Georges River Council v Tyre Nation Pty Ltd [2020] NSWLEC 172

Georges River Council v Tyre Nation Pty Ltd [2020] NSWLEC 172

The change of use at 36-38 Waterview St from aluminium window manufacturing to tyre storage was not, and is not, exempt development under the SEPP due to: (1) failure to comply with general fire safety certificate requirements; (2) fire safety measures being required and not implemented; and (3) use in breach of the hours of operation condition in the 1994 development consent. Development consent is and was necessary. Discretion warrants interim operation subject to strict fire safety/operational regimes pending development application determination, and orders should effect agreed remedial works, with costs to follow the event.

Parties
Applicant: Georges River Council; First Respondent: Tyre Nation Pty Ltd; Second Respondent: Fardous and Saab Pty Ltd
Jurisdiction
Australia
Judgment Date
24 December 2020
Procedural Posture
Civil (class 4 Enforcement) / Final Judgment and Orders
Outcome
Applicant successful—declarations granted; interim and final orders made. Cessation of tyre storage use suspended to allow application for development consent; orders for implementation of remedial fire safety works and a strict operational regime pending determination. Fire Safety Order to be discharged. Costs to...
Legal Topics
Exempt Development, Development Consent, Statutory Interpretation, Fire Safety, Interim Orders
Environmental and Planning Law Local Government Law Exempt Development Development Consent Statutory Interpretation Fire Safety Interim Orders

Case Brief

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Parties

Georges River Council

Applicant

Tyre Nation Pty Ltd

First Respondent

Fardous and Saab Pty Ltd

Second Respondent

Procedural Posture

Civil (class 4 Enforcement) / Final Judgment and Orders

Legal Issues

  1. 1 Whether the change of use to a tyre storage facility is exempt development under the SEPP
  2. 2 Whether the building complied with relevant fire safety requirements and development standards
  3. 3 Whether purported breach of fire safety and development control orders occurred

Ratio Decidendi

The change of use at 36-38 Waterview St from aluminium window manufacturing to tyre storage was not, and is not, exempt development under the SEPP due to: (1) failure to comply with general fire safety certificate requirements; (2) fire safety measures being required and not implemented; and (3) use in breach of the hours of operation condition in the 1994 development consent. Development consent is and was necessary. Discretion warrants interim operation subject to strict fire safety/operational regimes pending development application determination, and orders should effect agreed remedial works, with costs to follow the event.

Court Disposition

Applicant successful—declarations granted; interim and final orders made. Cessation of tyre storage use suspended to allow application for development consent; orders for implementation of remedial fire safety works and a strict operational regime pending determination. Fire Safety Order to be discharged. Costs to...

Orders

  • The First Respondent is to cease use of the Land for tyre storage within 21 days (order suspended to allow DA to be lodged and determined).
  • The Owner has breached the Environmental Planning and Assessment Act 1979 by not complying with the Fire Safety Order.