Blacktown City Council v Hambly

Land and Environment Court (NSW)|2020-08-26|Before: Preston CJ

Solicitors: Bartier Perry (Applicant) File Number(s): 2019/323765 Publication restriction: Nil

The Council seeks to restrain statutory breaches

Blacktown City Council (the Council) has brought proceedings under s 9.45 of the Environmental Planning and Assessment Act 1979 (EPA Act) to remedy and restrain breaches of the EPA Act committed by Mr Derek Hambly.
Mr Hambly is the owner of rural land at Riverstone, being Lots 1 and 2, Section O, Deposited Plan 1653 known as Milton Street, Riverstone, and Lots 19 and 20, Section O, Deposited Plan 1653 known as Trafalgar Street, Riverstone (the land). Mr Hambly has erected or authorised other persons to erect at least three caravans/camp trailers, three canvas tents, two camping cubicles, a large structure comprising multiple temporary shade structures with a tarpaulin roof and other standalone temporary shade structures on the land, as well as on the adjacent unsealed road areas known as Argyle Lane, Milton Street and Trafalgar Street (the adjacent roads) and neighbouring lands including Lots 3 and 4, Section O, Deposited Plan 1653, known as Milton Street, Riverstone, and Lots 17 and 18, Section O, Deposited Plan 1653, known as Trafalgar Street, Riverstone (the neighbouring land).
The Council contended that these various caravans, tents and structures have been erected and are being used illegally.

