Chehade v Canterbury-Bankstown Council

Land and Environment Court (NSW)|2022-06-14

The applicant's position that the Demolish Works Order should be revoked

The applicant's position is that the Demolish Works Order the subject of the appeal should be revoked on the basis that the vehicle hoist is not a building, and that the Council has not established that development consent was required for its erection. Further, the applicant says that insufficient time was given to her to make representations prior to the issue of the Demolish Works Order, such that it should be revoked in the exercise of the Court's discretion.
In support of her position that the vehicle hoist is not a building, Ms Chehade relies upon the decision of the Court in Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council [2017] NSWLEC 56 (Royal Motor Yacht Club), in which Preston CJ found that swing moorings did not constitute a structure and were therefore not a building. Ms Chehade submits that the hoist is an item of machinery, and does not have permanence, and therefore does not have the character of a structure. She relies on the decision in Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 (Mulcahy), in which a gate was not considered to be a structure, and Australian Gaslight Co v Valuer-General (1940) 14 LGR (NSW) 149 (Australian Gaslight), in which the Court found an item of machinery was not a structure.
Ms Chehade also submits that, if the Court finds that the vehicle hoist is a building, the Council has not established that development consent was required for the erection of the vehicle hoist. However, on this point, Ms Chehade has not identified the applicable planning controls upon which she relies, and pursuant to which she says that the Council ought to establish that development consent is required. Instead, she complains that the BPSO and the DCP 35 were not provided until the hearing, and that there is "no objective evidence" of the zoning of the land under the BPSO.
Ms Chehade says that if, despite these submissions, the Court proceeds on the assumption that the site is zoned 2(a1) residential under the BPSO, the hoist is exempt development as it is a 'minor internal alteration' and cl 24 of the BPSO is met on the basis that "the Council has not pleaded that… it does not comply with any deemed-to-satisfy provisions" of the Building Code of Australia.

The Council's position that the Demolish Works Order should remain

The Council's position is instead that the vehicle hoist is a structure, and therefore falls within the definition of a building. The Council relies on Preston CJ's summary of the three characteristics associated with a structure outlined in [155] of Royal Motor Yacht Club as follows: "155. In O'Brien v Shire of Rosedale (1968) 22 LGRA 262 at 267, Gillard J identified characteristics commonly associated with a structure. The first characteristic was that: "the structure is something which is constructed, involving the notion of bringing together a number of distinct and separate physical components which, when constructed or brought together, form or make some other substantial object at a fixed site and having some utility value". The second characteristic was that: "the mere fact that the new physical object so constructed rested by its own weight on the soil did not necessarily and of itself alter its character as a structure". The third qualified the first two characteristics: "there must, however, be an intention on the part of the builder at the time of the erection that the new object brought into existence will remain permanently on its site on a permanent foundation…Thus a tent erected on a wooden floor or a caravan, if placed on a site temporarily for occupation, would not ordinarily be called a structure." 156. These criteria that the structure needs to be of some considerable size or substance and to be sufficiently affixed to the land and to remain permanently or indefinitely on the land explain most of the cases holding a structure either to be or not to be a "structure"."
In applying these characteristics, the Council says that the vehicle hoist is a structure as it is of considerable size and substance, is fixed to the concrete slab by a number of bolts and will remain for an indefinite period of time, and is not a mobile structure.
The Council submits that the reference to a 'machine' in Australian Gaslight, which is relied upon by the applicant, is distinguishable in circumstances where that decision concerned whether certain items of plant and machinery should be excluded from a valuation, and was not concerned with the definition of "building" under the EPA Act.
The Council's position is also that development consent was required for the vehicle hoist as it does not fall within any of the categories of exempt development under the SEPP ECDC or the BLEP, and was not exempt development at the time it was erected. The Council submits that the construction of the vehicle hoist is not a 'minor internal alteration', which is defined in the DCP 35 as "the alteration of a building or work involving changes to the internal fabric or appearance of the building or work…". The Council submits that the vehicle hoist is a separate, stand alone structure that is affixed to the concrete slab, and is not a change to the "internal fabric or appearance" of another building.
The Council says that, even if it was found that the erection of a vehicle hoist was a minor internal alteration, the applicant has not established that there is no interference with the amenity of the neighbourhood or that there is compliance with the deemed-to-satisfy provisions of the Building Code of Australia. Without that evidence, the Council says that the provisions of cl 24 of the BPSO have not been met, and the vehicle hoist is not exempt development. Accordingly, it remains a development for which development consent is required and was not obtained, on which basis the Council says the order for its demolition should remain in place.
Further, the Council submits that the orders were validly issued and that the period of time given for the making of representations following the Notice of Intention to issue the orders allowed adequate time to respond or request an extension. In addition, the Council points out that an additional two weeks was given to the applicant from the closing date for representations (18 November 2021) prior to the two orders being issued on 3 December 2021. The Council also relies on the decision of the Court in Maroun Holdings Pty Ltd v Kiama Municipal Council [2020] NSWLEC 1013, in which I found that (at [74]-[78]) the invalidity at law of a development control order is "not a bar to the Court's jurisdiction to consider the merits of the appeal and to exercise its discretion pursuant to s 8.18 of the EPA Act".

