South Sydney City Council v Kontogiannis & Anor [1989] NSWLEC 228

Land and Environment Court of New South Wales

CITATION : South Sydney City Council v Kontogiannis & Anor [1989] NSWLEC 228 APPLICANT South Sydney City Council PARTIES : RESPONDENT Kontogiannis & Anor FILE NUMBER(S) : 40199 of 1988 CORAM: Stein J KEY ISSUES: :- LEGISLATION CITED: Local Government Act Environmental Planning and Assessment Act Vumbaca v. Baulkham Hills Shire Council ((1979) 141 CLR 614); Sydney City Council v. Ke-Su Investments ((1983) 48 LGRA 381).; CASES CITED: Lane Cove Municipal Council v. Lujeta ((1986) 58 LGRA 157); Warringah v. Sedevic ((1987) 10 NSWLR 335 at 339-41); ACR Trading v. Fat-Sel ((1987 11 NSWLR 67)). DATES OF HEARING: DATE OF JUDGMENT: 08/21/1989

APPLICANT Mr Wright LEGAL REPRESENTATIVES: RESPONDENT Mr Wilson

JUDGMENT:

HIS HONOUR: The applicant Council seeks orders restraining the respondents from using or causing or permitting to be used certain premises known as 445A Oxford Street, Paddington, as a hairdressing salon.

In 1968 the respondents purchased premises at 445-447 Oxford Street. The first respondent had tenanted a hairdressing salon at No. 447 since 1962. During 1969 and early 1970 an upstairs flat on two levels was erected and this was occupied by the respondents and their family from March 1970 until 1978. The flat became known as 445A. From about March 1970 the respondents commenced using the lounge room of the flat for hairdressing work in association with the conduct of the salon in 447 at street level. In 1978 the respondents moved out of the flat to a home. After their departure the flat was leased to various tenants until the early 1980's. The leases did not include the lounge room which the respondents continued to use as a hairdressing salon in conjunction with the salon downstairs. From the early 1980's the balance of the upstairs flat remained vacant.