November 1999, in which Judgment his Honour recorded his findings on certain preliminary issues which had been argued before him in relation to an appeal by the present Appellant against the refusal by the present Respondent of a Development Application which had earlier been lodged by the Appellant in respect of certain land at Lot 82, Lalor Road, Quakers Hill. Although the Judgment delivered by Cowdroy J was clearly in the nature of an interlocutory decision - the final order dismissing the Appellant's appeal to the Land and Environment Court not being made until 5 March 2000 - s.57(1) of the Land and Environment Court Act 1979 ("the Court Act") permits a party to proceedings in Class 1 of the Land and Environment Court's jurisdiction - as the Appellant's appeal was - to appeal to this Court against an interlocutory decision on a question of law. 3 Although the materials which are before the Court do not contain a copy of the Application for Development approval - DA 97-6724 - which had been lodged by the Appellant with the Respondent, such materials as are before the Court make it tolerably plain that what the Appellant sought was approval to change the use of the land from that of - to use a comparatively neutral phrase - a poultry farm to that of a shopping centre complex. Since the land was situate in part within a Residential 2(a) zone and in part in a Special Uses 5(a) zone under the Blacktown Local Environmental Plan 1988 ("BLEP 1988") in the former of which zones shops were a prohibited purpose and in the latter of which zones any purpose other than that indicated by black lettering on the scheme map - which in this case was drainage - and purposes normally associated with and ancillary to that particular purpose was a prohibited purpose, the approval sought for the change of use could not be granted unless the application were brought within the provisions of ss. 106, 108 of the Environmental Planning and Assessment Act 1979 ("the EPA Act") and Regulations 39(1)(d), 43 of the Environmental Planning and Assessment Regulation 1994 ("the EP & A Regulation") (now Regulations 41(1)(d) and 43 of the Environmental Planning and Assessment Regulation 2000). 4 It is convenient, here, to record the terms of those sections of the EP & A Act and of those Regulations in the EP & A Regulation. They are as follows: