RCM Constructions Pty Limited & Maycot Pty Limited v Ryde City Council [2004] NSWLEC 266

RCM Constructions Pty Limited & Maycot Pty Limited v Ryde City Council [2004] NSWLEC 266

The proposed development was prohibited in whole in the 4(b2) zone at Nos. 336-390 Victoria Road and prohibited in part at No. 334 Victoria Road, except for commercial premises and car parking. The timber centre use at Nos. 336-388 was not commercial premises because, properly characterised, it was use for remanufacture and resale of timber and fell within the definition of industry. To the extent any independent sawmilling use existed, sawmilling had been prohibited by the 1921 residential district proclamation before the timber centre commenced and the council had no power to grant consent for sawmilling; therefore any sawmilling use lacked lawful origin and could not found existing use...

Jurisdiction
Australia
Judgment Date
31 May 2004
Procedural Posture
Appeal Against Deemed Refusal of a Development Application / Separate Determination of Preliminary Questions
Outcome
Preliminary questions determined; the development application was found to be prohibited in whole for Nos. 336-390 Victoria Road, prohibited in part for No. 334 Victoria Road, existing use rights were not available for Nos. 334-388 Victoria Road, and existing use rights existed for No. 390 Victoria Road.
Legal Topics
['existing Use Rights' 'prohibited Development' 'characterisation of Land Use' 'statutory Construction' 'sawmill and Timber Remanufacturing Industry']
['planning and Environment Law' 'land Use and Development Control'] ['existing Use Rights' 'prohibited Development' 'characterisation of Land Use' 'statutory Construction' 'sawmill and Timber Remanufacturing Industry']

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Procedural Posture

Appeal Against Deemed Refusal of a Development Application / Separate Determination of Preliminary Questions

Legal Issues

  1. 1 ['Whether the development application was in whole or in part for prohibited development within s 76B of the Environmental Planning and Assessment Act 1979.' 'Whether the subject land enjoyed existing use rights such that consent could be granted to prohibited development.' 'Whether the use of Nos. 336-388 Victoria Road, Gladesville was properly characterised as commercial premises, industry, timber yard, timber remanufacturing industry or sawmill.' 'If there was an independent use for sawmilling, whether that use had a lawful origin.']

Ratio Decidendi

The proposed development was prohibited in whole in the 4(b2) zone at Nos. 336-390 Victoria Road and prohibited in part at No. 334 Victoria Road, except for commercial premises and car parking. The timber centre use at Nos. 336-388 was not commercial premises because, properly characterised, it was use for remanufacture and resale of timber and fell within the definition of industry. To the extent any independent sawmilling use existed, sawmilling had been prohibited by the 1921 residential district proclamation before the timber centre commenced and the council had no power to grant consent for sawmilling; therefore any sawmilling use lacked lawful origin and could not found existing use...

Court Disposition

Preliminary questions determined; the development application was found to be prohibited in whole for Nos. 336-390 Victoria Road, prohibited in part for No. 334 Victoria Road, existing use rights were not available for Nos. 334-388 Victoria Road, and existing use rights existed for No. 390 Victoria Road.

Orders

  • ['The preliminary questions raised by the respondent council be answered as follows: Question 1: With respect to Nos. 336-390 Victoria Road, Gladesville - Yes, in whole. With respect to No. 334 Victoria Road, Gladesville - Yes, in part (commercial premises and car parking excepted).' 'Question 2: With respect to...