The vehicle hoist is a structure and its erection was not exempt development

As set out above, a demolish works order can be issued with respect to a "building" and can be issued in circumstances where a "building requiring a planning approval is erected without approval" or where a "building is erected in contravention of this Act". A "planning approval" includes a development consent. The questions, therefore, are whether the vehicle hoist is a "building" and whether it fits the description of either requiring a "planning approval" for its erection or being "erected in contravention of this Act". For the following reasons, I find that the vehicle hoist is a structure and thus a 'building', and that the applicant has failed to discharge the persuasive burden that its erection did not require development consent having regard to the applicable provisions of the BPSO and the DCP 35. I therefore conclude that the vehicle hoist was erected in contravention of the EPA Act, as it was either prohibited development carried out contrary to s 4.3 of the EPA Act (formerly s 76B) or development that required development consent and carried out contrary to s 4.2 of the EPA Act (formerly s 76A).
Applying the principles quoted by Preston CJ in [155] of Royal Motor Yacht Club, I consider that the vehicle hoist is something which is constructed and forms a substantial, independent and distinct object, which has inherent utility and value. It is fixed to the concrete slab and has been able to remain on the subject site for some time, and can continue to remain there for an indefinite period of time, which is a sufficient level of permanence for it to be considered a structure. It is not mobile or temporary. The fact that it includes a mechanical component for lifting vehicles does not exclude it from being a structure, as it remains permanently affixed to the ground and was independently constructed as a fixed and distinct object. For these reasons, I consider that the vehicle hoist is a 'structure' and can be distinguished from the findings made in Royal Motor Yacht Club concerning the swing moorings and those made in Mulchahy concerning the gate. I accept the Council's submission that the references to machinery in Australian Gaslight are readily distinguishable on the basis that Australian Gaslight was decided on separate legislative provisions. I therefore conclude that the vehicle hoist is a "structure" and consequentially falls within the definition of a "building" pursuant to the EPA Act.
There is no dispute that the vehicle hoist was erected in around 2000. As such, the question of whether the vehicle hoist could be constructed with or without development consent, or was prohibited development, depends on the planning instruments that were applicable at that time. The applicable provisions concerning whether the erection of the vehicle hoist required development consent are those within the BPSO and the DCP 35. The site was zoned 2(a1) Residential at the time that the vehicle hoist was erected in 2000. Although the applicant sought to advance the position that there was no proof of such zoning, a party is not required to 'prove' the provisions and coming into operation of an environmental planning instrument (see s 143(1)(d) of the Evidence Act 1995). That includes the maps referred to in the BPSO, which the Council has now provided that demonstrate that the site was zoned 2(a1) Residential under the BPSO.
Pursuant to the BPSO, the only development that could be carried out without development consent in the 2(a1) Residential zone was "Exempt development identified in clause 24 and DCP 35." On raising the contention that development consent was not required for the erection of the vehicle hoist, the applicant bears the persuasive burden of establishing the same. The applicant's submission that the erection of the vehicle hoist was exempt development as a "minor internal alteration" must fail, for two reasons.
First, the erection of the vehicle hoist by its construction as an independent and distinct object, which has inherent utility and value, does not meet the definition of a "minor internal alteration" which is "the alteration of a building or work involving changes to the internal fabric or appearance of the building or work…" Although its construction has the consequence of changing the appearance of an existing structure, that is not its purpose. In planning law, use must be for a purpose and the physical act of constructing buildings are the means by which the land is made to serve that purpose (see, for example, Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 at [27]-[31]). Leaving aside the question of the purpose of the use to which the construction of vehicle hoist relates, its construction cannot be said to be for a minor internal alteration to an existing building which provides a means by which the land serves a particular identified purpose. Putting it more simply, its construction was not carried out to achieve an alteration to the dwelling house or garage. Instead, it is a separate structure constructed for a specific use.
The second reason for the failure of the applicant's submission that the erection of the vehicle hoist is exempt development is that she has failed to establish that it meets the deemed-to-satisfy requirements of the Building Code of Australia, as required by cl 24(n) of the BPSO. A development must comply with cl 24 to be considered exempt development. Contrary to Ms Chehade's position, it was not the role of the Council to plead that there was a failure to comply with the Building Code of Australia. Instead, Ms Chehade bears the persuasive burden of establishing that the erection of the vehicle hoist meets each of the requirements for exempt development. The lay evidence of Mr Rabie Chehade is not sufficient to establish that any deemed-to-satisfy provisions of the Building Code of Australia that apply to the erection of the vehicle hoist are satisfied. In the absence of any information about the satisfaction of cl 24(n) of the BPSO, I cannot be satisfied that the erection of the vehicle hoist was exempt development.
For those reasons, the vehicle hoist is a building, the erection of which was not exempt development or development that could be carried out without consent. It was therefore either development that required the grant of a development consent and development consent was not obtained, or it was development that was prohibited, as it was for a prohibited purpose under the zoning table for the 2(a1) Residential zone. Its erection was therefore in contravention of the EPA Act, as it was contrary to either ss 4.2 or 4.3. The statutory basis for the issue of a demolish works order has therefore been met. Further below, I consider whether any of the other matters raised by Ms Chehade warrant the exercise of the Court's discretion not to issue the order and therefore to revoke the Demolish Works Order.

