Leichhardt Municipal Council v Gemser Holdings Pty Ltd

Land and Environment Court (NSW)|2014-10-02|Before: Pepper J, Mr J

The Council Seeks to Restrain the Respondents' Use of Land 1The applicant, Leichhardt Municipal Council ("the council"), alleges that the respondents, Gemser Holdings Pty Ltd ("Gemser") and Ms Sonja Walsh, are using land for the purposes of a pet shop, pet grooming and pet breeding business without development consent in contravention of s 76A of the Environmental Planning and Assessment Act 1979 ("the EPAA"). Ms Walsh is the sole director of Gemser. 2The pet shop is located at Lot A in Deposited Plan 106754, known as 10 Beattie St, Balmain, New South Wales ("the premises") and trades under the name "Heavy Petting". 3By civil enforcement proceedings commenced by summons on 30 September 2013, the council seeks an order from the Court pursuant to s 124 of the EPAA restraining the respondents from using the premises as a pet shop, pet grooming and pet breeding business. 4The unlawful use having been established, in my opinion, the injunction should be granted in all the circumstances of the proceedings and the respondents should be ordered to pay the council's costs.

The Proceedings are Ex Parte 5The matter has proceeded ex parte because both of the respondents failed to appear at the final hearing. Correspondence tendered by the council dated 1 August and 26 and 29 September 2014, clearly show that Ms Walsh and Gemser were aware that the proceedings had been listed for final hearing today. No explanation having been provided for their failure to appear, the Court has therefore proceeded in their absence.

The Respondents Use Premises as a Pet Shop Without Consent 6In December 2012, the respondents commenced using the premises for the purposes of a pet shop, pet grooming service, cattery and kennels. As the evidence elaborated upon below demonstrates, no development consent has ever been granted by the council to use the premises in this manner. This use continued up until 30 May 2014, when the respondents were locked out of the premises by the lessor, Ms Di Wang (who was previously the third respondent to the proceedings, but has since been removed as a party by consent). 7Prior to the respondents being locked out, the relevant history of the use of the premises was as follows. On 15 February 2005, the council granted consent to development application D/2014/204 ("the 2005 consent") to use the premises for the retailing of art work and prints, as an art gallery and for picture framing. Relevantly for present purposes, condition 8 of the 2005 consent provided as follows: The existing garage shall be maintained as car parking on the site for the use of staff. 8On 1 January 2013, Ms Wang leased the premises to Gemser for use as a pet shop and dog grooming business. In documents furnished to the Court, Ms Walsh claims to have been trading in Balmain for "over 18 years". It is not known, however, if this trading exclusively comprised a pet shop and dog grooming business. 9Previously, the pet shop and dog grooming business had been operating across the road at 9 Beattie St, Balmain. Under the Leichhardt Local Environmental Plan 2000 ("the LEP"), 9 Beattie St is zoned "Business", whereas 10 Beattie St is zoned "Residential". 10Class 4 proceedings were commenced seeking to restrain the respondents from using the premises for the unlawful purposes. As documents supplied by Ms Walsh to the Court demonstrate, the council attempted to resolve the issue of the unlawful use without recourse to litigation. 11Although the summons also sought relief in respect of alleged unauthorised additions and alterations on the premises, this claim was abandoned at the hearing. 12On 9 October 2013, Gemser lodged a development application and an application for a construction certificate with the council, seeking to, it is inferred, regularise the use of the premises ("the DA"). 13Class 1 appeals were filed by the respondents on 20 December 2013 against the deemed refusal by the council to grant consent to the DA or to issue the construction certificate. 14On 11 April 2014, the Class 4 proceedings were adjourned to await the outcome of the Class 1 appeals. 15The Class 1 appeals were themselves subsequently adjourned to allow the amendment of the DA. The amendment was allowed by consent. 16However, on 20 May 2014, the Class 1 construction certificate appeal was discontinued, and on 24 June 2014 the Class 1 appeal in respect of the DA was also discontinued.

