Blues Point Hotel Property Pty Ltd v North Sydney Council [2021] NSWLEC 27

Blues Point Hotel Property Pty Ltd v North Sydney Council [2021] NSWLEC 27

Although the whole building was used for the purpose of a hotel at the relevant date for the purposes of the North Sydney Planning Scheme Ordinance 1963, the Applicants did not prove that the Outdoor Terrace was actually physically and lawfully used for any purpose other than as a flat roof immediately before that instrument commenced. Section 4.66(2)(b) therefore did not authorise the current use of the Outdoor Terrace as floor and air space for hotel patrons. In any event, the current use from 2016 by patrons for seating and consumption of food and beverages was an enlargement or expansion, and on the alternative assumption of previous sun deck use an enlargement or intensification,...

Jurisdiction
Australia
Judgment Date
31 March 2021
Procedural Posture
Class 4 Proceedings Seeking a Declaration of Existing Use Rights Under S 4.65 of the Environmental Planning and Assessment Act 1979 / Principal Judgment After Hearing
Outcome
Summons dismissed; costs reserved.
Legal Topics
['existing Use Rights' 'characterisation of Existing Use' 'continuation of Existing Use' 'enlargement, Expansion or Intensification of Existing Use' 'hotel or Pub Use' 'development Control Order']
['environment and Planning Law'] ['existing Use Rights' 'characterisation of Existing Use' 'continuation of Existing Use' 'enlargement, Expansion or Intensification of Existing Use' 'hotel or Pub Use' 'development Control Order']

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Procedural Posture

Class 4 Proceedings Seeking a Declaration of Existing Use Rights Under S 4.65 of the Environmental Planning and Assessment Act 1979 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the whole of the premises known as the Blues Point Hotel benefits from an existing use pursuant to s 4.65 of the Environmental Planning and Assessment Act 1979 for the purpose of a hotel as defined under the North Sydney Planning Scheme Ordinance 1963.' 'Whether the existing use of the premises as a hotel extends to the first-floor external terrace.' 'Whether use of the first-floor external terrace by hotel patrons who may consume food and alcohol is an enlargement, expansion or intensification of an existing use requiring development consent.']

Ratio Decidendi

Although the whole building was used for the purpose of a hotel at the relevant date for the purposes of the North Sydney Planning Scheme Ordinance 1963, the Applicants did not prove that the Outdoor Terrace was actually physically and lawfully used for any purpose other than as a flat roof immediately before that instrument commenced. Section 4.66(2)(b) therefore did not authorise the current use of the Outdoor Terrace as floor and air space for hotel patrons. In any event, the current use from 2016 by patrons for seating and consumption of food and beverages was an enlargement or expansion, and on the alternative assumption of previous sun deck use an enlargement or intensification,...

Court Disposition

Summons dismissed; costs reserved.

Orders

  • ['The Summons is dismissed.' 'Costs are reserved.' "Any party that wishes to make an application for costs otherwise than the usual order for costs pursuant to r 42.1 of the Uniform Civil Procedure Rules 2005 must do so within 7 days. Absent such an application being notified within that time the Applicants will be...