Jojeni Investments Pty Ltd v Mosman Municipal Council

(2015) 89 NSWLR 760; [2015] NSWCA 147

NSW Court of Appeal

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Interrogate

Catchwords

1. Planning Law
2. › Existing use rights
3. › Characterisation of existing use
4. › Appropriate level of generality or particularity
5. › Whether use as two flats characterised as 'building containing flats' or 'two flats in a house'
6. › Whether enlargement or intensification or change of use
7. › Environmental Planning and Assessment Act 1979 (NSW), ss 106, 107, 108, 109
1. Planning Law
2. › Existing use rights
3. › Source of existing use
4. › Distinction between use for lawful purpose and use pursuant to development consent
5. › Whether 1933 building approval constituted development consent for a use
6. › Environmental Planning and Assessment Act 1979 (NSW), s 106(a) and (b)
1. Statutory Interpretation
2. › Reconciliation of statutory provisions
3. › Leading and subordinate provisions
4. › Whether retrospective amendment inserting s 109B displaced operation of ss 107 and 109
5. › Literal construction rejected as contrary to purpose and producing anomalous results
6. › Environmental Planning and Assessment Act 1979 (NSW), s 109B
1. Evidence
2. › Secondary evidence
3. › Proof of terms of lost document
4. › Inferences drawn from contemporaneous documents and legislative regime

Quick Take

The O'Keefe genus test for characterising existing uses applies even where the existing use is said to derive from a development consent, if that consent is silent as to use and purpose. Section 109B of the EPA Act is subordinate to s 106 and does not subtract from the class of uses defined as 'existing uses'; it provides an additional immunity for carrying out development. The appropriate level of generality for characterising an existing use should have regard to the planning regime in force at the time the use commenced, not subsequent narrower definitions.