Background
ABR Property Holdings Pty Ltd appealed Canterbury-Bankstown Council’s refusal of DA-589/2026 for works at an existing gym at 71–73 Davies Road, Padstow. The amended proposal involved partial demolition of an unauthorised enclosure at ground level, use of part of that space for gym floor area, demolition of an office in the parking area and a structure in the Bridge Street front setback, revised parking, and landscaping.
The site is in the E4 General Industrial zone, where indoor recreation facilities are prohibited. But the gym had been lawfully approved before a 2025 rezoning, and the parties agreed that it retained existing use rights. Objectors raised noise, parking, traffic, road-safety, litter and unauthorised-work concerns. During a Court conciliation conference, the parties agreed on amended plans and conditions addressing those matters.
The Court’s Holding
Acting Commissioner Peatman upheld the appeal and granted development consent to the amended application, subject to Annexure A conditions. The Court held that the agreed outcome was one it could properly make under s 34(3) of the Land and Environment Court Act 1979 (NSW).
The Court accepted that the gym was a lawful existing use under s 4.65 of the Environmental Planning and Assessment Act 1979 (NSW), despite its now-prohibited status in the E4 zone. The proposed enlargement or intensification was confined to the existing use and the same land. The Court therefore did not undertake a separate merits assessment of the amended proposal.
Key Takeaways
- Existing use rights allowed consent for gym-related development notwithstanding the current zoning prohibition.
- A Class 1 appeal may be resolved through a s 34 conciliation agreement where the agreed decision is within the Court’s power.
- The applicant must pay the Council $6,000 for costs thrown away by the amendment to the development application.
Why It Matters
The decision illustrates how an established lawful use can continue, and be enlarged or intensified with consent, after a planning change makes that use prohibited. It also shows the practical importance of documenting the lawful history of a use when relying on existing use rights.
For development appeals, the case confirms that negotiated amendments and conditions can resolve objections and Council contentions, enabling the Court to make consent orders without separately deciding the merits of every issue.