Warringah Council v Swain [2010] NSWLEC 68

Warringah Council v Swain [2010] NSWLEC 68

The prolonged storage in the front yard of residential premises of a dilapidated 10 metre marine vessel formerly used as a commercial fishing trawler was a use of land constituting development, was not ancillary to use of the land as a dwelling house and was not a domestic hobby, and no development consent had been granted. The respondent also failed to comply with a validly served order under s 124 of the Local Government Act 1993 requiring removal of the vessel, whose unsightly condition in the immediate vicinity of a public place justified the order.

Jurisdiction
Australia
Judgment Date
03 May 2010
Procedural Posture
Class 4 Civil Enforcement Proceedings Seeking Declaratory Orders and Injunctive Relief / Ex Tempore Judgment
Outcome
Declarations made and mandatory injunction granted; respondent ordered to pay the applicant's costs.
Legal Topics
['development Without Consent' 'storage of Commercial Fishing Trawler on Residential Premises' 'ancillary Use of Land for a Dwelling House' 'failure to Comply With Order Under S 124 of the Local Government Act 1993' 'mandatory Injunction']
['environmental Planning and Assessment' 'local Government' 'civil Enforcement'] ['development Without Consent' 'storage of Commercial Fishing Trawler on Residential Premises' 'ancillary Use of Land for a Dwelling House' 'failure to Comply With Order Under S 124 of the Local Government Act 1993' 'mandatory Injunction']

Case Brief

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Procedural Posture

Class 4 Civil Enforcement Proceedings Seeking Declaratory Orders and Injunctive Relief / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether storing a 10 metre marine vessel formerly used as a fishing trawler in the front yard of residential premises constituted development requiring consent under the Environmental Planning and Assessment Act 1979.' 'Whether the storage or repair of the vessel was ancillary to the use of the land as a dwelling house or a domestic hobby.' "Whether works done to remove the vessel's superstructure constituted use of the land for the purpose of repairing the vessel." 'Whether the respondent failed to comply with an order issued under s 124 of the Local Government Act 1993 requiring removal of the vessel due to its unsightly condition.']

Ratio Decidendi

The prolonged storage in the front yard of residential premises of a dilapidated 10 metre marine vessel formerly used as a commercial fishing trawler was a use of land constituting development, was not ancillary to use of the land as a dwelling house and was not a domestic hobby, and no development consent had been granted. The respondent also failed to comply with a validly served order under s 124 of the Local Government Act 1993 requiring removal of the vessel, whose unsightly condition in the immediate vicinity of a public place justified the order.

Court Disposition

Declarations made and mandatory injunction granted; respondent ordered to pay the applicant's costs.

Orders

  • ['Declare that the defendant is carrying out development on Lot 4, DP31708, being premises known as 3 Wentworth Place, Belrose, by storing on that land a 10 metre marine vessel or boat, formerly used as a fishing trawler, without having obtained development consent so to do.' 'Declare that the defendant has failed...