Peters & Anor v Manly Municipal Council & Anor [2007] NSWCA 343

Peters & Anor v Manly Municipal Council & Anor [2007] NSWCA 343

The appeal failed because the LEP definition of "club" was confined to a building, the evidence supported the conclusion that the clubhouse and proposed club car park were ancillary to the dominant permissible recreational use of playing golf or bowls, and no independent prohibited use as a club or commercial premises was established. Leave to appeal against the costs order was refused because the appellants demonstrated no substantial ground for challenging the ordinary costs order following their failure in the Land and Environment Court.

Jurisdiction
Australia
Judgment Date
04 December 2007
Procedural Posture
Appeal Concerning Validity of Development Consent and Costs Order / New South Wales Court of Appeal Judgment; Leave Required for Appeal Against Costs Order
Outcome
Leave to appeal against the costs order refused; appeal otherwise dismissed; appellants ordered to pay the respondents' costs.
Legal Topics
['development Consent' 'prohibited Development' 'ancillary Use' 'independent Use of Land' 'recreation Area' 'clubs' 'commercial Premises' 'leave to Appeal Against Costs Order']
['planning and Environment Law' 'administrative Law' 'costs'] ['development Consent' 'prohibited Development' 'ancillary Use' 'independent Use of Land' 'recreation Area' 'clubs' 'commercial Premises' 'leave to Appeal Against Costs Order']

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Procedural Posture

Appeal Concerning Validity of Development Consent and Costs Order / New South Wales Court of Appeal Judgment; Leave Required for Appeal Against Costs Order

Legal Issues

  1. 1 ['Whether the development consent for a residential apartment building with an underground car park was invalid because the club car park was for a prohibited purpose of a club or commercial premises under Manly Local Environmental Plan 1998.' 'Whether the proposed club car park was ancillary to the permissible use of the golf course land as a recreation area.' 'Whether the clubhouse or functions held there constituted an independent prohibited use for the purpose of a club or commercial premises.' 'Whether leave should be granted to appeal against the costs order made by the Land and Environment Court.']

Ratio Decidendi

The appeal failed because the LEP definition of "club" was confined to a building, the evidence supported the conclusion that the clubhouse and proposed club car park were ancillary to the dominant permissible recreational use of playing golf or bowls, and no independent prohibited use as a club or commercial premises was established. Leave to appeal against the costs order was refused because the appellants demonstrated no substantial ground for challenging the ordinary costs order following their failure in the Land and Environment Court.

Court Disposition

Leave to appeal against the costs order refused; appeal otherwise dismissed; appellants ordered to pay the respondents' costs.

Orders

  • ['Refuse leave to appeal against the costs order.' 'Appeal otherwise dismissed.' "Appellants pay the respondents' costs."]