Auburn Council v Constanti and Anor [2000] NSWLEC 194

Auburn Council v Constanti and Anor [2000] NSWLEC 194

The impugned activity was a use of the south west section of the site for the purpose of a driveway or service station, but the whole site, including the south west section, was the subject of the 1956 and 1961 consents authorising service station and motor vehicle repair use. That existing use had not been abandoned, because the rear section had continuously been used for purposes integral to the service station use, including storage of vehicles awaiting repair, repairs, waste oil storage and related access. The evidence did not establish any enlargement, expansion or intensification of the existing service station use; it showed only changed physical manoeuvring and impacts....

Jurisdiction
Australia
Judgment Date
05 September 2000
Procedural Posture
Class 4 Application for Injunction / Judgment After Hearing
Outcome
Application dismissed; costs reserved.
Legal Topics
['existing Use Rights' 'service Station Use' 'development Consent' 'abandonment' 'enlargement, Expansion or Intensification of Existing Use' 'injunction']
['planning and Environment Law' 'land Use'] ['existing Use Rights' 'service Station Use' 'development Consent' 'abandonment' 'enlargement, Expansion or Intensification of Existing Use' 'injunction']

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Procedural Posture

Class 4 Application for Injunction / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the use of the south west section of the site for vehicle access to diesel bowsers was a use for the purpose of a service station or driveway.' 'Whether the respondents had the benefit of existing use rights or development consents for the south west section of the site.' 'Whether any existing use of the south west section had been abandoned.' 'Whether the impugned activity enlarged, expanded or intensified the existing use and therefore required development consent.' 'Whether the 1956 consent and 1961 consent were in force for the purposes of s 109B of the Environmental Planning and Assessment Act 1979.']

Ratio Decidendi

The impugned activity was a use of the south west section of the site for the purpose of a driveway or service station, but the whole site, including the south west section, was the subject of the 1956 and 1961 consents authorising service station and motor vehicle repair use. That existing use had not been abandoned, because the rear section had continuously been used for purposes integral to the service station use, including storage of vehicles awaiting repair, repairs, waste oil storage and related access. The evidence did not establish any enlargement, expansion or intensification of the existing service station use; it showed only changed physical manoeuvring and impacts....

Court Disposition

Application dismissed; costs reserved.

Orders

  • ['The application is dismissed.' 'The question of costs is reserved.' 'The exhibits may be returned.']