Save the Robots Pty Ltd ATF Save the Robots Trust v The Council of the City of Sydney

[2025] NSWLEC 150

NSW Land and Environment Court

Built by Barristers,
For Australian Law.

A finding of fact made by a commissioner exercising the consent authority's administrative function under s 4.16(1) of the EPA Act on a Class 1 merit appeal does not give rise to an issue estoppel in subsequent proceedings, because the function exercised is administrative rather than judicial in nature, and the same reasoning precludes an abuse of process finding where the subsequent proceeding invokes a different statutory process
Establishing existing use rights under s 4.65 of the EPA Act requires proof that the use was for a lawful purpose at each relevant date, including that the building used was lawfully erected; the presumption of regularity will not fill evidentiary gaps where the history shows a patchwork of missing approvals and repeated enforcement action, and the onus rests on the party asserting existing use
The amenity of a neighbourhood for the purposes of a development control order under item 6 of Schedule 5 to the EPA Act is shaped by the applicable environmental planning instruments and development controls, such that a use prohibited under those instruments is prima facie injurious to the amenity of the area