Grace & Anor v Thomas Street Café Pty Ltd & Ors [2007] NSWCA 359

Grace & Anor v Thomas Street Café Pty Ltd & Ors [2007] NSWCA 359

The premises were used in 1963 as a milk bar/takeaway food shop and corner store, not as a café, restaurant or refreshment room. From a town planning perspective, a milk bar with takeaway food is different in kind from a café because a café involves patrons remaining and congregating, with different noise, traffic, parking and other impacts. The later use as a café was therefore a change of use and not a natural evolution protected by existing use rights. Because there were no existing use rights as a café, DC 939/99 could not operate to effect a change of use, and s 81A did not authorise a prohibited use. Section 101 did not bar the appellants because the issue was the construction and...

Jurisdiction
Australia
Judgment Date
12 December 2007
Procedural Posture
Appeal From Dismissal of a Class 4 Application Seeking to Restrain Use of Premises as a Refreshment Room Contrary to the Environmental Planning and Assessment Act 1979 (nsw). / Appeal From the Land and Environment Court Decision of Lloyd J.
Outcome
Appeal allowed; matter remitted to the Land and Environment Court; respondents ordered to pay the appellants' costs.
Legal Topics
['existing Use Rights' 'characterisation of Land Use' 'development Consent' 'change of Use' 'environmental Planning and Assessment Act 1979 S 81 A' 'environmental Planning and Assessment Act 1979 S 101' 'privative Clause' 'remittal']
['environment and Planning'] ['existing Use Rights' 'characterisation of Land Use' 'development Consent' 'change of Use' 'environmental Planning and Assessment Act 1979 S 81 A' 'environmental Planning and Assessment Act 1979 S 101' 'privative Clause' 'remittal']

Case Brief

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Procedural Posture

Appeal From Dismissal of a Class 4 Application Seeking to Restrain Use of Premises as a Refreshment Room Contrary to the Environmental Planning and Assessment Act 1979 (nsw). / Appeal From the Land and Environment Court Decision of Lloyd J.

Legal Issues

  1. 1 ['Whether the premises had existing use rights as a café, restaurant or refreshment room by reference to their use immediately before 19 April 1963.' 'Whether use as a milk bar or takeaway food shop naturally evolved into use as a café or refreshment room without a change of use.' 'Whether Development Consent 939/99 authorised a change of use to a café or restaurant or otherwise made the use lawful under s 81A of the Environmental Planning and Assessment Act 1979.' 'Whether s 101 of the Environmental Planning and Assessment Act 1979 prevented the appellants from challenging or questioning the development consent.']

Ratio Decidendi

The premises were used in 1963 as a milk bar/takeaway food shop and corner store, not as a café, restaurant or refreshment room. From a town planning perspective, a milk bar with takeaway food is different in kind from a café because a café involves patrons remaining and congregating, with different noise, traffic, parking and other impacts. The later use as a café was therefore a change of use and not a natural evolution protected by existing use rights. Because there were no existing use rights as a café, DC 939/99 could not operate to effect a change of use, and s 81A did not authorise a prohibited use. Section 101 did not bar the appellants because the issue was the construction and...

Court Disposition

Appeal allowed; matter remitted to the Land and Environment Court; respondents ordered to pay the appellants' costs.

Orders

  • ['The appeal be allowed.' "The matter is remitted to the Land and Environment Court for determination of the orders that should be made on the appellants' application." "The respondents are to pay the appellants' costs."]