Grace & Anor v Thomas Street Café Pty Ltd & Ors [2007] NSWCA 359

New South Wales Court of Appeal

CITATION: Grace & Anor v Thomas Street Café Pty Ltd & Ors [2007] NSWCA 359

HEARING DATE(S): 10 September 2007

JUDGMENT DATE: 12 December 2007

JUDGMENT OF: Spigelman CJ at 1; Beazley JA at 2; McClellan CJ at CL at 140

DECISION: 1. The appeal be allowed;; 2. The matter is remitted to the Land and Environment Court for determination of the orders that should be made on the appellants' application;; 3. The respondents are to pay the appellants' costs.

CATCHWORDS: ENVIRONMENT AND PLANNING – existing use rights – characterisation – liberal approach to be adopted – land to be described only at level of generality necessary and sufficient to cover individual activities – characterisation not to be so general that it embraces activities or transactions which differ in kind – existing use can evolve over time – town planning purposes to be emphasised when characterising existing use – whether trial judge erred in characterising existing use at relevant date - ENVIRONMENT AND PLANNING – refreshment room prohibited under local planning instrument – change of use permitted under incorporated provisions of Environmental Planning and Assessment Regulations 2000 – development application lodged with local council to install awning for use as a café – premises contained no existing use rights – whether trial judge erred in finding development application effected a change of use - ENVIRONMENT AND PLANNING – development consent – Environmental Planning and Assessment 1979 s 81A - development consent did not make permissible use of land otherwise prohibited under relevant planning instrument - ENVIRONMENT AND PLANNING – privative clause – Environmental Planning and Assessment Act 1979 s 101 – validity of development consent cannot be challenged after three months from date of public notice – proceedings brought out of time – s 101 applies to a challenge to a grant of consent not to construction of consent