Fairfield City Council v Mangos - [2004] NSWLEC 298

Land and Environment Court

of New South Wales

CITATION: Fairfield City Council v Mangos And Ors. [2004] NSWLEC 298

PARTIES:
APPLICANT:
Fairfield City Council
RESPONDENT:
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 306

DATES OF HEARING: 20/05/2004

DATE OF JUDGMENT: 06/11/2004

LEGAL REPRESENTATIVES:

APPLICANT:
Mr J Thompson (Barrister)
SOLICITORS
Kencalo and Ritchie
1ST 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

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:

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

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: [2004] NSWLEC 298
Decision Date: 06/11/2004

CaseChat Overview and Summary

The case of Fairfield City Council v Mangos involved the Fairfield City Council seeking an injunction and declaration against the Mangos family for using their property as a 'transport depot', which was prohibited in their zone. The Mangos family argued that their use of the property for their concreting business did not constitute a transport depot. The key issue before the court was whether the Mangos' use of the property for their concreting business constituted a 'transport depot' within the meaning of the Fairfield Local Environmental Plan 1994. The court found that the Mangos' use of the property for their concreting business, which involved parking and servicing vehicles used in their business, did constitute a 'transport depot' as defined in the plan. The court held that the use of the property for this purpose was prohibited development in their zone. The court granted the Council's claims for declaratory and injunctive relief, but suspended the injunction for three months to allow the Mangos family to relocate their business. The injunction only applied to the first three respondents who were directly involved in the use of the property for the concreting business.

Orders