Auburn Council v Nehme, E. [1998] NSWLEC 14

Land and Environment Court of New South Wales

CITATION : Auburn Council v Nehme, E. [1998] NSWLEC 14 PARTIES : Auburn Council v Nehme, E. FILE NUMBER(S) : 40241 of 1997 CORAM: Bignold J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s109B South Sydney City Council v M & D Cooper (unreported, 28 May 1997, 40020/97; Manicaland Pty Ltd v Strathfield Council ; CASES CITED: see Eaton & Sons Pty Limited v Warringah Council 129 CLR 270 at 292-294; Drummoyne Municipal Council v Cavallaro (1982) 46 LGRA 416; Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 South Sydney City Council v Cooper DATES OF HEARING: 19 March 1998 DATE OF JUDGMENT: 04/15/1998

Williams Hussain

LEGAL REPRESENTATIVES: N/A

JUDGMENT:

JUDGMENT

Bignold J :

By its class 4 application filed on 29 September 1997, the Council seeks declaratory and injunctive relief in respect of the Respondent's use of the premises known as 44 Kibo Road, Regents Park (the subject premises) for the purposes of a squash court and ancillary recreational activities.

In particular the Council seeks a declaration that the use of the subject premises for the aforesaid purposes has been abandoned. This is a reference to the "abandonment" of an "existing use" referred to in s107(2)(d) of the Environmental Planning and Assessment Act 1979 (EP&A Act). The Council's claim for the declaration is founded upon s.107(3) of the EP&A Act which provides as follows: "Without limiting the generality of subsection (2)(d), a use shall be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months."