Calleja v Botany Bay City Council [2005] NSWCA 337

Reported Decision : 142 LGERA 104

New South Wales Court of Appeal

CITATION: Calleja v Botany Bay City Council [2005] NSWCA 337

HEARING DATE(S): 7 September 2005

JUDGMENT DATE: 10 October 2005

JUDGMENT OF: Tobias JA at 1; Basten JA at 39; Young CJ in Eq at 46

DECISION: (1) Appeal allowed; (2) The orders made by Talbot J on 1 December 2004 be set aside; (3) Declare that the use of the land described in the Schedule to the Amended Application Class 4 dated 8 September 2004 for the purpose of a building containing two dwellings was, as at 1 December 2004, an "existing use" within the meaning of s 106(a) of the Environmental Planning and Assessment Act 1979 (as amended); (4) The respondent to pay the appellants' costs of the proceedings in the Land and Environment Court and of the appeal but to have with respect to the latter a certificate under the Suitors' Fund Act 1951, if otherwise qualified.

CATCHWORDS: ENVIRONMENT AND PLANNING - Existing use rights - Whether use of land was an "existing use" within meaning of s 106(a) Environmental Planning and Assessment Act 1979 - Characterisation of use of land - Level of particularity with which use to be identified - Whether use prohibited under Local Environment Plan - Construction of definition of "dwelling house" in LEP - Single structure containing two domiciles with shared common internal walls - Whether land being used for purpose of one or more "dwelling houses" as defined - Whether definition of "dwelling house" confined to detached housing - Whether definition of "building" in s 4 Environmental Planning and Assessment Act applicable

Botany Local Environmental Plan 1995 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Model Provisions 1980 LEGISLATION CITED: Local Government Act 1919 Local Government Act Model Provisions 1962 Suitors' Fund Act 1951