Inner West Council v Balmain Rentals Pty Ltd [2019] NSWLEC 24

Inner West Council v Balmain Rentals Pty Ltd [2019] NSWLEC 24

The Court was satisfied on uncontested evidence that the premises had been used since about May 2017 as a vehicle hire business, being a "vehicle sales or hire premises" and therefore a prohibited commercial premises use in the IN1 Zone under the Marrickville Local Environmental Plan 2011. That use constituted development for the use of land and breached s 4.3(a) of the Environmental Planning and Assessment Act 1979 (NSW). Given the continuing breach, the prior notices, orders and letters of demand, the amenity impacts on residents, and the respondents' agreement to the relief, there was utility and appropriateness in granting both declaratory and injunctive relief and in making the...

Jurisdiction
Australia
Judgment Date
28 February 2019
Procedural Posture
Class 4 Civil Enforcement Proceedings / Principal Judgment on Amended Summons Seeking Declaratory Relief, Injunctive Relief and Costs
Outcome
Relief granted; declarations, injunction and agreed costs order made.
Legal Topics
['prohibited Development' 'vehicle Sales or Hire Premises' 'declaratory Relief' 'injunctive Relief' 'restraint of Breach of the Environmental Planning and Assessment Act 1979 (nsw)' 'land Use Zoning Under Marrickville Local Environmental Plan 2011']
['environment and Planning' 'civil Enforcement' 'costs'] ['prohibited Development' 'vehicle Sales or Hire Premises' 'declaratory Relief' 'injunctive Relief' 'restraint of Breach of the Environmental Planning and Assessment Act 1979 (nsw)' 'land Use Zoning Under Marrickville Local Environmental Plan 2011']

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Procedural Posture

Class 4 Civil Enforcement Proceedings / Principal Judgment on Amended Summons Seeking Declaratory Relief, Injunctive Relief and Costs

Legal Issues

  1. 1 ['Whether the premises were being used for the prohibited purpose of a "vehicle sales or hire premises" contrary to the Marrickville Local Environmental Plan 2011 and s 4.3(a) of the Environmental Planning and Assessment Act 1979 (NSW).' 'Whether it was appropriate to grant declaratory relief where the respondents submitted to the relief sought.' 'Whether it was appropriate to grant injunctive relief restraining the respondents from carrying out the prohibited use.' "Whether it was appropriate to order the respondents to pay Council's costs in the agreed amount of $15,000."]

Ratio Decidendi

The Court was satisfied on uncontested evidence that the premises had been used since about May 2017 as a vehicle hire business, being a "vehicle sales or hire premises" and therefore a prohibited commercial premises use in the IN1 Zone under the Marrickville Local Environmental Plan 2011. That use constituted development for the use of land and breached s 4.3(a) of the Environmental Planning and Assessment Act 1979 (NSW). Given the continuing breach, the prior notices, orders and letters of demand, the amenity impacts on residents, and the respondents' agreement to the relief, there was utility and appropriateness in granting both declaratory and injunctive relief and in making the...

Court Disposition

Relief granted; declarations, injunction and agreed costs order made.

Orders

  • ['Declare that each of the respondents being Balmain Rentals Pty Ltd and Dewkelp Pty Ltd by itself, its servants or agents has breached s 4.3(a) of the Environmental Planning and Assessment Act 1979 (NSW) by carrying out development on the premises being Lot 4 in DP 1162801 and known as 89 Fitzroy Street,...