Blacktown City Council v Wilkie and Ors [2001] NSWLEC 269

Blacktown City Council v Wilkie and Ors [2001] NSWLEC 269

The site was being used for the deposit of waste material and was most precisely characterised as a tip or recycling yard, an innominate use permissible with development consent under the Blacktown Local Environmental Plan 1988. The existing consent for a dwelling and landscape supply business, later amended to dwelling and plant nursery, did not authorise that use, so the use breached s 76A(1) of the Environmental Planning and Assessment Act 1979. The second and third respondents had primary responsibility because they brought the bulk of the waste onto the site in operating a recycling business. The first respondent, as lessee and sublessor with control through the sublease, permitted...

Jurisdiction
Australia
Judgment Date
06 December 2001
Procedural Posture
Class 4 Proceedings Under the Environmental Planning and Assessment Act 1979 Seeking Declarations and Orders to Remedy or Restrain a Breach / Final Judgment After Hearing
Outcome
Declarations and remedial orders made against the first, second and third respondents; no orders made against the fourth respondent on the council's claim; fourth respondent's cross-claim dismissed; costs orders made.
Legal Topics
['development Without Consent' 'use of Land as Tip or Recycling Yard' 'injunctions and Declarations' 'orders to Remedy Breach' 'removal of Waste Material' 'responsibility of Lessee, Sublessee and Owner' 'cross Claim Against Council']
['environmental and Planning Law' 'local Government' 'civil Enforcement'] ['development Without Consent' 'use of Land as Tip or Recycling Yard' 'injunctions and Declarations' 'orders to Remedy Breach' 'removal of Waste Material' 'responsibility of Lessee, Sublessee and Owner' 'cross Claim Against Council']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 4 Proceedings Under the Environmental Planning and Assessment Act 1979 Seeking Declarations and Orders to Remedy or Restrain a Breach / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether the use of the site for depositing waste material was development for which consent was required under the Blacktown Local Environmental Plan 1988 and s 76A(1) of the Environmental Planning and Assessment Act 1979.' 'Whether the second and third respondents carried out development on the site for the purpose of a tip or recycling yard contrary to the Environmental Planning and Assessment Act 1979.' 'Whether the first respondent permitted or suffered the unlawful use of the site and should be ordered to remove the waste material.' 'Whether the fourth respondent, as owner, permitted or suffered the unlawful use or acquiesced in it and should be subject to orders.' "Whether the council should be ordered on the fourth respondent's cross-claim to remove the waste material." 'Whether orders requiring removal of waste to a licensed waste management facility were appropriate notwithstanding the regulatory role of the EPA under the Protection of the Environment Operations Act 1997.']

Ratio Decidendi

The site was being used for the deposit of waste material and was most precisely characterised as a tip or recycling yard, an innominate use permissible with development consent under the Blacktown Local Environmental Plan 1988. The existing consent for a dwelling and landscape supply business, later amended to dwelling and plant nursery, did not authorise that use, so the use breached s 76A(1) of the Environmental Planning and Assessment Act 1979. The second and third respondents had primary responsibility because they brought the bulk of the waste onto the site in operating a recycling business. The first respondent, as lessee and sublessor with control through the sublease, permitted...

Court Disposition

Declarations and remedial orders made against the first, second and third respondents; no orders made against the fourth respondent on the council's claim; fourth respondent's cross-claim dismissed; costs orders made.

Orders

  • ['Declared that the first respondent permitted or suffered the carrying out of development on part lot 2 in deposited plan 781151 at the corner of Grange Avenue and Richmond Road, Marsden Park for the purpose of a tip or recycling yard or like use contrary to the Environmental Planning and Assessment Act 1979.'...