The court process and directions are served

The Council commenced these proceedings on 16 October 2019. On 24 October 2019, Mr Clark Shaw, a licensed process server, served Mr Hambly with a letter from the Council's solicitor dated 17 October 2019; the summons commencing the proceedings filed on 16 October 2019; an affidavit of Laura Raffaele sworn 15 October 2019 attaching, amongst other documents, the Council's solicitor's letters before action dated 28 February 2019 and 16 April 2019 requiring Mr Hambly to cease using and to remove the unauthorised structures or proceedings will be brought in the Court for orders that he do so; and an affidavit of Jason Roberts sworn on 15 October 2019 describing his inspections of the land, identifying by words and photographs the unauthorised structures on the land, and attaching the notice of intention to issue an order, the order, and various letters requiring Mr Hambly to cease use of and to remove the unauthorised structures. Mr Shaw stated that he served the documents by placing them in a sealed addressed envelope and then placing them in a mailbox at 100 Carnarvon Road, Riverstone. He knocked on the front door and called out for the occupants but gained no response (as stated in Mr Shaw's affidavit of service of 29 October 2019).
The first return of the summons was on 15 November 2019. Both the Council's legal representative and Mr Hambly attended the directions hearing. Mr Hambly's attendance establishes that he was successfully served with the summons and affidavit. The presiding judge, Duggan J, suggested Mr Hambly approach the NSW Bar Association seeking to obtain pro bono legal representation. The proceedings were adjourned to 13 December 2019.
On 13 December 2019, the Council's legal representative and Mr Hambly appeared at the directions hearing. The presiding judge, Pain J, made orders that the Council serve any further affidavits in chief, bundle of tender documents and points of claim by 31 January 2020 and adjourned the proceedings to a directions hearing on 21 February 2020. The judge noted that Mr Hambly was to advise of his efforts to obtain legal advice from the NSW Bar Association's pro bono scheme on 21 February 2020.
On 21 February 2020, the Council's legal representative and Mr Hambly appeared at the directions hearing. The presiding judge, Pain J, provisionally set the matter down for mediation on 4 March 2020, to be confirmed with the Registrar, and otherwise adjourned the proceedings to 6 March 2020 if the mediation were to be unsuccessful. On the same day, the Assistant Registrar confirmed the mediation on 4 March 2020.
On 4 March 2020, the Council's legal representative and Mr Hambly attended the mediation. The mediation was unsuccessful and the mediator, the Assistant Registrar, terminated the mediation.
On 6 March 2020, the scheduled directions hearing took place. The Council's legal representative appeared but this time Mr Hambly did not appear. The presiding judge, Duggan J, directed that Mr Hambly serve his affidavits in chief and bundle of any additional documents by 17 April 2020 and the Council serve any affidavits in reply and bundle of any additional documents by 1 May 2020 and fixed the matter for hearing on 26 and 27 August 2020. Other usual directions for hearing were also made.
On 10 March 2020, the Council's solicitor sent an email to Mr Hambly explaining what had occurred at the directions hearing on 6 March 2020 and attaching a copy of the orders made by the Court. Both the email and the Court orders stated that the matter was fixed for hearing on 26 and 27 August 2020.
On 9 June 2020, the Council's solicitor emailed Mr Hambly noting that the proceedings remained listed for hearing on 26 and 27 August 2020 and that the Court had made orders requiring Mr Hambly to file and serve his evidence by 17 April 2020, but the Council's solicitor noted that she had not received any evidence. The Council's solicitor asked if he required an extension of time for the filing of his evidence and advised that if he did not respond by 12 June 2020, the Council would relist the matter before the Court for further directions.
On 10 June 2020, Mr Hambly replied by email to the Council's solicitor's email of 9 June 2020. Mr Hambly's reply was not directly responsive to the Council's solicitor's inquiry about when he was intending to file and serve his evidence. Mr Hambly's reply was in the following terms: "Kenneth Fitzgerald (Blacktown City Council) matter is currently under investigation by Councillor Singh, Ward One. This matter requires a Freedom of Information. 20 business days by Blacktown City Council. Blacktown City Council was directed to assist us. We have not received the several items as requested. Laura knows about our plan. Obviously, there is a disconnect. We are seeking written responses by various Government agencies. Until that has been finalised"
The fact that Mr Hambly did reply to the Council's solicitor's email of 9 June 2020, showed that he had received the Council's solicitor's email. As noted earlier, this email advised again that the proceedings had been listed for hearing on 26 and 27 August 2020.
On 22 June 2020, the Council's solicitor made an Online Court request seeking to have the matter relisted for a directions hearing. On 23 June 2020, the Registrar listed the matter for a directions hearing on 26 June 2020.
On 24 June 2020, the Council's solicitor emailed Mr Hambly advising that the matter had been relisted for a directions hearing on 26 June 2020 to seek a change in the timetable for filing of evidence. The Council's solicitor noted that the hearing was listed on 26 and 27 August 2020 and asked Mr Hambly how much further time he would require to file his evidence. Mr Hambly did not reply to this email.
On 26 June 2020, the Council's legal representative appeared but Mr Hambly did not appear. The presiding judge, Robson J, adjourned the proceedings for a further directions hearing on 3 July 2020 and noted that the Council is to make further effort to contact Mr Hambly in advance of the next directions hearing.
On 1 July 2020, the Council's solicitor, Ms Ayas, telephoned Mr Hambly on his mobile telephone and had a conversation as follows: "He said: Hello. I said: Hi. My name is Julide. I'm calling from Bartier Perry acting for Blacktown City Council with respect to class 4 proceedings of the Land Environment Court."
Ms Ayas said that once she introduced herself, the phone was disconnected. She attempted to redial the same number, but there was no answer. Afterwards, on the same day, the Council's solicitor emailed Mr Hambly noting that she had tried to contact him on his mobile but had been unsuccessful and again asked him how much time he needed to file his evidence, but Mr Hambly did not reply.
