Warringah Council v Ulrich - [1999] NSWLEC 227

Land and Environment Court

of New South Wales

CITATION:

Warringah Council v Ulrich [1999] NSWLEC 227

PARTIES

APPLICANT:
Warringah Council

RESPONDENT:
Ulrich

NUMBER:

40105 of 1998

CORAM:

Talbot J

KEY ISSUES:

Development; Development Consent :-
Development:- illegal use - whether ancillary or independent and separate use to dwelling house use
Development:- storage of accumulated goods not a junk yard
Development consent:- innominate use requires consent

LEGISLATION CITED:

DATES OF HEARING:

09/20/1999

DATE OF JUDGMENT DELIVERY:

09/24/1999

LEGAL REPRESENTATIVES:

APPLICANT:
Mr J Hannaford (Solicitor)
SOLICITORS:
Wilshire Webb
RESPONDENT:
Mr W Marks (Barrister)
SOLICITORS:
Walker, Hedges & Co

JUDGMENT:

IN THE LAND AND Matter No. 40105 of 1998
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 24 September 1999

Warringah Council
Applicant

v

Joachim Ulrich
Respondent

REASONS FOR JUDGMENT

1. The respondent is the owner of the property known as 17 Ballyshannon Road, Killarney Heights.

2. The land is within Zone No 2(a) (Residential “A”) under Warringah Local Environmental Plan 1985 (the LEP).

3. Dwelling houses are permissible in the zone without development consent. Prohibited development is listed in the Table and includes junk yards.

4. Any purpose other than the purpose for which development may be carried out without development consent or a purpose for which development is prohibited is permissible only with development consent.
5. Clause 5(1) of the LEP defines a junk yard as follows:-

“junk yard” means land used for the collection, storage, abandonment or sale of scrap metals, waste paper, rags, bottles or other scrap materials or goods used for the collecting, dismantling, storage, salvaging or abandonment of automobiles or other vehicles or machinery or for the sale of parts thereof

6. No development consent has been granted in respect of the land of the respondent.

7. The council alleges that the respondent is using the land for the purpose of a junk yard as defined in the LEP. Alternatively, it is alleged that if the use is not prohibited as a junk yard, the respondent is using the land for an innominate use in respect of which development consent has not been obtained.

8. The properties adjoining and within the immediate locality of the subject land in Ballyshannon Road have been fully developed by the erection of dwelling houses.

9. The Court has the benefit of a view, evidence from adjoining and nearby residents and a council officer together with a number of photographs.

10. The front, rear and side yards, including an area within a partly constructed car port, are used as a repository for paraphernalia belonging to the respondent. The paraphernalia consists of a wide range of articles including furniture, electrical equipment, household appliances and utensils, books, magazines and papers, tools, toys, ornaments, bedding and other miscellanea comprising odds and ends.

11. The respondent in his oral evidence claimed that he uses many of the items from time to time, including one of the television sets and reading material, as part of his outdoor relaxation. He admits that the appearance is…

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: [1999] NSWLEC 227
Decision Date: 09/24/1999

CaseChat Overview and Summary

Warringah Council sought a declaration that the respondent, Ulrich, was using his property as a junk yard contrary to the Warringah Local Environmental Plan 1985. The council also sought orders restraining Ulrich from using his property for that purpose and other innominate uses not authorised by development consent. The Land and Environment Court of New South Wales was required to decide whether the use of the property constituted a junk yard and whether the use required development consent. The Court found that Ulrich's use of the property was not for a junk yard as there was no evidence that the stored items were scrap materials. However, the collection and storage of the items was an innominate use requiring development consent as it was an independent use distinct from the dwelling house use. The Court granted the council's application for a declaration and orders restraining Ulrich from using the property for the storage of goods outside the dwelling house without development consent. Ulrich was given a reasonable time to comply with the orders.

The key issues were whether Ulrich's use of the property constituted a junk yard under the Local Environmental Plan and whether the use required development consent. The Court found that while the use was not for a junk yard, it was an innominate use requiring development consent as it was an independent use distinct from the dwelling house use. The collection and storage of the items went far beyond what might be expected around a dwelling house. The Court granted the council's application for declarations and orders restraining Ulrich from using the property for the storage of goods outside the dwelling house without development consent, giving Ulrich a reasonable time to comply.

Orders