Grace & Anor v Thomas Street Café Pty Ltd & Ors

(2007) 159 LGERA 57; [2007] NSWCA 359

NSW Court of Appeal

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Interrogate

Catchwords

1. Environment and Planning
2. › Existing use rights
3. › Characterisation of existing use
4. › Level of generality for description of use
5. › Whether milk bar/takeaway food shop is same use as café/refreshment room
6. › Town planning considerations in characterisation
7. › Whether natural evolution of use
8. › Environmental Planning and Assessment Act 1979 (NSW), ss 106, 107, Pt 4 Div 10
1. Environment and Planning
2. › Development consent
3. › Effect of development consent
4. › Whether consent to erect awning constituted consent to change of use
5. › Whether s 81A authorises prohibited use
6. › Environmental Planning and Assessment Act 1979 (NSW), ss 76B, 79C, 80, 81A
1. Environment and Planning
2. › Privative clause
3. › Validity of development consent
4. › Time limit for challenge
5. › Whether s 101 applies to construction of consent as distinct from challenge to grant of consent
6. › Environmental Planning and Assessment Act 1979 (NSW), s 101
1. Appeal
2. › Rehearing
3. › Findings of fact by trial judge
4. › Respect to be given to findings not based on credit
5. › Fox v Percy principles

Quick Take

A milk bar/takeaway food shop is a fundamentally different use from a café/refreshment room for existing use rights purposes, having regard to the different town planning impacts including congregation of people, noise, traffic, and parking. Section 81A of the EPA Act does not make permissible a use otherwise prohibited under a planning instrument. Section 101 of the EPA Act (the privative clause) applies only to challenges to the validity of a consent, not to the construction of what a consent authorises.