Evidence of the Council in Support of the Injunctive Relief 17The council relied on the following evidence in support of its application for final injunctive relief, first, the affidavit of Mr Martin Amy, sworn 7 November 2013. Mr Amy is a Senior Assessment Officer at the council. Mr Amy deposed to having searched the council's records and found that no development consent had been granted in respect of the use of the premises for a pet shop, pet grooming or pet breeding business as required by the LEP given the location of the premises in the Residential zone. 18Second, the affidavit of Mr Peter Rossello, sworn 7 November 2013. Mr Rossello is an accredited building certifier and town planner who was retained by the council to inspect the premises in order to identify its current use. Mr Rossello carried out an inspection of the premises on 26 September 2013. During the course of the inspection, he documented his observations by way of photographs. His evidence makes it tolerably clear that the premises were being used as a pet shop and a pet grooming facility. During his inspection, Mr Rossello identified several compliance issues with the Building Code of Australia ("the BCA"). 19Relevantly, because the rear garage area was being used for pet grooming, it was his opinion that it would be classified as a Class 6 building under the BCA. In this regard, the exit stairway from the garage was not compliant with cl D1.4 of the BCA because there was no direct connection to the public road. Other non-compliances existed in respect of the minimum exit widths of the exit stairway (cl D1.6 of the BCA) and the exit door furniture (cl D2.21 of the BCA). In addition, there were problems associated with the accessibility and circulation space to, and within, the premises. 20Mr Rossello further noted that wastewater from washing facilities within the grooming area located in the garage was not adequately connected to the existing sewage and drainage system serving the premises. There was also evidence to suggest that some surface runoff water from the rear courtyard and kennels appeared to discharge onto adjoining properties. Moreover, where drainage had been provided in the form of sumps and drainage gates, the management of surface runoff water from the courtyard and kennel areas did not appear to make any provision for the mitigation or treatment of contaminated water from animals housed in the affected areas. 21Third, an affidavit of Ms Kursty Delmas sworn 31 October 2013. Ms Delmas is employed by the council as its Team Leader - Environmental Health. Ms Delmas inspected the premises on 9 August 2013. On 26 September 2013, she carried out a more detailed inspection. During the latter inspection she observed the presence of cats, pet accessories, seven spoodles, a fish tank and a bird in a cage. In the rear yard she noted a slight odour present and observed that a stormwater pit did not appear to be properly connected to the sewerage system. In the grooming area located in the garage she observed that there was no available ventilation and, again, there was a slight odour present. She expressed concern that the wastewater from the blue washing tub used to wash the pets was not properly connected to the sewerage system. 22On the same day, Ms Delmas also inspected 3 Palmer Street, Balmain, which is occupied by Mrs Andrea Knott and her husband, Mr Stephen Knott. The Knott residence adjoins the premises. There was a slight odour present in the rear courtyard of the Knott residence. 23Fourth, an affidavit of Ms Vicky Berdekan sworn 31 October 2013. Ms Berdekan is the council's Compliance Officer. Her role at the council consists of investigating, amongst other things, the illegal use of premises and non-compliance with development consents. On 10 January 2013 she attended the premises and conducted a site inspection following a complaint concerning its use as a pet shop, and the odour and noise emanating from it. During the course of the inspection she spoke to Ms Walsh, who stated that she was the owner of the business and that the premises were being used as a pet shop, selling cats, puppies, pet supplies and fish. Ms Walsh admitted to grooming pets on the premises, but only for the pets that she sold. She also admitted to having breeding cats "in the back" belonging to her and that she was a registered breeder. Asked about the odour emanating from the premises, Ms Walsh stated that there was "a broken sewerage at the back coming from the property next to us and they have spoken to their agent". Photographs of Ms Berdekan's observations during the inspection were attached to her affidavit. She also inspected the property on 1 February and 9 August 2013, and took further photographs of the premises depicting its use as a pet shop and dog grooming business. 24Fifth, an affidavit of Mrs Knott sworn 11 October 2013. As stated above, Mr and Mrs Knott reside as tenants in the property adjoining the premises. In her affidavit Mrs Knott stated that she had complained to Ms Walsh about the noise (barking dogs) emanating from the premises and about the odour. The complaints went unresolved. The erection of a Hebel block fence on the boundary adjoining the two properties by Ms Walsh did not assist to attenuate the noise because the construction of the wall had the effect of creating an echo when the dogs barked or the cats meowed. Furthermore, the wall made the room used by Mrs Knott as an office considerably darker and impeded the view from the window. Upon notifying the council of the problem, the council requested that Mrs Knott complete a barking dog survey. Several such surveys were completed by her between 27 May and 17 September 2013. These were annexed to her affidavit. Also annexed to her affidavit were photographs of the premises showing the location of the Hebel wall and the location of some of the cat cages and dog kennels at the rear of the premises.