The applicant's complaint about the late provision of the historical planning controls

Throughout the hearing the applicant agitated a complaint with respect to not receiving the historical planning controls from the Council prior to the hearing. However, the date on which the vehicle hoist was erected was not put before the Court until the Statement of Facts and Contentions in Reply, filed by the applicant on 2 March 2022. I note that, in that document, Ms Chehade asserted that "no planning approval is presently required for the hoist which was erected in the year 1999 or 2000". However, the document did not identify the planning controls or other basis on which she relied to establish that development consent was or is not required. Even at the hearing, Mr Weinberger who appeared for Ms Chehade, was unable to advance the basis upon which development consent was not required. Instead of doing so, Mr Weinberger criticised the Council for not including the historical planning controls in the Bundle of Documents that was filed on 30 May 2022. Mr Weinberger asserted that it was the Council's obligation to do so, as a result of a direction made by the Court on 27 May 2022.
However, contrary to Mr Weinberger's assertions, the Council complied with the direction to provide the relevant planning instruments, and could not have known to include the historical planning instruments in circumstances where the applicant never identified either the basis for asserting that development consent was not required or the historical planning instruments that were relied upon to support her position. Ultimately, the Council provided the historical planning instruments following a request by the Court on the day of the hearing, and the applicant was given additional time to file written submissions to address the basis upon which she contended that the hoist did not require development consent. In doing so, the applicant failed to establish that the erection of the vehicle hoist was development that did not require development consent.

The applicant's complaint about the short period given for the making of representations

The applicant also complains about the short period of time given to her to provide representations following receipt of the Notices of Intention to issue the orders. I do not consider this a sufficient basis to exercise the Court's discretion to revoke the Demolish Works Order.
In accordance with the applicant's position, the consequence of s 160(1) of the Evidence Act 1995 is that the date for service can be taken to be the seventh working day after posting of the two Notices, which is 15 November 2021. The Notices included an email address and contact number for Mr Manion, and required representations by 18 November 2021. The requirement to provide notice of the intention to give an order, which is found in cl 8 of Sch 5 to the EPA Act, does not specify a timeframe that must be given for the making of representations, but requires the nominated due date for representations to be "reasonable in the circumstances of the case". Whilst I accept that the period between 15 and 18 November 2021 is short, the applicant has not advanced any circumstances that would make that period unreasonable or any evidence that contact could not be made with the Council between 15 and 18 November 2021. In addition, the applicant has not identified what could have occurred or could have been raised in representations had any additional time been given.
Further, I note the evidence that, from 16 September 2021, the residents of the site had the contact details of Mr Manion and were aware that he was investigating a complaint with respect to the site. It was open to them to contact him with respect to the investigation of the complaint. Other than a phone call on the same date, in which Mr Chehade provided very little information to Mr Manion, there is no evidence that they attempted to co-operate with the investigation or avail themselves of the opportunity to address the complaint before the Council issued the Notice of Intention to issue an order.
Even if I accept that insufficient time was given for the making of representations prior to the issue of either of the development control orders, the orders nevertheless persist "so as to found the jurisdiction of the Court to entertain an appeal under s 8.18 of the EPA Act" (Maroun Holdings at [78]). As I made clear in that decision (at [74]): "As such, whilst the invalidity at law of a development control order may be an appropriate basis on which to exercise the Court's jurisdiction to revoke the order or make alternate court orders (such as what occurred in Barnes v Dungog Shire Council and Lederer v Sydney City Council), it is not a bar to the Court's jurisdiction to consider the merits of the appeal and to exercise its discretion pursuant to s 8.18 of the EPA Act."
The applicant has now had an opportunity to put before the Court any matters that could have been raised in representations to the Council. Any unfairness resulting from the short period of time given for the making of representations has now been overcome by the opportunity to put those matters before the Court. Those matters have been considered, and I have found that the statutory basis for the issue of the Demolish Works Order has been met.

