Marrickville Municipal Council v Xuereb [1989] NSWLEC 170

Land and Environment Court of New South Wales

CITATION : Marrickville Municipal Council v Xuereb [1989] NSWLEC 170 APPLICANT Marrickville Municipal Counci PARTIES : RESPONDENT Xuereb FILE NUMBER(S) : 40187 of 1988 CORAM: Bignold J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Factories, Shops and Industries Act, 1962 Woollahra Municipal Council v. T.A.J.J. Investments Pty. Ltd. (1982) 49 LGRA 123; CASES CITED: Woollahra Council v. Banool Developments Pty. Ltd. (1973) 129 CLR 138; Tehidy Minerals v. Norman (1971) 2 QB 528 at p.553); Treweeke v. 36 Wolsely Road Pty. Ltd. (1973) 128 CLR 274. DATES OF HEARING: DATE OF JUDGMENT: 03/23/1989

LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: These are class 4 proceedings in which the Applicant claims a declaration that the use by the Respondent of premises known as No. 138 Marrickville Road, Marrickville for the purposes of a Solicitor's office is unlawful and an injunction permanently restraining that use.

The aforesaid premises comprise a single storey dwelling-house built in 1915 and used as a dwelling from that time until the end of 1987 when they were acquired, by purchase by the Respondent. The land on which the dwelling-house is erected is, in common with land in its vicinity zoned 'Light Industrial" 4(b) under the Marrickville Planning Scheme Ordinance (which came into force on 22nd December, 1972 and which continues under the Environmental Planning and Assessment Act 1979 as a deemed environmental planning instrument). In terms of cl.23 of that Ordinance within that zone the purposes for which buildings may not be used (the prohibition is absolute) include "dwelling-houses (other than those used in conjunction with industry and situated on the same land as the industry)" and 'commercial premises'.