Auburn Council v Constanti - [2000] NSWLEC 194

Land and Environment Court

of New South Wales

CITATION: Auburn Council v Constanti and Anor [2000] NSWLEC 194

PARTIES:
APPLICANT
Auburn Council
RESPONDENTS
Constanti and Anor

FILE NUMBER(S): 40199 of 1999

CORAM: Pearlman J

KEY ISSUES: Injunctions and Declarations :- existing use rights - service station - new access point to diesel bowsers - is it a use - abandonment - enlargement
expansion or intensification - whether consents still in force

LEGISLATION CITED: Auburn Planning Scheme Ordinance 1970 cl 26
County of Cumberland Planning Scheme Ordinance 1951 cl 32
Environmental Planning and Assessment Act 1979 s 106(a), s 107, s 109B
Environmental Planning and Assessment Regulation 1994 cl 40
Miscellaneous Acts (Planning) Repeal and Amendment Act 1979

CASES CITED: Auburn Council v Nehme (1999) 106 LGERA 19;
House of Peace Pty Ltd and Anor v Bankstown City Council (2000) 106 LGERA 440;
Shire of Perth v O’Keefe and Anor (1964) 110 CLR 529;
South Sydney City Council v Houlakis and Anor (1996) 92 LGERA 401;
Steedman and Anor v Baulkham Hills Shire Council [No 2] (1993) 31 NSWLR 562

DATES OF HEARING: 15/05/00, 16/05/00, 31/07/00, 01/08/00

DATE OF JUDGMENT:
09/05/2000

LEGAL REPRESENTATIVES:

APPLICANT
Mr S N Griffiths (Solicitor)
SOLICITORS
Pike Pike & Fenwick
RESPONDENTS
Mr T S Hale SC [with Mr D S Weinberger (Barrister) on 15/05/00 and 16/05/00]
SOLICITORS
M D Nikolaidis & Co

JUDGMENT:

IN THE LAND AND

40199 of 1999

ENVIRONMENT COURT Pearlman J

OF NEW SOUTH WALES 5 September 2000

AUBURN COUNCIL

Applicant

CON CONSTANTI and GEORGE CONSTANTI

Respondents

JUDGMENT

Introduction

1. In these proceedings, Auburn Council seeks an injunction restraining the respondents, Mr Con Constanti and Mr George Constanti, from using certain land for the purpose of a driveway permitting access to and egress from the service station at 134 John Street Lidcombe.

The background facts

2. Lots 79 to 82 DP 13524 are parcels of land known collectively as 134 John Street, Lidcombe (“the site”). The site is located on the corner of John Street and Calool Street. Erected upon the site is a Caltex service station, owned and operated by the respondents.

3. The service station is oriented towards John Street, and petrol bowsers are located under a canopy fronting John Street. On the Calool Street side of the service station building there is another canopy over some diesel bowsers. There are two driveway crossings in the kerb at John Street, one being an entrance near the intersection of John Street and Calool Street, and one being an egress further along John Street to the north east. There is also a driveway crossing in the kerb in Calool Street, close to its intersection with John Street, which I will call “the first Calool Street crossing”.

4. This case, however, turns in particular upon the past and present uses of other parts of the site. Between the rear of the service station building and the western boundary of the site is an area which I will call “the rear…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] NSWLEC 194
Decision Date: 09/05/2000

CaseChat Overview and Summary

In the case of Auburn Council v Constanti, the Land and Environment Court of New South Wales was asked to decide whether the respondents, Mr Con Constanti and Mr George Constanti, were in breach of the Environmental Planning and Assessment Act 1979 by using certain land for the purpose of a driveway permitting access to and egress from the service station at 134 John Street Lidcombe. The council sought an injunction restraining the respondents from using the site for this purpose. The court had to determine whether the activity in question was a use, whether the respondents had existing use rights in respect of it, and whether the use had been abandoned or enlarged, expanded, or intensified. The court found that the impugned activity was a use and that the respondents had existing use rights in respect of it. The court also found that the use had not been abandoned or enlarged, expanded, or intensified. Accordingly, the application was dismissed. The court noted that some of the impacts of the existing use, such as dust and tyre marks on Calool Street, could be ameliorated by the sealing of the south west section of the site, but it was not appropriate for the court to make any order about those impacts. The question of costs was reserved, and the exhibits were to be returned.

Orders