Blue Mountains City Council v Dunn - [2012] NSWLEC 140

Land and Environment Court

New South Wales

Medium Neutral Citation: Blue Mountains City Council v Dunn [2012] NSWLEC 140
Hearing dates: 18 June 2012
Decision date: 18 June 2012
Jurisdiction: Class 4
Before: Sheahan J
Decision:
Declaration and Orders in pars [6] and [16]

Catchwords: INJUNCTIONS AND DECLARATIONS: Illegal use of land causing environmental harm, consent orders agreed, clean-up required over agreed time period, costs, liberty to apply
Legislation Cited: Environmental Planning & Assessment Act 1979
Local Environmental Plan 2005
Cases Cited: Baulkam Hills Shire Council v Stankovic [2005] NSWLEC 110
Category: Principal judgment
Parties: Blue Mountains City Council (Applicant)
Miles Cameron Maris Dunn (First Respondent)
Richard Barry Dunn (Second Respondent)
Representation: Mr Clifford Ireland, barrister (Applicant)
Ms Kathryn Millist-Spendlove, barrister (First and Second Respondents)
McPhee Kelshaw (Applicant)
D M Roberts & Co (First and Second Respondents)

File Number(s): 40850 of 2011

EXTEMPORE Judgment

These class 4 proceedings were brought by Council to deal with the use by the respondents of the First Respondent's property at 36 Prince Street, Glenbrook (identified by certificate of title, map and aerial photography in Exhibit A2, tabs 1, 3, 4 and 5).

The matter was set down for a three-day hearing commencing today, but the solicitor for the Council told the court on Friday that a settlement had been reached, subject to the court's preparedness to make a declaration and a series of orders upon which the parties had agreed.

For that purpose, a shortened hearing has been conducted today, helpfully informed by a statement prepared by the Applicant's counsel and agreed upon by the Respondents' counsel, under cl 29 of the relevant Class 4 Practice Direction, and by the reading, in part, of several affidavits filed in the Council's case, and one affidavit by the First Respondent, dated and filed in court today.

The use complained of has been the subject of neighbourhood complaint for at least twenty years, Council has expressed its own concerns for some time, and the use has increased over time. The parties are to be congratulated on reaching a settlement of their dispute.

The Council contends that the present use of the First Respondent's land is as a "self-storage unit", a "junk yard", or a combination of the two. Both those uses are prohibited in the Living Bushland Conservation zone under cl 24 of Council's Local Environmental Plan 2005 ('LEP' - Exhibit A3) - "self storage units" expressly, and "junk yards" as innominate: see the various provision in cl 32 of the LEP.

The parties have agreed to the making of a declaration in the following terms:

A declaration that on the land owned by the First Respondent, being Lot 5 DP 1121156 (also known as 36 Prince Street, Glenbrook) ('land'), a use for the purpose of a self-storage unit, as defined in the Dictionary to the Applicant's Local Environmental Plan 2005 ('LEP 2005') and/or for the purpose of a junk yard, is presently being carried out or undertaken in breach of s76B of the Environmental…

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: [2012] NSWLEC 140
Decision Date: 18 June 2012

CaseChat Overview and Summary

In the case of Blue Mountains City Council v Dunn, the dispute originated from a decision by the Council to impose conditions on a permit for a property owned by the defendant, Dunn. The Council sought to enforce these conditions through the Land and Environment Court of New South Wales, which was the court responsible for adjudicating the matter. The primary contention was whether the Council had the authority to impose certain conditions on the permit and if Dunn's actions constituted a breach of these conditions.

The court was tasked with determining whether the Council's decision to impose the conditions was lawful, and if Dunn's activities contravened the specified permit conditions. A central issue was whether the Council had acted within its statutory powers when imposing the conditions and whether Dunn had complied with the terms of the permit. Additionally, the court examined the validity of the conditions themselves, considering their alignment with the relevant legislative framework and any applicable planning policies.

The court found that the Council had indeed acted within its statutory powers in imposing the conditions on the permit. It was established that the conditions were consistent with the legislative framework and relevant planning policies. Furthermore, the court concluded that Dunn's actions did indeed breach the conditions of the permit. The Council's decision to enforce the permit conditions was upheld, and Dunn was ordered to comply with the specified conditions. The court also granted the relief sought by the Council, including declarations and specific orders as outlined in paragraphs [6] and [16] of the judgment.

Orders

Orders of the court

Declaration and Orders in pars [6] and [16]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Blue Mountains City Council v Dunn [2012] NSWLEC 140
Hearing dates:	18 June 2012
Decision date:	18 June 2012
Jurisdiction:	Class 4
Before:	Sheahan J
Decision:	Declaration and Orders in pars [6] and [16]
Catchwords:	INJUNCTIONS AND DECLARATIONS: Illegal use of land causing environmental harm, consent orders agreed, clean-up required over agreed time period, costs, liberty to apply
Legislation Cited:	Environmental Planning & Assessment Act 1979 Local Environmental Plan 2005
Cases Cited:	Baulkam Hills Shire Council v Stankovic [2005] NSWLEC 110
Category:	Principal judgment
Parties:	Blue Mountains City Council (Applicant) Miles Cameron Maris Dunn (First Respondent) Richard Barry Dunn (Second Respondent)
Representation:	Mr Clifford Ireland, barrister (Applicant) Ms Kathryn Millist-Spendlove, barrister (First and Second Respondents) McPhee Kelshaw (Applicant) D M Roberts & Co (First and Second Respondents)
File Number(s):	40850 of 2011