AUBURN COUNCIL v NEHME [1999] NSWCA 383

AUBURN COUNCIL v NEHME [1999] NSWCA 383

Although abandonment of a use does not itself extinguish a valid consent, the inferred consent granted under the County of Cumberland Planning Scheme Ordinance ceased to have continuing effect as a consent when the Auburn Planning Scheme Ordinance came into force in 1970 and absolutely prohibited commercial squash courts on the land. The lawful continuation of the use thereafter depended on existing use provisions, not on the old consent. Because the use was abandoned between 1990 and 1996, those existing use protections were lost, s 109B did not apply to revive or preserve the old consent, and the respondent's recommenced use since 1996 contravened the Environmental Planning and...

Jurisdiction
Australia
Judgment Date
20 October 1999
Procedural Posture
Planning Appeal Concerning Use of Land as Squash Courts / Appeal to the New South Wales Court of Appeal From the Land and Environment Court Decision of Bignold J in Class 4 Proceedings
Outcome
Appeal allowed with costs.
Legal Topics
['existing Use Rights' 'development Consent' 'abandonment of Use' 'environmental Planning Instruments' 'prohibited Development' 'section 109 B of the Environmental Planning and Assessment Act']
['planning and Environment Law'] ['existing Use Rights' 'development Consent' 'abandonment of Use' 'environmental Planning Instruments' 'prohibited Development' 'section 109 B of the Environmental Planning and Assessment Act']

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Procedural Posture

Planning Appeal Concerning Use of Land as Squash Courts / Appeal to the New South Wales Court of Appeal From the Land and Environment Court Decision of Bignold J in Class 4 Proceedings

Legal Issues

  1. 1 ['Whether the inferred pre-1970 consent to use the premises as squash courts remained in force after the Auburn Planning Scheme Ordinance came into force and after the use was abandoned.' "Whether s 109B of the Environmental Planning and Assessment Act preserved the inferred consent so that the respondent's recommenced use was lawful." "Whether the respondent's use of the property as squash courts since 1996 contravened the Environmental Planning and Assessment Act."]

Ratio Decidendi

Although abandonment of a use does not itself extinguish a valid consent, the inferred consent granted under the County of Cumberland Planning Scheme Ordinance ceased to have continuing effect as a consent when the Auburn Planning Scheme Ordinance came into force in 1970 and absolutely prohibited commercial squash courts on the land. The lawful continuation of the use thereafter depended on existing use provisions, not on the old consent. Because the use was abandoned between 1990 and 1996, those existing use protections were lost, s 109B did not apply to revive or preserve the old consent, and the respondent's recommenced use since 1996 contravened the Environmental Planning and...

Court Disposition

Appeal allowed with costs.

Orders

  • ['Appeal allowed with costs.' 'Decision of Bignold J set aside.' 'Declare that the use of the property at 44 Kibo Road, Regents Park for the purpose of a squash court or squash centre had been abandoned between 1990 and 1996.' 'Declare that the use of that property for the purposes of a squash court or squash centre...