Ashfield Municipal Council v Armstrong

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.