Cracknell & Lonergan Architects Pty Ltd v Leichhardt Municipal Council [2012] NSWLEC 194

Land and Environment Court New South Wales

Medium Neutral Citation: Cracknell & Lonergan Architects Pty Ltd v Leichhardt Municipal Council [2012] NSWLEC 194 Hearing dates: 25 - 28 June 2012 Decision date: 27 August 2012 Jurisdiction: Class 1 Before: Craig J Decision: 1. Appeal dismissed 2. Development application D/2011/126 for demolition of an existing industrial building and construction of a residential flat building at 155-157 Balmain Road, Leichhardt is refused. 3. No order as to costs unless within 14 days of this order arrangements are made through my Associate to argue for a different order. 4. Exhibits may be returned. Catchwords: DEVELOPMENT APPLICATION - appeal following refusal of development consent - development proposing demolition of existing warehouse building and erection of two-storey residential flat building - proposed development did not meet floor space ratio control or minimum landscaped area control imposed by Leichhardt Local Environmental Plan 2000 - proposed development did not meet provisions of Leichhardt Development Control Plan 2000 - non-compliance justified by claim of existing use attaching to land - proposed development inconsistent with character of neighbourhood - unreasonable impact on neighbouring properties due to building size and orientation - development consent refused - appeal dismissed

EXISTING USE - whether s 108 of the Environmental Planning and Assessment Act 1979 (the EPA Act) necessarily engaged where consent for past use preserved under s 109B of the EPA Act - whether use under a preserved consent remains an "existing use" where that use has been discontinued by reference to s 107(2)(e) of the EPA Act - continuity of use necessary to engage s 108 - "existing use" abandoned - entitlement to use limited to terms of preserved consent