HOPE v THE COUNCIL OF THE CITY OF BATHURST [1988] NSWCA 69

HOPE v THE COUNCIL OF THE CITY OF BATHURST

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and CLARKE JJA 26 October 1988, 8 November 1988

[1988] NSWCA 69

Land and Environment — local environment plan — purpose of use of land restricted to "dwelling house" — requirement of Council approval for other use — storage of large quantity of timber on land — land owner says timber useful for houses to be built on a future subdivision of land — Judge of Land and Environment Court (Cripps J) holds purpose of use was storage of timber — orders removal of timber from land — on appeal — held: (Mahoney JA; Kirby P and Clarke JA agreeing) Land was being used for storage of timber and not incidental to use of dwelling house. Lizzio and Anor v The Council of the Municipality of Ryde (1903-4) 155 CLR 211, 216 applied.

Limitation of actions — service of summons in May 1977 for breach of local planning scheme ordinance — magistrate states cases to Supreme Court — hearing discussed in May 1980 — Council later withdraws information — argued that limitation period for fresh proceedings has expired — injunctive relief is discretionary — whether Council barred from proceeding — held: Not so barred — Council may seek to restrain use of land notwithstanding earlier proceedings. Environmental Planning and Assessment Act 1979 s58,76. Limitation Act 1969, s18(1).

Kirby P I agree with the judgment of Mahoney JA and with the orders which his Honour proposes.

Mahoney JA The appellant Mr Hope has upon his land at Kelso a large quantity of timber. On 10 March 1987 the Council of the City of Bathurst took proceedings against him seeking an order, inter alia, that he remove all of the timber stored on his land. On 31 August 1987 his Honour Mr Justice Cripps, Chief Judge of the Land and Environment Court, made orders accordingly.