Dobrohotoff v Bennic [2013] NSWLEC 61

Dobrohotoff v Bennic [2013] NSWLEC 61

The use of the property for short term holiday rental accommodation is not sufficient permanent occupation to constitute a 'dwelling-house' within the meaning of the Gosford Planning Scheme Ordinance and is prohibited development; declaratory and injunctive relief are appropriate to restrain this unlawful use.

Jurisdiction
Australia
Judgment Date
02 May 2013
Procedural Posture
Principal Judgment / Final Judgment
Outcome
Declaration made; injunction granted (stayed until 29 June 2013); notification order refused; costs order against respondent unless varied by notice of motion within 14 days.
Legal Topics
['development Consent' 'prohibited Development' 'declaratory and Injunctive Relief' 'residential Zone' 'short Term Holiday Accommodation']
['environmental Law' 'planning Law' 'civil Procedure'] ['development Consent' 'prohibited Development' 'declaratory and Injunctive Relief' 'residential Zone' 'short Term Holiday Accommodation']

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Procedural Posture

Principal Judgment / Final Judgment

Legal Issues

  1. 1 ['Whether short term holiday rental accommodation is prohibited development within the relevant zone' "Whether the property was 'for the purpose of' use as a 'dwelling-house'" "Whether the property was a 'dwelling'" "Whether the property was being used or occupied or capable of being used or occupied as 'a separate domicile'" 'Whether appropriate to make declaration and grant interlocutory relief']

Ratio Decidendi

The use of the property for short term holiday rental accommodation is not sufficient permanent occupation to constitute a 'dwelling-house' within the meaning of the Gosford Planning Scheme Ordinance and is prohibited development; declaratory and injunctive relief are appropriate to restrain this unlawful use.

Court Disposition

Declaration made; injunction granted (stayed until 29 June 2013); notification order refused; costs order against respondent unless varied by notice of motion within 14 days.

Orders

  • ['Leave to amend the summons is refused.' 'Court declares respondent has carried out prohibited development (use of land for short term holiday rental accommodation at 24 Charles Kay Drive, Terrigal).' 'Respondent restrained from using property for short term holiday rental accommodation (including advertising,...