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Armstrong v Ashfield Municipal Council

Armstrong v Ashfield Municipal Council

Case [2002] NSWLEC 237

Adverse Possession

Subsurface Rights

Existing Use Rights

Statutory Interpretation

Planning & Development Law

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Reported Decision: (2002) 124 LGERA 183

Land and Environment Court

of New South Wales

CITATION: Armstrong v Ashfield Municipal Council [2002] NSWLEC 237

PARTIES:
APPLICANT
L. Armstrong
RESPONDENT
Ashfield Municipal Council

FILE NUMBER(S): 10133 of 2001

CORAM: Cowdroy J

KEY ISSUES: Existing Use Rights :- extent of existing use below surface of land

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 4, s 106
Environmental Planning and Assessment Regulation 2000

CASES CITED: Ashfield Municipal Council v Leonard Armstrong & Christina Armstrong [2002] NSWCA 269;
Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270; 25 LGRA 369;
Lemworth Pty Limited v Liverpool City Council (2001) 53 NSWLR 371;
North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd and Ors (1989) 67 LGRA 344 (CCA);
Salvation Army v Newcastle City Council (2000) 107 LGERA 40;
Scully v Leichhardt Council (1994) 85 LGERA 109 ;
Shire of Perth v O'Keefe and Anor (1963) 110 CLR 529;
Starray Pty Limited v Sydney City Council [2002] NSWLEC 48;
Steedman v Baulkham Hills Shire Council [No 1] (1991) 87 LGERA 26 ;
The Council of the City of Parramatta v Brickworks Limited (1972-1973) 128 CLR 1

DATES OF HEARING: 5/12/2002

DATE OF JUDGMENT:
02/05/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr G Newport (Barrister)
SOLICITORS
n/a
(Agent) BT Goldsmith Planning Services Pty Ltd
RESPONDENT
Mr I Hemmings (Barrister)
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10133 of 2001

Cowdroy J

5 February 2003

L. ARMSTRONG

Applicant

ASHFIELD MUNICIPAL COUNCIL

Respondent

Judgment

Facts

1 The Court is required to determine a question of law concerning the extent of an existing use applicable to Lot 1 in Deposited Plan 908000 known as 6 Kensington Road, Summer Hill (“the land”). The land has a site area of approximately 697 m2 and erected thereon is a two-storey dwelling house (“the house”) which was constructed in 1886. The house has been used for the purposes of a residential flat building containing four flats. A four car garage located at the rear of the property is used in conjunction with the flats.

2 By development application No. 148/00 lodged with the respondent (“the council”) the applicant sought consent for the demolition of the house and the erection of eight one bedroom dwellings with basement car parking for nine vehicles.

3 A question initially arose whether the land attracted existing use rights. This issue was determined by the New South Wales Court of Appeal in favour of the applicant (see Ashfield Municipal Council v Leonard Armstrong & Christina Armstrong [2002] NSWCA 269) which upheld the decision of Talbot J of this Court (LEC 40184/01).

4 Clause 41 of Environmental Planning and Assessment Regulation 2000 (“Regulation 2000”) relevantly provides:-

41(1) An existing use may, subject to this Division:

(a) be enlarged, expanded or intensified, or

(b) be altered or extended, or

(c) be rebuilt, or

(d) be changed to another use, including…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Armstrong v Ashfield Municipal Council

Details

AGLC: Armstrong v Ashfield Municipal Council [2002] NSWLEC 237
Case: [2002] NSWLEC 237
Decision Date: 02/05/2003

CaseChat Overview and Summary

The case of Armstrong v Ashfield Municipal Council, decided by Cowdroy J in the Land and Environment Court of New South Wales, involved a dispute concerning the extent of existing use rights applicable to a specific piece of land and the proposed development on it. The applicant, L. Armstrong, sought to demolish an existing two-storey dwelling house and replace it with eight one-bedroom dwellings accompanied by basement car parking for nine vehicles. The central legal issue before the court was whether the existing use of the building on the land for residential flats permitted the granting of development consent for the proposed basement car parking. The council argued that the use of subterranean space beneath the land with an existing use did not benefit from existing use rights, while the applicant contended that the existing use rights should extend to the subterranean space beneath the land.

Cowdroy J examined the definition of "land" under the Environmental Planning and Assessment Act 1979 and the relevant regulation. The court noted that the word "land" should be interpreted liberally, considering the practical assessment of the facts of each case. The court referred to previous decisions that emphasised a broad construction of "use" and the need to focus on the purpose of the use from a town planning perspective. The court also considered whether the proposed use could be regarded as part of the same "unit" applicable to the existing use. The court distinguished the present case from previous decisions where the existing use was confined to a specific portion of the land. In this case, the proposed use of the subterranean space was for the same purpose as the existing use, namely residential flats and associated car parking. Therefore, the court concluded that the proposed development constituted an enlargement, expansion, or intensification of the existing lawful use, which is authorised by the regulation. The court did not find it necessary to address the applicant's supplementary submission regarding the council's opportunity to raise the issue in earlier proceedings. The court answered the preliminary point of law in the affirmative and ordered the exhibits be returned.

Orders