Penrith City Council v Konemann [2017] NSWLEC 79

Penrith City Council v Konemann [2017] NSWLEC 79

The use of Lot 40 was found to be a prohibited innominate purpose under the Penrith Local Environmental Plan 2010, falling within 'any other development not specified' in relevant land use tables. The prohibited use was most properly characterised as a junk yard. The activities and quantities of materials present exceeded any reasonable ancillary use to lawful residential or hobby purposes. Penrith Council satisfied its onus on the balance of probabilities; the burden then shifted to the respondents, who failed to show existing use rights or ancillary lawful use. Orders were granted to cease the prohibited use, remove materials, and authorise compliance and Council access to the land.

Jurisdiction
Australia
Judgment Date
03 July 2017
Procedural Posture
Civil Enforcement (class 4) / Final Judgment and Orders
Outcome
Declaration that Lot 40 is used for a prohibited purpose in breach of s 76B of EPA Act; consequential orders granted.
Legal Topics
['prohibited Land Use' 'development Consent' 'civil Enforcement' 'ancillary Use' 'statutory Orders']
['environmental Law' 'planning and Development Law' 'local Government Law'] ['prohibited Land Use' 'development Consent' 'civil Enforcement' 'ancillary Use' 'statutory Orders']

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Procedural Posture

Civil Enforcement (class 4) / Final Judgment and Orders

Legal Issues

  1. 1 ['Whether Lot 40 is being used for a prohibited purpose under the local environmental plan' 'Whether the applicant bears the onus to prove absence of development consent' 'Whether the use is properly characterised as junk yard, storage premises or waste or resource management facility' 'Whether prohibited use is ancillary to lawful residential use' 'Validity and breach of statutory orders issued under Local Government Act and Environmental Planning and Assessment Act']

Ratio Decidendi

The use of Lot 40 was found to be a prohibited innominate purpose under the Penrith Local Environmental Plan 2010, falling within 'any other development not specified' in relevant land use tables. The prohibited use was most properly characterised as a junk yard. The activities and quantities of materials present exceeded any reasonable ancillary use to lawful residential or hobby purposes. Penrith Council satisfied its onus on the balance of probabilities; the burden then shifted to the respondents, who failed to show existing use rights or ancillary lawful use. Orders were granted to cease the prohibited use, remove materials, and authorise compliance and Council access to the land.

Court Disposition

Declaration that Lot 40 is used for a prohibited purpose in breach of s 76B of EPA Act; consequential orders granted.

Orders

  • ['First Respondent (Grahame Konemann) to immediately cease using Lot 40 for the prohibited purpose identified in the declarations.' 'Third Respondent to have access to Lot 40 to identify and remove personal property, unimpeded by First Respondent.' 'Penrith Council and First Respondent to, within 14 days, prepare an...