The applicant's complaint about the conduct of the Council

The applicant also claims that the Council, by its conduct, represented that there was no issue with the erection of the vehicle hoist. Conveying such a representation can form a basis upon which the Court's discretion could be exercised to allow the vehicle hoist to remain and to revoke the Demolish Works Order (Maroun Holdings at [81]-[83]).
However, there is no evidence of any representation made by the Council that the erection of the vehicle hoist was acceptable. Whilst the affidavit of Mr Chehade records, in general terms, visits by council officers and his assumption that no planning or development approval was required for the vehicle hoist, it does not outline any conversation with any council officer or any communication from a council officer that conveyed a representation that the vehicle hoist was acceptable and could remain without development consent having been obtained. For example, there was no evidence of actual conversations between council officers and representatives of the applicant that conveyed such a representation. The mere fact that the vehicle hoist was inspected by council officers is not sufficient to establish that the Council considered and communicated that its erection did not require development consent.
In his affidavit, Mr Chehade gave evidence that he made a request under the Government Information (Public Access) Act 2009 as he believes "file notes and conversations with Council's officers would confirm the use of the property as they had no objections by any Council officers". Curiously, however, the applicant did not take any steps in these proceedings to obtain such documents. Mr Weinberger could have made a request on her behalf, pursuant to [15] of the Practice Note - Class 1, 2, 3 Miscellaneous Appeals, or issued a Notice to Produce to the Court pursuant to Pt 34 of the Uniform Civil Procedure Rules 2005. It is not apparent that either of those steps were taken.
As a result, there is no evidence before the Court of any conduct by the Council that conveys a representation that the vehicle hoist is acceptable.

The vehicle hoist should be removed

As set out above, the statutory basis for the issue of a demolish works order is met. Whilst the Court retains a discretion as to whether or not to issue an order, none of the reasons advanced on behalf of Ms Chehade are sufficient to satisfy me that the discretion should be exercised to permit the vehicle hoist to remain in situ.
Instead, in circumstances where I have no evidence of the structural stability of the vehicle hoist and whether it is compliant with applicable construction or safety standards, I consider that the Demolish Works Order should remain to require its demolition. I will allow the appeal only for the purpose of modifying the time for compliance, so that there will be 28 days to comply with the order.

The Stop Use Order

As set out above, pursuant to Sch 5 to the EPA Act, a stop use order can be issued if premises are being used "for a prohibited purpose", or "for a purpose for which a planning approval is required but has not been obtained". It can also be issued in a number of other circumstances, such as where premises are being used "in contravention of a planning approval" but none of these are raised by the Council.
Even if a use was unlawful at the time it commenced, it can be made lawful if an environmental planning instrument commences which permits the use without development consent. Section 4.69 of the EPA Act provides: 4.69 Uses unlawfully commenced (cf previous s 109A) (1) The use of a building, work or land which was unlawfully commenced is not rendered lawful by the occurrence of any subsequent event except - (a) the commencement of an environmental planning instrument which permits the use without the necessity for consent under this Act being obtained therefor, or (b) the granting of development consent to that use. (2) The continuation of a use of a building, work or land that was unlawfully commenced is, and is taken always to have been, development of the land within the meaning of and for the purposes of any deemed environmental planning instrument applying, or which at any time applied, to or in respect of the building, work or land.
Therefore, and absent any argument concerning existing use rights, in order to meet the statutory requirements for the issue of a stop use order, the purpose of the use must be one that is prohibited, or requires planning approval, under the BLEP. If the current use of the site is one that is permitted without development consent, then the statutory requirements for the issue of a stop use order are not met and the order must be revoked.

