Armstrong v Ashfield Municipal Council (No 2)

[2002] NSWLEC 50

Land and Environment Court

of New South Wales

CITATION:	Armstrong and Anor v Ashfield Municipal Council (No 2) [2002] NSWLEC 50
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
CASES CITED:
DATES OF HEARING:	29/10/2001, 20/11/2001 (final written submissions)
DATE OF JUDGMENT:	12/07/2001
LEGAL REPRESENTATIVES:	APPLICANTS: Mr DK Thomas (Solicitor) SOLICITORS: Wilshire Webb RESPONDENT: Mr AM Hawkes (Solicitor) 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. HIS HONOUR: I am satisfied that there is a genus of use which can be identified as flowing through the whole of the relevant period, although not a use that arises out of any of the definitions or descriptions that have been discussed throughout submissions. I am prepared to hold that the use of the building on the land 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 Environmental Planning and Assessment Act 1979. With no argument about costs, I have formally reserved that question. The exhibits may be returned. I publish my reasons. The exhibits are available outside the Court now.