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. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.