The applicant's position that the Stop Use Order should be revoked

Ms Chehade's primary position is that the maintenance and repair of motor vehicles on the site is a use for the purpose of a dwelling house, or is ancillary to that use. Ms Chehade says that the site can lawfully be used for the purpose of a dwelling house with a development consent for the garage and carport in 2003, and the maintenance and repair of motor vehicles is for that same lawful purpose or is ancillary to that purpose.
Ms Chehade says that, consistent with established case law, if a part of land is used for a purpose which is subordinate to the purpose of the use of another part of the land, it is legitimate to disregard the former and to find the dominant purpose is that for which the whole is being used (relying on Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 161, per Glass JA; Abret Pty Ltd v Wingecarribee Shire Council (2011) 180 LGERA 343; [2011] NSWCA 107 at [54], cited in Bardsley-Smith v Penrith City Council [2013] NSWCA 200 at [90]). She submits that the use of the garage and area under the awning on the property by occupants who reside in the dwelling on the property to work on vehicles which are in their possession, and mostly owned by them, is subordinate to the permissible use of the dwelling on the property as a residence by its occupants.
Ms Chehade also relies on the words of Gibbs CJ in Lizzio v Ryde Municipal Council (1983) 155 CLR 211 at 216-217: "Obviously a person who is entitled to use land for the purpose of a dwelling-house may use it for incidental purposes, such as garaging his car or housing his boat. No doubt in some circumstances a householder who on an isolated occasion used his land for the purpose of making sales from a stall might be held to be doing no more than using his land for the purposes of a dwelling-house. For instance, if a householder allowed his land to be used annually as the site for a fete to raise money for some charitable purpose, the use of the land in that way might be regarded as simply incidental to its use for the purposes of a dwelling-house. The question is one of fact and degree. Having regard to the regularity and extent of the activities involved in selling the flowers, and to the fact that some of the flowers were grown on other land, there is no reason to disagree with the decision reached in the courts below that the use of the land in the present case could not be regarded as merely incidental to its use for the purposes of a dwelling-house."
In the same way, Ms Chehade submits that the garage is used for the housing of the occupants' cars, and in the context of a lockdown during the Covid-19 pandemic was also used to undertake limited work on cars to enable their sale to reduce the number of cars on the property. The applicant says that this is incidental to the use of the site for the purpose of a dwelling. She relies on the evidence of Mr Chehade, who says in his affidavit, that the work carried out on vehicles on the property is for personal use and is as a hobby, as they are all car enthusiasts.
In the alternative, the applicant says that the site is being used for the purpose of a "home occupation", which is permissible without development consent on the site. Ms Chehade says that the work is being carried out in the garage, and that none of the disqualifying elements in (a) to (e) of the definition of "home occupation" have been made out by the Council. In particular, Ms Chehade says that the home occupation is one of motor mechanic, motor body repairer or motor wrecker, and that there is no employment of persons other than the residents, there is no evidence of any interference with the amenity of the neighbourhood, and there is no display of goods, exhibition of signage or exposure of items for sale.
The applicant submits that the use of the site is lawful as either for the purpose of the dwelling house or for the purpose of a home occupation, and that the use, therefore, is not such that would satisfy the definition of 'vehicle repair station' or 'industry'.

The Council's position that the Stop Use Order should remain

The Council's position is that the Stop Use Order should remain, as the use is neither for the purpose of the dwelling house nor for the purpose of a home occupation.
The Council submits that the use is not for the purpose of, or ancillary to, the dwelling house in circumstances where the vehicles upon which work is carried out are not all registered to residents of the dwelling. It relies on the decision of the Court in Broholm v City of Ryde Council [2014] NSWLEC 1221 (Broholm), in which the Commissioner found that the use for the purpose of vehicle repairs was of a nature and scale that it was a "different, independent and separate use to other lawful development" on the land (at [61]). The Council relies on the evidence of Mr Manion and Ms Prakash that the nature of the work on the vehicles, as well as the volume of cars and car parts on the site, is of a scale that is such that it could not be for the purpose of the use of the dwelling or ancillary to that use. Similarly, the Council relies on the decision of the Court of Appeal in Hope v The Council of the City of Bathurst [1988] NSWCA 69, in which the Court found that the storage of timber on the property was not incidental to the use of the dwelling house. In the same way, the Council submits that the use of the subject site for vehicle repairs and maintenance is not incidental to the use of the dwelling.
Further, the Council submits that, in order to meet the definition of "home occupation", the Court must first be satisfied that the chapeau is met for "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 Council says that the carrying out of repairs on vehicles on the land goes beyond "an occupation" and is instead an industrial activity, and that the area used goes beyond "a building ancillary to a dwelling", including the storage of vehicles in between the carport and the dwelling.
The Council also submits that, if there is an occupation carried out on the site, the disqualifying criteria in (b) of the definition is met. The effect of disqualifying criteria (b) is that a use cannot be a home occupation if there is "interference with the amenity of the neighbourhood by reason of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, traffic generation or otherwise". In support of its position that there are amenity impacts, the Council relies on the evidence of the complaints received, and also says that the tow truck movements in the street for the movement of the vehicles would also cause amenity impacts.
Instead, the Council says that the use is for the purpose of a 'vehicle repair station' or 'industry', which are prohibited land uses in the R2 Low Density Residential zone in which the site is located. The Council submits that the circumstances of the present case are analogous to those in Broholm, in which the Commissioner observed that there were vehicles stored on the land, including unregistered and damaged vehicles that could not be moved except by the use of a tow truck, and that the activity of vehicle repairs was being carried out on that land. In that decision, the Commissioner observed that there was nothing in the definition of "vehicle body repair workshop" that required that the work be carried out for a commercial benefit, and found that the premises were indeed being used for that purpose. The Council submits that the same circumstances arise in the present case, where there is the storage of vehicles and vehicle parts on the site, and there is nothing in the definition of "vehicle repair station" or "industrial activity" that requires there to be a commercial benefit. The Council submits that the carrying out of vehicle repairs and maintenance is a separate and independent use of the site for either of those purposes, which are prohibited on the site.
The Council therefore submits that the Stop Use Order should remain in place. The Council says that, in circumstances where there is no evidence of any measures being used to ensure that the use is being carried out in an environmentally sensitive manner, the Court would be satisfied that the use should cease.

