Marrickville Municipal Council v Richardson

[1989] NSWLEC 156

Land and Environment Court

of New South Wales

CITATION:	Marrickville Municipal Council v Richardson [1989] NSWLEC 156
PARTIES:	APPLICANT Marrickville Municipal Council RESPONDENT Mr. Richardson
FILE NUMBER(S):	40182 of 1988
CORAM:	Stein J
KEY ISSUES:	:-
LEGISLATION CITED:	Marrickville Draft Local Environmental Plan No. 33 1987.
CASES CITED:
DATES OF HEARING:
DATE OF JUDGMENT:	02/10/1989
LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: The applicant Council seeks a declaration that the use by the respondent of premises at 6-8 Goodsell Street, St. Peters, for the purpose of storage of vehicles and machinery is unlawful. It also seeks an injunction restraining the respondent from using the premises for the said purpose.

The subject land is zoned Residential 2(b)(2) under the Marrickville Planning Scheme Ordinance whereby the said use is prohibited. Prior to an amendment to the Ordinance on 3 April 1987 (LEP 33) the use was a permissible one with consent, the land then being within an industrial zoning.

Apparently the respondent first obtained a consent to the subject use in 1984 although documentary records of the consent have been mislaid by Council. This consent was limited by time and expired prior to 22 May 1985 when Council wrote to Mr. Richardson drawing his attention to the termination of the approval and seeking lodgment of a fresh application or the removal of the items. The respondent asked for consent to use the premises in the same fashion for "at least 2 years".

On 17 June 1986 Council issued a consent to continue the use but limited the approval to 6 months to expire on 10 December 1986. The consent document stated that "subject to the satisfactory operation of the use during the trial period, Council will give further consideration to extending the consent upon written application being made to Council one month prior to the expiry of the trial period". On 25 November 1986 the respondent asked for a renewal of the approval "for a further couple of years". This application was refused by Council on 4 February 1987. The two reasons given for refusal were:-

"l. The proposed development will be a prohibited use upon gazettal of the Marrickville Draft Local Environmental Plan No. 33 early in 1987.

2. The appearance of the development is both unsightly and incompatible with the local streetscape."

The respondent was directed to cease the use within 3 months and informed of his right of appeal to the Court against the refusal of consent.

On 11 May 1987 the respondent asked for reconsideration on the basis of hardship. In a lengthy written submission he asked for consent to the use for a further 2 years and linked the time with his retirement plans.

Council refused this application on 11 June 1987 on the basis that the use had become prohibited under LEP 33 whereby the zoning of the premises and surrounding area was altered from industrial to residential. The respondent was again directed to cease the use by 31 July 1987. Mr. Richardson was also notified of his appeal rights. The respondent has not lodged any appeal to the Court against the Council's refusals of his applications.

On 6 July 1987 the respondent spoke to the Mayor who promised to look into the matter and get back in touch with him. Mr. Richardson says that he did not hear back from the Mayor, nor indeed from anybody at the Council until he was served with the Application to the Court in early September 1988. When asked why he did not follow the matter up in the meantime Mr. Richardson indicated that he felt it was wise to "let sleeping dogs lie and not stir up a hornets' nest". The respondent's use of the premises has continued in much the same manner up to and including the time of the hearing before me. Apparently the 4 vehicles are heavy ones which the respondent hopes to use on a small farm property he owns at Sofala. However, they require considerable repair work before they can be removed from the St. Peters property. He states that he cannot afford the towing costs of removing them from the property.

The respondent does not deny the use and accepts that it is an unlawful one. Indeed, he appears aware that the use has not been lawful since the end of December 1986 when the consent expired. He also understands that the current zoning prohibits any new consent. Essentially he asks the Court in the exercise of the discretion, either not to make an order that he remove the items or to suspend such an order until 31 December 1989 to enable him to remove the vehicles.

In so far as the respondent contends that an injunction should not be made it appears that he bases it in part on his perception of an absence of environmental detriment in the activity continuing. I do not accept this. The Council's planning officer (Mr. Phillips) described the area, which is substantially residential. According to him the open yard area of the subject premises, (where the vehicles are stored), resembles a junk yard and detracts from the residential amenity of the area which is now zoned residential. While there still remains some industrial uses with existing use rights, these are a small minority. In my opinion the current unlawful use has some adverse affects on the surrounding residential environment.

The respondent bases his alternative submission, that any order made by the Court should be suspended until 31 December 1989, on evidence of financial hardship and the perceived impossibility of his being able to remove the items before that date. He intends to retire in October 1989 and plans to spend 2 months working full time on the vehicles to get them in a condition whereby they can be removed from the property.

The Council disputes the hardship alleged by the respondent. It points out that he owns outright the two bedroom home in which he resides at Brighton-le-Sands. He owns the subject property at St. Peters, an unoccupied and dilapidated dwelling house, subject to a bank mortgage. He also owns the 100 acre sheep grazing property at Sofala mentioned earlier, also unencumbered by mortgage. He is an electrician by trade employed by St. Vincent's Hospital. Upon retirement he will receive a lump sum superannuation payment. He is not bound to retire this year but could continue to work for some time if he so chose. It does not appear that he has done any work on the vehicles for the last 2 years, if at all, not even during weekends or holidays. Indeed, apart from the removal of some small items from the yard, it does not appear that the respondent has performed any work at the property for the past 5 years. I find it very difficult to accept Mr. Richardson's assertion that there are no alternative arrangements which ca

n be made to remove the vehicles and other items from the land before the end of 1989. Mr. Richardson's assets are substantial. Both his home at Brighton and the Sofala property are unencumbered. He has a permanent job as an electrician and superannuation upon his retirement, whenever he takes it. I cannot conceive that the respondent cannot alter his financial arrangements so as to effect a removal of the vehicles within a reasonable time. It may be that Mr. Richardson needs to seek some financial advice or counselling because it appears that he has an inability to be realistic about the situation and consider feasible alternatives.

The Council offers another 3 months in which to allow the respondent to terminate the offending use. This may be reasonable and I certainly do not accept that such a date would be as impossible to meet as Mr. Richardson suggests. I am not convinced that the order should not be made in the exercise of my discretion, nor that it ought to be postponed until the end of 1989 as asked by the respondent. In my opinion the appropriate period of suspension of the order, which I intend to make, is 5 months. If the respondent finds that he needs some extra time to complete the removal of the use he can apply to the Court for a further postponement of the operation of the order. He will of course need to convince the Court that any further postponement is justified.

In the result therefore I make the declaration and injunction sought by the Council. The Injunction will be suspended for a period of 5 months until 10 July 1989. While the respondent asks that each party bear its and his own costs he has not been able to point to any circumstance as would justify a departure from the normal rule (in Class 4 proceedings) of costs following the event of the litigation. I therefore order the respondent to pay the applicant's costs. The exhibits may be returned.

Orders

1. I declare that the use by the respondent of the property at 6-8 Goodsell Street, St. Peters for the storage of vehicles and machinery is unlawful.

2. I order that the respondent be restrained from using or suffering the said premises to be used for the purpose of storage of vehicles and machinery.

3. Order No. 2 be suspended until 10 July 1989.

4. The respondent be ordered to pay the costs of the application.

5. Liberty to the respondent to apply on giving 7 days notice in writing to the applicant.

6. The exhibits may be returned.