Hawkesbury City Council v Agostino [2009] NSWLEC 176

Hawkesbury City Council v Agostino [2009] NSWLEC 176

The premises had been used for fruit packing and sales sufficient to constitute a shop use immediately before 13 March 1964, but the respondents bore the onus of proving that the use was not abandoned. The Court preferred the evidence of Mrs Kidd and Mr Wells over Mr Gartrell and found that shop use ceased after 1971 and that between 1971 and 1978 the premises were used for farm storage purposes only. The respondents did not prove that Mr Land intended to continue, or not abandon, the shop use. The existing use as a shop was therefore abandoned, the current shop use was prohibited development, and declarations and injunctive relief were warranted, with the injunction postponed to allow...

Jurisdiction
Australia
Judgment Date
19 October 2009
Procedural Posture
Proceedings for Declarations and Injunctive Relief Concerning Prohibited Development and Claimed Existing Use Rights / Judgment After Hearing
Outcome
Declarations made that the respondents are using the land as a shop and that the use is prohibited development; injunction granted but postponed to 31 December 2009; respondents ordered to pay the Council's costs.
Legal Topics
['existing Use Rights' 'non Conforming Use' 'prohibited Development' 'abandonment of Use' 'injunctive Relief' 'onus of Proof']
['planning and Environment Law' 'land Use Regulation'] ['existing Use Rights' 'non Conforming Use' 'prohibited Development' 'abandonment of Use' 'injunctive Relief' 'onus of Proof']

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

Proceedings for Declarations and Injunctive Relief Concerning Prohibited Development and Claimed Existing Use Rights / Judgment After Hearing

Legal Issues

  1. 1 ["Whether the respondents' use of No. 570 Bells Line of Road, Kurmond as a shop was an existing use within the meaning of the Environmental Planning and Assessment Act 1979." 'Whether the shop use existed immediately before 13 March 1964.' 'Whether the existing shop use had been abandoned after 13 March 1964, including during the period 1971 to 1978.' 'Whether the Court should exercise its discretion to grant injunctive relief restraining the shop use.']

Ratio Decidendi

The premises had been used for fruit packing and sales sufficient to constitute a shop use immediately before 13 March 1964, but the respondents bore the onus of proving that the use was not abandoned. The Court preferred the evidence of Mrs Kidd and Mr Wells over Mr Gartrell and found that shop use ceased after 1971 and that between 1971 and 1978 the premises were used for farm storage purposes only. The respondents did not prove that Mr Land intended to continue, or not abandon, the shop use. The existing use as a shop was therefore abandoned, the current shop use was prohibited development, and declarations and injunctive relief were warranted, with the injunction postponed to allow...

Court Disposition

Declarations made that the respondents are using the land as a shop and that the use is prohibited development; injunction granted but postponed to 31 December 2009; respondents ordered to pay the Council's costs.

Orders

  • ['A declaration that the respondents, Francesco Agostino and Caterina Agostino, are using the land known as No. 570 Bells Line of Road, Kurmond, as a shop.' 'A declaration that the use of the land known as No. 570 Bells Line of Road, Kurmond as a shop is prohibited development under the Hawkesbury Local...