Yan v Marrickville Council [2001] NSWLEC 71

Yan v Marrickville Council [2001] NSWLEC 71

Because the existing use underpinning the 1986 Council consent for a newsagency had been abandoned, although the consent still stood, the applicant could not rely on the existing use provisions to change the use from newsagency to brothel. Section 109B could not be used to permit a further change of use under the existing use scheme in the circumstances disclosed by the agreed facts.

Jurisdiction
Australia
Judgment Date
19 April 2001
Procedural Posture
Class 1 Appeal Concerning Refusal of a Development Application, With Related Class 4 Proceedings Adjourned / Determination of Preliminary Questions of Fact and Law
Outcome
Preliminary questions answered against the applicant: question 1 No; question 2 No; question 3 Does not apply.
Legal Topics
['existing Use Rights' 'change of Use to Brothel' 'prohibited Development' 'abandonment of Existing Use' 'development Consent']
['planning and Environment Law' 'land Use'] ['existing Use Rights' 'change of Use to Brothel' 'prohibited Development' 'abandonment of Existing Use' 'development Consent']

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Procedural Posture

Class 1 Appeal Concerning Refusal of a Development Application, With Related Class 4 Proceedings Adjourned / Determination of Preliminary Questions of Fact and Law

Legal Issues

  1. 1 ['Whether the Court may grant consent to change the use of premises from the use for which consent was granted to another use prohibited under the Marrickville Planning Scheme Ordinance pursuant to s108 of the EP&A Act and clause 39 of the Environmental Planning and Assessment Regulation.' 'If not, whether the premises have the benefit of existing use rights within the meaning of s106 of the EP&A Act.' 'If the premises have existing use rights, whether those rights have been abandoned.']

Ratio Decidendi

Because the existing use underpinning the 1986 Council consent for a newsagency had been abandoned, although the consent still stood, the applicant could not rely on the existing use provisions to change the use from newsagency to brothel. Section 109B could not be used to permit a further change of use under the existing use scheme in the circumstances disclosed by the agreed facts.

Court Disposition

Preliminary questions answered against the applicant: question 1 No; question 2 No; question 3 Does not apply.

Orders

  • ['The answers to the preliminary questions are: 1. No. 2. No. 3. Does not apply.' 'Both the class 1 and class 4 proceedings will be listed for callover by the Registrar on Friday 27 April 2001.' 'Exhibit M1 should remain in the class 1 file.']