Auburn Council v Nehme

Case [1999] NSWCA 383
Reported Decision: 106 LGERA 19

New South Wales


Court of Appeal

CITATION: AUBURN COUNCIL v NEHME [1999] NSWCA 383
FILE NUMBER(S): CA 40294/98
HEARING DATE(S): 23 March 1999
JUDGMENT DATE:
20 October 1999

PARTIES :
AUBURN COUNCIL v EDDIE NEHME
JUDGMENT OF: Meagher JA at 1; Handley JA at 2; Beazley JA at 35
LOWER COURT JURISDICTION: Land & Environment Court
LOWER COURT FILE NUMBER(S) : LEC 40241/97
LOWER COURT JUDICIAL OFFICER: Bignold J
COUNSEL: J A Ayling (Appellant)
J A Jobson (Respondent)
SOLICITORS: Abbott Tout (Appellant)
Andresakis & Associates (Respondent)
CATCHWORDS: Planning-old consent to use as squash courts-use prohibited under later planning instrument-use abandoned-whether consent still available-whether s109B of Environmental Planning and Assessment Act preserved consent
ACTS CITED: County of Cumberland Planning Scheme Ordinance 1951
Auburn Planning Scheme Ordinance 1970
Environmental Planning and Assessment (Amendment) Act 1997 [No 152 of 1997]
Environmental Planning and Assessment (Amendment) Act 1985 [No 288 of 1985]
Environmental Planning and Assessment Amendment Act 1996 [No 44 of 1996]
Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 [No 205 of 1979]
Environmental Planning and Assessment (Miscellaneous Amendments) Act 1992 [No 90 of 1992]
CASES CITED:
 Penrith Waste Services Pty Ltd v Penrith Council (1998) 101 LGERA 99, 105-6
Steedman v Baulkham Hills Shire Council [No 2] (1993) 31 NSWLR 562, 578-9
Vumbaca v Baulkham Hills Shire Council (1979) 141 CLR 614
North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470, 477, 478
Newbury Council v Secretary of State for the Environment [1981] AC 578
Hartley v Minister of Housing [1970] 1 QB 413 CA, 421
Woollahra Muncipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138, 144
Auburn MC v Szabo (1971) 67 LGRA 427, 433-4
Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] 1 AC 132, 139-142, 145
Park Street Properties Ltd v City of South Melbourne [1990] VR 545
Cynon Valley BC v Secretary of State for Wales (1986) 85 LGR 36
Woollahra Muncipal Council v TAJJ Investments Pty Ltd (1982) 49 LGRA 123
Tannous v Canterbury Muncipal Council (1984) 52 LGRA 308, 316
Penrith City Council v Penrith Waste Services Pty Ltd (19/12/95 unrep) 35, (1998) 101 LGERA 98
DECISION: Appeal allowed with costs - orders made

    THE SUPREME COURT
    OF NEW SOUTH WALES
    COURT OF APPEAL
    CA 40294/98
    LEC 40241/97
MEAGHER JA
HANDLEY JA
BEAZLEY JA

    20 October 1999

    AUBURN COUNCIL v EDDIE NEHME

    PLANNING - old consent to use as squash courts - use prohibited under later planning instrument - use abandoned - whether consent still available - whether s 109B of Environmental Planning and Assessment Act preserved consent

    The respondent was the owner of squash courts. Consent had been granted for this use under the County Scheme prior to the commencement of the Auburn Scheme in 1970. The new scheme prohibited use for squash courts. In 1990 the premises were extensively damaged and the use was abandoned. In 1996 the respondent recommenced the use despite Council’s refusal…

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AGLC
Auburn Council v Nehme [1999] NSWCA 383
Case
[1999] NSWCA 383
Decision Date

CaseChat Overview and Summary

The Court of Appeal of New South Wales heard an appeal concerning the validity of an existing use right for squash courts in Auburn. The appellant, Auburn Council, sought to prevent the respondent, Mr. Nehme, from continuing to use the premises as squash courts. The dispute arose because the use of the premises as squash courts was prohibited under a later planning instrument, and the council contended that the original consent for this use had been abandoned.

The central legal issue before the court was whether the consent granted under an earlier planning instrument for the use of the premises as squash courts remained available, notwithstanding the prohibition under a subsequent planning instrument. This question hinged on the interpretation and application of section 109B of the *Environmental Planning and Assessment Act 1979* (NSW), which deals with the effect of new planning instruments on existing consents. The court was required to determine whether the respondent had abandoned the lawful use of the premises as squash courts, thereby extinguishing the existing use right.

The court reasoned that for an existing use right to be preserved under section 109B, the use must have been lawfully carried out immediately before the new planning instrument took effect. The evidence presented indicated that the premises had not been used as squash courts for a significant period prior to the commencement of the new instrument, and that the use had been abandoned. Consequently, the court found that the original consent was no longer available to permit the use of the premises as squash courts.

The appeal was allowed with costs, and orders were made by the court.

Orders

Orders of the court

Appeal allowed with costs - orders made

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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