Auswild & Ors V Blacktown City Council [1999] NSWLEC 67

Auswild & Ors V Blacktown City Council [1999] NSWLEC 67

Because the 1971 development consent for use of the premises as a hotel/motel was granted and in force and contained no restriction on hours of operation, s109B of the Environmental Planning and Assessment Act 1979 protected the carrying out of the development from any requirement for further development consent under the later Blacktown Local Environmental Plan 1988. Intensification of use was not a relevant limitation under s109B, and restrictions under the Liquor Act 1912 were not implied into the consent.

Jurisdiction
Australia
Judgment Date
23 March 1999
Procedural Posture
Determination of Law Under S36(5) of the Land & Environment Court Act / Question of Law for Determination
Outcome
Question of law answered in the affirmative; further development consent was unnecessary for the proposed extended trading hours under planning legislation.
Legal Topics
['development Consent' 'existing Use' 'intensification of Use' 'hotel Trading Hours' 'section 109 B of the Environmental Planning and Assessment Act 1979']
['planning and Environmental Law'] ['development Consent' 'existing Use' 'intensification of Use' 'hotel Trading Hours' 'section 109 B of the Environmental Planning and Assessment Act 1979']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Determination of Law Under S36(5) of the Land & Environment Court Act / Question of Law for Determination

Legal Issues

  1. 1 ['Whether the extension of hotel trading hours was protected from the need to obtain development consent by virtue of section 109B of the Environmental Planning and Assessment Act 1979.' 'Whether section 109B applies to a development consent already granted and in force, irrespective of whether the development has been carried out or only partly carried out.' 'Whether restrictions on hotel operating hours under the Liquor Act 1912 were implicitly included in the development consent.']

Ratio Decidendi

Because the 1971 development consent for use of the premises as a hotel/motel was granted and in force and contained no restriction on hours of operation, s109B of the Environmental Planning and Assessment Act 1979 protected the carrying out of the development from any requirement for further development consent under the later Blacktown Local Environmental Plan 1988. Intensification of use was not a relevant limitation under s109B, and restrictions under the Liquor Act 1912 were not implied into the consent.

Court Disposition

Question of law answered in the affirmative; further development consent was unnecessary for the proposed extended trading hours under planning legislation.

Orders

  • ['The question of law posed by the parties is answered in the affirmative.' 'Exhibits be returned.']