Ashfield Municipal Council v Armstrong - [2002] NSWCA 269

Reported Decision:
(2002) 122 LGRA 105

New South Wales

Court of Appeal

CITATION: Ashfield Municipal Council v Armstrong [2002] NSWCA 269

FILE NUMBER(S): CA 41049/01

HEARING DATE(S): 30/07/02, 01/O8/02

JUDGMENT DATE:
23 August 2002

PARTIES :

Ashfield Municipal Council (Appellant)
Leonard Armstrong & Christina Armstrong (Respondents)

JUDGMENT OF: Mason P at 1; Handley JA at 2; Davies AJA at 3

LOWER COURT JURISDICTION : Land & Environment Court

LOWER COURT
FILE NUMBER(S) : LEC 40184/01

LOWER COURT
JUDICIAL OFFICER : Talbot J

COUNSEL: M G Craig QC/ J A Pickles & D Parry (Appellant)
D P Wilson (Respondents)

SOLICITORS: Pike Pike & Fenwick (Appellant)
Wilshire Webb (Respondents)

CATCHWORDS: LOCAL GOVERNMENT - Town Planning - whether existing use - distinction between the use of the premises and the physical attributes of the premises discussed - ambit of Council's approval discussed - whether use continuous - maxim omnia praesumuntur rite esse acta applied - presumption of continuance applied. D

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss 106, 107
Local Government Act 1919, s 309(2)
Miscellaneous Acts (Planning) Repeal and Amendment Act 1979, Schedule 3 cl 7(1)
Environmental Planning Legislation Amendment Act 1995, s 3
Local Government (Regulation of Flats) Act 1949
Local Government (Regulation of Flats) Act 1955

CASES CITED:
Shire of Perth v O'Keefe (1964) 110 CLR 529
Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138
Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305
Felt & Textiles of Australia Pty Ltd v Sydney City Council (1954) 19 LGR 238
South Sydney City Council v M & D Cooper [1997] NSWLEC 72
North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd [1990] 21 NSWLR 532

DECISION: See paragraph 51.

CA 41049/01
LEC 40184/01

MASON P
HANDLEY JA
DAVIES AJA
Friday 23 August 2002

ASHFIELD MUNICIPAL COUNCIL v LEONARD ARMSTRONG & CHRISTINA ARMSTRONG

Judgment

1 MASON P: I agree with Davies AJA.

2 HANDLEY JA: I agree with Davies AJA.

3 DAVIES AJA: This is an appeal from a judgment of a judge of the Land and Environment Court of New South Wales, Talbot J.

4 The respondents Leonard and Christina Armstrong had commenced Class 1 proceedings by way of appeal against a refusal by the Ashfield Municipal Council of a development application for alterations and additions to a residential flat building, No 6 Kensington Road, Summer Hill. An issue arose in those proceedings as to whether the use of the premises was an “existing use” for the purposes of ss 106 and 107 of the Environmental Planning and Assessment Act 1979 (the “EPA Act”).

5 The EPA Act provides, inter alia:

Definition of “existing use”

existing use

(a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4A of Part 3 or Division 4 of this Part, have the…

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.

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Details

Case: [2002] NSWCA 269
Decision Date: 23 August 2002

CaseChat Overview and Summary

Ashfield Municipal Council appealed to the Court of Appeal of New South Wales against a decision of the Land and Environment Court. The dispute concerned whether a property at 12-14 Norton Street, Ashfield, had been used for a purpose that was lawful prior to the introduction of a new planning scheme, and whether that use had been continuous. The Council had issued a notice requiring the cessation of the existing use of the premises.

The Court of Appeal was required to determine whether the Land and Environment Court had erred in finding that the premises were being used for a lawful non-conforming use. Specifically, the appeal raised questions about the distinction between the physical attributes of the premises and the actual use to which they were put, the scope of the Council's previous approval, and whether the use had been continuous as required to maintain its lawful non-conforming status.

The Court of Appeal found that the Land and Environment Court had correctly distinguished between the physical characteristics of the property and its actual use. It applied the maxim *omnia praesumuntur rite esse acta* (all things are presumed to have been done rightly) and the presumption of continuance to infer that the use of the premises had been continuous. The Court held that the Council had not discharged the onus of proving that the use had ceased or been abandoned, and therefore the non-conforming use rights were preserved.

The appeal was dismissed.

Orders

Orders of the court

See paragraph 51.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Ashfield Municipal Council v Armstrong [2002] NSWCA 269
FILE NUMBER(S):	CA 41049/01
HEARING DATE(S):	30/07/02, 01/O8/02
JUDGMENT DATE:	23 August 2002
PARTIES :	Ashfield Municipal Council (Appellant) Leonard Armstrong & Christina Armstrong (Respondents)
JUDGMENT OF:	Mason P at 1; Handley JA at 2; Davies AJA at 3

LOWER COURT JURISDICTION :	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	LEC 40184/01
LOWER COURT JUDICIAL OFFICER :	Talbot J

COUNSEL:	M G Craig QC/ J A Pickles & D Parry (Appellant) D P Wilson (Respondents)
SOLICITORS:	Pike Pike & Fenwick (Appellant) Wilshire Webb (Respondents)
CATCHWORDS:	LOCAL GOVERNMENT - Town Planning - whether existing use - distinction between the use of the premises and the physical attributes of the premises discussed - ambit of Council's approval discussed - whether use continuous - maxim omnia praesumuntur rite esse acta applied - presumption of continuance applied. D
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, ss 106, 107 Local Government Act 1919, s 309(2) Miscellaneous Acts (Planning) Repeal and Amendment Act 1979, Schedule 3 cl 7(1) Environmental Planning Legislation Amendment Act 1995, s 3 Local Government (Regulation of Flats) Act 1949 Local Government (Regulation of Flats) Act 1955
CASES CITED:	Shire of Perth v O'Keefe (1964) 110 CLR 529 Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138 Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 Felt & Textiles of Australia Pty Ltd v Sydney City Council (1954) 19 LGR 238 South Sydney City Council v M & D Cooper [1997] NSWLEC 72 North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd [1990] 21 NSWLR 532
DECISION:	See paragraph 51.