Armstrong and Anor v Ashfield Municipal Council [2001] NSWLEC 277

Armstrong and Anor v Ashfield Municipal Council [2001] NSWLEC 277

On the balance of probabilities, the court found that the use of the premises as multiple occupancy residential accommodation, including residential flat building, had continued lawfully before and after the introduction of Ordinance 105 and was confirmed by the 1953 council consent; the use therefore constitutes an existing use within the meaning of s 106 of the EP&A Act.

Jurisdiction
Australia
Judgment Date
07 December 2001
Procedural Posture
Appeal and Declaration Application / Judgment
Outcome
Appeal partly dismissed; declaration granted in part
Legal Topics
['existing Use Rights' 'development Consent' 'interpretation of Planning Instruments']
['planning and Environment Law'] ['existing Use Rights' 'development Consent' 'interpretation of Planning Instruments']

Case Brief

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Procedural Posture

Appeal and Declaration Application / Judgment

Legal Issues

  1. 1 ["Whether the use of the existing building constitutes an 'existing use' within the meaning of s 106 Environmental Planning and Assessment Act 1979" 'Whether the 1953 council consent under cl 34 of the County of Cumberland Planning Scheme Ordinance was valid confirmation of existing use' 'Whether the applicants established continuous use as required by law']

Ratio Decidendi

On the balance of probabilities, the court found that the use of the premises as multiple occupancy residential accommodation, including residential flat building, had continued lawfully before and after the introduction of Ordinance 105 and was confirmed by the 1953 council consent; the use therefore constitutes an existing use within the meaning of s 106 of the EP&A Act.

Court Disposition

Appeal partly dismissed; declaration granted in part

Orders

  • ['Declaration that the use of the building on land known as lot 1 DP 908000, 6 Kensington Road, Summer Hill for the purpose of multiple occupancy residential accommodation including a residential flat building is an existing use within the meaning of s 106 of the EP&A Act.' 'Costs reserved.' 'The exhibits may be...