Lismore City Council v Vivian [2016] NSWLEC 108 | Case summary

Land and Environment Court (NSW)|2016-08-23|Before: Pain J

SOLICITORS: McCartney Young Lawyers (Applicant) N/A (Respondent) File Number(s): 2016/160500

EX TEMPORE Judgment

These civil enforcement proceedings commenced by Lismore City Council (the Council) concern property at 28 Sandy Point Road, Monaltrie (the Property) where breaches of s 76A of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) and s 68 of the Local Government Act 1993 (NSW) (LG Act) are alleged to be occurring. The Respondent Ms Vivian owns the Property. The Respondent did not appear at the hearing today and I earlier determined that it was appropriate to proceed ex parte as the Respondent was aware of today's hearing. The Respondent made no approach to the Court in relation to the hearing today and has not appeared at any mention of the matter in court at any stage. No appearance was filed on her behalf.
The summons seeks declarations which are no longer pressed. Orders are sought in relation to the location and use for residential purposes of three caravans and a corrugated iron and wood structure in which one of the caravans is located on rural RU1 zoned land owned by the Respondent in a flood prone area along the Wilsons River.

Evidence

An affidavit of Mr Bailey Council officer sworn 23 December 2015 was read with a substantial exhibit which became Exhibit C. The exhibit contains at pp 137-166 photographs of the three caravans and the structure in which one is located taken by him on 16 September 2015. The photographs suggest use of the caravans for permanent occupation given the location of gas bottles, kitchens, the large wood and corrugated iron structure with living area including television and bathroom, and a large number of personal effects in and around these.
An affidavit of Mr Young Council's solicitor dated 9 August 2016 identifies the extensive correspondence over several months with the Respondent.
Two emails/memoranda of Mr Watts dated 18 and 22 August 2016 (Exhibit B) refer to recent inspections of the Property where removal work is ongoing. Photographs were attached which show that the structure has been partially removed with some wall cladding no longer present on some façades. One caravan has been removed.
The chronology prepared by the Council based on the affidavit evidence is incorporated into this judgment, as follows: 1. On 5 September 2014 an employee of the Council, Mr G Bailey, inspected 28 Sandy Point Road, Monaltrie (legally described as Folio Identifier 3/22/758489). 2. A "Show Cause" letter dated 10 September 2014 was sent by Mr Bailey to the Respondent. 3. The Show Cause letter identified improvements on the Property that, according to Council's records, did not have the benefit of an approval under the LG Act or development consent under the EPA Act. 4. On or about 26 September 2014 Council received a written response from the Respondent to Council's letter of 10 September 2014. 5. On or about 9 April 2015 Council communicated with the Respondent. 6. On or about 22 April 2015 Council received a response from the Respondent. 7. On or about 28 April 2015 Council exercised its functions under the EPA Act and gave notice to the Respondent of its intention to give orders pursuant to s 121B of the EPA Act. 8. On or about 28 April 2015 Council exercised its functions under the LG Act and gave notice to the Respondent of its intention to give orders under ss 124 and 132 of the LG Act. 9. On or about 14 May 2015 the Respondent wrote to Council with respect to the proposed orders. 10. Under cover of letter dated 14 May 2015 the Council gave the Respondent orders pursuant to the EPA Act. 11. Under cover of letter dated 14 May 2015 the Council gave the Respondent orders pursuant to the LG Act. 12. On or about 11 June 2015 the Respondent made a written complaint to Council. 13. On or about 7 July 2015 Council communicated with the Respondent in regards to her complaint. 14. On or about 19 August 2015, Council received correspondence from the Respondent. 15. On or about 15 September 2015 the Council, pursuant to s 118K of the EPA Act, applied to an authorised person for a search warrant with respect to the Property and a search warrant was issued. 16. On or about 16 September 2015 Mr Graeme Bailey attended the Property with officers of the NSW Police Force stationed at Nimbin. Mr Bailey inspected the Property and made a record of his inspection. 17. During the course of his 16 September 2015 inspection Mr Bailey observed that no action had been taken in response to the orders issued pursuant to the EPA Act and the LG Act. 18. During the course of his 16 September 2015 inspection Mr Bailey observed that the Respondent was in breach of the LG Act. 19. During the course of his 16 September 2015 inspection, and consistent with previous observations and correspondence, Mr Bailey observed that the Respondent was in breach of the EPA Act. 20. On or about 13 October 2015 the Council, through its solicitors McCartney Young Lawyers, wrote to the Respondent and requested that the breaches of the LG Act and EPA Act be remedied. 21. On or about 29 October 2015 the Council's solicitors received an email from the Respondent. 22. On or about 30 October 2015 the Council, through its solicitors, wrote to the Respondent and again requested that the breaches of the LG Act and EPA Act be remedied. 23. On or about 12 November 2015 the Council, through its solicitors, wrote to the Respondent and amongst other things observed that at a meeting of the Council of the City of Lismore a resolution had been passed to take enforcement action against her. 24. These proceedings were commenced in February 2016 by summons.

