Marrickville Municipal Council v Richardson [1989] NSWLEC 156

Land and Environment Court of New South Wales

CITATION : Marrickville Municipal Council v Richardson [1989] NSWLEC 156 APPLICANT Marrickville Municipal Council PARTIES : RESPONDENT Mr. Richardson FILE NUMBER(S) : 40182 of 1988 CORAM: Stein J KEY ISSUES: :- LEGISLATION CITED: Marrickville Draft Local Environmental Plan No. 33 1987. CASES CITED: DATES OF HEARING: DATE OF JUDGMENT: 02/10/1989

LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: The applicant Council seeks a declaration that the use by the respondent of premises at 6-8 Goodsell Street, St. Peters, for the purpose of storage of vehicles and machinery is unlawful. It also seeks an injunction restraining the respondent from using the premises for the said purpose.

The subject land is zoned Residential 2(b)(2) under the Marrickville Planning Scheme Ordinance whereby the said use is prohibited. Prior to an amendment to the Ordinance on 3 April 1987 (LEP 33) the use was a permissible one with consent, the land then being within an industrial zoning.

Apparently the respondent first obtained a consent to the subject use in 1984 although documentary records of the consent have been mislaid by Council. This consent was limited by time and expired prior to 22 May 1985 when Council wrote to Mr. Richardson drawing his attention to the termination of the approval and seeking lodgment of a fresh application or the removal of the items. The respondent asked for consent to use the premises in the same fashion for "at least 2 years".

On 17 June 1986 Council issued a consent to continue the use but limited the approval to 6 months to expire on 10 December 1986. The consent document stated that "subject to the satisfactory operation of the use during the trial period, Council will give further consideration to extending the consent upon written application being made to Council one month prior to the expiry of the trial period". On 25 November 1986 the respondent asked for a renewal of the approval "for a further couple of years". This application was refused by Council on 4 February 1987. The two reasons given for refusal were:-