Respondents' Evidence 25Contrary to the order of the Court made on 1 August 2014, the respondents did not file any evidence in the proceedings. A document entitled "Points of Defence" was, however, filed by Ms Walsh, which attached a brief to advise to Mr Duncan Miller SC, together with accompanying material. In light of the ex parte nature of the proceedings, the Court has considered this material. The council did not object to this course. 26Leaving aside the inflammatory language and more scandalous material, the following matters were raised by Ms Walsh in her "points of defence": (a)first, that prior to moving her business from 9 to 10 Beattie Street, she was allegedly told by the council that the existing consent for the premises was for a "retail premises" and that she had consulted the Retail Leases Act 1994 to confirm that a pet shop and pet grooming business were a "retail business". Further, she was told by the council that to move a "shop to shop" [sic] would not require development consent; (b)second, that she moved her business and "using all the business capital I had, fitted out the new premises at the cost of 60k"; (c)third, she complained about the cost of legal and experts' fees incurred by her to date. She estimated that her total legal costs in defending the proceedings were $71,000, which had "taken all my savings"; (d)fourth, because she could no longer maintain the rental payments she had been locked out of the store thereby losing the capacity to earn any income, and losing her only asset; (e)fifth, that since she had been locked out of the shop she had not been employed; and (f)sixth, she was currently attending weekly therapy sessions "in an attempt to overcome the feeling of victimisation and over whelming [sic] grief as a result of losing my business". 27With the exception of the matters referred to above in (a), these statements were neither of assistance nor of relevance to the issues for determination in the proceedings. 28Given the ex parte nature of the proceedings, I will refer to the material included in the brief to advise in some detail. The material comprised of: (a)a copy of a leasing advice notice in respect of the lease from Ms Wang to Gemser, dated 11 December 2012; (b)a copy of cl 2.20B of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ("the SEPP"); (c)several Notices of Proposed Order - Abatement of Public Nuisances issued by the council on 1 July and 12 August 2013 to Gemser and Heavy Petting Australia Pty Ltd, advising Gemser that the council intended to issue an order in relation to s 125 of the Local Government Act 1993 ("the LGA") in respect of the "excessive dog and cat noise" being emitted from Heavy Petting; (d)several Notices of Proposed Order issued on 10 January, 6 February, 13 May and 19 July 2013 by the council to Ms Wang, pursuant to s 121H of the EPAA, to cease the use of the premises as a dog boarding, pet grooming and pet breeding business within 28 days; (e)a copy of the 2005 consent; (f)copies of indeterminant development standards 2.33, 2.34, 2.35, 2.36, 2.71, 2.72, 2.73 and 2.74; (g)an order under s 121B of the EPAA issued to Ms Walsh dated 7 August 2013, ordering her to "cease the use of the subject premises as a pet grooming, pet breeding and pet boarding facilities" [sic]. The order was later revoked by the council on 10 September 2013; (h)an Abatement of Public Nuisances Order issued under s 124 of the LGA and dated 4 September 2013 ordering Gemser to, within 28 days, deal with the excessive dog and cat noise being emitted from the premises. This order was also revoked by the council on 19 September 2013; (i)a letter dated 20 September 2013 from Mr John Ritchie of ritchie & castellan, the solicitors for the council, to DG Briggs and Associates, Ms Walsh's solicitor at the time, dated 20 September 2013. The letter stated that the use of the premises for the purposes of a pet shop, pet grooming and pet breeding was unlawful in the absence of development consent. The letter noted that Ms Walsh had advised the council that she would lodge a development application with it by 13 September 2013, but that no application had been received. In the circumstances, therefore, the