Park v Burwood Council

[2009] NSWLEC 1275

Land and Environment Court

of New South Wales

CITATION:

Park v Burwood Council [2009] NSWLEC 1275

PARTIES:

APPLICANT
Hyung Jae Park

RESPONDENT
Burwood Council

FILE NUMBER(S):

10398 of 2009

CORAM:

Hussey C

KEY ISSUES:

SECTION 121B ORDER :- Cease unauthorised warehouse use, health risk

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Burwood Planning Scheme Ordinance 1979

DATES OF HEARING:

14 August 2009

EX TEMPORE JUDGMENT DATE:

14 August 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Kim (Agent)

RESPONDENT
Mr T O'Connor (solicitor)
SOLICITOR
Houston Dearn O'Connor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

14 August 2009

10398 of 2009 Hyung Jae Park v Burwood Council

This determination was given extemporaneously
and has been edited prior to publication

JUDGMENT

Background.

1 This appeal was lodged against a s 121B Order issued in respect of the premises at No 68A Railway Parade, Burwood. The property owner has apparently erected some cool rooms and associated storage and food packaging facilities, which are being used and considered a health risk. No consent has been granted for these works.

2 The order provided:

Terms of the Order:
1. Cease the use of the site for the purpose of storing, processing and packaging of frozen fish and other foodstuffs.
The period specified as the period within which the Order is to be complied with is twenty-one (21) days from the date of this Order.
Reason of the Order
1. The use is a commercial/industrial use which is prohibited in the Residential 2(c2) zone.
2. The premises is not conducive to maintaining a clean and healthy environment for the storing, processing and packaging of frozen fish and other foodstuffs.

3 In opposing this order, the applicant contended that the 21 days time period was inadequate and that the site had the benefit of existing use rights. However, the council contentions are that any existing use rights are not applicable. Council’s main concern is in relation to the safety of the current activities.

4 Following conferencing by the parties, including a review of past activities and approvals for the site, the parties have agreed to consent orders. This is on the basis that the current use is of a temporary nature, until the operations are transferred to other more appropriate premises, by the end of the year.

The site

5 The site is identified as Lot 4 in DP 1105410 and is known as 68A Railway Parade, Burwood. The site is irregular in shape and has an area of 405 sq m with a frontage of 9.82 m and a depth of 46.27 m. The site is almost flat across the site.

6 Currently, the property contains a single storey industrial building within which five cool rooms and food preparation facilities are located for storing, processing and packaging of foodstuffs. The subject land is not listed as a heritage item or located in a Heritage Conservation Area.

7 The surrounding locality is characterised by a mixture of residential, commercial and industrial development of varying scales and uses.

8 A public school is also located to the south and east of the subject site. The adjoining property to the east at No. 70 Railway Parade contains an industrial building, which is currently used for a car repair station. The adjoining property to the west a No. 68 Railway Parade contains a two storey residential building, which is currently used for a boarding house.

Planning controls

9 The site is subject to the provisions of the Burwood Planning Scheme Ordinance 1979, under which it is zoned Residential 2(c2). The zoning table under Part IV prohibits the use of the site for the purpose of storing, processing and packaging of frozen fish and other foodstuffs. (i.e. warehousing).

10 The BPSO defines “warehouse” as; meaning a building or place used for the storage of goods, merchandise or materials pending their sale and distribution to persons engaged in the retail trade.

The submissions

11 The submissions for council are that the unauthorised works and use of the property present a significant health risk and should not continue. However the discussions between the parties has achieved the agreement to quickly cease this contentious processing and packaging use in the relatively short time-frame of on or before 31 August 2009.

12 Council is then satisfied that the storage component can continue until 1 December 2009, before which it is to be transferred to the other premises.

13 In the absence to any substantive challenge to this agreement, I consider it reasonable to grant the consent orders.

14 The Court orders by consent:

1. The appeal is upheld in part.
2. The respondent’s Section 121B Order dated 1 June 2009, directed to the applicant is modified by the deletion of all of the words under the heading THE TERMS OF THE ORDER and replacement of those words with the following words:
“1. Cease the use of the site for the purpose of processing and packaging of frozen fish and other foodstuffs on or before 31 August 2009; and
2. Cease the use of the site for the purpose of storing frozen fish and other foodstuffs on or before 1 December 2009.”
3. There is no order as to costs
4 The exhibits be returned except 2.

________________________
R Hussey
Commissioner of the Court
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