Warringah Council v Ulrich [1999] NSWLEC 227

Warringah Council v Ulrich [1999] NSWLEC 227

The council did not prove that the goods stored on the respondent's land were scrap materials or otherwise within the LEP definition of a junk yard. However, the volume, range and extent of the goods stored and displayed around the dwelling went well beyond ordinary residential storage and was not ancillary to the dwelling house use. It was a distinct and separate innominate use requiring development consent under the LEP, and because no consent had been granted, the use was illegal.

Jurisdiction
Australia
Judgment Date
24 September 1999
Procedural Posture
Land and Environment Court Proceedings Concerning Alleged Illegal Land Use and Development Consent / Reasons for Judgment; Applicant Directed to Bring in Form of Orders
Outcome
The council was found entitled to a declaration and restraining orders; the use of the land surrounding the dwelling house for storage and display purposes was held to be an illegal innominate use requiring development consent, but not a junk yard use.
Legal Topics
['development Consent' 'residential Zoning' 'alleged Junk Yard Use' 'innominate Use' 'ancillary Use and Independent Use' 'illegal Land Use']
['planning and Environment Law' 'local Government Law'] ['development Consent' 'residential Zoning' 'alleged Junk Yard Use' 'innominate Use' 'ancillary Use and Independent Use' 'illegal Land Use']

Case Brief

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Procedural Posture

Land and Environment Court Proceedings Concerning Alleged Illegal Land Use and Development Consent / Reasons for Judgment; Applicant Directed to Bring in Form of Orders

Legal Issues

  1. 1 ['Whether the respondent was using the land for the purpose of a junk yard as defined in Warringah Local Environmental Plan 1985.' 'Whether, if the use was not a junk yard, the storage, collection and display of goods on the land was an innominate use requiring development consent.' 'Whether the storage and collection of goods was ancillary to the use of the premises as a dwelling house or a distinct and separate use.']

Ratio Decidendi

The council did not prove that the goods stored on the respondent's land were scrap materials or otherwise within the LEP definition of a junk yard. However, the volume, range and extent of the goods stored and displayed around the dwelling went well beyond ordinary residential storage and was not ancillary to the dwelling house use. It was a distinct and separate innominate use requiring development consent under the LEP, and because no consent had been granted, the use was illegal.

Court Disposition

The council was found entitled to a declaration and restraining orders; the use of the land surrounding the dwelling house for storage and display purposes was held to be an illegal innominate use requiring development consent, but not a junk yard use.

Orders

  • ['The applicant council was directed to bring in the form of orders reflecting the determination within seven days.' 'After a further period of seven days, either party had liberty to restore for the purpose of settling final orders on two days notice.' 'If no application was made within 21 days from the judgment...