letter stated that the council required Ms Walsh to cease using the premises for the stated purpose within seven days, as provided for in an enclosed Deed of Undertaking. If the Deed of Undertaking was not returned and properly executed by 23 September 2013, then the council would commence Class 4 proceedings in the Court and seek injunctive relief against Ms Walsh and Gemser, together with an appropriate cost order; (j)an unexecuted copy of the Deed of Undertaking; (k)a copy of the summons filed 30 September 2013; (l)a copy of the respondents' DA and application for a construction certificate, dated 9 October 2013. The application states that the current use of the site is as a "pet shop"; (m)a copy of the applicant's points of claim filed 8 November 2013; (n)a letter from the council to Gemser dated 4 November 2013, requesting further information to be submitted within 21 days of the date of the letter with respect to the DA concerning: first, amenity, noting that the keeping of animals on the premises was not compatible with the amenity test contained in cl 23(6) of the LEP with respect to the commercial use of non-residential buildings in the Residential zone, and noting that ventilation systems would be required to be installed at the premises in order to continue as a grooming facility; second, health, insofar as the plan accompanying the DA lacked necessary detail indicating the intensity of the grooming business, the management of wastewater associated with the grooming and washing of dogs, the management of odour associated with this activity, the management of noise associated with this activity, and the health and welfare of the animals kept on the premises; and third, a number of building issues, including a current list of proposed fire and safety measures in the building, the owners consent for the building certificate application, and the certification or supporting documentation to verify the Hebel wall was acting as a successful acoustic barrier; (o)an undated letter from Ms Walsh to "Mr Ritchie" in response to the request for further information. The letter noted that she had arranged to meet with Mr Amy in order to resolve all outstanding issues and to prevent further legal costs from being unnecessarily incurred. Ms Walsh indicated that she would be prepared to immediately remove the cages located outside at the back of the premises and that she would be prepared to give an undertaking to cease grooming animals on site while the DA was considered. She requested that the directions hearing in the Class 4 proceedings listed on 29 November 2013 be stood over until sometime in 2014; and (p)a letter from Mr John Ritchie (of ritchie & castellan) dated 15 November 2013 to Ms Walsh noting that she was no longer legally represented and stating that the council would not agree to the adjournment requested. The letter invited Ms Walsh to agree to consent orders finalising the proceedings, such consent orders mirroring the relief sought in the summons, but deferred for a period of four months to allow Ms Walsh to pursue her DA and construction certificate application on the proviso that certain items be removed from the shop (including the Hebel wall, the shop fit-out, the canvas roofing and some kennels), that no animals were to be housed overnight on site at any time the shop was not open, or kept at any time in the rear yard area, and that the premises were not to be used for the purposes of animal grooming. 29To the extent that it is relevant, the above material demonstrates, in my view that, first, from mid 2013 Ms Walsh and Gemser were put on notice by the council that the use of the premises as a pet store, pet grooming and pet breeding business was, in the council's opinion, unlawful. Second, it is apparent that the council repeatedly warned the respondents that if they did not cease the unlawful use the council would commence proceedings. Third, the respondents were afforded ample opportunity to regularise the unlawful use of the premises. And fourth, the council sought to resolve the matter absent the need for a hearing. Plainly these matters have a bearing on the exercise of the Court's discretion under s 124 of the EPAA.

