Codling v Manly Council [2011] NSWLEC 57

Codling v Manly Council [2011] NSWLEC 57

The proposed development was for a function centre purpose, not a restaurant purpose. Although the proposed function centre would involve serving meals and alcohol and might physically resemble a restaurant in some respects, the Commissioner erred by equating use with purpose and by treating the function use as being for the purpose of a restaurant. A development application for a function centre purpose was not, in this case, an application for a restaurant use, so the function centre was not prohibited as a water-based restaurant and entertainment facility under cl 18 of the SREP.

Jurisdiction
Australia
Judgment Date
06 April 2011
Procedural Posture
Appeal Under S 56 a of the Land and Environment Court Act 1979 From a Commissioner’s Decision Refusing a Development Application / Principal Judgment
Outcome
Ground 2 of the appeal was upheld; the appeal was upheld and the matter was remitted to the Commissioner for final orders.
Legal Topics
['development Consent' 'characterisation of Use' 'environmental Planning Instruments' 'prohibited Development' 'water Based Restaurant and Entertainment Facility' 'function Centre']
['planning and Environment Law' 'administrative Law'] ['development Consent' 'characterisation of Use' 'environmental Planning Instruments' 'prohibited Development' 'water Based Restaurant and Entertainment Facility' 'function Centre']

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Procedural Posture

Appeal Under S 56 a of the Land and Environment Court Act 1979 From a Commissioner’s Decision Refusing a Development Application / Principal Judgment

Legal Issues

  1. 1 ['Whether the Commissioner erred in determining that the proposed use was prohibited.' 'Whether the Commissioner erred in finding that the proposed use, or part of it, was for a restaurant.' 'Whether, if there were two uses, the Commissioner erred by dismissing the appeal with respect to the permissible use rather than considering approval for part of the development.']

Ratio Decidendi

The proposed development was for a function centre purpose, not a restaurant purpose. Although the proposed function centre would involve serving meals and alcohol and might physically resemble a restaurant in some respects, the Commissioner erred by equating use with purpose and by treating the function use as being for the purpose of a restaurant. A development application for a function centre purpose was not, in this case, an application for a restaurant use, so the function centre was not prohibited as a water-based restaurant and entertainment facility under cl 18 of the SREP.

Court Disposition

Ground 2 of the appeal was upheld; the appeal was upheld and the matter was remitted to the Commissioner for final orders.

Orders

  • ['Appeal upheld.' 'Matter remitted to the Commissioner for the making of final orders.' 'Costs reserved unless within 14 days either party files a Notice of Motion in relation to costs, otherwise costs will follow the event.']