The current purpose of the use

It is agreed that the site is currently being used for the activities of motor vehicle repairs and maintenance. The question is what the purpose of that use is, and where that identified purpose falls within the three categories of development in the land use table. If it is for a purpose that requires development consent and consent has not been obtained, or for a purpose that is prohibited, then the statutory requirements for the issue of a stop use order are met.
I do not accept the applicant's position that the maintenance and repair of motor vehicles on the site is for the purpose of, or ancillary to, the use of the dwelling house. I form this conclusion as the vehicles that are on the site for the purpose of maintenance and repair are not exclusively registered to those who live at the site. In fact, the inspections by Mr Manion showed that on each occasion that work was being carried out on vehicles, those vehicles were registered in the name of someone not residing at the property, or a separate corporate entity. For example, on 1 November 2021, the car that was undergoing work (registration number CY72GD) was registered in the name of Keep on Driving Pty Ltd, a business address at Strathfield South. On 16 September 2021, there was a vehicle on the hoist with its bonnet open (registration number DPT 33V) that was registered in the name of TE Investments Pty Ltd, with a business address at Illawong, and another vehicle parked nose-in the garage (registration number 002 BF4) registered in the name of Tanya Edwards.
I do not accept the applicant's position that the fact that one of the vehicles (registration number CY72GD) was previously owned by a resident of the site and "transferred to Keep on Driving for sale" means that the work on the vehicle is for the purpose of, or ancillary to, the use as a dwelling house. Once the vehicle was not in the ownership of a resident of the dwelling, the work could not be carried out for the purpose of, or ancillary to, the dwelling house use. Instead, the work on a different purpose, and was carried out for the benefit of a separate corporate entity.
There is no explanation offered by the applicant, or in the evidence of Mr Chehade, that would explain how the maintenance or repair of these vehicles is for the purpose of the dwelling. It is not the case that the maintenance or repair of the vehicles are incidental activities occurring at the dwelling that involve work on the vehicles of the occupants and one or two friends. Instead, there are a number of vehicles registered in the name of Keep on Driving Pty Ltd, and on each occasion that work was observed to be occurring on a vehicle, it was a vehicle not in the ownership of a resident of the site. Accordingly, I am not satisfied that the maintenance and repair of vehicles on the site is incidental or ancillary to the use of the site for the dwelling house.
However, I consider that the activities of vehicle maintenance and repairs on the site are for the purpose of a home occupation, as defined in the BLEP. The 'occupation' is that of vehicle maintenance and repairs, and it meets the definition of home occupation, as it is "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 evidence, in the affidavit of Mr Chehade, is that the occupation of vehicle maintenance and repairs is carried out by Mr Chehade or his brothers, and Mr Chahade is a permanent resident of the dwelling. As established by the photographs taken by council officers, the occupation is being carried out in the garage and under the awning attached to the garage, which are buildings that are ancillary to the dwelling. Whilst the storage of vehicles is occurring elsewhere on the site, the occupation itself is carried out in a building ancillary to the dwelling.
Further, none of the disqualifying elements of the definition of "home occupation" have been established by the evidence. That is, there is no evidence of employment of persons other than those residents, there is no display of any goods, there is no exhibition of any signage, and there is no evidence of any sale of items from the site. Hence, none of (a), (c), (d) and (e) have been established.
Contrary to the Council's position, there is also no evidence that there is interference with the amenity of the neighbourhood in accordance with disqualifying element (b) of the definition. Although there have been complaints about the current activities on the site, none of those complaints contain any description or detail of interference with the amenity of the neighbourhood "by reason of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, traffic generation or otherwise". The complaints concern vehicles parked on the street or the general carrying on of activities on the site, but none of them identify the experience of an amenity impact. Further, the records of the investigation carried out by Mr Manion do not set out any observations of amenity impacts
The Council asks me to draw an inference that there would be an amenity impact by the regular arrival of a tow truck within a residential area, or from the oil on the landscaping area which was observed to have an odour at the site inspection. However, there is no evidence that either the tow truck movements or the odour is interfering with the amenity of the neighbourhood.
In the Statement of Facts and Contentions, the Council raised a number of impacts, including:

