Brinara Pty Ltd v Gosford City Council. Pays/Territoire Australie Type de cour Autres Date Nov 12, 2010 Source UNEP, InforMEA Nom du tribunal Land and Environment Court of New South Wales Juge Craig. Numéro de référence [2010] NSWLEC 230 Langue Anglais Sujet Terre et sols, Environnement gén. Mot clé Développement durable Résumé The applicants land was used for many years for commercial purposes. The zoning later changed to make a commercial use prohibited. In 2005 development consent was granted for the erection and use of a new single storey commercial building on the land. The topography of the site was such that the area beneath the floor slab was a vacant under-croft area in which the structural columns of the building were apparent. The 2005 consent related to the whole of the land, with the unbuilt area required to be landscaped. The applicant sought consent to extend the commercial use on the land by enclosing the under-croft area with self-storage lockers. Its application was rejected by two Commissioners of the Court on the basis that they could not approve it under cl 42 of the Environmental Planning and Assessment Regulation 2000. The applicant appeals from the decision of the Commissioners pursuant to s 56A of the Land and Environment Court Act 1979. It says that the decision of the Commissioners to refuse its application involved error on a question of law which, in substance, involved erroneous determination of the ambit of permissible development in accordance with cl 42 of the Regulation. The Council contends that appeal should be dismissed, as it denies that the decision of the Commissioners was a decision on a question of law and further says that if there was such a decision, no error has been demonstrated. Thus, the issues in the appeal become: was there a decision on a question of law, and if there was such a decision, was it determined erroneously. Upholding the appeal Justice Craig held that the Commissioners “did err in law in the application of the provisions of cl 42”. He held that the Commissioners decision to exclude from consideration, for the purpose of applying clause 42(2) of the Regulation, anything that was “merely ancillary to or supportive of but not permitted to be used for commercial purposes” involved an erroneous application of principle. The boundaries of the unit of land are to be identified by undertaking both a qualitative and quantative analysis of the features and characteristics of the particular use and of the land on which the use is being carried out. Where the lawful existing use is founded in a development consent, the land to which that consent is expressed to relate will usually determine the unit of land upon which the existing use is carried out. When regard is had to those principles, it is clear that the decision to exclude anything that was “merely ancillary to or supportive of but not permitted to be used for commercial purposes” involved an erroneous application of those principles. One of the elements of development that was sanctioned by the applicantss original development consent was the erection and use of a building for commercial purposes. Texte intégral COU-156933.pdf