Council of the City of Botany Bay v Tripolitis (No 2) [2016] NSWLEC 95

Land and Environment Court New South Wales

Medium Neutral Citation: Council of the City of Botany Bay v Tripolitis (No 2) [2016] NSWLEC 95 Hearing dates: 1 August 2016 Date of orders: 01 August 2016 Decision date: 01 August 2016 Jurisdiction: Class 4 Before: Pepper J Decision: See orders at [46]. Catchwords: CIVIL ENFORCEMENT: failure to comply with s 121B order – use of premises as warehouse and distribution centre for clothing – whether use of premises for this purpose prohibited within the zone – ex parte hearing – declaratory and injunctive relief granted – costs ordered. Legislation Cited: Botany Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979, ss 121B, 123 Cases Cited: Council of the City of Botany Bay v Tripolitis [2016] NSWLEC 85 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Texts Cited: Category: Principal judgment Parties: Council of the City of Botany Bay (Applicant) John Tripolitis (First Respondent) Robyn Tripolitis (Second Respondent) Representation: Counsel: Mr Shneider (solicitor) (Applicant) No Appearance (First Respondent) No Appearance (Second Respondent)

Solicitors: Housten Dearn O'Connor (Applicant) No Appearance (First Respondent) No Appearance (Second Respondent) File Number(s): 2016/151803 Publication restriction:

EX TEMPORE Judgment

The Council Seeks Orders to Cease the Use of Premises as a Warehouse for and the Distribution of Clothing 1. By summons filed 23 March 2016, the Council of the City of Botany Bay ("the council"), seeks declaratory and injunctive relief pursuant to s 123 of the Environmental Planning and Assessment Act 1979 ("EPAA") in respect of a failure by first respondent, Mr John Tripolitis, and the second respondent, Mrs Robyn Tripolitis, to comply with an order issued by the council on 22 October 2013, under s 121B ("the s 121B order") of the EPAA. 2. The order was to cease using premises located at Lot B, DP 359736, 64 Pemberton Street, Botany, New South Wales ("the premises"), as a warehouse for the distribution of clothing, a use prohibited in Zone B4 Mixed Use under the Botany Local Environmental Plan 2013 ("the LEP"). 3. Time for compliance with the order was 60 days from the date of its service. That time has long since passed. Thus, the council brings these proceedings. 4. Based on the material before the Court, I have determined that it is appropriate to grant the relief sought in the summons, albeit with a minor amendment to the form of the declaration posited by the council.