Marrickville Municipal Council v F Novak [1989] NSWLEC 192

Land and Environment Court of New South Wales

CITATION : Marrickville Municipal Council v F Novak [1989] NSWLEC 192 APPLICANT Marrickville Municipal Council PARTIES : RESPONDENT Frank Novak FILE NUMBER(S) : 40205 of 1988 CORAM: Hemmings J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act CASES CITED: Strathfield Municipal Council v. Alpha Plastics Pty Limited and Ors, (1988) 66 LGRA 124 at 129. DATES OF HEARING: DATE OF JUDGMENT: 05/18/1989

APPLICANT LEGAL REPRESENTATIVES: RESPONDENT

JUDGMENT:

HIS HONOUR: Marrickville Municipal Council seeks declarations and orders restraining the use of premises 132 Camden Street, Newtown ("the land") for the purposes of motor vehicle repairs and the storage of motor vehicle parts. The said land is owned by Frank Novak and his wife, and adjoins a dwelling house, number 130, which is now occupied by them and owned by his son. The land is situate within a Residential 2(b2) Zone pursuant to the provisions of the Marrickville Planning Scheme Ordinance. Pursuant to cl.23, dwelling houses are a purpose for which buildings or works may be erected or carried on or used without the consent of the responsible authority. The respondent, by his Counsel, does not contend that the subject land enjoys the benefit of any existing use rights, and admits that motor vehicle repairs or the storage of motor vehicles and parts is prohibited unless ancillary to the residential use of the adjoining dwelling at 130 Camden Street.

The respondent carries on a panel beating and motor body repair business under the registered business name "Camden Auto Repairs" at the adjoining 130 Camden Street in partnership with his wife and son. Before migrating to Australia from Hungary in 1957, he obtained a technical qualification as a fitter and turner. Since living in Australia he has qualified as a motor mechanic, and a motor panel beater and spray painter. The respondent contends that the said business at number 130 is confined to panel beating and spray painting and that various engineering machines in his ownership at number 132 are used by him from time to time in fitting and turning activities as a private hobby.