Armstrong v Ashfield Municipal Council [2002] NSWLEC 237

Armstrong v Ashfield Municipal Council [2002] NSWLEC 237

The substratum of the land had not been used for any use inconsistent with the existing use, and the proposed use of the substratum was for the same purpose as the existing use, namely a residential flat building and associated car parking. Applying the practical unit approach in Steedman and Boyts Radio, the subterranean space was part of the same unit of land as the existing use, so the proposal was an enlargement, expansion or intensification of the existing lawful use authorised by cl 41(1) of the Environmental Planning and Assessment Regulation 2000.

Jurisdiction
Australia
Judgment Date
05 February 2003
Procedural Posture
Question of Law Concerning Existing Use Rights for Proposed Development Application No. 148/00 / Preliminary Point of Law
Outcome
Preliminary point of law answered in the affirmative.
Legal Topics
['existing Use Rights' 'environmental Planning and Assessment Act 1979' 'environmental Planning and Assessment Regulation 2000' 'basement Car Parking' 'residential Flat Building' 'enlargement, Expansion or Intensification of Existing Use']
['planning and Environment Law'] ['existing Use Rights' 'environmental Planning and Assessment Act 1979' 'environmental Planning and Assessment Regulation 2000' 'basement Car Parking' 'residential Flat Building' 'enlargement, Expansion or Intensification of Existing Use']

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Procedural Posture

Question of Law Concerning Existing Use Rights for Proposed Development Application No. 148/00 / Preliminary Point of Law

Legal Issues

  1. 1 ['Whether the existing use of the building on Lot 1 DP 908000, 6 Kensington Road, Summer Hill for the purpose of a residential flat building permits the grant of development consent to development application 148/00 proposing basement car parking for nine residents in connection with conversion or extension from four flats to 8 x 1 bedroom flats with basement parking.' 'Whether subterranean space beneath land subject to existing use rights forms part of the same land or unit for the purposes of cl 42(2)(b) of the Environmental Planning and Assessment Regulation 2000.']

Ratio Decidendi

The substratum of the land had not been used for any use inconsistent with the existing use, and the proposed use of the substratum was for the same purpose as the existing use, namely a residential flat building and associated car parking. Applying the practical unit approach in Steedman and Boyts Radio, the subterranean space was part of the same unit of land as the existing use, so the proposal was an enlargement, expansion or intensification of the existing lawful use authorised by cl 41(1) of the Environmental Planning and Assessment Regulation 2000.

Court Disposition

Preliminary point of law answered in the affirmative.

Orders

  • ['The Court answers the preliminary point of law in the affirmative.' 'The Court orders that the exhibits be returned.']