The Respondents Have Breached the EPAA 30Section 124(1) of the EPAA provides as follows: 124 Orders of the Court (1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. 31In order to enliven the power of the Court to grant an injuction, the council must demonstrate that there has been a breach of the EPAA. 32In my opinion, the evidence of the council shows to the requisite degree that the use of the premises as a pet store, pet grooming and pet breeding business was unlawful insofar as consent was required for this use and none had been obtained. The affidavit evidence relied upon by the council make irrefutable the conclusion that this was the use of the premises. 33Under cl 18(1) of the LEP (the development control table for the Residential zone) it is clear that, as was adverted to above, 10 Beattie St (unlike 9 Beattie St) is zoned "Residential" on the zoning map. Only exempt development is allowed without development consent in that zone (cl 18(2) of the LEP). Clause 18(3) provides that development as either "home based employment" or "local shops" is allowed within the Residential zone with development consent. All other development is prohibited (cl 18(4) of the LEP). 34Hence, at best, the use of the premises as a pet shop, pet grooming and pet breeding business was allowable with consent on the premises, or, at worst, it was prohibited. 35Assuming the former, cl 23(6) of the LEP states that: (6) Commercial use of non-residential buildings in the Residential Zone Consent may be granted to the use of a building or part of a building situated within the Residential Zone for any use allowed only with development consent in the Business Zone, and the alteration of the building so that it can be so used, if: (a) the whole or part of the building was constructed for a non-residential use, and (b) the building is substantially retained, which means the building must be structurally capable of conversion while meeting building, health, amenity and other environmental planning requirements, without the need for the replacement of most of the structure, and (c) the consent authority is satisfied that the amenity of the locality will not be adversely affected. 36But as the evidence shows, the council was not satisfied that the amenity of the locality would not be adversely affected. It was for this reason that it requested additional information concerning the amenity impact of the use of the premises from the respondents in its letter dated 4 November 2013. None was forthcoming. There was, moreover, as the evidence demonstrates, plainly an adverse amenity impact from the use of the premises on the Knott residence. In any event, consent was never granted for the use and was required. 37As a matter of fairness to the respondents, the council dealt with the possible argument that no consent was required because the development was exempt development. Such an argument was potentially raised by Ms Walsh in the "points of defence" by her reference to the fact that she was told by the council that Heavy Petting was a "retail premises" and that to move a "shop to shop" [sic] would not require consent. 38The council denies the accuracy of this representation. 39It is correct that under cl 2.20A of the SEPP a change of use from a "shop" to a "shop" within Category 1 of the Table is potentially exempt development for the purposes of the SEPP. However, cl 2.20B sets out the standards specified for this development to be exempt, which are relevantly that: 2.20B Development standards The standards specified for that development are that: (a) the current use must be a lawful use, and (b) the current use must not be an existing use within the meaning of section 106 of the Act, and (c) the new use must be permissible with consent under an environmental planning instrument applying to the land on which the development is carried out, and (d) the new use must not result in a change of building use under the Building Code of Australia, and (e) the new use must not be carried out at premises that are a manufactured home, moveable dwelling or associated structure, temporary structure, tent, swimming pool, ship or vessel, and (f) the new use must not be any of the following: (i) food and drink premises, (ii) a funeral chapel, (iii) a funeral home, (iv) retail premises where firearms within the meaning of the Firearms Act 1996 are sold, (v) landscape and garden supplies, (vi) a market, (vii) premises that are a beauty salon or hair dressing salon, (viii) premises where a skin penetration procedure within the meaning of section 51 of the Public Health Act 1991 is carried out, (ix) restricted premises, (x) a roadside stall, (xi) sex services premises, (xii) vehicle sales or hire premises, and (g) the new use must not involve building alterations, other than alterations that are exempt development under this Policy, and (h) the new use must not result in an increase in the gross floor area of any building within which it is carried out, and (i) the new use must not cause the contravention of any existing condition of the most recent development consent (other than a complying development certificate) that applies to the premises relating to hours of operation, noise, car parking, vehicular movement, traffic generation, loading, waste management and landscaping, and ... 40On the evidence before the Court, the use of the premises at 10 Beattie St did not meet these standards because the current lawful use of the premises pursuant to the 2005 consent was for the retailing of artwork, prints and frames, whereas the new use was as a pet shop, pet grooming and pet breeding business, that: (a)first, as the evidence of Mr Rossello demonstrated, resulted in a change of building use under the BCA to a Class 6 builidng because the rear garage area was being used as a pet grooming area (contrary to cl 2.20B(d)); (b)second, the new use involved building alterations, such as the construction of the Hebel wall, that were not exempt development under the SEPP. This was evident from the DA submitted to the council by Gemser to regularise the use of the premises (contrary to cl 2.20B(g)); (c)third, the new use increased the gross floor area of the building within which it was to be carried out, insofar as the garage that was to be kept separate for the use of the print shop employees under the 2005 consent was now being used as part of the pet grooming business (contrary to cl 2.20B(h)); and (d)fourth, the new use caused a contravention of the 2005 consent in respect of noise and waste management (contrary to cl 2.20B(i)). 41Accordingly, the use of the premises for its present purpose was not exempt development under the SEPP and consent was required under the LEP. 42There having been no consent granted by the council for the use of the premises as a pet store, pet grooming and pet breeding business, s 76A of the EPAA was contravened by the respondents, thereby engaging the power of the Court to grant the relief sought in the summons under s 124 of that Act.

