Armstrong v Ashfield Municipal Council (No 2)

Case [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.

Details
AGLC
Armstrong v Ashfield Municipal Council (No 2) [2002] NSWLEC 50
Case
[2002] NSWLEC 50
Decision Date

CaseChat Overview and Summary

Leonard Armstrong and Christina Armstrong sought a declaration from the Land and Environment Court of New South Wales that their use of a property in Ashfield for residential purposes was an existing use. The Ashfield Municipal Council opposed the application, arguing that the use was not an existing use within the meaning of section 106 of the Environmental Planning and Assessment Act 1979. The court had to determine whether the Armstrongs' use of the property for residential purposes was an existing use and whether the Council's contention that the use was not an existing use was correct.

The court examined historical records and evidence to determine whether there was a continuous use of the property for residential purposes. The Armstrongs argued that the use of the property for residential purposes was an existing use because it had been used for that purpose for a significant period of time. The Council, on the other hand, argued that the use was not an existing use because it had not been continuously used for residential purposes for the required period of time. The court held that the Armstrongs' use of the property for residential purposes was an existing use because there was a continuous use of the property for residential purposes throughout the relevant period.

The court further held that the Armstrongs' use of the property for residential purposes was an existing use within the meaning of section 106 of the Environmental Planning and Assessment Act 1979. The court found that the Armstrongs had established that there was a continuous use of the property for residential purposes for the required period of time. The court also held that the Council's contention that the use was not an existing use was incorrect.

The court declared that the Armstrongs' use of the property for residential purposes was an existing use within the meaning of section 106 of the Environmental Planning and Assessment Act 1979. The court further held that the Armstrongs were entitled to continue using the property for residential purposes. The court did not award costs to either party.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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