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. The respondent admits that he is aware that the land is zoned for residential purposes and that the business of a car repair station or motor body repairer cannot lawfully be carried out thereon without the approval of the Council. The respondent said that he purchased the land firstly for the purpose of erecting a new residence thereon above an existing structure, and also for the purpose of storing his personal property including various motor vehicles, motor cycles and a boat, and the vehicles of the family. He said that there is no room to accommodate such articles at 130 Camden Street. 130 Camden Street is almost fully developed by the dwelling house at the Camden Street frontage and a large factory style building at the rear. Erected upon 132 Camden Street is a large concrete structure which appears to have been built as an air raid shelter during World War 11. I do not propose to set out all of the evidence of the way in which the respondent is using the subject land. The respondent was an unreliable witness and I prefer the evidence of the Council. An overwhelming case has been made out that he is using 132 Camden Street for the purpose of the business of motor vehicle repairs, and the storage of motor vehicle parts, contrary to the provisions of the Marrickville Planning Scheme Ordinance. The rear of the building on the subject land contains two separate rooms. One of these is a workshop containing a lathe with other hand tools and machines which I am satisfied are used by the respondent for the purpose of the business of the repair of motor vehicles. The second room is a large store fitted with shelving containing numerous car parts, including radiators, hubcaps, steering wheels, lamp fittings and other accessories. In that room is a desk and other office equipment used by the respondent, and with a vehicle repairer's identification card on display. The room has a telephone with a number and listing separate from that at 130 Camden Street. The respondent gave a completely unbelievable story concerning his motor repair business and the numerous motor vehicles in the course of repair, or that have been repaired by him on the land and subsequently sold. All were claimed to be vehicles belonging to himself or members of his family or "friends". I have no hesitation in being satisfied that the activities carried out by the respondent on the land are those of the business of motor vehicle repairs and the storage of motor vehicle parts. Counsel for the respondent made a faint submission that the use of the land by the respondent was ancillary to that of the occupation of the adjoining dwelling house. This submission is wholly against the facts. The respondent makes an obviously separate use thereof for the purpose of his business, and for that purpose has a separate telephone, separate advertising and separate access from that of 130 Camden Street. I have no hesitation in rejecting the submission that the respondent's use of the subject premises is an cillary to that of the adjoining dwelling house. The only submissions made by Counsel for the respondent which had any prospect of success were those seeking the exercise of the Court's discretion not to make the orders sought by the Council. The non-conforming use of 130 Camden Street is a lawful existing use which will continue. There are other car repair stations in the vicinity and the only source of complaint with respect to the use of the subject land is the number of cars parked in the residential street. The subject premises is almost wholly enclosed by masonry structures, and the unauthorised activities are well screened. There is an unauthorised high fence erected along the side and front boundaries, except for the large doors to Camden Street. The large air raid shelter occupies the rear of the site from boundary to boundary. The existing structure is an impediment to the use of the land for purposes permissible in the subject zone. It is an industrial style of building and, notwithstanding the development application to erect a dwelling house incorporating such building, it is clear that unless and until it is demolished the land is unlikely be put to the purpose for which it is zoned. Whilst the land in Camden Street is zoned for residential purposes, the land of adjoining premises is mainly use for industrial purposes, except a group of five houses immediately adjoining one side of the subject premises. The Court was informed that the respondent intends to appeal to this Court from the Council's refusal of the development application to erect a dwelling house on the subject land incorporating the existing bomb shelter. Whilst the respondent concedes in these proceedings that he does not enjoy existing use rights, if the Court exercises its discretion to refuse the orders sought by the Council, he will take the opportunity to investigate fully the prior use of the subject building and whether or not any existing use rights attach thereto. The Council has established clearly that a breach of an environmental law has occurred and, unless restrained, will continue. In such circumstances it is usually entitled to an injunction to restrain that continued breach. However, the making of that order is subject to the exercise of this Court's discretion, which is a very wide one. The Council seeks to enforce obligations imposed by the provisions of an instrument made under an Act of Parliament, and Parliament has expressed itself on the public interest for the orderly development and use of the environment. However, the exercise of the discretion has been described as being as much a part of the structure and scheme of the E.P.& A. Act for the enforcement of planning laws as are the other parts. It permits, in appropriate cases, refusal of injunctive relief where to grant it would work such an injustice as to be disproportionate to the ends secured by enforcement of the legislation; see the cases referred to in Strathfield Municipal Council v. Alpha Pla stics Pty Limited and Ors, (1988) 66 LGRA 124 at 129. In my judgment, the breach by the respondent is not technical and is deliberate. I propose to make the orders sought by the Council, having taken into account all of the above matters, but suspend the operation thereof for an appropriate period. Such period of time is estimated to enable the prosecution of an expedited hearing of an appeal, if any, against Council's refusal to the erection of a dwelling or, if appropriate, to make an application for consent to carry out prohibited development pursuant to s.100A of the E.P.& A. Act. The orders I propose to make therefore are: 1. Frank Novak, his servants and agents be restrained from causing, permitting, or suffering premises 132 Camden Street, Newtown, to be used for the purposes of motor vehicle repairs or storage of motor vehicles and motor vehicle parts. 2. Order 1 be suspended until 1st December, 1989. 3. The respondent to pay the applicant's costs. 4. Exhibits may be released. 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