Zolnay v Ashfield Council [2009] NSWLEC 1192

Zolnay v Ashfield Council [2009] NSWLEC 1192

The appeal failed because the 1967 consent authorised only two self-contained residential flats and was not shown to be a consent for a residential flat building, which under the applicable definition required three or more dwellings. In any event, at the commencement of the Ashfield Local Environmental Plan in 1985 the building contained five flats and was not being used in accordance with the 1967 consent, so the applicant did not establish a lawful existing use under s 106 of the Environmental Planning and Assessment Act, 1979. As residential flat buildings were prohibited in the Residential Zone 2(a), there was no authority to approve the proposed three-unit residential flat building.

Jurisdiction
Australia
Judgment Date
19 June 2009
Procedural Posture
S 97 Appeal Under the Environmental Planning and Assessment Act, 1979 Against Refusal of Development Application No. 10.2007.154.1 / Judgment After Hearing
Outcome
Appeal refused; development application determined by refusal.
Legal Topics
['existing Use Rights' 'residential Flat Building' 'development Application Refusal' 'permissibility in Residential Zone 2(a)' 'ashfield Local Environmental Plan']
['planning and Environment Law' 'development Control'] ['existing Use Rights' 'residential Flat Building' 'development Application Refusal' 'permissibility in Residential Zone 2(a)' 'ashfield Local Environmental Plan']

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Procedural Posture

S 97 Appeal Under the Environmental Planning and Assessment Act, 1979 Against Refusal of Development Application No. 10.2007.154.1 / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the applicant could rely on existing use rights under Division 10 of the Environmental Planning and Assessment Act, 1979 and Part 5 of the Environmental Planning and Assessment Regulation, 2000 to have the merits of the application considered.' 'Whether the 1967 consent for conversion of a dwelling house to two self-contained residential flats was a consent for a residential flat building.' 'Whether the use of the building immediately before the commencement of the Ashfield Local Environmental Plan in 1985 was a lawful existing use.']

Ratio Decidendi

The appeal failed because the 1967 consent authorised only two self-contained residential flats and was not shown to be a consent for a residential flat building, which under the applicable definition required three or more dwellings. In any event, at the commencement of the Ashfield Local Environmental Plan in 1985 the building contained five flats and was not being used in accordance with the 1967 consent, so the applicant did not establish a lawful existing use under s 106 of the Environmental Planning and Assessment Act, 1979. As residential flat buildings were prohibited in the Residential Zone 2(a), there was no authority to approve the proposed three-unit residential flat building.

Court Disposition

Appeal refused; development application determined by refusal.

Orders

  • ['The appeal 10918 of 2008 in respect 2 Drynan Street is refused.' 'The development application No. 10.2007.154.1 under s 97 of the Environmental Planning and Assessment Act 1979 for consent to convert the existing dwelling at 2 Drynan Street into three units, is determined by refusal.' 'The exhibits are returned.']