Nestra Engineering Pty Ltd v Council of the Municipality of Leichhardt [1988] NSWLEC 31

Land and Environment Court of New South Wales

CITATION : Nestra Engineering Pty Ltd v Council of the Municipality of Leichhardt [1988] NSWLEC 31 APPLICANT Nestra Engineering Pty Ltd PARTIES : RESPONDENT Council of the Municipality of Leichhardt

FILE NUMBER(S) : 10528 of 1988 CORAM: Cripps J KEY ISSUES: :- LEGISLATION CITED: CASES CITED: Nestra Engineering Pty. Limited v. Leichhardt Municipal Council, 59 LGRA 100; Fatsel Pty. Limited v. ACR Trading Pty. Limited (No.3), 64 LGRA 177 DATES OF HEARING: 08/11/88, 13/11/88 DATE OF JUDGMENT: 11/28/1988

LEGAL REPRESENTATIVES:

JUDGMENT:

His Honour: On 2 September 1988, Nestra Engineering Pty. Limited made application to the Leichhardt Municipal Council for development consent to use a building at 107 Francis Street, Leichhardt for "boat repair and storage within existing factory building". The application was advertised and a number of objections were received. The Council failed to deal with the application within 40 days and on 13 November 1988 Nestra appealed to the Court. On 8 November 1988, the Council refused to grant its consent for the following reasons:

"1. The activity would have an adverse impact on the residential amenity of the area by virtue of the emission of fumes, dust and noise.

2. The application makes inadequate provision for off-street parking.

3. The application is not permissible under clause 15 of LEP 20.

4. The occupant has demonstrated an inability to comply with the requirements of the consent authorities".

107 Francis Street, Leichhardt is a large, industrial site surrounded by residential properties. It is zoned Residential 2(b2) under Leichhardt Local Environmental Plan No. 20 gazetted on 15 June 1984. The present application is concerned with the northern part of the large single storey iron clad industrial building on the site. The building has an overall floor area of approximately 840m2. The part of the building the subject of the application has an area of approximately 470m2.