Hawkesbury City Council v Jarvie [No. 3]

[2002] NSWLEC 209

Land and Environment Court

of New South Wales

CITATION:

Hawkesbury City Council v Jarvie [No. 3] [2002] NSWLEC 209

PARTIES:

APPLICANT
Hawkesbury City Council

RESPONDENT
Russell Alan Jarvie

FILE NUMBER(S):

40096 of 2001

CORAM:

Cowdroy J

KEY ISSUES:

Injunctions and Declarations :- unauthorised advertising structure

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 4(1)
Hawkesbury Local Environmental Plan 1989

CASES CITED:

DATES OF HEARING:

15/10/2002

EX TEMPORE
JUDGMENT DATE :

10/15/2002

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Walmsley (Solicitor)

SOLICITORS
A. R. Walmsley & Co

RESPONDENT
Mr R Jarvie (In person)

SOLICITORS
N/A

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40096 of 2001

COWDROY, J

15 October 2002

HAWKESBURY CITY COUNCIL

Applicant
v

RUSSELL ALAN JARVIE

Respondent

Judgment [No. 3]

Introduction

1 In this matter the Court has heard the defendant and has considered the material contained in the unspecified document filed by the respondent on 2 September 2002. The defendant has raised numerous matters, many of which do not bear upon the issues which the Court is required to consider. The only relevant issues are contained in par (2) and par (4) contained in the unspecified document. Paragraph (2) states that:

…we, the respondents do not have an advertisement erected on the property Lot A, DP. 161216, 39 Bosworth Street, Richmond, contrary to the provisions of the Hawkesbury Local Environmental Plan, 1989, and the provisions of the Environmental Planning & Assessment Act 1979.

2 Paragraph (4) states:

The only form of advertising is on vehicles that are parked on the premises at 39 Bosworth Street for parking purposes only.

3 The evidence of the applicant (“the council”) is contained in the affidavit of Gregory Victor Hughes of 27 July 2001, and the affidavits of John Thomas Pye sworn 30 November 2001, 4 December 2001, 1 June 2001, 23 July 2001, 4 December 2001, 13 March 2002 and 26 July 2002. Such evidence establishes that motor lorries were parked on the respondent’s premises in unusual positions. A portion of the front fence of the respondent’s property had to be removed to enable parking of one of the trucks in the front garden. Such property was located on a corner position and had a frontage to a busy roadway. Trucks, including an unregistered truck, were left in such position and moved occasionally.

4 In addition the council has tendered photographs as shown in Exhibit B. Those photographs demonstrate the parking of a truck in the front garden of a house in such a position from which the Court can readily infer that it was used for the purposes of advertising.

5 The respondent submits that because the vehicles are moved from time to time, they were merely parked on his land. No affidavit or oral evidence exists to support such submissions.

6 The Hawkesbury Local Environmental Plan 1989 (“the LEP”), which is Exhibit F in these proceedings, prohibits advertising in certain zones. The land the subject of these proceedings is Lot A DP 161216, which is known as 39 Bosworth Road, Richmond. The land is zoned Residential “A” under that plan, and pursuant to cl 9 of the LEP and the Land Use Table incorporated in the LEP, advertising in the Residential A zone is permissible only with consent of council. No development consent has been granted by the council for such use. Additionally, cl 45 of the LEP provides:-

45. A person must not erect any of the following signs:
(a) signs mounted on motor vehicles or trailers (whether registered or unregistered) where the vehicle or trailer is parked in a location or position for a period of time such that its principal function is for the display of an advertisement and not for the transportation of goods or people.
(b) any form of advertising sign attached to telegraph poles, trees, or street posts or the like.

Accordingly the erection of the signs is prohibited.

7 The Court is satisfied that the respondent is displaying “advertisements” without permission of council as required by cl 9 of the LEP. Although “advertisement” is not defined in the LEP, s 4(1) of the Environmental Planning and Assessment Act 1979 defines advertisement as follows:-

Advertisement means a sign, notice, device or representation in the nature of an advertisement visible from any public place or public reserve or from any navigable water.

8 The Court is satisfied that the purpose of the parking of trucks on the respondent’s land is for the purpose of advertising, and that a sign is being displayed from time to time by being mounted on motor vehicles, which is prohibited by cl 45 of the LEP.

Costs

9 The council seeks an order that the respondent pay the applicant’s costs. Nothing was put by the respondent in opposition to the application for costs. Accordingly, the Court is satisfied that the usual rule should apply, namely, that the respondent bear the applicant’s costs of these proceedings.

Orders

1. The Court makes orders in accordance with par 1, par 2 and par 3 of the Amended Application Class 4 filed on 17 September 2001. The Court makes an order in terms of par 4, deleting the word “defendants” and inserting in lieu “first respondent.”

2. The Court orders the respondent to pay the applicant’s costs

3. The Court orders that the exhibits be returned.

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