COUNCIL OF THE MUNICIPALITY OF NORTH SYDNEY v JF McLEAN INVESTMENTS PTY LTD [1992] NSWCA 49

COUNCIL OF THE MUNICIPALITY OF NORTH SYDNEY v JF McLEAN INVESTMENTS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, SHELLER and Hope JJ 8 May 1992, 8 May 1992 [1992] NSWCA 49

TOWN PLANNING — breach of planning instrument — vehicles parked on land zoned residential — twenty years continual prohibited use without complaint — minimal environmental impact — dwelling house still exists and used — at first

instance, discretion exercised to refuse injunction applying Warringah Shire Council v Sedevic 1987 63 LGRA 361.

Held: no miscarriage in exercise of discretion. Judge took into account and gave due consideration to all matters he should have including public interest

factor and impact of refusal to grant injunction on Council's town planning scheme. Per Priestley JA and Hope AJA, possible prosecution under s125 Environmental Planning and Assessment Act may answer oddity of Council's inability to enforce town planning scheme.

Priestley JA No 1 Bruce Street and No 49 Sinclair Street are adjoining premises at Crows Nest in the Municipality of North Sydney. The second respondent to this appeal owns the Bruce Street premises on which it conducts a motor vehicle smash repair business. These premises are zoned Business (Services) 3(e) under Interim Development Order No 60. That zoning does not permit the use of the premises for the smash repair business but the parties to the appeal are agreed, as they were at first instance, that the premises can lawfully be used for that business because of the existing use provisions.

The first respondent owns the Sinclair Street premises on which there is a house used as a dwelling. These premises are zoned Residential 2A. The second respondent, as part of its business, parks vehicles in the yard of the Sinclair Street premises. The parties are agreed that the use of land zoned Residential 2A for such a purpose is prohibited.