Xuereb v Marrickville Municipal Council

[1989] NSWLEC 171

Land and Environment Court

of New South Wales

CITATION:	Xuereb v Marrickville Municipal Council [1989] NSWLEC 171
PARTIES:	APPLICANT Xuereb RESPONDENT Marrickville Municipal Council
FILE NUMBER(S):	10516 of 1988
CORAM:	Bignold J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:	Woollahra Municipal Council v. T.A.J.J. Investment Pty. Ltd. (1982) 49 LGRA 123.
DATES OF HEARING:
DATE OF JUDGMENT:	03/23/1989
LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: This is an appeal under s.97 of the Environmental Planning and Assessment Act 1979 against the determination of the Respondent refusing development consent to an application made pursuant to clause 54(1) of the Regulation made under the Act to change the use of an existing dwelling-house situate at No. 138 Marrickville Road, Marrickville from that of a dwelling to professional chambers for legal practice.

The Respondent refused the development application on the ground that it had "no power to approve the proposed change of use in that the premises' existing use rights have been abandoned ........"

By consent these proceedings were heard with related proceedings (No. 40187 of 1988) wherein the Council seeks a declaration that the Respondent's use of the said premises for the purposes of a Solicitor's office is unlawful and a permanent injunction restraining that use.

Again by consent the evidence adduced in each of the proceedings is to be taken as evidence in the other.

It is common ground that the operation of cl. 54(1) of the Regulation in the present case depends upon it being established that there is an "existing-use", within the meaning of s.106 of the Act of the subject premises cf: Woollahra Municipal Council v. T.A.J.J. Investment Pty. Ltd. (1982) 49 LGRA 123.

Since the result of proceedings No. 40187 of 1988 (see my separate judgment delivered today) is that there is no relevant existing use it follows that the enabling provision made by cl. 54(1) of the Regulation cannot be invoked in the present case.

Accordingly, there being no other suggested basis to sanction the grant of development consent sought by the Applicant in this case the only fate of the appeal is that development consent be refused.

I order that the appeal be dismissed.