Armstrong v Ashfield Municipal Council

Reported Decision: 119 LGERA 384
APPEAL PARTLY DISMISSED

Land and Environment Court

of New South Wales

CITATION:

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

PARTIES:

APPLICANTS:
Leonard Armstrong
Christina Armstrong

RESPONDENT:
Ashfield Municipal Council

FILE NUMBER(S):

40184 of 2001

CORAM:

Talbot J

KEY ISSUES:

Existing Use Rights :- inference to be drawn from historical records - effect of consent to continuation of use under cl 34 of the County of Cumberland Planning Scheme Ordinance - categorisation of use.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 106, s 106(b)(i), s 109B
Local Government Act 1919 s 341, s 342 AS
Ashfield Local Environment Plan 1985
County of Cumberland Planning Scheme Ordinance cl 24, cl 34, cl 34(1), cl 34(2)
Ordinance No. 105 Town and Country Planning - General Interim Development

CASES CITED:

North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd and Others (1989) 67 LGRA 344;
Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305;
Shire of Perth v O'Keefe and Another (1964) 110 CLR 529;
South Sydney City Council v M. & D. Cooper (Bignold J, NSWLEC, 28 May 1997, unreported);
Woollahra Municipal Council v Banool Developments Pty Limited (1973) 129 CLR 138;
Woollahra Municipal Council v Hinton (1967) 13 LGRA 417

DATES OF HEARING:

29/10/2001, 20/11/2001 (final written submissions)

DATE OF JUDGMENT:

12/07/2001

LEGAL REPRESENTATIVES:

APPLICANTS:
Mr DP Wilson (Barrister)
SOLICITORS:
Wilshire Webb

RESPONDENT:
Mr MG Craig QC
SOLICITORS:
Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND Matter No. 40184 of 2001
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 7 December 2001

Leonard Armstrong
Christina Armstrong
Applicants

v
Ashfield Municipal Council

Respondent

REASONS FOR JUDGMENT


1. The applicants are the proprietors of land known as lot 1 DP 908000, 6 Kensington Road, Summer Hill (“the premises”). Erected on the land is a building currently divided into four flats. Under the Ashfield Local Environment Plan 1985 (“the LEP”), gazetted on 20 December 1985, the land is in Zone No. 2 (a) (Residential Zone). The use of the land for the purposes of a residential flat building has been at all times prohibited in the Residential 2(a) zone.

2. The first applicant, Leonard Armstrong, has commenced class 1 proceedings by way of an appeal against a refusal of a development application made to Ashfield Municipal Council (“the council”) for alterations and additions to the existing residential flat building. On 13 July 2001 the council was granted leave to amend its statement of issues in the class 1 proceedings to include the following issues:-

18. (a) Whether the use of the existing building is an “existing use” within the meaning of s.106 Environmental Planning and Assessment Act 1979 .

(b) If the answer to (a) is in the negative, whether the proposed development is prohibited.



3. These class 4 proceedings were commenced on 5 October 2001.

4. The class 4 application seeks a declaration in the following form:-

A declaration…