Wollondilly Shire Council v Laurie John Deveigne
[1999] NSWLEC 264
•11/12/1999
Land and Environment Court
of New South Wales
CITATION:
Wollondilly Shire Council v Laurie John Deveigne [1999] NSWLEC 264
PARTIES
APPLICANT
Wollondilly Shire CouncilRESPONDENT
Laurie John Deveigne
NUMBER:
40110 of 1999
CORAM:
Cowdroy J
KEY ISSUES:
Orders :- non-compliance - land used as rubbish dump
LEGISLATION CITED:
Environmental Planning and Assessment Act 1979 s 121B
DATES OF HEARING:
11/12/1999
EX TEMPORE JUDGMENT DATE:
11/12/1999
LEGAL REPRESENTATIVES:
APPLICANT
Mr Adam SetonSOLICITORS
Marsdens SolicitorsRESPONDENT
SOLCITORS
no appearance
n/a
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 40110 of 1999
CORAM: Cowdroy J
DECISION DATE: 12/11/99
Applicant
Respondent
Background
1. In this matter by application class four filed on 7 June 1999 the applicant seeks orders and declarations concerning the alleged illegal use of land known as lot 103 in deposited plan no 802979 located in New Jerusalem Road at Oakdale.
2. It is alleged that the lands are being used as a rubbish dump or as a recycling dump. The application and affidavit in support sworn by Gaby Kirkwood on 18 May 1999 was served upon a person who I am satisfied is the respondent on 10 August 1999. Service is evidenced by the affidavit of David Savage sworn 13 September 1999. In that affidavit Mr Savage deposes to a conversation held with a person at the site who, whilst not admitting to his name and being evasive concerning his real name, conceded that he was the owner of the land. The title searches tendered in evidence show that the respondent is the owner of the land. Accordingly I am satisfied that he has been served appropriately with the necessary process. He has filed no appearance and did not attend a call-over.
3. I am informed by Mr Seton who appears for the applicant, that a letter notifying the respondent of the hearing day was left at the land. To date there has been no appearance by the respondent. Accordingly this application will proceed as an ex parte application.
4. The land the subject of these proceedings is contained within zone 5(c1) Special Uses (c1) Water Catchment Zone of the applicant's Local Environmental Plan 1991 as amended. Within that zone the only use which is permissible without development consent is water catchment. Within the zone certain development can be approved with consent. The use of a rubbish dump or recycling dump is not such a use and accordingly it would fall within the use prohibited under par (4) of the relevant zoning. At no stage has the respondent sought any permission for such use and, in any event, according to the permissible uses table such a use would not be permitted.
5. I am informed by Mr Seton that the land was acquired by the respondent according to council's records during the middle of 1998. Complaints were received by the applicant in November 1998 concerning the use of the land as a dump for waste materials including disused motor vehicles, scrap metal, timber and other debris. Photographs tendered in evidence, both those attached to the affidavit of Gaby Kirkwood and also fresh photographs taken recently show that the dumping is extensive and clearly the use is that of a recycling dump. I am satisfied that the evidence justifies the relief sought in the council's application.
Declarations and Orders
6. Accordingly the Court will make the declarations contained in paragraphs (1) and (2) of the Orders proposed by the council.
1. The respondent has failed to comply with the Order dated 22 December 1998 given to him by the applicant in terms of Order No. 1 in the table to Section 121B of the Environmental Planning and Assessment Act 1979 in respect of the land known as Lot 103 in Deposited Plan 802979 (No. 470) New Jerusalem Road, Oakdale (“The Land”) contrary to the provisions of the Environmental Planning and Assessment Act 1979.
2. The respondent is using, suffering or permitting the land to be used for the purpose of collection, storage or abandonment of goods and materials including motor vehicle parts, concrete pipes, glass, wooden pallets, white goods, portable buildings, machinery, metal shelving, tables, chairs, carpet, metal drums, scrap metal and/or scrap timber contrary to the provisions of the Environmental Planning and Assessment Act 1979.
7. The Court orders that:
1. The respondent by himself, his servants and his agents, be restrained from using suffering or permitting to be used the land for the purpose of collection, storage or abandonment of any goods or materials including motor vehicle tyres and rims, motor vehicle parts, concrete pipes, glass, wood pallets, white goods, portable buildings, machinery, metal shelving, tables, chairs, carpet, metal drums, scrap metal and/or scrap timber or for any other purpose otherwise than in accordance with the provisions of the Environmental Planning and Assessment Act 1979.
The Court will add to the Orders as Order No 2 the following order:-
2. The Court orders that the respondent be, and is hereby restrained, from henceforth bringing to the land any materials of a type referred to in Order 1 hereof.
- The paragraph numbers of the Orders proposed will accordingly change so that they will now become Orders 3, 4 and 5 for the residue of the Orders proposed.
3. The respondent remove or cause to be removed from the land all goods and materials collected, stored or abandoned thereon including motor vehicles, motor vehicle tyres and rims, motor vehicle parts, concrete pipes, glass, wooden pallets, white goods, portable buildings, machinery, metal shelving, tables, chairs, carpet, metal drums, scrap metal and/or scrap timber within ninety (90) days of this date.
4. The respondent remove or cause to be removed from the land all garbage, rubbish and other waste materials of any kind collected, stored, abandoned or otherwise deposited thereon within ninety (90) days.
5. The respondent pay the applicant’s costs
6. The exhibits be returned.
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