In MPG Investments Pty Ltd v Willoughby City Council [2017] NSWLEC 1442, a land owner made a development application to the local council. The current building on the land was a commercial building, which was permissible within the zoning at the time of construction, but became impermissible.  Consent for this existing use was maintained under the Environmental Planning Act 1979. The land owner applied for development consent to demolish the existing building and construct a mixed-use development permissible within the area’s zoning. The Council rejected the application because it exceeded height and floor plan limitations, and would have amenity impacts on surrounding properties.

The owner argued that the compliance with the development standard was unreasonable in this instance. The basis for this argument was that allowing the development to go ahead would incentivise him to discontinue the existing impermissible use of the land. The judge did not accept this argument, stating that this was a policy consideration not outlined in the legislation, and refused development consent.

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