NSW Caselaw
New South Wales Court of Appeal
CITATION: Kayora Pty Ltd v Leichhardt Council [2010] NSWCA 35
HEARING DATE(S): 19 February 2010
JUDGMENT DATE: 17 March 2010
JUDGMENT OF: Tobias JA at 1; Campbell JA at 61; Sackville AJA at 62
(a) Appeal allowed; DECISION: (b) Set aside the orders made by Biscoe J on 10 August 2009; (c) Declare that the appellants are entitled to use the area described as the "outdoor beer garden" on the plan dated 2 September 1953 for the purposes of a licensed hotel including as a beer garden provided that this declaration does not extend to the erection of any building (as defined in s 4(1) of the Environmental Planning and Assessment Act 1979) upon the said area without first obtaining development consent therefor; (d) The respondent to pay the appellants' costs of the proceedings in the Land and Environment Court and of the appeal.
CATCHWORDS: ENVIRONMENT AND PLANNING – Development control – Consent – Construction – Commercial uses – Hotels – Existing uses – Characterising purpose of use – Consent granted to the continuance of the existing use of the subject buildings and land as hotel premises – Whether the consent permits the use of the rear yard of the subject land as a beer garden – Whether rear yard was used for the purposes of a hotel
County of Cumberland Planning Scheme Ordinance Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Land and Environment Court Act 1979 Liquor Act 1912 (as in force at September 1953) Liquor (Amendment) Act 1954
CATEGORY: Principal judgment
House of Peace Pty Ltd & Anor v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498; (2000) 106 LGERA 440 Kayora Pty Ltd v Leichhardt Council [2009] NSWLEC 126 North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50 CASES CITED: Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGERA 305 Shire of Perth v O'Keefe & Anor (1964) 110 CLR 529 South Sydney City Council v C Maloney Pty Ltd (1996) 89 LGERA 324 Steedman v Baulkham Hills Shire Council (No 1) (1991) 87 LGERA 26
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