On 2 July 2020, the Council's solicitor again tried to ring Mr Hambly twice on his mobile and sent him an email seeking his response to the earlier emails of 26 June 2020 and 1 July 2020.
On 3 July 2020, the Council's solicitor appeared but Mr Hambly did not appear at the directions hearing. The presiding judge, Robson J, made orders confirming the hearing dates of 26 and 27 August 2020, extending the time for Mr Hambly to file and serve his evidence until 17 July 2020, directing the orders made on 3 July 2020 be provided to Mr Hambly, extending the time for the Council to file and serve its evidence in reply until 31 July 2020, and listing the matter for a pretrial mention on 12 August 2020.
On 3 July 2020, the Council's solicitor emailed Mr Hambly notifying him of the orders made by the Court that morning at the directions hearing.
On 8 July 2020, the Court listed the matter for Online Court on 14 July 2020 to allow the parties to advise the Court whether the hearing should be held in person in court or remotely by Microsoft Teams.
On 9 July 2020, the Council's solicitor emailed Mr Hambly seeking his consent to have the matter heard by Microsoft Teams. Mr Hambly did not reply.
On 14 July 2020, the Council's solicitor lodged an Online Court communication advising that the Council preferred for the hearing to be conducted by Microsoft Teams, but advising the Court that the Council had been unable to obtain a response from Mr Hambly regarding the method by which he would prefer the hearing to be conducted.
Later on 14 July 2020, the Court ordered that both the pretrial mention on 17 August 2020 and the hearing on 26 and 27 August 2020 be conducted by Microsoft Teams.
On 14 August 2020, the Council's solicitor emailed Mr Hambly noting that the directions made on 3 July 2020 extended the time for Mr Hambly to file and serve his evidence until 17 July 2020, but that the Council had not been served with any evidence by Mr Hambly. The Council's solicitor reminded Mr Hambly of the pretrial mention listed for 17 August 2020 by Microsoft Teams and asked him to provide his email address to the Court if he wanted to attend.
On 17 August 2020, the pretrial mention was held before me. The Council's solicitor appeared but Mr Hambly did not appear. I suggested that the Council make further efforts to serve Mr Hambly personally with the summons, the Council's evidence, the bundle of documents and various orders made by the Court. I also asked the Council's solicitor to advise Mr Hambly that if he preferred to attend the hearing in person in court instead of remotely by Microsoft Teams, he should advise the Council and the Court and an in person hearing in court could be arranged.
On 19 August 2020, the Council's solicitor wrote a letter to Mr Hambly at three different addresses: 24 Trafalgar Street, Riverstone, Lots 1 and 2 Milton Street, Riverstone, and 100 Carnarvon Road, Riverstone. Each letter confirmed that the proceedings were listed for hearing on 26 and 27 August 2020 and that, because of the COVID-19 pandemic, the hearing will be conducted by Microsoft Teams. Mr Hambly was advised that if he wanted to attend the hearing he will need to notify the Court of his email address to enable the Court to send a Microsoft Teams invitation to him and to the Council. Mr Hambly was also advised that if he would prefer to have the matter heard in person in court rather than by Microsoft Teams, he should let the Council's solicitor know so that arrangements could be made with the Court to hold an in person hearing in court.
Each letter set out the orders sought in the summons; referred to and attached the Council's evidence, both the affidavits and the bundle of documents; summarised various orders that had been made by the Court; advised of the consequences of not attending the hearing, including that the Court may make orders in his absence that he cease using and remove the unauthorised structures on the land and ordering him to pay the Council's costs of the proceedings.
On 20 August 2020, a licensed process server, Mr Mark Smith, attempted to serve the Council's solicitor's letter of 19 August 2020 and the Council's affidavits and bundle of documents on Mr Hambly at the vacant land at Lots 1 and 2 Milton Road, Riverstone, and the other vacant land at 24 Trafalgar Street, Riverstone, but as there were no structures or letterboxes present at which he could leave the documents, he was unable to serve the documents.
Mr Smith was able, however, to serve the Council's solicitor's letter of 19 August 2020 and the Council's affidavits and bundle of documents on Mr Hambly at 100 Carnarvon Road, Riverstone. There was a caravan on the land, which was surrounded by a locked gate that denied access to the caravan. Mr Smith honked his car horn but found no response from any occupants of the caravan. He noted a letterbox next to the gate and saw mail addressed to "Vanessa Hambly" spilling out. He placed the documents in a sealed envelope addressed to Mr Hambly and left the envelope on top of the letterbox belonging to the property.
On 20 August 2020, the Council's solicitor emailed Mr Hambly attaching a further copy of the letter of 19 August 2020. The email confirmed the hearing would commence on Wednesday 26 August 2020 by Microsoft Teams.
This chronology establishes that Mr Hambly has been served with the summons, the various court orders, including orders fixing or confirming the hearing of the proceedings on 26 and 27 August 2020, and the Council's evidence, both the affidavits and the bundle of documents. Mr Hambly is well aware of the nature of the proceedings and the orders that the Council seeks that he cease using and remove the unauthorised structures on the land. Mr Hambly attended early directions hearings and the mediation at which the Council's case against him was explained. He is aware that at the hearing on 26 and 27 August 2020 the Council will be seeking orders that he cease using and remove the unauthorised structures on the land, regardless of whether he attends the hearing.
Mr Hambly has deliberately chosen not to attend the hearing in order to contest the Council's case. Any prejudice he might suffer by the hearing being conducted in his absence is self-inflicted. In these circumstances, I consider that it is fair for the hearing to proceed today notwithstanding that Mr Hambly is not attending the hearing and contesting the Council's case.

