Central Coast Council v Bhandari

Introduction

1. I am satisfied that matters have been appropriately served on Mr Bhandari and brought to his attention in a fashion which more than adequately addresses the need to serve those documents upon him. The proceedings have been heard ex parte.
2. This afternoon, in response to a number of concerns raised by me concerning the wording of the relief claimed in these Class 4 proceedings, the Council has sought (and been granted) leave by me to amend the terms of the relief claimed in the Summons.

The terms of the original Summons

1. The relief sought in the original Summons was in the following terms: 1. A declaration that, in breach of s4.3 of the Environmental Planning & Assessment Act 1979, the Respondent is using Lot 33 DP 73917 known as 24 Roselands Avenue, Wyoming (the Land) for residential accommodation by using the Land, including a caravan being a moveable dwelling on the Land, as a place used predominately as a place of residence, being development that is prohibited on the Land under Gosford Local Environmental Plan 2014. 2. A declaration that in breach of s68 of the Local Government Act 1993 the Respondent installed a caravan being a moveable dwelling on the Land without the prior approval of Central Coast Council, such approval not being excused by the conditional exemptions in clause 77 of the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005. 3. An Order that the Respondent cease using the Land for residential accommodation by using the Land, including a caravan being a moveable dwelling on the Land, as a place used predominately as a place of residence. 4. An Order that the Respondent: (a) Not use or permit the use of the portable toilet on the Land; (b) Remove the portable toilet from the Land within 21 days of the date of these Orders; (c) Refrain from keeping human waste on the Land. 5. An Order that the Respondent place the Land in a safe and healthy condition by clearing and disposing of all overgrown grass, vegetation and vegetative matter whether alive or dead (excluding trees, shrubs and plants under cultivation) on the Land within 21 days of the date of these Orders. 6. If Order 4(b) and 5 or either of those Orders are not carried out within 21 days of the date of these Order nor within two (2) months of the date of these Orders, then Central Coast Council may thereafter enter the Land and carry out the works required by Order 4(b) and Order 5 or either of those Orders, without further notice being given to the Respondent.

The relief sought

1. The relief sought in the Amended Summons is in the following terms: 1 A declaration that, in breach of s4.3 of the Environmental Planning & Assessment Act 1979, the Respondent used Lot 33 DP 73917 known as 24 Roselands Avenue, Wyoming (the Land) for residential accommodation by using the Land, including a caravan being a moveable dwelling on the Land, in the 12 month period prior to 11 September 2019, as a place used predominately as a place of residence, being development that is prohibited on the Land under Gosford Local Environmental Plan 2014. 2 A declaration that in breach of s68 of the Local Government Act 1993 the Respondent installed a caravan being a moveable dwelling on the Land without the prior approval of Central Coast Council, such approval not being excused by the conditional exemptions in clause 77 of the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005. 3 An Order that, from the date of service of these Orders upon the Respondent in accordance with Order 7, the Respondent is not to use the Land for residential accommodation by using the Land, including a caravan being a moveable dwelling on the Land, as a place used predominately as a place of residence EXCEPT THAT the Land (not including any caravan) may be used for residential accommodation if development consent is obtained for the erection of a dwelling house and such consent is in force and the development has been carried out in accordance with such consent. 4 An Order that the Respondent: (a) is not to use or permit the use of any portable toilet on the Land unless permitted by and in accordance with a development consent obtained for the erection of a dwelling house and such consent is in force; (b) by himself, his servants or agents, remove the portable toilet presently located on the Land within two (2) months of the date of service of these Orders on the Respondent in accordance with Order 7. 5 An Order that the Respondent, by himself, his servants or agents, place the Land in a safe and healthy condition by clearing and disposing of all overgrown grass, vegetation and vegetative matter whether alive or dead (excluding trees, shrubs and plants under cultivation) on the Land within two (2) months of the date of service of these Orders on the Respondent in accordance with Order 7. 6 If Order 4(b) and 5 or either of those Orders is/are not carried out within two (2) months of the date of service of these Orders on the Respondent in accordance with Order 7 then Central Coast Council may, after a further 21 days has elapsed, enter the Land and carry out the works required by Order 4(b) and Order 5 or either of those Orders, without further notice being given to the Respondent. 7 Service of these Orders is to be effected on the Respondent by: (a) email to hervinder_b@hotmail.com; and (b) affixation to an outer door of the caravan situated at the premises known as 24 Roselands Avenue, Wyoming. Service will be deemed to have been effected seven (7) days after compliance with the terms of this Order 7. 8 Costs.

