Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 166

Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 166

The use of the boatshed prior to and after its demolition and rebuilding was and remained an 'existing use' under s 106 of the Environmental Planning and Assessment Act 1979 as the use was lawful under planning law (having predated relevant controls) and was not abandoned or terminated by the rebuilding, since the intention throughout was to continue the same use.

Parties
Applicant: Taipan Holdings Pty Ltd; Respondent: Sutherland Shire Council
Jurisdiction
Australia
Judgment Date
15 July 1999
Procedural Posture
Development Appeal and Preliminary Determination / Preliminary Determination of Existing Use Entitlement in Development Appeal
Outcome
Preliminary question answered in the affirmative; proceedings stood over for mention to determine final orders.
Legal Topics
Existing Use Rights, Development Consent, Demolition and Rebuilding, Town Planning Controls
Planning and Environment Law Existing Use Rights Development Consent Demolition and Rebuilding Town Planning Controls

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Parties

Taipan Holdings Pty Ltd

Applicant

Sutherland Shire Council

Respondent

Procedural Posture

Development Appeal and Preliminary Determination / Preliminary Determination of Existing Use Entitlement in Development Appeal

Legal Issues

  1. 1 Whether the site has the benefit of existing use rights within the meaning of s 106 and s 107 of the Environmental Planning and Assessment Act 1979
  2. 2 Whether the use of the rebuilt boatshed is a 'lawful purpose' under planning law
  3. 3 Whether demolition and rebuilding of the boatshed constitutes abandonment or termination of existing use

Ratio Decidendi

The use of the boatshed prior to and after its demolition and rebuilding was and remained an 'existing use' under s 106 of the Environmental Planning and Assessment Act 1979 as the use was lawful under planning law (having predated relevant controls) and was not abandoned or terminated by the rebuilding, since the intention throughout was to continue the same use.

Court Disposition

Preliminary question answered in the affirmative; proceedings stood over for mention to determine final orders.

Orders

  • Question of whether the boatshed has the benefit of 'existing use rights' answered: Yes.
  • Proceedings stood over for mention in 14 days.