Armstrong and Anor v Ashfield Municipal Council (No 2) [2002] NSWLEC 50

Land and Environment Court of New South Wales

CITATION : Armstrong and Anor v Ashfield Municipal Council (No 2) [2002] NSWLEC 50 APPLICANTS: Leonard Armstrong PARTIES : Christina Armstrong

RESPONDENT: Ashfield Municipal Council FILE NUMBER(S) : 40184 of 2001 CORAM: Talbot J KEY ISSUES: Existing Use Rights :- inference to be drawn from historical records - effect of consent to continuation of use under cl 34 of the County of Cumberland Planning Scheme Ordinance - categorisation of use LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 106 CASES CITED: DATES OF HEARING: 29/10/2001, 20/11/2001 (final written submissions) DATE OF JUDGMENT: 12/07/2001

APPLICANTS: Mr DK Thomas (Solicitor) SOLICITORS: Wilshire Webb

LEGAL REPRESENTATIVES: RESPONDENT: Mr AM Hawkes (Solicitor) SOLICITORS: Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND Matter No. 40184 of 2001 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 7 December 2001

Leonard Armstrong Christina Armstrong Applicants v Ashfield Municipal Council Respondent

REASONS FOR JUDGMENT

1. HIS HONOUR: I am satisfied that there is a genus of use which can be identified as flowing through the whole of the relevant period, although not a use that arises out of any of the definitions or descriptions that have been discussed throughout submissions. I am prepared to hold that the use of the building on the land for the purpose of multiple occupancy residential accommodation including a residential flat building is an existing use within the meaning of s 106 of the Environmental Planning and Assessment Act 1979. With no argument about costs, I have formally reserved that question. The exhibits may be returned. I publish my reasons. The exhibits are available outside the Court now.