Liverpool City Council v Galluzzo & Ors [1989] NSWLEC 172

Liverpool City Council v Galluzzo & Ors [1989] NSWLEC 172

Properly construed in its statutory and factual context, including cl.13 of Interim Development Order No. 42 and the purpose of legitimising the existing retail activity, the 1978 development consent sanctioned use of the new building for retailing goods of the types and range sold before 1978. Because there had been no material change in use between 1978 and 1989, the respondents' use was lawful and constituted an existing use under s.106 of the Environmental Planning and Assessment Act, capable of continuation under s.107 despite Liverpool Local Environmental Plan No. 149. The consent did not confine sales to fruit and vegetables. However admitted breaches of Conditions 1 and 6...

Jurisdiction
Australia
Judgment Date
23 March 1989
Procedural Posture
Class 4 Civil Enforcement Proceedings Seeking Prohibitory and Mandatory Injunctions / Judgment After Hearing
Outcome
Application allowed in part; prohibitory and mandatory injunctions granted in limited terms and suspended for six months; broader relief restraining use as a shop or roadside stall and relief limiting sales to fruit and vegetables refused.
Legal Topics
['existing Use Rights' 'development Consent Construction' 'roadside Stall or Shop' 'enforcement of Development Consent Conditions' 'discretion to Grant Injunctive Relief' 'unauthorised Building Works']
['planning and Environment' 'local Government' 'injunctions'] ['existing Use Rights' 'development Consent Construction' 'roadside Stall or Shop' 'enforcement of Development Consent Conditions' 'discretion to Grant Injunctive Relief' 'unauthorised Building Works']

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Procedural Posture

Class 4 Civil Enforcement Proceedings Seeking Prohibitory and Mandatory Injunctions / Judgment After Hearing

Legal Issues

  1. 1 ["Whether the respondents' use of the subject property was as a roadside stall or as a shop for the purpose of determining any existing use entitlement under s.106 of the Environmental Planning and Assessment Act." 'Whether the 1978 development consent limited goods sold from the subject property to fruit and vegetables.' 'Whether admitted breaches of Conditions 1 and 6 of the 1978 development consent should be enforced by prohibitory injunction.' 'Whether mandatory injunctions should be granted for unauthorised building works to the loading-bay and for the detached building housing coolrooms.']

Ratio Decidendi

Properly construed in its statutory and factual context, including cl.13 of Interim Development Order No. 42 and the purpose of legitimising the existing retail activity, the 1978 development consent sanctioned use of the new building for retailing goods of the types and range sold before 1978. Because there had been no material change in use between 1978 and 1989, the respondents' use was lawful and constituted an existing use under s.106 of the Environmental Planning and Assessment Act, capable of continuation under s.107 despite Liverpool Local Environmental Plan No. 149. The consent did not confine sales to fruit and vegetables. However admitted breaches of Conditions 1 and 6...

Court Disposition

Application allowed in part; prohibitory and mandatory injunctions granted in limited terms and suspended for six months; broader relief restraining use as a shop or roadside stall and relief limiting sales to fruit and vegetables refused.

Orders

  • ['Order that each of the Respondents, by themselves, their agents and servants be restrained from using the roadside stall situate on the property known as lots 29-31 Section B Deposited Plan 1443, Campbelltown Road, Ingleburn otherwise than in compliance with Conditions 1 and 6 of the development consent (No....