Canterbury City Council v Saeed [2012] NSWLEC 128

Land and Environment Court New South Wales

Medium Neutral Citation: Canterbury City Council v Saeed [2012] NSWLEC 128 Hearing dates: 1 June 2012 Decision date: 01 June 2012 Jurisdiction: Class 4 Before: Biscoe J Decision: Order restraining unlawful use of premises suspended in part pending determination of a development application: see [7]. Catchwords: CIVIL ENFORCEMENT:- to restrain unlawful use of premises. Legislation Cited: Environmental Planning and Assessment Act 1979 Part 4 Canterbury Local Environmental Plan No 178 - Belmore-Lakemba Precinct Category: Principal judgment Parties: Canterbury City Council (Applicant) Mohammad Imran Saeed (First Respondent) Mohammed Houda (Second Respondent) Muhammad Ahsan Saeed Malik (Third Respondent) Nandi Services Pty Ltd (Fourth Respondent) S & S Transport Pty Ltd (Fifth Respondent) Representation: COUNSEL: Mr A Simpson, solicitor (Applicant) Mr T McCowan, solicitor (Respondents) SOLICITORS: Pikes Lawyers (Applicant) Legal Wisdom (Respondents) File Number(s): 40098 of 2012

EX TEMPORE Judgment 1These are civil enforcement proceedings brought by Canterbury City Council seeking orders restraining the use of premises known as Lot 12 DP 628740 at 99 Lakemba Street, Belmore as a "transport depot", "vehicle body repair workshop" and "vehicle repair station'. 2Those uses are permissible with development consent under the Canterbury Local Environmental Plan No 178 - Belmore-Lakemba Precinct. No development consent has been obtained in this case. In fact, a development application for those uses was refused on 31 October 2011. Council's assessment in relation to the refusal of the earlier development application indicated that the use of the premises as a taxi change-over base would present unacceptable environmental impacts to its industrial and residential neighbours as the site does not provide adequate off-street parking to accommodate the taxis and their drivers. 3Restraining orders are sought against five respondents. The fourth respondent, Nandi Services Pty Ltd, is the lessee of the premises. The first respondent, Mohammad Imran Saeed, is the sole director of Nandi Services Pty Ltd. The fifth respondent, S & S Transport Pty Ltd, carries on the business of operating taxi services from the premises. The third respondent, Muhammad Ahsan Saeed Malik, is the sole director of S & S Transport Pty Ltd. The second respondent, Mohammed Houda, and the first respondent are the persons carrying on the business M & I Smash Repairs at the premises. 4Following the refusal of the development application in 2011, M & I Smash Repairs, Nandi Services Pty Ltd and S & S Transport Pty Ltd gave written undertakings on 13 January 2012 to cease the unauthorised uses of the premises by 27 January 2012. The unauthorised uses nevertheless continued beyond that date. 5In summary, the present uses of the site require development consent, no development consent for the present uses has been obtained, and the respondents have been and are currently carrying on the present uses. However, on 4 May 2012 a development application was lodged with Council seeking consent to use the premises as a "mechanical workshop". 6The respondents now consent to restraining orders subject to the qualification that the orders restraining the use of the premises as a "mechanical workshop" or "smash repair workshop" should be suspended pending Council's determination of the May 2012 development application. 7By consent the orders of the Court are as follows: (1)The first to fifth respondents inclusive be restrained from using, suffering or permitting to be used the premises known as the "eastern unit" or unit No. 1 at 99 Lakemba Street, Belmore, NSW, 2192 comprising Lot 12 in Deposited Plan 628740 ("the subject premises") for any of the following purposes without first obtaining development consent under Part 4 of the Environmental Planning and Assessment Act 1979: (a)A taxi change over base being premises for the operation of a taxi business including administrative facilities, storage of records, facilities for taxi drivers, rest facilities for taxi drivers, parking of taxis, and cleaning of taxis; (b)A motor vehicle or mechanical repair workshop; (c)A motor vehicle smash repair workshop. (2)Orders 1(b) and 1(c) are suspended pending the determination by Canterbury City Council of Development Application 147/2012 for use of the subject premises as a mechanical workshop lodged with Canterbury City Council on 2 May 2012, provided that any interim use of the subject premises subject this order operate between the hours of 7.30am and 5.30pm Monday to Friday and 7.30am and 1.00pm Saturday. (3)The first to fifth respondents inclusive pay the applicant's costs of these proceedings as agreed or as assessed.