Development Control Orders – Why Subjective Facts Are Relevant

The Land and Environment Court in Reset & Sweat Pty Ltd v Northern Beaches Council [2022] NSWLEC 1203 has upheld an appeal against a development control order claiming prohibition of use issued to a fitness gym.

Key Takeaways

  • Councils must take into consideration all relevant matters when issuing orders.
  • The new planning reforms, if introduced, will result in the consolidation of current industrial zones IN1 and IN2 in the Northern Beaches Local Government Area into a single zone, E4 General Industrial.
  • Despite the Court’s decision, it is consistent with the public interest that any industrial zone be available for the industrial purposes for which it is intended.


In this case, Reset and Sweat Pty Ltd (the Applicant) operated a gym in Manly within an IN2 Zone. The Applicant failed to obtain development consent, operating the gym for over seven years without such consent.

The Warringah Local Environment Plan (LEP) stipulates that an indoor recreational facility is prohibited in an IN2 Light Industrial Zone.

On 5 July 2021, Northern Beaches Council (Council) issued the Applicant with a development control order. Council claimed that the Order was issued on the grounds that use of the premises is prohibited pursuant to LEP 2011.

Potential Planning Reforms

Both parties submitted evidence regarding two planning reforms seeking to amend the LEP and introduce a principal LEP for the Northern Beaches Local Government Area:

  1. The employment zones reform, which proposes to consolidate industrial zones IN1 and IN2 into a single employment zone named E4 General Industrial.
  2. The creation of a principal LEP combining the three LEP’s of the former Pittwater, Manly and Warringah Councils.

Extension of time

Whilst the Applicant accepted that the current use of the premises is unlawful, the Applicant sought an extended period of 1 year and 7 months to comply with the Order.

Council asserted the validity of the Order, claiming that the appeal should be dismissed on a public interest basis. In doing so, Council relied on expert planning evidence indicating the Applicant’s failure to complete a traffic assessment and prepare a flood evacuation plan.

The Court considered it appropriate to grant an extension of time to comply with the Order, having regard the following factors:

  • Occupation of the premises by the Applicant since July 2013.
  • Lack of evidence suggesting amenity or environmental concerns resulting from use of the premises.
  • Lack of safety concerns.
  • The financial and personal prejudice that the Applicant and its employees would suffer.
  • The proposed implementation of a plan of management by the Applicant.
  • The proposed planning reforms, either of which may allow the Applicant to lodge a Development Application permitting use of the premises as a gym.

The Court noted Council’s lack of regard to the Applicant’s subjective circumstances, including the lease between the owner and Applicant terminating on 10 September 2023.

Whilst Council alleged that granting an extension of time would bypass the development application process and set a precedent for other unlawful uses in the IN2 zone, the Court disagreed, emphasizing the unique circumstances of the matter.

In reaching its decision, the Court highlighted that use of the premises as an indoor recreation facility had occurred for an extraordinarily lengthy period, and the Applicant received no complaints in that period. Additionally, the Court accepted that had Council been concerned that the gym constituted a public safety risk or had an unreasonable impact on existing uses in the zone, Council would not have granted such a generous period of time to comply with the Order.

The Order modified pursuant to s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 extended the period of time for compliance until 10 September 2023 to coincide with termination of the lease.


This decision acts as a salient reminder for Councils issuing orders, such as development control orders, to ensure that regard is had to the full, subjective circumstances and facts of each matter.

Greg Lee


Greg leads the firm's real estate and projects team. With in-depth industry knowledge, he anticipates his client's needs and combines technical expertise with commercial nous.

This bulletin is produced as general information in summary for clients and subscribers and should not be relied upon as a substitute for detailed legal advice or as a basis for formulating business or other decisions. ClarkeKann asserts copyright over the contents of this document. This bulletin is produced by ClarkeKann. It is intended to provide general information in summary form on legal topics, current at the time of publication. The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought in particular matters. Liability limited by a scheme approved under professional standards legislation. Privacy Policy


…and we’ll email you valuable insights into issues affecting you and your business.

More Insights

Lapsing of Staged Development Consents – An Update

Lapsing of Staged Development Consents – An Update

Key Takeaways This decision clarifies the circumstances surrounding the lapsing of development consents. The case highlights the importance of the wording in each unique development consent. Development consents may not lapse in the context of staged developments...

read more
COVID-19 Splinter Award Continuation for Councils

COVID-19 Splinter Award Continuation for Councils

Key Takeaways An award has been proposed largely in the same terms as the Local Government (COVID-19) Splinter (Interim) Award 2021 made by the Commission which will remain in force until April 2023. Paid COVID-19 special leave, a job retention allowance and leave...

read more
Consolidation of SEPPs – A Summary of Recent Changes

Consolidation of SEPPs – A Summary of Recent Changes

Key Takeaways 45 State Environmental Planning Policies ("SEPPS") have been repealed and consolidated into 11 new SEPPS. The consolidated SEPPs commenced on 1 March 2022. The repealed SEPPs no longer apply to any existing development consents, and the new consolidated...

read more