I have before me Byron Shire Council's notice of motion filed today in court which I am hearing today on an urgent basis as duty judge.
A number of detailed orders are sought. I have dealt with prayer 1 which is that the matter be returnable before me today. I will come in due course to the balance of orders sought at prayers 2-6. The matter was by summons on 30 July 2024 and concerns what Byron Shire Council (the Council) alleges are unlawful buildings and their use by the First Respondent (owner) and Second Respondent (occupier) on a property in Skyline Round, Middle Pocket. The relevant principles that I have to consider in terms of whether I am going to issue the orders sought on an interlocutory basis are whether there is a serious question to be tried and what the balance of convenience favours in relation to the grant of an interlocutory order of injunction, as identified in many cases with the seminal case being Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148, [153]-[154]. The Council is not offering an undertaking as to damages. The Council is undertaking the proceedings as the relevant regulator of development in the Byron Shire Council area.
I have before me numerous affidavits helpfully summarised in the written submissions of Mr Coffey. An affidavit of My Dylan Johnston of 30 September 2024 is before me. He is a town planner of the Council and for today's purposes is that he has undertaken an assessment as part of his duties in relation to the influx of tourists into the Byron Shire in the forthcoming or current spring summer season. He identifies that a number of buildings are being used at the property for habitation for short-term tourist use for which there is currently no development consent. There is currently no plan of management in existence for this use. Therefore entities such as Emergency Services organisations are not necessarily alert to the activity going on. I have been directed to the fact that in the absence of development consent, issues such as access by four-wheel drive only are of considerable concern to the Council.
I also have the affidavit of Mr Spooner, building certifier, of 4 October 2024 who has inspected the property and identifies a number of extensive non-compliances of the building structures marked on the map attached to the notice of motion. I am particularly dealing with buildings B, C, D and E and F for the purposes of these orders. Non-compliances identified include balconies without balustrades, access ways with railings, absence of fire rating relevant material and ember attack material, and windows which open directly to the ground amongst other matters. This evidence is supported by Mr Cook, ranger and compliance officer, who has also visited the property and taken additional photos.
Mr Brodie, compliance leader, has sworn an affidavit on 8 October 2024, which sets out the regulatory history of the matter from the Council's point of view. For current purposes this does not appear to have been criticised or objected to by the Respondents today. The matter has been brought on quickly, and the reason for that provided by the Council is because of the imminent advent of the bushfire season being of concern to the Council given the use of the remote accommodation for short-term rental. The affidavit of Ms Cecilia Rose, the Council's solicitor, of 13 November 2024 attaches extensive records of the STR (Short-term rental index) which shows that each of the individual structures is rented out separately with records from 2022 and continuing into January 2025. The use which the Council considers to be unlawful is continuing.
The description of the relevant planning controls is helpfully set out in Mr Coffey's submissions. He identifies that the property is partially zoned rural landscape, environmental management and environmental conservation, with possibly some general rural zone zoning of the property. The property is heavily vegetated. The zoning history is also set out. Those controls would generally require that the structures on the property have development consent.
The Respondents are yet to file a defence in the proceedings. Their solicitor today is not sure precisely what that defence is going to be but anticipates it may be reliant on existing use rights.
I was taken by the Respondent's solicitor to a letter of complaint about the nature of particulars supplied by the Council in response to an extensive request for particulars sent by the Respondent's solicitor. I consider the response provided by Ms Rose in the letter of 13 November 2024 attached to her affidavit is comprehensive and extensive. As Mr Coffey indicated, in fact a lot of the particulars are already the subject of evidence provided by the Council. It seems to me the Council has done an excellent job of providing the details of its case. I think these should be well known to the Respondents, and it would have been easily open by now to the Respondents to have identified the basis for their case. If it does turn out to be reliance on existing use rights, I note the advice of Mr Coffey at pars 7-9 that in Wookey v Byron Shire Council [2022] NSWLEC 1650, a Class 1 appeal of a stop use order of a cabin on the property based on existing use rights was unsuccessful. All of that leads me to conclude firmly that there is a serious question to be tried, and I am therefore minded to decide that aspect in the Council's favour.
It is clear from the evidence provided in Ms Cecilia Rose's affidavit that there is ongoing advertising of these buildings for tourist and visitor accommodation. Mr Coffey has extracted the terms of some of that advertisement at pars 32 and 33 of his written submissions. I particularly note that some of the terms used include unapproved habitable buildings being on offer with a reference to lacking sealed paths or railings within the actual terms of the online advertisements. In another example the accommodation is described as non-habitable as it is a tree house. This is further reason for why the Council has commenced the case.