Contamination of land and risks to human or environmental health (contention 1.2);
Pollution of waters (contention 1.3);
Risk of fire (contention 1.4); and
Noise generation (contention 1.5).

However, the Council did not provide any evidence in support of these contentions or their particulars.
In the absence of any evidence of actual amenity impacts, the disqualifying element in (b) of the "home occupation" definition has not been made out.
Accordingly, I am satisfied that the current use of the site is for vehicle maintenance and repairs within the definition of home occupation. I note that the home occupation does not extend to smash repairs or panel beating, consistent with the affidavit of Mr Chehade (at [22]).
Given that I have found that the use of the site is for a home occupation, which is a nominated use permitted without development consent, I need not consider whether the use of the site is for the purpose of the innominate prohibited use as 'vehicle repair station' or 'industry'. As the category of prohibited development is "any development not specified in item 2 or 3", it cannot include any purpose of development that is specifically nominated in item 2 or 3, including "home occupation".

The order should be revoked

As I have found that the use of the site is for the purpose of a home occupation, which can be carried out on the site without development consent, the current use of the site is not for a prohibited purpose or for a purpose that requires development consent. Accordingly, the statutory basis for the Stop Use Order is not met.
Whilst there are a range of other bases upon which a stop use order can be issued, in accordance with Item 1 of Sch 5 of the EPA Act, no other basis for the issue of a stop use order has been advanced by the Council.
Without there being a statutory basis for the issue of a stop use order, the Stop Use Order the subject of the appeal should be revoked.

The parties' conduct of these proceedings

The conclusions reached above are based on the evidence before the Court at the hearing. I note my concern, however, that the conduct of the parties was such that these proceedings may not be the final resolution of all issues between them.
I make this observation principally because of the late raising of the applicant's position that the use is for the purpose of a "home occupation". The decision above with respect to the Stop Use Order was made on the basis that the use of the land, without any evidence of there being interference with amenity of the neighbourhood, is for the purpose of a "home occupation". However, the applicant's assertion that the use of the land is for that purpose was raised on the day of the hearing. It was not raised in the Statement of Facts and Contentions in Reply, which was filed on 2 March 2022. The failure to raise it in a Statement of Facts and Contentions is contrary to the obligation under the Practice Note - Class 1, 2, 3 Miscellaneous Appeals, which requires the party "to identify each fact, matter and circumstance that the party contends require or should cause the Court to uphold or dismiss the appeal". The raising of a determinative point, for the first time, on the day of the hearing, is not consistent with the applicant's obligation to assist the court to "facilitate the just, quick and cheap resolution of the real issues in the proceedings", as required by s 56 of the Civil Procedure Act 2005.
Nevertheless, the Council did not oppose it being raised, and did not make an application for an adjournment to obtain evidence to address the definitional elements of the "home occupation" use. Nor did the Council furnish evidence in support of its contentions with respect to the environmental impact of the use of the site. As a result, the only evidence before the Court relevant to the amenity impacts on the neighbourhood were the complaints received by the Council.
Therefore, it may be that, if the Council receives information that there are amenity impacts on the neighbourhood caused by vehicle maintenance and repairs being carried out on the site, the use will no longer be characterised as a "home occupation" and may fall within a prohibited use that could form the basis for the Council to issue a further stop use order.
For the purpose of these proceedings, parties are bound by their forensic decisions (Sessions v Penrith City Council [2017] NSWLEC 171 at [81]) and I am required to reach a decision based on what is before the Court.

