Newcastle City Council v Leaway Pty Limited & Anor [2004] NSWLEC 642

Land and Environment Court of New South Wales

CITATION : Newcastle City Council v Leaway Pty Limited & Anor [2004] NSWLEC 642 Newcastle City Council (Appl) PARTIES : Leaway Pty Limited (1R) Wayne Paddison (2R) FILE NUMBER(S) : 40284 of 2004 CORAM: McClellan CJ Injunctions and Declarations :- Use of premises KEY ISSUES: Non-compliance with development consent Application for further suspension of a retraining order LEGISLATION CITED: CASES CITED: DATES OF HEARING: 23 August 2004 EX TEMPORE 08/23/2004 JUDGMENT DATE :

J Maston/M Seymour (Appl) Sparke Helmore (Sol - Appl)

LEGAL REPRESENTATIVES: S Berveling (Resps) McDonald Johnson (Sol - Resps)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

McCLELLAN J

MONDAY 23 AUGUST 2004

40284/04 NEWCASTLE CITY COUNCIL v LEAWAY PTY LIMITED

JUDGMENT 1 HIS HONOUR: This matter comes before me today on the application of the respondent to further suspend an order which I made on 29 June 2004. That order was in the following terms: "The first and second respondents, by themselves, their servants and agents, be restrained from using Lot 1 DP 982092, Lot 1 DP 909299, Lot 4 DP 666964, Lot 4 DP 666965 and Lot 3 DP 668145, known as 55 Throsby Street, Wickham, as a waste management facility or waste transfer station or otherwise than in accordance with the development consent granted by the applicant to development application 00/1738 without development consent being obtained for such uses as pursuant to Part 4, Environmental Planning and Assessment Act 1979." 2 On 29 June 2004 when I made the order, I published my reasons for the form of the order which I then was prepared to make. In those reasons I said as follows: "This matter came before me this morning on the application of the council seeking orders by way of declaration and injunctions in relation to the alleged illegal operation of premises at 55 Throsby Street, Wickham. The allegation is that the premises are being used as a waste management facility or waste transfer station without consent. A consent was granted in September 2000 for the 'storage, sorting and distribution of secondhand building materials' but the council alleges that the materials being stored and re-distributed from the site extend far beyond those which were contemplated by the consent granted. When the matter was called this morning, the respondent indicated through its counsel its acceptance that orders should be made restraining the use of the property in the manner sought by the council. However, the respondent has apparently entered into negotiations to provide the present facilities on alternative premises which it believes are more appropriately zoned and located for the nature of the activity that it carries on.