I have also been referred to correspondence between the First Respondent, Mr Wookey, to the Commissioner of the NSW Rural Fire Service of 17 August 2024. Mr Wookey wrote to express concern about a rural fire service classified fire trail, which is partly on his land and partly on his neighbour's land, that is blocked by the neighbour's locked gates. He is concerned about emergency access being necessary along this road in the event of fire or flood and says that there is no other emergency access available that is open and accessible. He is concerned that his livestock, home and buildings are at risk. In response, the Commission advised that the Rural Fire Service had inspected the road reserve and determined the vegetation was predominantly rainforest ecosystem. It was considered of likely low intensity bushfire risk. The Respondent's solicitor submitted this suggested the circumstances are not as urgent as the Council submits.
The location of the property is in a very heavily vegetated area, with limited access. The main usable road access is by four-wheel drive only. The bushfire danger period commenced on 1 October 2024. The Commissioner was not asked to address at all the fact that there is potentially unlawful commercial use of numerous dwellings in a heavily wooded area. I do not find that the Commissioner's conclusion precludes me from forming the view that there is a potentially serious environmental issue. All of which results in me concluding that the balance of convenience favours issuing the orders sought by the Council. As discussed the orders sought need to be slightly amended.
The Court orders:
1. An order that, until further order, within 3 days from the date of this order the First Respondent, and his agents, servants and contractors be restrained from carrying out or permitting the carrying out of development (Development, as that term is defined in the Environmental Planning and Assessment Act 1979) (EPA Act), being the occupying or using; or causing, permitting or authorising the occupation or use, of the four buildings located on Lot 2 in DP 208063 and known as 333 Skyline Road Middle Pocket NSW (the Land) as shown on the plan annexed and marked 'A' to these orders as buildings ' 'B', 'C', 'E' and 'F' (the 4 Buildings) for any purpose:
1. that is prohibited under the zoning of the Land under the Byron Local Environmental Plan 2014 (BLEP), or
2. that requires development consent unless or until development consent has been granted for that development or until further order.
1. An order that, until further order, within 3 days from the date of this order the First Respondent, and his agents, servants and contractors be restrained from carrying out or permitting the carrying out of Development being the occupying or using; or causing, permitting or authorising the occupation or use, of all of the dwelling house on the Land known as the Treehouse approved by the Applicants building approval No. 6.19782154.1 dated 11 July 1978 (the Dwelling House) as shown on the plan annexed and marked 'B' to these orders as building 'D' , for any purpose other than as a single dwelling house.
2. An order that within 2 days from the date of this order, the First Respondent and Second Respondent:
1. take all necessary actions and steps to remove or delete, any advertising, listing, post or publication in any way or form that any of the 4 Buildings or the Dwelling House can be used and occupied for any period or periods by any third parties, whether for financial gain or otherwise; and
2. not create or cause to be created any advertising, listing, post or publication in any way or form that any of the 4 Buildings or the Dwelling House can be used and occupied for any period or periods by any third parties, whether for financial gain or otherwise.
1. An order that within 3 days of complying with Order 4, the First Respondent cause evidence to be provided to the solicitor for the Applicant confirming:
1. compliance with Order 4(a) has been completed;
2. persons who have booked to use the 4 Buildings, whether directly with the First Respondent, Second Respondent or through a third party agent or website, have been advised of these orders or that the booking cannot proceed.
1. An order pursuant to rule 23.8 of the Uniform Civil Procedure Rules 2005 (UCPR) that the Applicant (including its servants agents and contractors) is authorised to enter the Land and inspect the curtilage, the external areas and the internal areas of the 4 Buildings and the building which is also shown on the plan annexed and marked 'A' to these orders as the 'BW Cabin' in accordance with the following:
1. 48 hours notice to be given by the Applicant to the Respondents;
2. the notice is to be given by email to the Respondents at the following email addresses: [redacted] (Robin Wookey) and [redacted] (Benjamin Webster), or as otherwise advised by the Respondent.
3. the Applicant (by its servants, agents or contractors) is authorised to do anything necessary to gain access to the Land or any of the 4 Buildings and the BW Cabin for the purpose of inspections (Inspections).
4. as part of carrying out the Inspections, the Applicant (by its servants, agents or contractors) is authorised to:
1. examine and inspect;
2. take measurements;
3. make such examination, inquiries or tests as the Applicant, their servant, agent or contractor, thinks necessary;
4. take photographs, films, audio, video and other recordings;
5. open draws, cupboards, receptacles, doors and similar receptacles;
6. take and remove samples of any item for the purpose of testing, examination or analysis.
[2]
Annexure A
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Decision last updated: 10 December 2024