Kang v Blue Mountains City Council [2011] NSWLEC 150

Kang v Blue Mountains City Council [2011] NSWLEC 150

The proposed use was not a "home business" under LEP 2005 because the essential business was the exploitation and extraction of groundwater from the land, not the use of the dwelling or another building on the allotment as commercial premises. The incidental use of a room as an office and the use of pumps, pipes, tanks or other structures did not bring the activity within the definition. Because the activity did not fall within a category identified in the LEP 2005 land use matrix as permitted without consent or permissible with consent, it was prohibited by cl 32(5), and the summons was dismissed.

Jurisdiction
Australia
Judgment Date
06 September 2011
Procedural Posture
Class 4 Environmental Planning Proceedings by Summons / Principal Judgment
Outcome
Summons dismissed.
Legal Topics
['characterisation of Development Under Environmental Planning Instrument' 'groundwater Extraction From Land' 'home Business Under Blue Mountains Local Environmental Plan 2005' 'prohibited Development' 'anshun Estoppel' 'variation or Discharge of Orders Under Uniform Civil Procedure Rules, R. 36.17']
['environment and Planning' 'land Use Planning' 'civil Procedure'] ['characterisation of Development Under Environmental Planning Instrument' 'groundwater Extraction From Land' 'home Business Under Blue Mountains Local Environmental Plan 2005' 'prohibited Development' 'anshun Estoppel' 'variation or Discharge of Orders Under Uniform Civil Procedure Rules, R. 36.17']

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Procedural Posture

Class 4 Environmental Planning Proceedings by Summons / Principal Judgment

Legal Issues

  1. 1 ['Whether proposed extraction and removal of groundwater from the Land constituted a "home business" within the meaning of Blue Mountains Local Environmental Plan 2005 and was allowed without development consent.' 'Whether the proposed activity should instead be characterised as prohibited development, including as "commercial premises" or an innominate prohibited use under cl 32(5) of Blue Mountains Local Environmental Plan 2005.' 'Whether the applicants were estopped, by reason of the earlier orders made by Jagot J and the principles in Port of Melbourne Authority v Anshun Pty Ltd, from contending that their proposed groundwater extraction activity did not require development consent.' 'Whether the earlier injunction should be discharged or varied under Uniform Civil Procedure Rules, r. 36.17 if the proposed activity was permitted without consent.']

Ratio Decidendi

The proposed use was not a "home business" under LEP 2005 because the essential business was the exploitation and extraction of groundwater from the land, not the use of the dwelling or another building on the allotment as commercial premises. The incidental use of a room as an office and the use of pumps, pipes, tanks or other structures did not bring the activity within the definition. Because the activity did not fall within a category identified in the LEP 2005 land use matrix as permitted without consent or permissible with consent, it was prohibited by cl 32(5), and the summons was dismissed.

Court Disposition

Summons dismissed.

Orders

  • ['Summons dismissed.' "Applicants to pay the respondent's costs unless within seven days, a notice of motion is filed seeking to argue costs." 'Exhibits may be returned.']