Hawkesbury City Council v Jarvie

[2002] NSWLEC 183

Land and Environment Court

of New South Wales

CITATION:

Hawkesbury City Council v Jarvie & Anor [2002] NSWLEC 183

PARTIES:

APPLICANT
Hawkesbury City Council

RESPONDENTS
Russell Alan Jarvie and Robert John Jarvie

FILE NUMBER(S):

40096 of 2001

CORAM:

Cowdroy J

KEY ISSUES:

Injunctions and Declarations :- unauthorised advertising structure

LEGISLATION CITED:

Hawkesbury Local Environmental Plan 1989
Land and Environment Court Rules 1996, Pt 6 Rule 1, Pt 15 Rule 4, Pt 15 Rule 9(a)
Supreme Court Rules 1970, Pt 8 Rule 10

CASES CITED:

DATES OF HEARING:

05/08/2002

EX TEMPORE
JUDGMENT DATE :

08/05/2002

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Stevens (Solicitor)

SOLICITORS
A. R. Walmsley & Co

RESPONDENT
Mr R Jarvie (In person)

SOLICITORS
N/A

JUDGMENT:

- 2 -

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40096 of 2001

Cowdroy, J

5 August 2002

HAWKESBURY CITY COUNCIL

Applicant
v

RUSSELL ALAN JARVIE AND ROBERT JOHN JARVIE

Respondents

Judgment

1 These proceedings came before the Court on 7 December 2001 as contested proceedings pursuant to an Amended Application Class 4 filed on 17 September 2001. The Hawkesbury City Council (“the council”) claimed that each of the respondents had erected or caused to be erected an advertising structure on Lot A, Deposited Plan 161216 being 39 Bosworth Road, Richmond, without consent contrary to the requirements of cl 23 of the Hawkesbury Local Environmental Plan 1989 (“the LEP”).

2 The evidence in support of the application was substantially contained in the affidavits of Mr John Thomas Pye, a council officer, dated 1 June 2001, 30 November 2001 and 4 December 2001. The evidence was also supplemented by an affidavit of Karen Louise Williams sworn 1 June 2001. Points of Claim have also been filed in these proceedings in which the council set out the basis for its claim for relief.

3 In view of the consent orders which the court is asked now to make, it is unnecessary for the Court to proceed into the detail of the matter except to say that the council alleged that the respondents had persistently parked a motor lorry in such a manner that an advertising sign painted on the sides of the truck was readily visible to the public. The provisions of cl 45 of the LEP prohibit any advertisement or advertising structure in a residential 2(a) zone. The land in question is located within such a zone.

4 The evidence establishes that on 7 December 2001 the requirements of the LEP were breached by virtue of the signs displayed on the side of the motor lorries parked from time to time on the respondent’s premises known as 39 Bosworth Street, Richmond. The vehicles were parked in the front garden of the respondents’ dwelling in such positions that the inference could readily be drawn that they were positioned solely for the purpose of advertising, and not parking.

5 The Points of Defence did not disclose any defence. Instead they simply denied or did not admit the claim of the council, thereby requiring the council to prove its case strictly. Mr Wilson appeared for the respondents on 7 December 2001 and the hearing proceeded as a vigorously contested case. It was necessary to adjourn the proceedings on that day because of a legal technical argument concerning the validation of the LEP.

6 On 2 February 2002 Mr Robert John Jarvie passed away, and accordingly the proceedings are maintained against the first respondent (“the respondent”) pursuant to Pt 8 Rule 10 of the Supreme Court Rules 1970, as adopted by this Court pursuant to Pt 6 Rule 1 of the Land and Environment Court Rules 1996. The respondent has indicated that in consequence of a disagreement between himself and his legal advisers he is unable to proceed today with the hearing and seeks an adjournment. At the suggestion of the Court, the parties have conferred and as a consequence the Court is now requested to make orders by consent.

7 In summary, the respondent consents to the making of the declaration sought in par 1, par 2 and par 3 of the Amended Application filed on 17 September 2001. The respondent also consents to an order in terms of par 4 and in terms of par 7 relating to costs. An order in terms of par 5 is not required as the advertising structure has been removed. In consenting to such orders, the respondent seeks to have the benefit of obtaining further legal advice and the parties have therefore requested the Court to postpone the effect of any orders for a period of 28 days.

8 The Court will make such order and will direct that no application be made to the Registrar to issue any orders for a period of 28 days as provided by Pt 15 Rule 4 of the Land and Environment Court Rules 1996. This period will allow the respondent the opportunity to obtain any further legal advice and if necessary to move the Court by way of notice of motion by virtue of the provisions of Pt 15 Rule 9(a) within the 28 day period to seek to have the Court either vary or set aside the orders which it makes today. I consider it appropriate he afforded such opportunity provided it is pursued promptly. Any notice of motion is to be filed within 28 days of this day.

9 Accordingly the Court makes the following orders:

1. In accordance with the Amended Application Class 4, the Court makes declarations set out in par 1, par 2 and par 3.

2. The Court makes an order in terms of par 4 but substituting the words “respondent” in lieu of the word “defendants” in par 4. The Court makes an order for costs as sought in par 7.

3. The Court orders that the above orders be postponed for a period of 28 days.

4. The Court notes that within the period of 28 days there is the possibility that the respondent may file a notice of motion to seek to set aside or vary these orders.

5. The Court orders the exhibits be returned after a period of 28 days, provided no application is made to set aside or vary these orders within that period.

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