Liverpool City Council v Maller Holdings Pty Ltd trading as Sydney Horse Transport

[2014] NSWCCA 299

NSW Court of Criminal Appeal

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Interrogate

Catchwords

1. Land and Environment
2. › Development control
3. › Use of land
4. › Existing use rights
5. › Historic development consents
6. › Whether consent for 'stables' authorised use as horse transport business
7. › Whether authorisation of part of actual use defeats prosecution for prohibited use
8. › Environmental Planning and Assessment Act 1979 (NSW), ss 76A, 76B, 76C, 109B
1. Land and Environment
2. › Development control
3. › Characterisation of use of land
4. › Identification of purpose of use
5. › Level of generality at which use is to be described
6. › Whether stabling use was in substance the same as horse transport business use
1. Land and Environment
2. › Criminal proceedings
3. › Environmental planning offences
4. › Use of land for prohibited purpose
5. › Case stated to Court of Criminal Appeal
6. › Criminal Appeal Act 1912 (NSW), s 5AE

Quick Take

Where a property is used for a purpose broader than that authorised by historic development consents, the fact that part of the actual use falls within the historic consent does not defeat a prosecution for the overall prohibited use. The characterisation of the purpose of use is a single task: the court must identify the appropriate designation of the purpose being served and then determine whether that purpose is the same as the use authorised by the historic consent. A consent for 'stables' does not authorise a 'horse transport business' even though stabling forms part of that business.