Sevenex Pty Limited v Blue Mountains City Council [2011] NSWCA 223

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sevenex Pty Limited v Blue Mountains City Council [2011] NSWCA 223 Hearing dates: 24 May 2011 Decision date: 12 August 2011 Before: McColl JA at [1]; Young JA at [2]; Sackville AJA at [38] Decision: (1) Grant leave to appeal. (2) Order that the appellant file notice of appeal in accordance with draft notice of appeal on pp 51 and following of the White Appeal Book within seven days. (3) Order that the appeal be dismissed. (4) Order that the appellant pay the respondent's costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: ENVIRONMENT AND PLANNING- construction of development consent- consent for "establishment of a commercial development"- intention to change shop and caf to a "mixed media exhibition"- whether covered by existing use rights- development consent never tendered- whether appellant could rely on former s 91(4) of EP&A Act (now s 81A(1)) as to purpose of development consent.

WORDS & PHRASES- "purpose", "retail premises", "business premises". Legislation Cited: Environment Planning and Assessment Regulation 20000, cl 41 Environmental Planning and Assessment Act 1979, ss 81A, 91, 92, 106, 108 Land and Environment Court Act 1979 ss 56A, 57 Standard Instrument (Local Environmental Plans) Order 2006 Cases Cited: Bonus Pty Ltd v Leichhardt MC (1954) 19 LGR (NSW) 375 Brinara Pty Ltd v Gosford City Council [2010] NSWLEC 25 Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400 IW v City of Perth [1997] HCA 30; 191 CLR 1 Ryde MC v Royal Ryde Homes (1970) 19 LGRA 321 Category: Principal judgment Parties: Sevenex Pty Limited (Applicant) Blue Mountains City Council (Respondent) Representation: T S Hale SC/J B Maston (Applicant) J Robson SC/C Ireland (Respondent) Wellings Lawyers (Applicant) McPhee Kelshaw (Respondent) File Number(s): CA 2010/226731 Decision under appeal Citation: Sevenex Pty Limited v Blue Mountains City Council (No 2) [2010] NSWLEC 101 Date of Decision: 2010-06-18 00:00:00 Before: Sheahan J File Number(s): LEC 10089/2009