St Jude Property Investments v Wollongong City Council [2012] NSWLEC 1188

Land and Environment Court New South Wales

Medium Neutral Citation: St Jude Property Investments v Wollongong City Council [2012] NSWLEC 1188 Hearing dates: 17 July 2012 Decision date: 17 July 2012 Jurisdiction: Class 1 Before: Morris C Decision: Appeal Upheld Catchwords: Consent Orders, existing use rights Legislation Cited: Environmental Planning and Assessment Act 1979; Environmental Planning and Assessment Regulation 2000 Wollongong Local Environmental Plan 2009; Cases Cited: Drummoyne Municipal Council v Cavallaro [1982] 46 LGRA 416 Category: Principal judgment Parties: St Jude Property Investments (Applicant)

Wollongong City Council (Respondent) Representation: Mr M Fraser (Applicant) Solicitors Mr J Reilly (Respondent) File Number(s): 10348 of 2012

Judgment 1St Jude Property Investments (SJPI) sought consent from Wollongong City Council to carry out alterations to part of an existing building and parking area. The purpose of the works is to fit-out the building so it can operate as a car wash facility. 2The council refused consent on the basis that the use was prohibited and SJPI had not demonstrated the site benefited from existing use rights. SJPI has now provided evidence that satisfies the council that existing use rights do apply to the site. The parties are seeking consent orders from the Court.

Background and the proposal 3From the evidence provided to the Court in Exhibit B, it is apparent that the use of part of the site as a service station commenced in 1924. That use expanded over adjoining land in 1967 with further additions authorised by the council in 1970 and 1977. The site is currently used for the purposes of a service station including sale of petrol and oils, vehicle service and car repairs and convenience store and had included, up until 2010, the sale of automotive spare parts. The uses operate independently however share driveways and parking spaces and remain within the use categorised as a service station. 4Consent is being sought to carry out alterations to the building so that the area currently used for the sale of automotive spare parts is adapted for use a carwash. The works include the construction of customer amenities comprising a reception/waiting area, cafe and toilets, staff amenities, storage areas, office and three awning fascia signs.