Warringah Council v Swain - [2010] NSWLEC 68

Land and Environment Court

of New South Wales

CITATION: Warringah Council v Swain [2010] NSWLEC 68

PARTIES:
APPLICANT
Warringah Council
RESPONDENT
Jason Lesley Swain

FILE NUMBER(S): 40768 of 2009

CORAM: Craig J

KEY ISSUES:
CIVIL ENFORCEMENT :- breach of s 76A Environmental Planning and Assessment Act 1979 - carrying out development without consent – storage of commercial fishing trawler upon residential premises constitutes development – not development ancillary to the use of the land for the purpose of a dwelling house- single incident of repair to the vessel does not constitute development
CIVIL ENFORCEMENT :- failure to comply with an order pursuant to s 124 of the Local Government Act 1993 – order requiring removal of the trawler from the front yard of residential premises due to its unsightly condition in the immediate vicinity of a public road – Order 10 in the Table to s 124 – mandatory injunction granted

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Local Government Act 1993

CASES CITED: Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404
Botany Municipal Council v Stojanovic [1989] NSWLEC 107
Lizzio v Ryde Municipal Council (1983) 155 CLR 211
Tweed Shire Council v Litonia Pty Limited [1993] NSWLEC 144

DATES OF HEARING: 3 May 2010

EX TEMPORE JUDGMENT DATE: 3 May 2010

LEGAL REPRESENTATIVES: APPLICANT
Mr C Gough, solicitor of Storey & Gough Lawyers
RESPONDENT
No appearance

JUDGMENT:

The land and
environment court
OF NEW SOUTH WALES

Craig J

3 May 2010

09/40768 – warringah council v jason lesley swain
EX TEMPORE JUDGMENT

1 HIS HONOUR: Warringah Council has brought proceedings in Class 4 of the court’s jurisdiction seeking declaratory orders and injunctive relief directed to the manner in which premises owned by Jason Lesley Swain, the respondent, are being used. Those premises are located at 3 Wentworth Place, Belrose.

2 It seems that at some time between 30 September 2004 and 15 August 2007 Mr Swain was responsible for bringing onto his land a ten metre long marine vessel which has been described as an old fishing trawler. The design of that vessel and the observations made by local residents from time to time of the smell of fish in the front yard of Mr Swain’s premises rather supports the inference that it was in fact a disused trawler. Indeed, there is some evidence in a letter that Mr Swain sent to an officer of the Council indicating that the vessel was one which had been in imminent danger of sinking and presumably as its master or owner, he was required to “ground” it. He indicates that it is a “licensed vessel” and the letter appears to be signed by identifying the fact that he holds a fishing licence, a commercial licence and an “ocean trap and line fishery” operation.

3 As I have said, the vessel that has been located in the front yard of the premises is one that is said to be about ten metres in length. It is so located that…

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

Case: [2010] NSWLEC 68
Decision Date: 3 May 2010

CaseChat Overview and Summary

Warringah Council initiated proceedings against Jason Lesley Swain in the Land and Environment Court of New South Wales, contesting the storage and repair of a ten-metre commercial fishing trawler on Swain’s residential property. The Council argued that this activity constituted development under the Environmental Planning and Assessment Act 1979 and that Swain had failed to comply with an order to remove the vessel. The court had to determine whether the storage and repair of the trawler constituted development requiring consent and whether Swain breached the Local Government Act 1993 by not complying with the order to remove the vessel.

The court considered whether the storage and repair of the trawler constituted development ancillary to the residential use of the land. It found that the extensive disrepair of the vessel, the significant time it had been on the property, and the extensive work required to repair it indicated that the activity did not constitute a domestic hobby or ancillary use. The storage and repair of the trawler constituted commercial activity requiring consent, which Swain had not obtained. The court also found that Swain failed to comply with the Council’s order to remove the vessel, as it remained in place, in a dilapidated state, and no efforts to comply with the order had been made.

The court granted the Council’s application for declaratory orders and an injunction requiring Swain to remove the vessel from the property. It also ordered Swain to pay the Council’s costs.

Orders