Land and Environment Court
of New South Wales
CITATION: Fairfield City Council v Mangos And Ors. [2004] NSWLEC 298 PARTIES: APPLICANT:
RESPONDENT:
Fairfield City Council
Mangos And Ors.FILE NUMBER(S): 41123 of 2003 CORAM: Bignold J KEY ISSUES: Injunctions and Declarations :- injunctions-garaging of motor vehicles and equipment used in concrete business in a rural-residential zone-characterisation of use-whether a "transport depot". LEGISLATION CITED: Fairfield Local Environmental Plan 1994 CASES CITED: Canterbury Municipal Council v Wallspace Advertising (Australia) Pty Ltd (1982) 47 LGRA 135;
Cooper Brookes (Wollongong) Pty Ltd v Federal Commission of Taxation (1981) 147 CLR 297;
Hanlon v Law Society [1981] AC 124;
Solicitor-General for NSW v Foodbarn Pty Ltd (1975) 32 LGRA 157;
Warringah Shire Council v Raffles (1978) 38 LGRA 306DATES OF HEARING: 20/05/2004 DATE OF JUDGMENT: 06/11/2004 LEGAL REPRESENTATIVES:
APPLICANT:
Mr J Thompson (Barrister)
SOLICITORS
Kencalo and Ritchie1ST TO 4TH RESPONDENTS:
Mr D Galpin (Barrister)
SOLICITORS
N/A
JUDGMENT:
IN THE LAND AND Matter No:
41123 of 2003
ENVIRONMENT COURT Coram
: Bignold J
OF NEW SOUTH WALES
11 June 2004
FAIRFIELD CITY COUNCIL
Applicant
v
ANNA MANGOS
First Respondent
ALEX MANGOS
Second Respondent
INCY PTY LTD
Third Respondent
AAM HOLDINGS (NSW) PTY LTD
Fourth Respondent
JUDGMENT
A. INTRODUCTION
1. By its Further Amended Class 4 Application filed 11 February 2004, the Council seeks declaratory and injunctive relief in respect of the use of premises known as No 206 Cecil Road, Cecil Park (the subject property) for what is asserted to be for the purposes of a “transport depot” within the meaning of the Fairfield Local Environmental Plan 1994 (the LEP).
2. It is not in dispute that the subject property is included in Zone No 1(a) ‘Non Urban—Residential” created by the LEP and that within that zone the purposes for which development is prohibited as expressed in cl 8 of the LEP include a “transport depot” which is a term defined in the Dictionary to the LEP (vide cl 5(1)) as follows:
- Transport depot means any building or place used for the servicing, garaging, parking or repair of motor powered or any motor drawn vehicle used in connection with passenger or goods transport, business or industry, but does not include a building or place elsewhere defined in this plan.
3. The Respondents (who are related persons—both as individuals and corporations) deny that the subject property is relevantly being used as a “transport depot”. Rather, they assert that the relevant use of the subject property which is the subject of the present proceedings is “an innominate commercial use” which in terms of the LEP is a permissible purpose of development (subject to the grant of development consent).
4. Although the Council’s class 4 application claims alternative declaratory and injunctive relief by reference to another defined category of development in terms of the LEP, namely “home business” (being a permissible purpose of development within the Zone No 1(a) (“Non Urban—Residential
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- Case
- [2004] NSWLEC 298
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