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Brinara Pty Ltd v Gosford City Council.

Country/Territory
Australia
Type of court
Others
Date
Feb 25, 2010
Source
UNEP, InforMEA
Court name
Land and Environment Court of New South Wales
Judge
Pain.
Reference number
[2010] NSWLEC 25
Language
English
Subject
Land & soil, Environment gen.
Keyword
Sustainable development
Abstract
The Applicant obtained a development consent in 2005 for premises in Erina. The Notice of Determination stated that the development was for commercial premises. The relevant planning instrument is the Interim Development Order No 122 (IDO 122). After the 2005 consent was granted, IDO 122 was amended to prohibit commercial premises within the zone. In 2008, the Applicant lodged a development application for consent to expand the existing commercial premises by constructing two levels of storage units below the existing commercial building. The application was refused by the Council, and class 1 proceedings were commenced by the Applicant. The Applicant claimed that it had existing use rights to use the premises as commercial premises. Clause 41(1)(e) of the Environmental Planning and Assessment Regulation 2000 (Regulation) states that if an existing use is a commercial use, it can be changed to another commercial use, unless clause 41(2) applied. The Court was required to determine if clause 41(1)(e) applied, in that the 2008 application involved a change in use from one type of commercial use to another type of commercial use. The Applicant claimed that it was the use determined by the construction of the 2005 consent that was being enlarged and expanded. Accordingly, there is no application to change from one type of commercial premises to another type of commercial premises and clause 41(1)(e) of the Regulation does not apply. The Council submitted that the consent was commercial premises, but the uses authorised by the consent were retail uses. It submitted that, by adding storage units under the existing building (which it claimed was a business use), the Applicant was seeking to change a commercial use of various retail uses to another commercial use, being a business use. Accordingly, it submitted that clause 41(1)(e) applied. The Judge said that the purpose of the consent must be gleaned from the Notice of Determination and the approved plans for which consent was granted. The description in the Notice of Determination was ‘commercial premises’. The approved plans show the proposed building for commercial premises with particular retail uses. The building and operation of the storage uses in the 2008 application also fall within the definition of ‘commercial premises’. Accordingly, there was no a change in use from one type of commercial use to another type of commercial use. Therefore, clause 41(1)(e) did not apply.
Full text
COU-156932.pdf