Advising Mr Bhandari of the Amended Summons

1. As I had had, through my Associate, a communication from Mr Bhandari (the terms of which it is not appropriate to reproduce in this judgment) only approximately an hour before the hearing commenced, I adjourned the matter for a short period of time to permit Mr Bhandari to be provided with a copy of the Amended Summons, and to give him the opportunity to reconsider whether he wished to participate in the proceedings by telephone. He has been advised on a number of occasions by my Associate that his participation could be facilitated, both through the Microsoft Teams process by which these proceedings are being conducted, or by phoning in and participating on a basis where he was able to hear and be heard but did not have access to the video link involved.
2. Mr Bhandari, who was also advised of that during the short adjournment at the time which he was provided by the Council's solicitor with a copy of the Amended Summons for which leave has been granted, did not avail himself of that opportunity.

The site and its planning controls

1. The site is one that is in a locality known as Wyoming within the Council's local government area. The affidavit of Ms Erin Murphy of 22 April 2020, an affidavit forming part of Exhibit A, sets out, at pars 8 to 10, relevant information concerning the nature of the site.
2. The site is within the area covered by the Gosford Local Environmental Plan 2014 (the LEP) and is zoned R2 Low Density Residential under that LEP. The Land Use Table in that LEP sets out in, an entirely conventional fashion, the three elements of development that are ordinarily to be found in such a table. The Land Use Table specifies development types that are: 1. permissible without consent (none of which are here relevant) - item (2); 2. those that are permissible with consent (the only relevant one of which is dwelling houses) - item (3); and then 3. the all-encompassing provision, in item (4), that all development not specified in items (2) or (3) is prohibited.
3. At the present time, for the purposes of these proceedings, three factual matters need to be noted with respect to the site. The first is that, for a number of years, the Respondent has had a caravan installed on the site. He has also had a portable toilet installed on the site and, as is able to be seen from a photograph appended to the affidavit of Mr Cameron Hilaire, an environmental health officer employed by the Council (that affidavit being of 13 August 2020), the site is significantly overgrown in a fashion which has, in the past, caused the Council to serve an order on the Respondent which required him to clean up the overgrown vegetation on the site.

The current site clean-up order

1. The most recent of those orders, one which continues in effect by virtue of the fact that its terms have not been complied with, is in evidence in Exhibit B behind Tab 34 - being an order of 23 October 2017 that required three things. The order, issued pursuant to s 124 of the Local Government Act 1993 (the Local Government Act), was addressed to the Respondent by name at the site and required: 1. First, that he remove the portable toilet from the premises; 2. Second, that he cease using the caravan for overnight accommodation; and 3. Third, that he clear and dispose of all overgrown grass, vegetation and vegetative matter whether or not live or dead, excluding trees, shrubs and plants under cultivation on the premises.
2. The photograph appended to Mr Hilaire's affidavit of August of this year, being at folio 280 of Exhibit A (reproduced as Annexure A to this judgment), shows the nature of the overgrown vegetation on the site.

