Penrith City Council v Margolin & Ors [1989] NSWLEC 194

Land and Environment Court of New South Wales

CITATION : Penrith City Council v Margolin & Ors [1989] NSWLEC 194 APPLICANT Penrith City Council

FIRST RESPONDENT E. Margolin PARTIES : SECOND RESPONDENT C. Margolin

THIRD RESPONDENT Annwrack Pty Ltd FILE NUMBER(S) : 40221 of 1988 CORAM: Hemmings J KEY ISSUES: :- LEGISLATION CITED: Envionmental Planning and Assessment Act CASES CITED: Warringah Shire Council v. Sedevcic (1987) 10 NSWLR 335 DATES OF HEARING: DATE OF JUDGMENT: 05/12/1989

LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: This is a motion to vacate dates for hearing of an application in Class 4 of this Court's jurisdiction, for declarations and other orders concerning the alleged use of premises at Mulgoa in breach of the provisions of an environmental planning instrument.

The use of the premises has a long and notorious history, and the unauthorised use of the premises is not denied by the claimant in this Motion. In fact, the claimant relies upon the long history of the use and Council's awareness of that use as a ground for orders that it seeks.

Whilst it is denied, I believe that it is well established that the Council has been aware, probably before 1986, but certainly since 1986, of the nature and extent of the use of the subject premises for purposes which are now the subject of a development application which has been made to the Council.

That application was made following the making of an environmental planning instrument which made the subject purposes permissible with the consent of Council. However, the development application made provision for works to be carried out on part of an access corridor, which, though the applicant had rights of access over the land, was not owned by the applicant. Council apparently took the point that such development application was in breach of s.77 of the Environmental Planning and Assessment Act, 1979 ("EP&A Act"), and therefore Council claimed it had no jurisdiction to deal with such application.