Unauthorised structures are erected and used

The Council read affidavits of Jason Roberts sworn 15 October 2019 and 4 February 2020 describing his inspections of the land and observations of the caravans, tents and other structures erected and used on the land. In addition, Mr Roberts gave oral evidence at the hearing today describing his most recent inspection and observations yesterday, 25 August 2020.
Mr Roberts' first inspection of the land was on 12 October 2017. The inspection was prompted by concerns received by the Council that a town had been set up on the property. Mr Roberts observed several structures, including caravans, tents and other makeshift shelters, as well as electricity cables running into the property. Mr Roberts spoke to a man, who did not identify himself, who refused to allow Mr Roberts to inspect the property. The man said: "No, you cannot inspect the property. I should be notified of an inspection in writing. I have been here for 40 years", amongst other things.
On 1 February 2018, Mr Roberts inspected the property again. He observed that the various structures that he had observed on the first inspection were still located on the land. Again, he was refused permission by a person on the property to inspect the property.
On 27 February 2018, Mr Roberts, with other Council officers as well as police officers, attended the property to execute a search warrant that the Council had obtained. Initially, upon arrival at the property, a man whom Mr Roberts believed to be Mr Hambly resisted the execution of the search warrant, but after questioning, the man allowed the inspection to be undertaken without further hindrance. During the inspection, Mr Roberts observed: "(a) There were multiple unauthorised structures located on the Property, consisting of four caravans/camp trailers, four tents and approximately nine other structures including portable showers, temporary shade structures and structures made from tarpaulin, poles and rope; (b) Signs of human habitation and people living on the Property, including food, waste and sleeping areas; (c) There were no sewage or septic systems on the Property; (d) There were no identifiable running water sources; (e) It appeared that all electricity to the Property was sourced from generators; (f) The conditions of the living areas were so poor that they posed a clear risk to the health and safety of the occupants; (g) A foul odour emanated from the Property during the entire duration of the inspection."
Mr Roberts traversed land which he believed to comprise the property. However, he noted that the property was in the middle of bushland and the lots were not clearly defined or recognisable. The structures and materials that Mr Roberts inspected were spread over a large distance. Mr Roberts considered that the structures were likely to encroach upon surrounding properties owned by Mr Hambly and unsealed road areas including Argyle Lane, Trafalgar Street and Milton Street.
On 23 July 2018, Mr Roberts undertook a further inspection of the property from a distance to see whether there had been a change in the number of structures present on the land. As he drove slowly past the land, he observed that the number of structures present had not been reduced since his inspection on 27 February 2018.
On 10 August 2018, the Council issued the development control order under Div 9.3 of the EPA Act on Mr Hambly requiring him to cease using the structures for human habitation and to remove all unauthorised structures from the land.
On 11 December 2018, Mr Roberts inspected the land from the unsealed road area known as Milton Street. Mr Roberts observed that the number of structures on the land remained unchanged. He also observed continued signs of human habitation evidenced by large amounts of waste materials and vehicles present on the land. He noted that the development control order dated 10 August 2018 had not been complied with.
On 24 September 2019, Mr Roberts undertook a further inspection of the land. He drove along Milton Street and parked opposite the unauthorised land use on the land. The photographs that he took showed that the structures that he had seen on previous inspections remained.
Mr Roberts also extracted Nearmap aerial photographs on 18 January 2018, 29 December 2018, 7 April 2019 and 16 August 2019. These aerial photographs show the number and the spread of structures on the land, the adjoining roads and neighbouring land.
On 30 January 2020, Mr Roberts undertook a further inspection. He observed that the unauthorised structures, including the tents and tarpaulins, remained unchanged. He also observed a pink and white seat, and a timber seat, positioned together under a tarpaulin, which Mr Roberts did not recall observing on previous inspections of the land.
On 25 August 2020, Mr Roberts undertook his most recent inspection. He observed not only the structures that had been there on previous occasions, but also further structures, including nylon tarpaulin structures. These further structures extended into the unformed road area of Trafalgar Street as well as on the land and neighbouring land. Mr Roberts observed that there were signs of ongoing habitation. A boom gate had been installed preventing access to the land. A white Ford Explorer vehicle that he had observed on previous occasions was parked in a different location. There continued to be a foul stench emanating from the land.
Mr Roberts obtained a recent Nearmap aerial photograph, which showed clearly the previous structures as well as the further structures on the land, adjoining roads and neighbouring land. The further structures are located in the unformed road of Trafalgar Street, as shown by the overlaid cadastre on the aerial photograph.

