MURDOCH v HOLROYD CITY COUNCIL [1996] NSWCA 376

MURDOCH v HOLROYD CITY COUNCIL SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA, SHELLER JA and COHEN AJA 20 November 1996

[1996] NSWCA 376

Use of land for storage of fill without development consent — Environmental Planning & Assessment Act 1979 s76 — requirement that development of land not be carried out unless development consent obtained from relevant council — meaning of development — Environmental Planning & Assessment Act s4 — fill placed on appellant's land by third party — extent of appellant's participation in placing or spreading of fill and acquiescence in placing of other fill — appellant did not directly authorise dumping of fill but tacitly approved and deliberately refrained from having fill removed — whether appellant's retention of wrongly dumped fill on land amounts to storage of breach — whether storage of fill constitutes use of land within meaning of definition in s4 so as to attract s76.

Held: Appeal dismissed:

The appellant's failure to remove the fill constituted storage on the land in which the appellant was a participant; the trial judge was justified in concluding that there was a storage on land of material which constituted a use of land within meaning of s4 and thus a breach of s76(2).

Priestley JA. Cohen AJA will give the first judgment.

Cohen AJA. This is an appeal from orders made by Stein J in the Land & Environment Court. Orders were in fact made initially in March 1994 and after further submissions he made additional orders of a more specific nature on 2 May 1994 but other than on a general order restraining the respondent those orders were stayed pending the completion of proceedings in this Court.

The proceedings were commenced by the Council of the City of Holroyd against the appellant, Mr Murdoch. Two declarations were initially sought but the first was not pressed after certain of the evidence made it obvious that it could not succeed. The declaration which was pressed and which was made by his Honour was that the premises which are owned by the appellant were being used by him for the purpose of the storage of fill without development consent having been obtainedin accordance with the provisions of s 76 of the Environmental Planning & Assessment Act 1979.