Botany Bay City Council v Workmate Abrasives Pty Ltd ACN 060 998 629 & Anor [2003] NSWLEC 85

Botany Bay City Council v Workmate Abrasives Pty Ltd ACN 060 998 629 & Anor [2003] NSWLEC 85

The 1966 consent was extinguished because the authorised steel fabrication use was not being conducted when IDO 19 came into operation. The 1974 consent was preserved and deemed to be a development consent under the Environmental Planning and Assessment Act 1979 by the MAPRA Act, and the 1984 consent separately authorised light manufacture of extractors. The steel fabrication use being conducted when the LEP became applicable to the land was of the same genus as the authorised light manufacture of extractors, so the use in 1999 was lawful and the land had the benefit of existing use rights under s 106, with continuance permitted by s 107. The current abrasive materials use was an...

Jurisdiction
Australia
Judgment Date
16 June 2003
Procedural Posture
Proceedings Seeking a Declaration and Restraining Orders Concerning Alleged Prohibited Land Use / Judgment
Outcome
Application dismissed; applicant ordered to pay the costs of the first and second respondents.
Legal Topics
['existing Use Rights' 'development Consent' 'zoning Prohibition' 'genus Test' 'change of Use' 'environmental Planning Instruments']
['planning and Environment Law' 'local Government Law'] ['existing Use Rights' 'development Consent' 'zoning Prohibition' 'genus Test' 'change of Use' 'environmental Planning Instruments']

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Procedural Posture

Proceedings Seeking a Declaration and Restraining Orders Concerning Alleged Prohibited Land Use / Judgment

Legal Issues

  1. 1 ['Whether the land and factory building at 57-59 Baxter Road Mascot was being used for a purpose prohibited by cl 10 of the Botany Local Environmental Plan 1995.' 'Whether the respondents had the benefit of existing use rights under ss 106 and 107 of the Environmental Planning and Assessment Act 1979.' 'Whether the 1966 consent, 1974 consent or 1984 consent could be relied upon after changes to the planning instruments.' 'Whether the steel fabrication use being conducted when the LEP became applicable to the land was of the same genus as an authorised use.' 'Whether the current use for conversion of abrasive materials into belts, disks, sheets and rolls for warehouse distribution and associated offices required further development consent.']

Ratio Decidendi

The 1966 consent was extinguished because the authorised steel fabrication use was not being conducted when IDO 19 came into operation. The 1974 consent was preserved and deemed to be a development consent under the Environmental Planning and Assessment Act 1979 by the MAPRA Act, and the 1984 consent separately authorised light manufacture of extractors. The steel fabrication use being conducted when the LEP became applicable to the land was of the same genus as the authorised light manufacture of extractors, so the use in 1999 was lawful and the land had the benefit of existing use rights under s 106, with continuance permitted by s 107. The current abrasive materials use was an...

Court Disposition

Application dismissed; applicant ordered to pay the costs of the first and second respondents.

Orders

  • ['The application be dismissed.' 'The applicant pay the costs of the first and second respondents.' 'The exhibits be returned.']