Reading Properties Pty Ltd v Auburn Council [2007] NSWLEC 186

Reading Properties Pty Ltd v Auburn Council [2007] NSWLEC 186

The 1997 Consent authorised use of the Red Yard Complex, including Tenancy A9, for shops, and condition 3 required further applications for specific uses without preventing further applications for different kinds of shops. The 1997 and 2001 Consents were granted and remained in force, and s 109B preserved both the consents and their conditions notwithstanding the later prohibition of shops under LEP 2000. The existing use of Tenancy A9 was properly characterised at the genus level as a shop, not confined to sporting goods, and was protected under s 106. Section 109M and occupation certificate requirements did not prevent that conclusion. Clause 7(1) of SEPP 4 did not apply because...

Jurisdiction
Australia
Judgment Date
05 April 2007
Procedural Posture
Appeal Against Deemed Refusal of Development Application No. 300/2006 for a Shop Fit Out and Associated Signage / Determination of Preliminary Questions Expected to Be Dispositive of the Proceedings
Outcome
Preliminary questions answered; the Court held that continued use of Tenancy A9 for the purpose of a shop was lawful, cl 7 of SEPP 4 did not permit the change, and consent could be granted to development application No. 300/2006.
Legal Topics
['existing Use Rights' 'development Consents' 'saving of Existing Consents' 'change of Shop Use' 'state Environmental Planning Policy No. 4' 'occupation Certificates' 'local Environmental Plans']
['environmental Planning and Assessment' 'land Use Planning'] ['existing Use Rights' 'development Consents' 'saving of Existing Consents' 'change of Shop Use' 'state Environmental Planning Policy No. 4' 'occupation Certificates' 'local Environmental Plans']

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Procedural Posture

Appeal Against Deemed Refusal of Development Application No. 300/2006 for a Shop Fit Out and Associated Signage / Determination of Preliminary Questions Expected to Be Dispositive of the Proceedings

Legal Issues

  1. 1 ['Whether the continued use of Tenancy A9 for the purpose of a shop was lawful as a use pursuant to the 1997 Consent under s 109B of the Environmental Planning & Assessment Act 1979.' 'Whether the continued use of Tenancy A9 for the purpose of a shop was lawful as a use pursuant to the 2001 Consent under s 109B of the Environmental Planning & Assessment Act 1979.' 'Whether the continued use of Tenancy A9 for the purpose of a shop was lawful as an existing use under Part 4 Division 10 of the Environmental Planning & Assessment Act 1979.' 'Whether Tenancy A9 could be used for the purposes of a shop of another kind pursuant to cl 7 of State Environmental Planning Policy No. 4 - Development Without Consent and Miscellaneous Exempt and Complying Development.' 'Whether consent could be granted to development application No. 300/2006.']

Ratio Decidendi

The 1997 Consent authorised use of the Red Yard Complex, including Tenancy A9, for shops, and condition 3 required further applications for specific uses without preventing further applications for different kinds of shops. The 1997 and 2001 Consents were granted and remained in force, and s 109B preserved both the consents and their conditions notwithstanding the later prohibition of shops under LEP 2000. The existing use of Tenancy A9 was properly characterised at the genus level as a shop, not confined to sporting goods, and was protected under s 106. Section 109M and occupation certificate requirements did not prevent that conclusion. Clause 7(1) of SEPP 4 did not apply because...

Court Disposition

Preliminary questions answered; the Court held that continued use of Tenancy A9 for the purpose of a shop was lawful, cl 7 of SEPP 4 did not permit the change, and consent could be granted to development application No. 300/2006.

Orders

  • ['Question 1(a) answered: Yes, subject to compliance with the conditions of consent.' 'Question 1(b) answered: Yes, subject to compliance with the conditions of consent.' 'Question 1(c) answered: Yes.' 'Question 2 answered: No.' 'Question 3 answered: Yes.' 'The exhibits may be returned.' 'The proceedings will be...