Jojeni Investments Pty Ltd v Mosman Municipal Council [2015] NSWCA 147

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Jojeni Investments Pty Ltd v Mosman Municipal Council [2015] NSWCA 147 Hearing dates: 5 May 2015 Decision date: 28 May 2015 Before: Macfarlan JA at [1]; Gleeson JA at [4]; Leeming JA at [7] Decision: 1. Appeal allowed.

2. Set aside the orders made on 8 August 2014, and in lieu thereof declare that the property known as 7 Arbutus St, Mosman has the benefit of existing use rights as a building containing flats, and otherwise dismiss the summons filed 9 July 2013.

3. The parties to bring in agreed short minutes of order as to costs within 14 days from today, or, in the absence of agreement, submissions not exceeding 4 pages, any material on which they rely, and the form of orders as to costs at first instance and on appeal within 14 days from today. Catchwords: PLANNING LAW - existing use - appropriate level of generality or particularity - Council approved conversion of residence into two flats in 1933 - building used continuously for two flats thereafter - development application for construction of building containing three flats - whether Council empowered to consent - original approval unable to be found - inferences drawn from contemporaneous documents and legislative regime - approval only required for building works, not change of use - use as residential flat building prohibited from 1937 - relevance of subsequent alterations to planning regime - whether principles in Shire of Perth v O'Keefe (1964) 110 CLR 529 applicable - aspects of reasoning in Botany Bay City Council v Workmate Abrasives Pty Ltd (2004) 138 LGERA 120 considered and explained - Environmental Planning and Assessment Act 1979 (NSW), ss 106, 107, 109 and 109B considered