Caltex Australia Petroleum Pty Ltd v Manly Council [2007] NSWLEC 105

Caltex Australia Petroleum Pty Ltd v Manly Council [2007] NSWLEC 105

The 1953 development consent for use as a service station continues in force under the combined effect of cl 66(1)(a), cl 69 of the Manly PSO, cl 7(1) and cl 7(4) Sch 3 of the 1979 Miscellaneous Amendment Act, and s 109B of the EP&A Act. As such, the Applicant does not have existing use rights and cannot rely on change of use provisions applicable to existing uses.

Parties
Applicant: Caltex Australia Petroleum Pty Ltd; Respondent: Manly Council
Jurisdiction
Australia
Judgment Date
14 March 2007
Procedural Posture
Class 1 Appeal / Judgment
Outcome
Applicant's 1953 development consent for a service station continues in force. Applicant does not have existing use rights.
Legal Topics
Existing Use Rights, Development Consent, Transitional Provisions, Environmental Planning and Assessment Act, County of Cumberland Planning Scheme Ordinance, Manly Planning Scheme Ordinance
Planning and Environment Existing Use Rights Development Consent Transitional Provisions Environmental Planning and Assessment Act County of Cumberland Planning Scheme Ordinance Manly Planning Scheme Ordinance

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Parties

Caltex Australia Petroleum Pty Ltd

Applicant

Manly Council

Respondent

Procedural Posture

Class 1 Appeal / Judgment

Legal Issues

  1. 1 Whether a 1953 development consent continues in force under subsequent planning instruments
  2. 2 Whether a development consent in force precludes the operation of existing use rights under s 106 of the Environmental Planning and Assessment Act

Ratio Decidendi

The 1953 development consent for use as a service station continues in force under the combined effect of cl 66(1)(a), cl 69 of the Manly PSO, cl 7(1) and cl 7(4) Sch 3 of the 1979 Miscellaneous Amendment Act, and s 109B of the EP&A Act. As such, the Applicant does not have existing use rights and cannot rely on change of use provisions applicable to existing uses.

Court Disposition

Applicant's 1953 development consent for a service station continues in force. Applicant does not have existing use rights.

Orders

  • Finding that the 1953 development consent continues in force
  • Applicant cannot rely on existing use rights or change of use provisions