Shoalhaven City Council v Mitchell & Anor [1987] NSWLEC 1

Land and Environment Court of New South Wales

CITATION : Shoalhaven City Council v Mitchell & Anor [1987] NSWLEC 1 APPLICANT Shoalhaven City Council PARTIES : RESPONDENT Mitchell & Anor FILE NUMBER(S) : 40176; 10573; 10506 of 1987 CORAM: Stein J KEY ISSUES: :- LEGISLATION CITED: Shoalhaven Local Environmental Plan 1985 Environmental Planning and Assessment Act Sydney City Council v. Ilenace Pty. Ltd. ((1984) 54 LGRA 217) John Bruce & Partners v. North Sydney Municipal Council ((1984) 55 LGRA 228); CASES CITED: Foodbarn Pty. Ltd. v. The Solicitor-General ((1975) 32 LGRA 157); ACR Trading Pty. Ltd. v. Fat-Sel Pty. Ltd., Unreported Court of Appeal 17 November 1987). DATES OF HEARING: DATE OF JUDGMENT: 03/23/1988

LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: These three applications were, with the consent of the parties, heard together. The Class 4 application seeks declarations that Mr. & Mrs. Mitchell are using certain land at the corner of Princes Highway and Pierce Lane, Milton, for the purposes of a retail garden and plant nursery without the consent of the Council and that such a use is prohibited under the Shoalhaven Local Environmental Plan 1985. Council seeks an order restraining the Mitchells from using the subject land for the purpose of a retail garden and/or plant nursery.

The 1985 Class 1 appeal is against the refusal of the Council to permit a change of use from wholesale nursery to retail and wholesale nursery. The application was refused by Council on the basis that a retail plant nursery is prohibited in the Rural l(b) zone and in the Special Use 5(d) zone which comprise the subject land.