The Injunction Should be Granted 43The discretion of the Court contained in s 124 of the EPAA to grant relief consequent upon a breach of the Act is broad (F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGRA 306 at 311-313 per Street CJ; Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 338G; ACR Trading Pty Ltd v Fat-Sel Pty Limited (1987) 11 NSWLR 67 at 82C and Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43; (2012) 190 LGERA 119 at [10]-[12]). 44In Sedevcic, Kirby P articulated a number of guidelines in respect of the exercise of the Court's discretion under s 124 of the EPAA (at 339C-341D). It is not necessary to set these principles out in this judgment. Suffice to say that the Court has had regard to them in arriving at its determination. 45Applying the legal principles referred to above, and having regard to the evidence before the Court, in my opinion, the relief sought by the council should be granted. This is because, first, the breach is not merely technical but is serious and has caused harm to the integrity of the planning regime in the State and to Mrs and Mr Knott. The respondents were warned of the potential breach of the EPAA, but continued with the unlawful use of the premises. 46Second, there is a public interest in the proper enforcement of the EPAA, a public welfare statute. There is also the public interest in the proper and reliable administration of planning and environmental laws of the State. 47Third, the interest of the council in seeking to enforce compliance with the EPAA is protective and beneficial, not private or pecuniary. 48Fourth, although Ms Walsh has effectively maintained in her "points of defence" that she was misled about the need for consent by the council when she moved from 9 to 10 Beattie St, I do not, without further corroborating evidence and in the absence of the council being able to properly challenge this contention other than by bold denial, on the balance of probabilities, accept the assertion. 49Fifth, the council did not delay in commencing proceedings or engage in any disentitling conduct that would deny it the equitable relief it seeks. 50While it is true that the development may be characterised as "static", and that therefore, the discretion to decline relief will be more readily exercised, there is, however, no "hard and fast exception" that relief must be declined (Director-General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118 at [342] per Preston J). 51There is some force in the argument that the granting of the relief lacks utility given that the respondents have been locked out of the premises. But as the council submitted, the circumstances of the lock out are not known and it is possible that if Gemser's differences with the lessor, Ms Wang, are resolved, trading at the premises could be resumed quickly. The council informed the Court that the premises are vacant with the fit-out and contents of Heavy Petting remaining intact. 52On balance, therefore, I find that the circumstances of these proceedings favour the granting of the injunctive relief.

Costs 53As these are proceedings in Class 4 of the Court's jurisdiction, costs would normally follow the event in the exercise of the Court's discretion (see s 98 of the Civil Procedure Act 2005). There is nothing on the material before the Court that would cause it to depart from this orthodox position.

Orders 54The orders of the Court are therefore that: (1)the first and second respondents are restrained from using Lot A in DP 106754, known as 10 Beattie St, Balmain, New South Wales, for the purpose of a pet shop, pet grooming or pet breeding business; (2)the respondents are to pay the applicant's costs of the proceedings; and (3)the exhibits are to 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: 03 October 2014

(2012) 190 LGERA 119

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Judgment (10 paragraphs)

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Cases Cited (5)