The outcomes from the Amended Summons

1. The Council now seeks, through the Amended Summons, that there be several declarations made that address the question of the present state of the site. The first of these two proposed declarations is that the site has been used for the residential accommodation purposes by utilisation of the caravan on the site during a 12-month period prior to 11 September 2019 - being a development that is prohibited as a consequence of the Land Use Table in the LEP.
2. I am satisfied that this position is correct for the following reasons.
3. First, in the range of affidavits in Exhibit A there is contained an affidavit of Mr Stephen Crampton, a resident of a property neighbouring Mr Bhandari's property. That affidavit is dated 6 May 2020. It has appended to it, as its Annexure A, a diary maintained by Mr Crampton of his observations during the period up to 11 September 2019 when Mr Bhandari had been living overnight in the caravan on the site.
4. This diary clearly establishes that that occupation was extensive. Without listing every day upon which Mr Bhandari was in occupation of the caravan, it is appropriate to note that the extent of that occupation was such that it did not fall within the bounds of that which was permitted without the approval of the Council, had it satisfied cl 77(a) of the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Movable Dwellings) Regulation 2005 (the Regulation). This provision is in the following terms: 77 Conditional exemptions The prior approval of the council is not required for - (a) the installation of not more than 2 caravans, campervans or tents on any land, so long as they are not occupied for more than 2 days at a time and are not occupied for more than 60 days (in total) in any single period of 12 months,
5. It is also to be observed that, although dwelling houses are permissible on the site, the definition of dwelling house in the LEP specifically adopts the definition that is contained in the Environment Planning and Assessment Act 1979 (the EP&A Act) - a definition which expressly excludes caravans (a caravan being a moveable dwelling) from being a dwelling house for the purpose of the EP&A Act, and therefore for the purposes of the LEP.
6. The result is that, unless the occupation of the caravan falls within the above exemption contained in the Regulation, its use for residential accommodation on the site is prohibited.
7. Although the question of the use of caravans as dwellings was considered by the Chief Judge in Warrumbungle Shire Council v Yongmei Ou [2018] NSWLEC 70, it is clear that his Honour's discussion, at [62], dealt with that concept of the use of a caravan in a context where, for the purposes of the Local Environment Plan there involved, use of a caravan for residential purposes was capable of being given development consent by the Council - a position which does not apply here.
8. However, the matters of principle that were dealt with by his Honour at that point are equally apposite and relevant in these proceedings. They were that: 1. the use of the caravan on this site for the purpose of residential accommodation involves the carrying out of development by the use of a "place" for residential accommodation; 2. the site on which the caravan is installed, here Mr Bhandari's site, is such a "place".
9. The consequence is that development by the use of the site for the purposes of residential accommodation utilising the caravan that has been put on the site is prohibited unless the earlier noted exception applied - an exception which does not apply on the basis of the evidence of the neighbour to which I have referred.
10. It therefore follows that, for the purposes of these proceedings, the first declaration proposed by the Council is appropriate to be made on the basis of the extent of the uncontroverted evidence of Mr Bhandari's occupation of the caravan beyond the scope of the exception in the Regulation, during the period of 12 months up to 11 September 2019.
11. It also follows, from that reasoning, that the second declaration which is sought by the Council in the Amended Summons also is to be made. The second declaration will confirm the breach of the Local Government Act because the exemption in the Regulation is not applicable.
12. Finally, with respect to orders as a consequence of these two declarations that are to be made, the Council seeks an order that Mr Bhandari is not to use the site generally for the purposes of residential accommodation but is only to use the site for residential accommodation if a development consent is obtained for the erection of a dwelling house and that development has been carried out.
13. I note, in this context, that some years ago Mr Bhandari applied to the Council for development consent for the use of the site for the erection of a dwelling house; that application was withdrawn; and it is the evidence of Ms Murphy, contained in her affidavit to which I earlier referred, that she has undertaken a search of the Council's records and established (as she sets out in par 13 of her affidavit) that there is no record of any permit or development consent for any building works or use/development on the property.
14. I am satisfied, in circumstances where Mr Bhandari has used the caravan for a prohibited residential accommodation purpose, it is appropriate to make the order sought that prohibits him from doing so in the future.
15. The second order that the Council seeks, responsive to matters raised by the Council's order of 2017, one which remains unresolved on the basis of the evidence given of the various council inspections and neighbour complaints about the use of the portable toilet on the site, is that that toilet should be required to be removed, unless, and only unless, a portable toilet on the site is permitted by, and in accordance with, a development consent obtained for the erection of a dwelling house, and that such consent is in force.
16. As I have indicated, Ms Murphy's evidence is that there is no such consent. If Mr Bhandari applies for and is granted such consent in the future, the prohibition that is to be applied concerning portable toilets will not act as a bar to him implementing such consent (if a portable toilet is necessary for those purposes).
17. The Council proposes, for environmental protection purposes, based on the uncontested evidence given by various neighbours contained in Exhibit A of the entirely inappropriate use of the present portable toilet including the discharge of untreated effluent from that facility into the gutters in the area, that Mr Bhandari should be restrained from using that toilet; and that he should be required to remove that toilet - it being a wastewater treatment system, a use which is not permitted on the site without the consent of the Council and for which there is no such consent.
18. The Council proposes in its Amended Summons that Mr Bhandari, his servants or his agents, be given two months from the date of service of the orders on him to remove the toilet from the site. I am satisfied that it is both appropriate to make the order requiring its removal, and that the amount of time which has been allowed for that removal is appropriate.
19. The third substantive operational order that the Council seeks is that Mr Bhandari, his servants or his agents, address the matter of the unhealthy vegetated state of the site in the fashion that was required by the Council in its continuing effective order of 2017.
20. The photograph that is at Annexure A to this decision clearly discloses the extensive unkempt nature of vegetation on the site, vegetation which in the form shown is a fire risk to neighbouring properties and needs to be ordered to be managed in an appropriate fashion.
21. The Council, with respect to this order, proposes that Mr Bhandari should have a further two months so that by himself, or his agents or servants, he can comply with the order - with that two months to run from the date of the service of these orders on him.
22. In summary, there are three operational areas covered by the orders that are to flow from these proceedings: 1. First, there is to be the prohibition on Mr Bhandari using the property for residential accommodation, absent the gaining and giving effect to a development consent for a dwelling house on the site; 2. Second, that the use of the toilet presently on the site is not permitted, nor is any substitute toilet permitted, and the present toilet is to be removed; and 3. Finally, the clean-up of the vegetation is to take place within a specified time.
23. The Council seeks, in addition to those orders binding Mr Bhandari, what are known as substituted performance orders with respect to the removal of the toilet and the cleaning up of the vegetation on the site.
24. The Council proposes that, if Mr Bhandari does not give effect to the requirements to remove the toilet that is on the site and to clean up the site, within the two months from the date of service of these orders upon him, the Council, after the expiry of a further 21 days, will have the option of entering onto the site and carrying out both those activities.
25. Given that which is able to be observed from Annexure A to this decision and the other photographs taken by Mr Hilaire at the same time as that photograph, it is entirely appropriate that I make a substituted performance order (see r 40.8 of the Uniform Civil Procedure Rules 2005), as is provided for in Order 6 of the orders advanced by the Council as the relief in the Amended Summons for which leave was granted today.