Breach of the EPA Act established

The land, adjoining roads and neighbouring land are zoned RU4 Primary Production Small Lots under Blacktown Local Environmental Plan 2015 (Blacktown LEP). The Land Use Table at the end of Pt 2 of Blacktown LEP specifies the development that may be carried out without consent or only with development consent and the development that is prohibited on land in the RU4 zone.
The only development that is permitted without consent is home occupation. A "home occupation" is defined in the Dictionary to Blacktown LEP to mean in part "an occupation that is carried on in a dwelling, or in a building ancillary to a dwelling, by one or more permanent residents of the dwelling". The definition continues to say what home occupation does not involve and does not include. The erection and use of the caravans, tents and other structures is not for the purpose of home occupation for a number of reasons, including that there is no evidence that the caravans, tents or other structures are used to carry on any occupation but rather are used for human habitation.
The Land Use Table for the RU4 zone specifies 26 types of development that are permitted with consent. The only types of development potentially relevant to the erection and use of the caravans, tents and other structures on the land, adjoining roads and neighbouring land are "bed and breakfast accommodation", "dwelling houses", "home businesses", "home industries", and "roads". Of these the most relevant would be "dwelling houses", but the other types of development need to be considered. I will start with the other types of development before addressing "dwelling houses".
"Bed and breakfast accommodation" is defined in the Dictionary to mean: "an existing dwelling in which temporary or short-term accommodation is provided on a commercial basis by the permanent residents of the dwelling and where - (a) meals are provided for guests only, and (b) cooking facilities for the preparation of meals are not provided within guests' rooms, and (c) dormitory-style accommodation is not provided."
On the Council's evidence, including the photographs, the elements of this definition are not satisfied. None of the caravans, tents or other structures are "an existing dwelling", being a dwelling that is lawful either because of the grant of development consent or by being an existing use. There is no evidence that the accommodation provided in the caravans, tents or other structures is "temporary or short term", or provided on a commercial basis by any permanent residents of any existing dwelling, or satisfies the criteria in paras (a), (b) and (c).
"Home business" is defined in the Dictionary to mean in part "a business that is carried on in a dwelling, or in a building ancillary to a dwelling, by one or more permanent residents of the dwelling". The definition continues to specify what a home business does not involve and does not include. There is no evidence that any business is carried on in any caravan, tent or other structure on the land, adjoining roads or neighbouring land.
"Home industry" is defined in the Dictionary to mean in part "a dwelling (or a building ancillary to a dwelling) used by one or more permanent residents of the dwelling to carry out an industrial activity". The definition continues to specify what a home industry does not involve and does not include. There is no evidence that any industrial activity is carried on in any caravan, tent or other structure on the land, adjoining roads or neighbouring land.
"Road" is defined in the Dictionary to mean "a public road or a private road within the meaning of the Roads Act 1993, and includes a classified road". Some of the caravans, tents or other structures are erected on the unsealed road areas known as Argyle Lane, Milton Street and Trafalgar Street. Regardless, however, of whether those unsealed road areas could be classified as a public road or private road within the meaning of the Roads Act 1993, these areas are not being used for the purpose of a road. The erection and use of caravans, tents or other structures on these areas is antithetical to the use of the areas as a road.
This brings me to "dwelling houses". A "dwelling house" is defined in the Dictionary to mean "a building containing only one dwelling". There are two elements here "building" and "dwelling". The second element, "dwelling", is defined to mean "a room or suite of rooms occupied or used or constructed or adapted as to be capable of being occupied or used as a separate domicile". The caravans, tents or other structures could potentially be seen to meet this definition of "dwelling".
The impediment, however, is the first element, "building". A "building" is defined in the Dictionary to have the same meaning as in the EPA Act. In s 1.4(1) of the EPA Act "building" is defined to include: "part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993."
While the caravans, tents and other structures could potentially be seen to fall within the inclusionary part of this definition, they also fall within the exclusionary part of the definition.
