Nguyen v Liverpool City Council

[2009] NSWLEC 1022

Land and Environment Court

of New South Wales

CITATION:

Nguyen v Liverpool City Council [2009] NSWLEC 1022

PARTIES:

Applicant:
Van Thua Nguyen

Respondent:
Liverpool City Council

FILE NUMBER(S):

11004 of 2008

CORAM:

Roseth SC

KEY ISSUES:

DEVELOPMENT APPLICATION :-

DATES OF HEARING:

2 February 2009

EX TEMPORE JUDGMENT DATE:

2 February 2009

LEGAL REPRESENTATIVES:

Applicant in person

Respondent:
Mr D Loether, solicitor of Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

2 February 2009

11004 of 2008 Van Thua Nguyen v Liverpool City Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Liverpool City Council (the council) of a development application to erect a double garage and storage shed on lot 33 DP 2650, known as 142 Badgerys Creek Road, Bringelly. The council has no objection to the double garage; however, it rejects the storage shed on the grounds that it is a “depot” (which is prohibited in the zone) and that it does not serve any authorised use of the land.

2 The Court had set down 9.30am on Monday 2 February 2009 as the date for the view of the site to be followed by an “on-site-hearing” at the council chambers. The applicant was not at the site. The gate and the house were locked. Consequently I did not fully inspect the site, though I tried to see as much as possible from the road. The applicant was contacted; he had mistaken the date of the hearing. He came to the council chambers to attend the hearing.

3 At the time the application was lodged in June 2008, the site was zoned Rural 1(a) in Local Environmental Plan 1997. It is now zoned RU! Primary Production in Local Environmental Plan 2008. The change of zoning is not relevant to the arguments in the case.

4 The proposed shed is 15m by 18m. The proposed awning is 5m by 18m. The site has development consent for a dwelling and the sale of coffins. The site contains machinery that is not related to the dwelling or the sale of coffins. It accommodates the following machinery for a sawmill that the applicant intends to apply for: two saws, one dressing machine, 14 electric motors, two power packs, four exhaust fans and four air conditioner/heat pumps. It accommodates the following machinery for three greenhouses that the applicant intends to apply for: cool room in kit form, gas heater, and various galvanised metal components. In addition there is some timber stored on the site.

5 The council contends that the proposed shed is a “depot” and is therefore prohibited in the zone. The applicant says that the shed is required to store the machinery on the site.

6 While I am not sure that the proposed shed is a “depot”, I accept the council’s position that the depot is intended to house equipment that is related to uses that are not approved on the site. Given that there is machinery on the site to carry out those activities even before an application has been lodged, the council fears that the applicant will carry out those activities before approval. It seems to me that the logical sequence would be to apply for the green houses and the sawmill, either together or separately, and when either of those activities is approved, to apply for the shed. Alternatively, the applicant may choose to apply for the shed together with the application for one or both of those activities. However, to approve the storage shed before either the sawmill or the greenhouses are allowed (or indeed even applied for) would be premature.

7 For these reasons the appeal is allowed in respect of the double garage and dismissed in respect of the storage shed.

Orders

1. The appeal is allowed in part.

2. Development application to erect a double garage and a storage shed on lot 33 DP 2650, known as 142 Badgerys Creek Road, Bringelly is determined by the grant of consent, subject to the conditions in Annexure A, for the double garage and by refusal for the storage shed.

3. Exhibit A (2 drawings) and Exhibit 1 (draft conditions) are retained on the Court’s files.

________________
Dr John Roseth
Senior Commissioner