Caltex Australia Petroleum Pty Ltd v Manly Council (No 2) [2007] NSWLEC 350

Caltex Australia Petroleum Pty Ltd v Manly Council (No 2) [2007] NSWLEC 350

Even if existing use rights had subsisted for the service station, the combination of cessation of use, removal of essential facilities (tanks and fuel lines), remediation works rendering the land unsuitable for continued service station use, and positive steps towards sale for another use constitute abandonment under s 107(3) Environmental Planning and Assessment Act 1979. The applicant's subjective intention to rely on existing use rights does not outweigh these objective circumstances; accordingly, the presumption of abandonment applies and has not been rebutted.

Parties
Applicant: Caltex Australia Petroleum Pty Ltd; Respondent: Manly Council
Jurisdiction
Australia
Judgment Date
15 June 2007
Procedural Posture
Class 1 Proceedings / Post Substantive Judgment, Determination of Abandonment of Existing Use Rights (obiter)
Outcome
Presumption of abandonment not rebutted (obiter). Existing use rights, if they existed, have been abandoned. Matter to be remitted for dismissal of appeal and costs reserved.
Legal Topics
Existing Use Rights, Abandonment of Rights, Development Applications, Planning Regulation, Contaminated Land
Environmental Law Planning Law Administrative Law Existing Use Rights Abandonment of Rights Development Applications Planning Regulation Contaminated Land

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Parties

Caltex Australia Petroleum Pty Ltd

Applicant

Manly Council

Respondent

Procedural Posture

Class 1 Proceedings / Post Substantive Judgment, Determination of Abandonment of Existing Use Rights (obiter)

Legal Issues

  1. 1 Whether existing use rights for the service station premises at 2 Clontarf Street, Seaforth have been abandoned

Ratio Decidendi

Even if existing use rights had subsisted for the service station, the combination of cessation of use, removal of essential facilities (tanks and fuel lines), remediation works rendering the land unsuitable for continued service station use, and positive steps towards sale for another use constitute abandonment under s 107(3) Environmental Planning and Assessment Act 1979. The applicant's subjective intention to rely on existing use rights does not outweigh these objective circumstances; accordingly, the presumption of abandonment applies and has not been rebutted.

Court Disposition

Presumption of abandonment not rebutted (obiter). Existing use rights, if they existed, have been abandoned. Matter to be remitted for dismissal of appeal and costs reserved.

Orders

  • Matter remitted to Senior Commissioner for dismissal of the appeal and reservation of the question of costs.