Australian Posters Pty Ltd v Leichhardt Council [2000] NSWLEC 195

Australian Posters Pty Ltd v Leichhardt Council [2000] NSWLEC 195

The proposed advertising structure was prohibited development because it was not a permissible purpose in the Open Space 6(a) Zone under the LEP. However, the appeal site had existing use entitlements because the club premises were lawfully erected and used before the City of Sydney Planning Scheme Ordinance came into force, that use was not a use for public recreation and was therefore prohibited by the relevant planning instruments within s 106(a), and the lawful use had continued without abandonment. Those existing use entitlements prima facie sanctioned the grant of development consent despite the prohibitory effect of s 76B.

Jurisdiction
Australia
Judgment Date
31 August 2000
Procedural Posture
Class 1 Proceedings Involving an Appeal Pursuant to Environmental Planning and Assessment Act 1979 S 97 Against Refusal of Development Consent / Preliminary Determination of Two Questions of Law
Outcome
The two preliminary questions of law were both answered in the affirmative and the proceedings were remitted to the Registrar's callover for listing for hearing.
Legal Topics
['prohibited Development' 'existing Use Rights' 'advertising Structure' 'open Space 6(a) Zone' 'development Consent' 'environmental Planning Instruments']
['environmental Planning and Development Law' 'land and Environment Law'] ['prohibited Development' 'existing Use Rights' 'advertising Structure' 'open Space 6(a) Zone' 'development Consent' 'environmental Planning Instruments']

Case Brief

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Procedural Posture

Class 1 Proceedings Involving an Appeal Pursuant to Environmental Planning and Assessment Act 1979 S 97 Against Refusal of Development Consent / Preliminary Determination of Two Questions of Law

Legal Issues

  1. 1 ['Whether the development sought by development application number 105/98 was a prohibited use within the Open Space 6(a) Zone under the LEP' 'Whether the proposed development had the benefit of the existing use rights provisions of Division 10 Part 4 of the Environmental Planning & Assessment Act 1979' 'Whether the use of the club premises was prohibited by the City of Sydney Planning Scheme or the LEP within the meaning of Environmental Planning and Assessment Act 1979 s 106(a)' 'Whether the use of the club premises lawfully commenced and lawfully continued']

Ratio Decidendi

The proposed advertising structure was prohibited development because it was not a permissible purpose in the Open Space 6(a) Zone under the LEP. However, the appeal site had existing use entitlements because the club premises were lawfully erected and used before the City of Sydney Planning Scheme Ordinance came into force, that use was not a use for public recreation and was therefore prohibited by the relevant planning instruments within s 106(a), and the lawful use had continued without abandonment. Those existing use entitlements prima facie sanctioned the grant of development consent despite the prohibitory effect of s 76B.

Court Disposition

The two preliminary questions of law were both answered in the affirmative and the proceedings were remitted to the Registrar's callover for listing for hearing.

Orders

  • ['The questions of law raised by the Council be answered as follows: Question 1 Whether the development sought by development application 105/98 is a prohibited use within the Open Space 6(a) Zone under the LEP. Answer: Yes' 'Question 2 Whether the proposed development has the benefit of the existing use rights...