Fairfield City Council v Ly and Ors [2008] NSWLEC 322

Fairfield City Council v Ly and Ors [2008] NSWLEC 322

The premises were not being used as a prohibited shop because item 1(c)(iv), although appearing under zone objectives, described a permissible motor orientated retail use and the premises satisfied both the fitting-area limb and the large-area handling, storage or display limb. The awning, however, had been erected without development consent, warranting a declaration and demolition order, but the demolition order was suspended for six months to allow applications to be lodged and assessed.

Jurisdiction
Australia
Judgment Date
17 December 2008
Procedural Posture
Class 4 Application / Judgment on Declarations and Consequential Orders
Outcome
Declaration that premises were used as a shop refused; declaration made that the awning was erected without development consent; demolition ordered but suspended for six months; each party to pay its own costs.
Legal Topics
['prohibited Use' 'definition of Shop Under Fairfield Local Environmental Plan 1994' 'motor Orientated Activities' 'development Consent' 'unauthorised Awning' 'demolition Order' 'discretion to Suspend Orders']
['environmental Planning and Development' 'land Use Planning' 'injunctions and Declarations'] ['prohibited Use' 'definition of Shop Under Fairfield Local Environmental Plan 1994' 'motor Orientated Activities' 'development Consent' 'unauthorised Awning' 'demolition Order' 'discretion to Suspend Orders']

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Procedural Posture

Class 4 Application / Judgment on Declarations and Consequential Orders

Legal Issues

  1. 1 ['Whether the premises were being used as a shop, being a prohibited use under the Fairfield Local Environmental Plan 1994.' 'Whether the current use was instead a motor orientated activity within item 1(c)(iv) of the 4(c) Special Industrial zone provisions and therefore permissible with consent.' 'Whether a declaration should be made that an awning at the rear of the premises was constructed without development consent.' 'Whether demolition of the awning should be ordered and whether any order should be suspended to allow applications for development consent and a building certificate.' 'Whether costs should follow the event or each party should bear its own costs.']

Ratio Decidendi

The premises were not being used as a prohibited shop because item 1(c)(iv), although appearing under zone objectives, described a permissible motor orientated retail use and the premises satisfied both the fitting-area limb and the large-area handling, storage or display limb. The awning, however, had been erected without development consent, warranting a declaration and demolition order, but the demolition order was suspended for six months to allow applications to be lodged and assessed.

Court Disposition

Declaration that premises were used as a shop refused; declaration made that the awning was erected without development consent; demolition ordered but suspended for six months; each party to pay its own costs.

Orders

  • ['A declaration that the Respondents have erected an awning at the rear of the premises at 220 – 224 Cabramatta Road, Cabramatta West, being Lot A in DP 367011 without first obtaining development consent pursuant to the Fairfield Local Environmental Plan 1994.' 'An order that the awning erected at the rear of the...