North Sydney Municipal Council v J F McLean Investments Pty Ltd - [1988] NSWLEC 26

Land and Environment Court

of New South Wales

CITATION: North Sydney Municipal Council v J F McLean Investments Pty Ltd & Anor [1988] NSWLEC 26

PARTIES:
APPLICANT
North Sydney Municipal Council
FIRST RESPONDENT
J F McLean Investments Pty Ltd
SECOND RESPONDENT
Tiptop Smash Repairs Pty. Ltd

FILE NUMBER(S): 40205 of 1988

CORAM: Bignold J

KEY ISSUES: :-

LEGISLATION CITED: Environmental Planning and Assessment Act 1979.

CASES CITED: Warringah Shire Council v. Sedevcic (1987);
North Sydney Municipal Council v. Clarke and Walker Pty. Ltd. (1988);
Holroyd Municipal Council v. Attard (1988);
Strathfield Municipal Council v. Alpha Plastics Pty. Ltd. & Ors. (1988).

DATES OF HEARING:

DATE OF JUDGMENT:
10/14/1988

LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: In these class 4 proceedings the Applicant claims an injunction against each of the two Respondents in respect of the use of the rear portion of residential premises situate at No. 49 Sinclair Street, Crows Nest (owned by the 1st Respondent) for purposes other than for the purpose of a dwelling-house.

Although the injunctions sought are very broadly framed the particular use of the rear portion of the aforesaid premises which has prompted the Applicant to commence these proceedings is the parking of motor vehicles on the land in circumstances where that activity is clearly related to the use made of the adjoining premises No. 1 Bruce Street, Crows Nest (owned and operated by the 2nd Respondent) as a motor vehicle smash repair business. The evidence indicates that the motor vehicles so parked are motor vehicles which fall into one or more of four categories - (i) motor vehicles awaiting repairs which are carried out in the aforesaid adjoining premises owned and operated by the 2nd Respondent;

(ii) motor vehicles awaiting collection by their owners after such repairs have been completed;

(iii) motor vehicles owned by the management or working personnel of the smash repair business; or

(iv) motor vehicles owned by friends of Mrs McLean the Managing Director of both the 1st Respondent (as owner of premises No. 49 Sinclair Street) and of the 2nd Respondent (as owner of the business conducted at premises No. 1 Bruce Street).

The evidence establishes that the highest number of motor vehicles observed so parked at any one time on the occasion of inspections carried out on behalf of the Applicant is 11. The evidence also establishes that on each of the aforesaid inspections (there was evidence of 7 inspections between 22nd September, 1986 and 3rd August, 1988) the majority of the cars so parked were not in a smashed condition.

The Respondents concede that the parking use made of the rear portion of No. 49 Sinclair Street is a prohibited use in terms of the applicable environmental planning instrument, ie the North Sydney Planning Scheme Ordinance (prescribed in 1963). Under that Scheme the property is zoned Residential 2A. In that zone the Scheme absolutely prohibits inter alia, the following purposes for which land may be used - car repair stations, commercial premises and industries other than home industries.

The…

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

AGLC: North Sydney Municipal Council v J F McLean Investments Pty Ltd [1988] NSWLEC 26
Case: [1988] NSWLEC 26
Decision Date: 10/14/1988

CaseChat Overview and Summary

The case of North Sydney Municipal Council v J F McLean Investments Pty Ltd involves the North Sydney Municipal Council as the applicant seeking an injunction against J F McLean Investments Pty Ltd and Tiptop Smash Repairs Pty Ltd, the first and second respondents respectively. The council aimed to restrain the use of the rear portion of residential premises at No. 49 Sinclair Street, Crows Nest, for purposes other than residential, specifically for parking motor vehicles related to the smash repair business at No. 1 Bruce Street, Crows Nest. The primary legal issues revolved around the unauthorised use of residentially zoned land for commercial purposes and the council's discretion under the Environmental Planning and Assessment Act 1979 to grant an injunction against such use.

The court considered the longstanding nature of the unauthorised use, the lack of complaints from neighbours, and the minimal adverse environmental impact. However, the court also recognised the council's policy to protect residential zonings and its efforts to enforce planning laws since 1981. Bignold J concluded that while the unauthorised use contravened the statutory zoning, the nature, scale, and character of the use did not substantially offend the residential zoning. The court exercised its discretion under s.124 of the Environmental Planning and Assessment Act, declining to grant the injunction sought by the council. The decision referenced previous cases where similar discretion was exercised, aiming for consistency in applying the statutory discretion. The application was dismissed, and the question of costs was reserved.

Orders