Auburn Council v Nehme

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.