Background
The applicants owned land at 658 Punchbowl Road, Wiley Park, containing a front dwelling and a rear dwelling. After the council refused applications to subdivide the land and to regularise its use as a dual occupancy, it issued a demolition order concerning the rear dwelling. The applicants then sought a building information certificate, which the council also refused.
In their Class 1 appeal from that refusal, the applicants sought determination of a separate question: whether the rear building’s erection and use constituted an “existing use” under Div 4.11 of the Environmental Planning and Assessment Act 1979 (NSW). The evidence established that a rear structure existed by 1965, but established residential occupation of it only from about 2010, concurrently with the front dwelling.
The Court’s Holding
Duggan J answered the separate question “no.” The use of the front and rear dwellings was properly characterised under the Canterbury-Bankstown Local Environmental Plan 2023 as a detached dual occupancy.
Although dual occupancies were not listed as permitted uses in the R3 zone land-use table, the Court held that the LEP had to be read as a whole. Clause 2.5 and Schedule 1, clause 26 made dual occupancies permissible with development consent on R3 land identified as Area 2, subject to a floor-space-ratio condition. The land was in Area 2 and the condition was met. The use was therefore presently permissible with consent, not prohibited.
Because an existing use requires a currently operative planning instrument that prohibits the use, there was no basis for existing-use rights. The Court also found that, even if earlier instruments required consideration, the applicants had not identified evidence of a relevant prohibition; the applicable earlier instruments permitted detached dual occupancies with consent.
Key Takeaways
- An existing-use claim fails where the current planning instrument permits the relevant use with consent.
- A land-use table must be read with other provisions of the planning instrument, including additional-permitted-use provisions.
- Historical planning controls need not be traced where the current instrument does not prohibit the use.
Why It Matters
The decision confirms that existing-use rights are not a freestanding historical entitlement. They operate as an exception to a current prohibition, and cease to assist where the presently applicable planning instrument makes the use permissible.
The Court reserved costs of the separate question and referred the substantive building information certificate appeal for further directions.