Shoalhaven City Council v Mitchell & Anor [1987] NSWLEC 1

Shoalhaven City Council v Mitchell & Anor [1987] NSWLEC 1

Retail plant nursery use was prohibited on the subject land by the Shoalhaven Local Environmental Plan 1985, and clause 9 did not override that prohibition. The proposed section 102 modification would permit a prohibited and substantially different retail use and therefore could not be allowed. The evidence showed habitual retail sales to the general public comprising about 20% of gross takings, which were a separate and distinct use rather than merely ancillary to landscaping activity. The breach was serious and blatant, and discretionary injunctive relief should not be refused, although orders should be framed to allow sales truly ancillary or incidental to permitted use and may be...

Jurisdiction
Australia
Judgment Date
23 March 1988
Procedural Posture
Class 4 Application for Declarations and Restraining Order, Heard With Two Class 1 Appeals Against Refusals Concerning Retail Nursery Use and Modification of a Consent Condition / Judgment
Outcome
The two Class 1 appeals were dismissed. In the Class 4 application, the Court held that injunctive relief should not be refused but stood the matter out for draft minutes of orders and submissions on postponement.
Legal Topics
['prohibited Development Under Local Environmental Plan' 'retail Plant Nursery Use' 'modification of Development Consent Conditions' 'ancillary or Incidental Use' 'injunctive Relief for Breach of Planning Laws']
['environmental and Planning Law' 'land Use and Development Control'] ['prohibited Development Under Local Environmental Plan' 'retail Plant Nursery Use' 'modification of Development Consent Conditions' 'ancillary or Incidental Use' 'injunctive Relief for Breach of Planning Laws']

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

Class 4 Application for Declarations and Restraining Order, Heard With Two Class 1 Appeals Against Refusals Concerning Retail Nursery Use and Modification of a Consent Condition / Judgment

Legal Issues

  1. 1 ['Whether the Shoalhaven Local Environmental Plan 1985 permitted a retail plant nursery on land zoned Rural 1(b) and Special Uses 5(d) if zone objectives were satisfied.' 'Whether section 102 of the Environmental Planning and Assessment Act could be used to modify condition 3 of the 1982 consent to permit retailing up to 20% of gross turnover.' 'Whether retail sales to the public were ancillary or incidental to the permitted landscaping or wholesale nursery use, or constituted a separate prohibited use.' 'Whether the Court should exercise its discretion to refuse injunctive relief despite breach of planning laws.']

Ratio Decidendi

Retail plant nursery use was prohibited on the subject land by the Shoalhaven Local Environmental Plan 1985, and clause 9 did not override that prohibition. The proposed section 102 modification would permit a prohibited and substantially different retail use and therefore could not be allowed. The evidence showed habitual retail sales to the general public comprising about 20% of gross takings, which were a separate and distinct use rather than merely ancillary to landscaping activity. The breach was serious and blatant, and discretionary injunctive relief should not be refused, although orders should be framed to allow sales truly ancillary or incidental to permitted use and may be...

Court Disposition

The two Class 1 appeals were dismissed. In the Class 4 application, the Court held that injunctive relief should not be refused but stood the matter out for draft minutes of orders and submissions on postponement.

Orders

  • ['The two Class 1 applications are dismissed.' 'The matter is stood out of the list to enable legal representatives to bring in draft minutes of orders and to address the Court, if desired, on an appropriate postponement of the orders.' "The Mitchells are to pay the Council's costs of each application, including the...