Star Property Investments Pty Ltd and Another v Leichhardt Municipal Council [2000] NSWLEC 235

Star Property Investments Pty Ltd and Another v Leichhardt Municipal Council [2000] NSWLEC 235

Although s 108 and reg 39 permit an application to change an existing non-conforming use to a conforming use, the applicants failed to establish that either property retained an existing use. No 81 Ryan Street had been used for display and wholesaling of light fittings and later warehousing of perfumed soap products for about six years with the owners' knowledge and consent, which was inconsistent with maintaining the woodworking use. For No 83 Ryan Street, the evidence did not satisfy the Court that woodworking use was maintained throughout the relevant period, particularly in light of unrebutted evidence of use for the light fittings business. The existing use for woodworking purposes...

Jurisdiction
Australia
Judgment Date
02 November 2000
Procedural Posture
Appeal Against Refusal of Development Application for Development Consent / Preliminary Issue of Law Concerning Existing Use Rights, Abandonment, and Effect of Development Standards
Outcome
Applicants did not establish existing use rights for the properties; respondent established sufficient interruption and abandonment of the woodworking use.
Legal Topics
['existing Use Rights' 'abandonment of Existing Use' 'development Consent' 'change of Use' 'non Conforming Use' 'development Standards']
['environmental Planning and Assessment' 'land Use Planning'] ['existing Use Rights' 'abandonment of Existing Use' 'development Consent' 'change of Use' 'non Conforming Use' 'development Standards']

Case Brief

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Procedural Posture

Appeal Against Refusal of Development Application for Development Consent / Preliminary Issue of Law Concerning Existing Use Rights, Abandonment, and Effect of Development Standards

Legal Issues

  1. 1 ['Whether 81 and 83 Ryan Street enjoyed existing use rights for woodworking or related light industrial uses.' 'Whether any existing use rights had been abandoned by interruption or inconsistent use.' 'Whether s 108 of the Environmental Planning and Assessment Act 1979 and reg 39 of the Environmental Planning and Assessment Regulation 1994 permit change of an existing non-conforming use to a conforming use.' 'Whether environmental planning instrument development standards, DCPs and a draft LEP derogated from the incorporated existing use provisions.']

Ratio Decidendi

Although s 108 and reg 39 permit an application to change an existing non-conforming use to a conforming use, the applicants failed to establish that either property retained an existing use. No 81 Ryan Street had been used for display and wholesaling of light fittings and later warehousing of perfumed soap products for about six years with the owners' knowledge and consent, which was inconsistent with maintaining the woodworking use. For No 83 Ryan Street, the evidence did not satisfy the Court that woodworking use was maintained throughout the relevant period, particularly in light of unrebutted evidence of use for the light fittings business. The existing use for woodworking purposes...

Court Disposition

Applicants did not establish existing use rights for the properties; respondent established sufficient interruption and abandonment of the woodworking use.

Orders

  • ['The exhibits may be returned.']