Camden Council v Rafailidis

Land and Environment Court (NSW)|2012-09-18|Before: Biscoe J, Lloyd AJ

Judgment 1This is a motion by the applicant, Camden Council, for a variation of a stay of a demolition order made by the Court in these civil enforcement proceedings in Class 4 of the Court's jurisdiction or for such other order as the Court thinks fit. 2In 2008, the Council consented to a development application by the respondents, Mr Efrem Rafailidis and Mrs Koula Rafailidis, for the erection of a new dwelling on their land at 955 Camden Valley Way, Catherine Field. It was a condition of the consent that, prior to the issue of an occupation certificate and completion of the new dwelling, a separate development application be lodged with the Council for the demolition of an existing house on the land. It was also a condition of the consent that this existing single storey dwelling on the land be demolished and removed within 28 days of the completion of the new dwelling. 3The respondents erected the new dwelling but have not complied with those two conditions for the demolition of the old dwelling, which is fibro-clad. The respondents moved into the new dwelling and rented out the old dwelling. 4In 2010, the Council served the respondents with two orders under s 121B of the Local Government Act 1993 requiring them to comply with the conditions of the development consent. They did not comply. 5The Council then brought these Class 4 proceedings seeking to enforce compliance with the conditions of the development consent. In March 2012, Lloyd AJ heard and determined the proceedings by granting the orders sought in the summons: Camden Council v Rafailidis [2012] NSWLEC 51. His Honour held at [9] - [10]: 9 The respondents have known all along that the original dwelling had to be demolished following completion of the new dwelling. They have previously been served with two orders under s 121B of the Local Government Act 1993, on 25 March 2010, and on 27 June 2010, requiring them to comply with the development consent. The planning controls which are in place would be set at nought if persons could avoid complying with those controls and, in particular, avoid complying with the conditions of any development consent which has been granted. 10 Accordingly it is appropriate that the Court makes the orders sought in the summons. Those orders will be postponed for a period of 90 days to allow the respondents to either demolish and remove the existing single storey dwelling or else apply to the council by way of a modification application under s 96 of the Environmental Planning and Assessment Act 1979, or by way of a fresh development application to utilise the existing dwelling. 6His Honour made the following declaration and orders, at [11]:

CONSIDERATION 15In my opinion, Order 2 made by Lloyd AJ required that, within 90 days, either the old dwelling be demolished or its presence on the land be legalised by an appropriate development consent. This means that if a conditional development consent were obtained within the 90-day period, the consent had to become unconditional (in the sense of any conditions being satisfied) within the 90-day period. Only then would the presence of the old dwelling on the land be legalised. If that were not so, then if a conditional development consent were obtained within the 90-day period, Order 2 would permit the old dwelling to remain unlawfully on the land forever, or at least for five years until the consent expired, if the conditions were never satisfied. That is not a reasonable construction of Order 2. It is also repugnant to his Honour's reasoning in the last sentence of [9] of his judgment. In my opinion, the respondents would be in breach of Order 2 and in contempt of court unless there were a stay or extension of time for compliance with Order 2. 16On that construction, the respondents themselves propose that Order 2 be stayed permanently: see above at [14(b)]. At this point of the analysis, the issue between the parties is not whether there should be a stay but the terms of the stay. 17The conditions of the 2012 development consent warrant further consideration of the stay that I ordered in May 2012 because the old dwelling remains unlawfully on the land unless and until the work required by the conditions is carried out, and the work may never be carried out. 18In the circumstances, it is appropriate to discharge the May 2012 stay order and mould an order which would permit time within which the works required by the 2012 consent must be carried out. One year from the date of the development consent seems reasonable. The evidence of Mrs Rafailidis that the respondents intend to carry out the works does not detract from this conclusion; indeed, it indicates that such an order should not prejudice the respondents. 19Power to order a stay of Order 2 may be available under s 135 of the Civil Procedure Act but, contrary to the parties' assumption, does not seem to me to be available under s 67. Section 67 authorises the Court to stay "proceedings" and I doubt that it permits a stay of a final order made in the proceedings. However, I think that the preferable course, which achieves the same result of protecting the respondents from the sanction of contempt of court for a reasonable period, is to use the power in r 7.3 of the Land and Environment Court Rules 2007 (virtually identical to r 1.12 of the Uniform Civil Procedure Rules 2005) to extend the 90-day period in Order 2 to 4 July 2013. That rule provides: 7.3 Extension and abridgment of time (1) The Court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the Court. (2) The Court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires. 20As the Council has been substantially successful and costs normally follow the event in Class 4 proceedings, the respondents should pay the Council's costs of its notice of motion.

ORDERS 21The orders of the Court are as follows: (1)The order for a stay made by the Court on 30 May 2012 is discharged. (2)Order 2 made by the Court on 5 March 2012 is varied by extending the 90-day period referred to therein to 4 July 2013. (3)The respondents are to pay the applicant's costs of the applicant's notice of motion filed on 19 July 2012. (4)The exhibit may be returned. 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: 20 September 2012

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