Service of the orders on Mr Bhandari

1. Finally, it is necessary to address the question of serving of the orders that I make on Mr Bhandari.
2. The Council proposes that, consistent with the approaches that have been taken now over several months for drawing Court matters to Mr Bhandari's attention, service of the orders be effected on him by sending a copy of them to him at the e-mail address provided - one by which he has communicated with both the Council's solicitor and my Associate - and by affixing a copy of the orders to the outer door of the caravan situated on the site (with service being deemed to be effected after the expiry of seven days after the compliance with the terms of this order to bring the document to Mr Bhandari's attention).

Costs

1. The final matter to which I need to turn to is to the question of the Council's costs. Conventionally, in Class 4 proceedings, costs follow the event. The event, as discussed by the Court of Appeal in Sze Tu v Lowe (No 2) [2015] NSWCA 91 at [39], is the granting of the relief sought by an applicant in proceedings such as these.
2. I am of the view that the nature of the amendments made in the Amended Summons by leave this afternoon does not in any fundamental way mean that the event, that is that which I order as a consequence of this decision, is in any significant way relief which departs from the broad nature of the relief originally sought by the Council in the proceedings that were commenced by filing of the original Summons on 9 January 2020.
3. I am satisfied that it is entirely appropriate in those circumstances to order that Mr Bhandari is to pay the Council's costs of these Class 4 proceedings.

Conclusion

1. It follows that I will attach to this judgment (when published) the declarations and orders that are contained in the Amended Summons for which leave was given this afternoon. For the purposes of the Council taking out those orders and commencing the process of service as set out earlier, those orders will be signed by me on Monday and will be available to be taken out at that time for service.

Annexure B

• an amendment was made to the Short Minutes of Order on 26 October 2020 pursuant to the Slip Rule (r 36.17 of the Uniform Civil Procedure Rules 2005) to remove the (no longer appearing) text of the orders in the parentheses: … (not including any caravan) ... from Order 3.

7649 of 2020 - Central Coast Council v Bhandari - O - 26 Oct 20 (76760, pdf)

Amendments 03 December 2020 - Amendment pursuant to the Slip Rule (r 36.17 of the Uniform Civil Procedure Rules 2005) - Annexure B. 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: 03 December 2020