Fairfield City Council v Ly - [2008] NSWLEC 322

Land and Environment Court

of New South Wales

CITATION: Fairfield City Council v Ly and Ors [2008] NSWLEC 322

PARTIES:
APPLICANT
Fairfield City Council
FIRST RESPONDENT
Lan Anh Ly
SECOND RESPONDENT
Paul Trinh
THIRD RESPONDENT
Charles Trinh

FILE NUMBER(S): 40797 of 2008

CORAM: Pain J

KEY ISSUES:
Construction and Interpretation :- whether use of premises within definition of shop under Fairfield Local Environmental Plan 1994 and therefore prohibited - whether zone objectives can define permitted use
Injunctions and Declarations:- whether to make a declaration that current use is a shop - whether use is sale of motor vehicle components - whether to make consequential orders following declaration that awning already constructed lacks development consent
Discretion :- whether reasonable time should be granted to enable development consent to be obtained - whether to suspend order for demolition pending application for development consent

LEGISLATION CITED: Interpretation Act 1987 s 35
Fairfield Local Environmental Plan 1994

CASES CITED: Council of the City of Sydney v Waldorf Apartments Hotel Sydney Pty Limited [2008] NSWLEC 97
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

DATES OF HEARING: 15 December 2008

DATE OF JUDGMENT:
17 December 2008

LEGAL REPRESENTATIVES: APPLICANT
Mr A Thompson (solicitor)
SOLICITORS
Ritchie and Castellan

RESPONDENTS
Ms L Andelman
SOLICITORS
Ho Ledinh Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

17 December 2008

40797 of 2008 Fairfield City Council v Ly & Ors
JUDGMENT

1 Her Honour: This is a Class 4 application filed by the Council seeking declarations and consequential orders in relation to activities being conducted by the Second and Third Respondents on the First Respondent’s premises. The first declaration sought is that the premises are being used as a shop (a prohibited use) and an order is sought restraining that use. A second declaration sought is that an awning has been constructed without development consent. An order for demolition of the awning is sought. The premises are at 220-224 Cabramatta Road, Cabramatta West, (Lot A DP 367011). The Respondents are represented by the same legal representatives who advised they can be dealt with together.

Evidence/chronology

2 The Council relied on the lengthy affidavit of its officer, Mr Collins, dated 8 August 2008. The affidavit identifies a long history of use of the premises for the selling of car parts. The First Respondent bought the premises in March 1991. At that time the premises were zoned residential under the relevant environmental planning instrument. The Third Respondent has rented the premises from the First Respondent since 1992. His son is the Second Respondent and he has operated the business in more recent years. Development application 803/91 was lodged for a spare parts shop and barber on 15 November 1991 and refused. That use was prohibited in a residential zone. The land was rezoned to Special Industrial 4(c) in the Fairfield Local Environmental Plan 1994 (the LEP) in August 1994. Development application 4471 was lodged for a spare parts shop in July 1994. That DA was…

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.

Keep reading for free

Create a free CaseChat account to read Fairfield City Council v Ly and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] NSWLEC 322
Decision Date: 17 December 2008

CaseChat Overview and Summary

The Land and Environment Court of New South Wales heard a Class 4 application brought by the Fairfield City Council against Lan Anh Ly, Paul Trinh, and Charles Trinh concerning the use of premises located at 220-224 Cabramatta Road, Cabramatta West. The Council sought declarations and orders relating to the use of the premises, specifically whether it constituted a prohibited shop use under the Fairfield Local Environmental Plan 1994, and whether an awning constructed on the property lacked development consent. The Respondents conceded that the awning required development consent but disputed that the premises were being used as a shop. The primary legal issues revolved around the interpretation of the Fairfield Local Environmental Plan 1994, specifically whether the use of the premises for the retail sale of motor vehicle components qualified as a permitted use under the plan, and whether the awning's construction without consent warranted an order for its demolition. The Court found that the premises were not being used as a shop but rather for motor-oriented activities, which was a permissible use under the plan, provided development consent was obtained. The Court also found that the awning had been constructed without development consent and ordered its demolition, but suspended the order to allow time for the Respondents to apply for the necessary consents. The Court concluded that each party should bear its own costs of the proceedings.

Orders