Auburn Council v Nehme, E. [1998] NSWLEC 14

Auburn Council v Nehme, E. [1998] NSWLEC 14

Section 109B of the Environmental Planning and Assessment Act 1979 applies independently of the abandonment provisions in s107; so long as a development consent has been granted and is in force, it authorises the carrying out of approved development regardless of any alleged abandonment of actual use. Therefore, the Council's claim based on abandonment fails due to the effect of s109B, and the application must be dismissed.

Parties
Applicant: Auburn Council; Respondent: E. Nehme
Jurisdiction
Australia
Judgment Date
15 April 1998
Procedural Posture
Class 4 Application / Final Judgment
Outcome
application dismissed
Legal Topics
Existing Use Rights, Development Consent, Abandonment of Use
Planning Law Environmental Law Administrative Law Existing Use Rights Development Consent Abandonment of Use

Case Brief

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Parties

Auburn Council

Applicant

E. Nehme

Respondent

Procedural Posture

Class 4 Application / Final Judgment

Legal Issues

  1. 1 Whether the use of premises as squash courts had been abandoned within the meaning of s107 of the Environmental Planning and Assessment Act 1979
  2. 2 Whether s109B of the Environmental Planning and Assessment Act 1979 preserves the development consent despite alleged abandonment

Ratio Decidendi

Section 109B of the Environmental Planning and Assessment Act 1979 applies independently of the abandonment provisions in s107; so long as a development consent has been granted and is in force, it authorises the carrying out of approved development regardless of any alleged abandonment of actual use. Therefore, the Council's claim based on abandonment fails due to the effect of s109B, and the application must be dismissed.

Court Disposition

application dismissed

Orders

  • Application be dismissed.
  • Exhibits be returned.