The Local Government Act 1993, in its Dictionary, defines a "moveable dwelling" to mean: "(a) any tent, or any caravan or other van or other portable device (whether on wheels or not), used for human habitation, or (b) a manufactured home, or (c) any conveyance, structure or thing of a class or description prescribed by the regulations for the purposes of this definition."
The term "manufactured home", referred to in para (b) of the definition of "moveable dwelling" is in turn defined in the Dictionary to the Local Government Act 1993 to mean: "a self-contained dwelling (that is, a dwelling that includes at least one kitchen, bathroom, bedroom and living area and that also includes toilet and laundry facilities), being a dwelling - (a) that comprises one or more major sections, and (b) that is not a motor vehicle, trailer or other registrable vehicle within the meaning of the Road Transport Act 2013, and includes any associated structures that form part of the dwelling."
On the evidence before the Court, the caravans and tents and such of the other shade structures that can be used for human habitation on the land, adjoining roads and neighbouring land fall within para (a) of the definition of "moveable dwelling", but not the definition of "manufactured home". The balance of the other structures would be "associated structures", that is, structures associated with the moveable dwelling.
This has the consequence that all of the caravans, tents and other structures on the land, adjoining roads and neighbouring land fall within the exclusionary part of the definition of "building" in the EPA Act of being a "moveable dwelling or associated structure within the meaning of the Local Government Act 1993", and hence are not buildings. Accordingly, irrespective of whether these moveable dwellings or associated structures might or might not contain only one dwelling, they cannot be a "dwelling house" as defined in the Dictionary to Blacktown LEP.
The upshot is that, on the evidence before the Court, the caravans, tents or other structures on the land adjoining roads and neighbouring land are not established to be any of the types of development that is permitted with consent in the RU4 zone.
The Land Use Table for the RU4 zone specifies the types of development that are prohibited to be agriculture and "any other development not specified in item 2 or 3". The erection and use of the caravans, tents and other structures on the land, adjoining roads and neighbouring land fall into this innominate category of prohibited development, as they are development not specified in item 2 (development permitted without consent) or item 3 (development permitted with consent).
It is not necessary to categorise the type of development that is carried on by the erection and use of the caravans, tents or other structures. It might be a camping ground or a caravan park or some other type of development, but the proper characterisation of the development being carried on is not dispositive. All that matters is that development, within the meaning of that term, is being carried out on the land, adjoining roads and neighbouring land, which development is not of a type specified as being permitted without consent or with consent. This is sufficient for the development to be prohibited.
The carrying out of development that is prohibited is a breach of s 4.3 of the EPA Act. Section 4.3 provides: "If an environmental planning instrument provides that - (a) specified development is prohibited on land to which the provision applies, or (b) development cannot be carried out on land with or without development consent, a person must not carry out the development on the land."
Mr Hambly, by erecting and using, or authorising other persons to erect and use, the caravans, tents and other structures on the land, adjoining roads and neighbouring land, where such development is prohibited, has breached s 4.3 of the EPA Act. This breach is a different breach to that identified in the first two of the declarations sought by the Council in the summons, which are breaches of s 4.2 of the EPA Act. The Council, however, applied at the hearing for alternative declarations of breach of s 4.3 of the EPA Act if the Court were to so find.
Mr Hambly has also breached s 9.37 of the EPA Act by failing to comply with the development control order dated 10 August 2018. Section 9.37(1) provides: "A person to whom a development control order is given or is taken to have been given must comply with the terms of the order."
The development control order dated 10 August 2018 required Mr Hambly to cease using the unauthorised structures within 90 days of 10 August 2018 and to remove the unauthorised structures within 120 days of 10 August 2018. Both of these time periods have long expired. On the evidence, Mr Hambly has neither ceased using nor removed the unauthorised structures by the required dates or at all. Mr Hambly continues to use the unauthorised structures to date.

