The applicant operator succeeded: the Tribunal allowed the review, set aside the respondent local government's deemed refusal, and substituted its own decision granting amended conditions to the development approval for an extractive industry (limestone quarry), subject to a variation restricting operating hours during the primary breeding season of the endangered Australasian Bittern. The Tribunal held that amending conditions regulating the volume and timing of extraction did not change the 'purpose' for which the land was being used and therefore did not enliven cl 67(1)(a)(ii) of the deemed provisions requiring the proposed use to be 'less detrimental' than the non-conforming use. Where a non-conforming use is premised on a development approval, the 'purpose' is ascertained by construing the approval according to ordinary principles — conditions regulating the manner of carrying out the use (hours, tonnage caps, truck movements) do not define the purpose itself. The decision also confirms that approval conditions are not divisible into 'core/unalterable' and 'variable' categories for development control purposes — that distinction arises only in judicial review of condition validity.
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