Broholm v City of Ryde Council [2014] NSWLEC 1221

Land and Environment Court New South Wales

Medium Neutral Citation: Broholm v City of Ryde Council [2014] NSWLEC 1221 Hearing dates: 24 and 25 June 2014 Decision date: 28 October 2014 Jurisdiction: Class 1 Before: Dixon C Decision: Substitute for the amended Order made by City of Ryde Council on 10 April 2014 the following Orders: (1)The applicant, Michael Broholm, as the person by whom the premises are being used, must cease using the premises at Lot 1 DP 580766 known as 974-978 Victoria Road, West Ryde as a Vehicle Body Repair Workshop. (2)In particular ,the applicant must: (i) cease using the premises for any activity involving the restoration of chassis through the cutting and welding of metals and the subsequent painting of vehicles. (ii) cease using the area outside the workshop for the storing of repair vehicles and vehicle parts. (3)Suspend the operation of Orders (1) and (2) until and including 28 January 2015. (4)The Exhibits are returned apart from Exhibits A, B, E. Catchwords: APPEAL - against an Order issued to the occupier of premises under Section 121B item 1 of the Environmental Planning and Assessment Act 1979 - directing that the occupier cease using premises for a prohibited use - vehicle body repair workshop - applicant claims existing use rights - burden of proof Legislation Cited: Environmental Planning and Assessment Act 1979 Factories and Shops Act 1912-1950 Ryde Local Environmental Plan 2010 County of Cumberland Planning Scheme Cases Cited: Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400 at [45] and [57] Exceland Property Group Pty Limited v Marrickville Council [2003] NSWLEC 208 Foodbarn Pty Ltd v Solicitor-General (NSW) (1975) 2LGRA 157 MM & SW Enterprises Pty Ltd v Strathfield Council [2010] NSWLEC 8; (2010) 172 LGERA 125 Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493 at 499-500 RCM Constructions Pty Limited & Maycot Pty Limited v Ryde City Council [2004] NSWLEC 266 Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 312 Scott v Wollongong CC (unreported NSW L&E Ct, Cripps CJ 1 September 1989, No 40090 of 1989) Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-535 Category: Principal judgment Parties: Mr M Broholm (Applicant)