Orders to remedy and restrain breaches

The Council seeks for the Court to make declarations that Mr Hambly has breached s 4.3 and s 9.37 of the EPA Act in these ways as well as orders that Mr Hambly cease using the unauthorised structures, remove the unauthorised structures, and reinstate the land to the condition or state in which it was immediately before the breaches were committed. The Court has power to make these orders under s 9.46(2)(a), (b) and (c) of the EPA Act.
In determining whether the Court should make the declarations and orders sought, the Council submitted that the Court would consider the nature of the breaches of the EPA Act, whether the breaches are technical, whether the breaches cause or are likely to cause harm to people or to the environment, and whether the orders would cause any hardship to Mr Hambly, referring to Lismore City Council v Vivian [2016] NSWLEC 108 at [14].
The Council submitted that the orders sought by it aid in the enforcement of the statutory framework regulating planning and safety of residents in New South Wales for a number of reasons: "(a) The unauthorised structures do not satisfy the requirements under Part 3.7 Fire Safety and Part 3.8 Health and Amenity of the Building Code of Australia 2016 (Volume 2) as detailed in the letter from Bartier Perry to the Respondent dated 28 February 2019 (see Annexure "A" to the Affidavit of Laura Raffele dated 16 October 2019). (b) There is also no record of an adequate effluent disposal system on the Subject Properties. (c) The Subject Properties also fall within the Category 1 Bushfire Zone , posing a high risk to the safety of the occupants of the unauthorised structures should a fire occur (see Folio Number 115 behind Tab 4 of the Applicant's Bundle of Documents for a copy of Council's Bushfire Prone Land Map). (d) The Subject Properties fall within a high-risk flood zone precinct, posing a high risk to the safety of the occupants of the unauthorised structures should a flood occur (see Folio Number 117 behind Tab 5 of the Applicant's Bundle of Documents for a copy of Council's Flood Prone Land Map). (e) The unauthorised structures may impact on the capacity for the storage of floodwaters in the flood zone. (f) The unauthorised structures may impact on the behaviour of floodwater flows within the floodplain."
The Council noted that Mr Hambly has been given notice of these amenity impacts in the letter from the Council's solicitor to him dated 28 February 2019.
There is no current lawful entitlement for Mr Hambly or other persons to live on the land, adjoining roads or neighbouring land. No development consent has been granted for any use of these lands, including for a dwelling house. No approval has been granted under s 68 of the Local Government Act 1993 to install and to occupy a moveable dwelling on the land, adjoining roads or neighbouring land.
The Council submitted that Mr Hambly has been aware of the Council's concerns since 29 March 2018, when the Council issued him with a notice of intention to issue an order. The Council's concerns were confirmed in the development control order dated 10 August 2018. Mr Hambly has not complied with the development control order dated 10 August 2018.
The Council noted that Mr Hambly, notwithstanding being given ample opportunity to do so, has not filed any evidence that would indicate that he would suffer any hardship if the Court makes orders for the removal of the structures on the land, either in terms of Mr Hambly being rendered homeless or by him suffering financial hardship by having to comply with the Court's orders.
I find that the Court should make declarations that Mr Hambly has breached the EPA Act in the various ways that I have found. I also consider that it is appropriate in the circumstances to make orders that Mr Hambly cease using and remove the unauthorised structures on the land, adjoining roads and neighbouring land, for the reasons advanced by the Council and summarised above.
I consider that longer periods of time should be allowed than sought by the Council in the summons. The Council sought that Mr Hambly and other persons immediately cease using the unauthorised structures and remove the unauthorised structures within 30 days of the Court's orders. These timeframes are insufficient for Mr Hambly and other persons living in the caravans, tents and other structures on the land, adjoining roads and neighbouring land to arrange alternative accommodation and to undertake the work. I consider that a period of three months should be sufficient time to allow Mr Hambly and the other persons to make alternative accommodation arrangements and to undertake the works ordered, including removing the structures.

