Sevenex Pty Limited v Blue Mountains City Council [2011] NSWCA 223

Sevenex Pty Limited v Blue Mountains City Council [2011] NSWCA 223

The applicant failed to establish that the proposed use fell within existing use rights. The development application specifying the purpose for s 91(4) was not tendered, and the 1993 consent, read with the approved plans, was not for unspecified commercial development but for uses including cafe, retail and crafts, which were materially different from the proposed exhibits and vivarium. The proposed use was also not another commercial use under cl 41 because selling tickets to an entertainment exhibit was not use as retail premises, and providing an experience was not providing a service within the definition of business premises.

Jurisdiction
Australia
Judgment Date
12 August 2011
Procedural Posture
Application for Leave to Appeal and Appeal From a Decision of the Land and Environment Court Under S 56 a of the Land and Environment Court Act 1979 / Court of Appeal; Leave Granted and Appeal Dismissed
Outcome
Leave to appeal granted; appeal dismissed with costs.
Legal Topics
['construction of Development Consent' 'existing Use Rights' 'commercial Use' 'retail Premises' 'business Premises' 'change of Use']
['environment and Planning' 'administrative Law'] ['construction of Development Consent' 'existing Use Rights' 'commercial Use' 'retail Premises' 'business Premises' 'change of Use']

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Procedural Posture

Application for Leave to Appeal and Appeal From a Decision of the Land and Environment Court Under S 56 a of the Land and Environment Court Act 1979 / Court of Appeal; Leave Granted and Appeal Dismissed

Legal Issues

  1. 1 ['Whether, on the proper construction of the 1993 development consent, the proposed mixed media exhibition, aboriginal cultural exhibit, live koala exhibit and vivarium were authorised and did not amount to a change of use.' 'Whether, on the proper construction of cl 41(1) and (3) of the Environmental Planning and Assessment Regulation 2000 and the definitions of business premises and retail premises in the Standard Instrument (Local Environmental Plans) Order 2006, the proposed use was a commercial use.']

Ratio Decidendi

The applicant failed to establish that the proposed use fell within existing use rights. The development application specifying the purpose for s 91(4) was not tendered, and the 1993 consent, read with the approved plans, was not for unspecified commercial development but for uses including cafe, retail and crafts, which were materially different from the proposed exhibits and vivarium. The proposed use was also not another commercial use under cl 41 because selling tickets to an entertainment exhibit was not use as retail premises, and providing an experience was not providing a service within the definition of business premises.

Court Disposition

Leave to appeal granted; appeal dismissed with costs.

Orders

  • ['Grant leave to appeal.' 'Order that the appellant file notice of appeal in accordance with draft notice of appeal on pp 51 and following of the White Appeal Book within seven days.' 'Order that the appeal be dismissed.' "Order that the appellant pay the respondent's costs."]