Lemworth Pty Limited v Liverpool City Council

Lemworth Pty Limited appealed to the New South Wales Court of Appeal against a decision of the Land and Environment Court concerning a development application to expand an existing brothel. The dispute centred on the interpretation of "existing use" under the *Environmental Planning and Assessment Regulation 2000* (NSW), specifically whether certain extraneous parking areas could be considered part of the "land" used for the brothel's existing use.

The primary legal issue before the Court of Appeal was to determine the correct interpretation of "land" in the context of existing use rights for a brothel. This involved considering whether the subject land could be regarded as a single "unit" for the purpose of establishing an existing use, and crucially, whether parking areas located separately from the main premises could be included as part of that "land" for the purposes of the existing use.

The Court of Appeal, comprising Stein and Hodgson JJA and Rolfe AJA, granted leave to appeal and upheld the appeal in part. The Court reasoned that the question of whether the ground floor of the premises was included in the land used for the existing brothel use immediately before the relevant date, by reason of being held in reserve or otherwise, was a critical factor. The Court added a rider to the question posed to the Court, indicating that the Land and Environment Court needed to consider this specific aspect. Consequently, the matter was remitted to the Land and Environment Court for further hearing. The appellant was ordered to pay the respondent's costs of the appeal.