Costs

The Council seeks an order that Mr Hambly pay the Council's costs of the proceedings. The proceedings are in Class 4 of the Court's jurisdiction. The usual rule for such proceedings is that costs follow the event; see s 98(1) of the Civil Procedure Act 2005 and r 42.1 of the Uniform Civil Procedure Rules 2005, which rules apply to proceedings in Class 4 of the Court's jurisdiction. The event is the outcome of the proceedings. Hence, the unsuccessful party should normally be ordered to pay the successful party's costs.
In this case, the Council has been successful in establishing that Mr Hambly has breached the EPA Act in various ways and in obtaining court orders declaring, remedying and restraining the breaches of the EPA Act. The Council should be awarded its costs of the proceedings.
The amount of the costs can be assessed in the usual manner. The Council will prepare and provide to Mr Hambly a bill of costs, assessed on the ordinary basis (see r 42.2 of the Uniform Civil Procedure Rules). Mr Hambly will have an opportunity to negotiate and agree on the amount of the costs. If agreement is not able to be reached, the amount of costs will need to be taxed by an assessing officer.

Orders

The Court: 1. Declares that, in breach of s 4.3 of the Environmental Planning and Assessment Act 1979, Mr Derek Hambly has carried out development that is prohibited by erecting or authorising other persons to erect on the following land, being: Lots 1 and 2, Sec. O, DP 1653 Milton Street, Riverstone; Lots 19 and 20, Sec. O, DP 1653, Trafalgar Street, Riverstone; the adjacent unsealed road areas known as Argyle Lane, Milton Street and Trafalgar Street; and neighbouring land including: Lots 3 and 4, Sec. O, DP 1653, Milton Street, Riverstone and Lots 17 and 18, Sec. O, DP 1653, Trafalgar Street, Riverstone, the following unauthorised structures: 1. Three (3) caravans/camp trailers; 2. Three (3) canvas tents; 3. Two (2) camping cubicles; 4. A large structure comprised of multiple temporary shade structures with a tarpaulin roof, located on the southern side of the land; and 5. Other standalone temporary shade structures and various structures made from tarpaulin, poles and rope (the unauthorised structures). 1. Declares that, in breach of s 4.3 of the Environmental Planning and Assessment Act 1979, Mr Derek Hambly has carried out development that is prohibited by occupying and using or authorising other persons to occupy and use the unauthorised structures on the land described in Order 1 for human habitation. 2. Declares that, in breach of s 9.37 of the Environmental Planning and Assessment Act 1979, Mr Derek Hambly has failed to comply with the terms of a development control order dated 10 August 2018 given to him by Blacktown City Council pursuant to Division 9.3 of the Environmental Planning and Assessment Act 1979. 3. Orders Mr Derek Hambly, within 3 months of the date of the Court's orders, to: 1. cease using the unauthorised structures on the land described in Order 1 for the purpose of human habitation; 2. remove all the unauthorised structures from the land described in Order 1; and 3. reinstate the land described in Order 1 to the condition or state it was in immediately before the unauthorised structures were erected on the land described in Order 1. 1. Orders Mr Derek Hambly to pay the Council's costs of the proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 September 2020

At a glance

Court

Decision date

Before

Source

Judgment (9 paragraphs)

Parties

Cases Cited (1)

Cited By (2)