Hastings Municipal Council v Hastings Sand & Gravel Supplies Pty Limited & Anor [1989] NSWLEC 215

Hastings Municipal Council v Hastings Sand & Gravel Supplies Pty Limited & Anor [1989] NSWLEC 215

The respondents did not discharge the onus of establishing existing use rights because the Court was not satisfied that Lots 34, 35 and 38 were physically or presently used for stockpiling in May 1967. The evidence accepted by the Court indicated that stockpiling on those lots began in or about 1970. Any assumed use of Lot 33 in May 1967 did not establish use of Lots 34, 35 and 38, which were separate lots with no relevant connection beyond common ownership. Accordingly the current stockpiling use lacked existing use protection and was unlawful without Council consent.

Jurisdiction
Australia
Judgment Date
01 July 1989
Procedural Posture
Proceedings Seeking to Restrain Use of Land for Stockpiling Without Council Consent / Judgment
Outcome
The Council obtained restraint orders; operation of the order was suspended for twelve months, and the respondents were ordered to pay the Council's costs.
Legal Topics
['existing Use Rights' 'stockpiling of Gravel, Sand and Aggregate' 'development Consent' 'environmental Planning and Assessment Act 1979 S 109' 'injunctive Relief']
['planning and Environment Law' 'local Government Law' 'land Use Law'] ['existing Use Rights' 'stockpiling of Gravel, Sand and Aggregate' 'development Consent' 'environmental Planning and Assessment Act 1979 S 109' 'injunctive Relief']

Case Brief

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Procedural Posture

Proceedings Seeking to Restrain Use of Land for Stockpiling Without Council Consent / Judgment

Legal Issues

  1. 1 ['Whether Lots 34, 35 and 38 had existing use rights for stockpiling of gravel, sand and aggregate.' 'Whether stockpiling was relevantly a use of the subject land in May 1967 and whether that use had continued.' 'Whether any use of Lot 34 for manufacturing prestressed concrete beams discontinued or abandoned any stockpiling use.' 'Whether the current stockpiling use was unlawful without Council consent.']

Ratio Decidendi

The respondents did not discharge the onus of establishing existing use rights because the Court was not satisfied that Lots 34, 35 and 38 were physically or presently used for stockpiling in May 1967. The evidence accepted by the Court indicated that stockpiling on those lots began in or about 1970. Any assumed use of Lot 33 in May 1967 did not establish use of Lots 34, 35 and 38, which were separate lots with no relevant connection beyond common ownership. Accordingly the current stockpiling use lacked existing use protection and was unlawful without Council consent.

Court Disposition

The Council obtained restraint orders; operation of the order was suspended for twelve months, and the respondents were ordered to pay the Council's costs.

Orders

  • ['The respondents and each of them be restrained from continuing to use the subject land for stockpiling without first obtaining the consent of the Hastings Municipal Council as required by the Environmental Planning and Assessment Act.' 'The operation of the restraint order be suspended for a period of twelve...