The outcome of the appeals

As set out above, I have determined that the vehicle hoist is a structure and that it was erected in contravention of the EPA Act. In the absence of adequate evidence of its structural adequacy, the Demolish Works Order should remain in place but 28 days should be given for the removal of the vehicle hoist. I have also determined that the vehicle repair and maintenance work carried out on the site, absent any evidence of amenity impacts, is a "home occupation" and is therefore permissible without development consent. Accordingly, the statutory basis for the issue of the Stop Use Order has not been met and the Stop Use Order should be revoked.
In proceedings 2021/369335, the Court orders that: 1. The appeal is upheld. 2. The development control order issued by Canterbury-Bankstown Council on 3 December 2021, pursuant to Section 9.34(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act) and in terms of Order Number 3 in the table to Part 1 of Schedule 5 of the Act, is modified so that the time for compliance is 28 days from the date of these orders. 3. The exhibits are returned.
In proceedings 2022/171882, the Court orders that: 1. The appeal is upheld. 2. The development control order issued by Canterbury-Bankstown Council on 3 December 2021, pursuant to Section 9.34(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act) and in terms of Order Number 1 in the table to Part 1 of Schedule 5 of the Act, is revoked. ……………………….

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: 09 September 2022

Judgment

COMMISSIONER: Ms Khaladie Chehade owns a dwelling house and detached garage at 19 Valentine Street, Yagoona (the site). The detached garage is accessed from Dargan Street, and is utilised by members of the Chehade family to carry out vehicle maintenance and repairs. A concrete driveway connects the garage and the driveway crossover, and a vehicle hoist is bolted into the concrete slab. Canterbury-Bankstown Council (the Council) has issued two development control orders concerning the site. The first is a stop use order, which requires the site to cease to be used as a "vehicle repair station" (the Stop Use Order). The second is a demolish works order, which requires the demolition of the vehicle hoist (the Demolish Works Order). The orders were issued pursuant to s 9.34(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), which allows a development control order to be given in accordance with the table to Pt 1 of Sch 5 to the EPA Act. The applicant, Ms Chehade, appeals each of those orders pursuant to s 8.18(1) of the EPA Act.
The appeals were initially lodged in a single originating process filed on 30 December 2021, notwithstanding that there is no basis upon which two appeals can be so filed (see, for example, Wilpinjong Coal Pty Limited v Mid-Western Regional Council; Ulan Coal Mines Limited v Mid-Western Regional Council [2012] NSWLEC 277 at [10]). Those proceedings were listed before me for hearing (2021/369335). During an adjournment on the day of the hearing, the Registrar gave leave for the separation of the appeals into separate proceedings by accepting the filing of an originating process with respect to the Stop Use Order. On the same date, I granted leave to the applicant to amend the Class 1 Application in proceedings 2021/369335 such that it relates only to the Demolish Works Order. On 15 June 2022, I made orders in chambers in the new proceedings (2022/171882) that the evidence and submissions made in the earlier proceedings be considered as evidence and submissions in the new proceedings.
The Council maintains that the two orders should remain in place in circumstances where the use of the site for the purpose of a vehicle repair station is prohibited, and the vehicle hoist is a structure that requires development consent and was erected without development consent.
The applicant's position is instead that the site is not being used for the purpose of a vehicle repair station, but that the use is characterised as being for the purpose of the dwelling or ancillary to the use of the dwelling. In the alternative, the applicant says that the site is being used for the purpose of a "home occupation", which is permissible without development consent on the site. Further, the applicant says that the vehicle hoist did not need development consent at the time it was erected, in around 1999 or 2000. In addition, the applicant says that the conduct of the Council is such that the orders ought to be revoked in the exercise of the Court's discretion. The applicant complains that insufficient time was given to the applicant to make representations prior to the issue of the orders.
For the reasons set out below, I have determined that the vehicle hoist is a structure, and that, at the time of its erection it was either a prohibited development or it required development consent. As such, it was erected in contravention of the EPA Act. In the absence of adequate evidence of its structural adequacy, I have determined that the Demolish Works Order should remain in place but that 28 days should be given for the removal of the vehicle hoist. Further, for reasons that are articulated below, I consider that, although the vehicle maintenance and repair work (which excludes smash repairs and panel beating) is not a use for the purpose of the dwelling house or ancillary to the use for the purpose of the dwelling house, it is a "home occupation" and is therefore permissible without development consent. Accordingly, I have determined that the Stop Use Order should be revoked. However, I also make the observation below that, if the Council receives information that there are amenity impacts on the neighbourhood, the use may no longer be characterised as a "home occupation" and may fall within a prohibited use that could potentially form the basis for the Council to issue a further stop use order.

(2011) 180 LGERA 343

(2007) 151 LGERA 400

At a glance

Court

Decision date

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Judgment (15 paragraphs)

Parties

Cases Cited (13)