Gorczynski v Perera and Anor & 1 Ors [2004] NSWCA 70

Gorczynski v Perera and Anor & 1 Ors [2004] NSWCA 70

Clause 23(6)(a) of the LEP does not require a building to have been 'originally' constructed for non-residential purposes. Sufficient is that, as modified or reconstructed, a substantial part was constructed for non-residential use; here, the major 1914 alterations satisfied the rule. There was no error of jurisdictional fact or Wednesbury unreasonableness in the consents for the real estate agency and garage. The appeal was dismissed.

Parties
Appellant: Peter Francis Gorczynski; First Respondent: Ravini Neluka Perera; First Respondent: Rebecca Patricia Dee; Second Respondent: Leichhardt Council
Jurisdiction
Australia
Judgment Date
15 March 2004
Procedural Posture
Appeal / Judgment on Appeal From Land & Environment Court
Outcome
Appeal dismissed
Legal Topics
Development Consents, Jurisdictional Facts, Wednesbury Unreasonableness, Permissible Use in Residential Zones, Interpretation of Local Environmental Plan
Planning Law Environmental Law Development Consents Jurisdictional Facts Wednesbury Unreasonableness Permissible Use in Residential Zones Interpretation of Local Environmental Plan

Case Brief

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Parties

Peter Francis Gorczynski

Appellant

Ravini Neluka Perera

First Respondent

Rebecca Patricia Dee

First Respondent

Leichhardt Council

Second Respondent

Procedural Posture

Appeal / Judgment on Appeal From Land & Environment Court

Legal Issues

  1. 1 Whether consent granted for use of No. 80 Booth Street as a real estate office and for garage construction was within council power under the Environmental Planning and Assessment Act 1979 and Leichhardt Local Environmental Plan 2000
  2. 2 Whether clause 23(6)(a) of the LEP required the building to have been originally constructed for non-residential use, or included subsequent substantial alterations
  3. 3 Whether challenges to council's determination were justified on the basis of jurisdictional fact or Wednesbury unreasonableness

Ratio Decidendi

Clause 23(6)(a) of the LEP does not require a building to have been 'originally' constructed for non-residential purposes. Sufficient is that, as modified or reconstructed, a substantial part was constructed for non-residential use; here, the major 1914 alterations satisfied the rule. There was no error of jurisdictional fact or Wednesbury unreasonableness in the consents for the real estate agency and garage. The appeal was dismissed.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • The appellant to pay the first and second respondents' costs of the appeal