Legislation

Section 76A of the EPA Act provides: 76A Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. …
Section 68 of the LG Act provides: 68 What activities, generally, require the approval of the council? (1) A person may carry out an activity specified in the following Table only with the prior approval of the council, except in so far as this Act, the regulations or a local policy adopted under Part 3 allows the activity to be carried out without that approval. … Table Approvals Part A Structures or places of public entertainment 1 Install a manufactured home, moveable dwelling or associated structure on land …
The definition in the LG Act Dictionary of "moveable dwelling" includes caravan.
Clause 77 of the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 (NSW) (the Regulation) provides: 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, or (b) the installation of not more than one caravan or campervan on land occupied by the owner of the caravan or campervan in connection with that owner's dwelling-house, so long as it is used for habitation only by the owner or by members of the owner's household and is maintained in a safe and healthy condition, or (c) the installation of a caravan or campervan on pastoral or agricultural land, so long as it is merely occupied seasonally by persons employed in pastoral or agricultural operations on the land.
For the reasons given by the Council a dwelling house is permissible on land in the RU1 zone with the consent of the Council. Under the Lismore Local Environmental Plan 2012 cl 4.2B a minimum lot size of 40 ha for a dwelling entitlement applies in the area of the Property. This Property is 3,439 m2 according to the s 149 certificate attached to Mr Bailey's affidavit and does not satisfy the minimum lot size requirement for a dwelling in that zone. The Property does not otherwise enjoy a dwelling entitlement or at least the Respondent has not identified one to the Council.
The photographs attached to Mr Bailey's affidavit show a structure in which one of the caravans is located is a substantial building which I consider is not capable of removal within 24 hours as the meaning of "annexe" in cl 4 of the Regulation requires inter alia. I do not consider that the structure is regulated under the Regulation as an annexe. The structure constitutes development within the meaning of the EPA Act as does the use of the land for residential purposes.
The Council has demonstrated by its evidence that breaches of the EPA Act and the LG Act have and continue to occur on the Respondent's property. Until recently the Property was being used for residential purposes without development consent. The structure on the land does not have development consent. The three caravans do not come within the exemptions in cl 77 of the Regulation permitting caravans in limited circumstances. Subclause (c) does not apply as the Property is not being used for agricultural or pastoral purposes. Subclause (b) does not apply as the Property has no dwelling house entitlement. Subclause (a) does not apply as the evidence demonstrates there was until recently a full time use of the caravans far in excess of the limited use of two caravans permitted.

Exercise of discretion

The principles governing the exercise of discretion of whether to make the orders sought include consideration of the nature of the breach of the legislation, whether a breach is technical, the harm to the environment and whether any hardship to the Respondent is occasioned by the orders.
I note that the emails and memoranda of Mr Watts in Exhibit B referring to inspections on 18 and 22 August 2016 identify that work to remove the structure is ongoing and one caravan has been removed. The work is unfinished however.
The orders sought aid in the enforcement of the statutory framework regulating planning and safety of residents in New South Wales. There is no lawful entitlement at present to live on the Property. It is in an area of high flood risk. The breaches are not technical. While I have not heard directly from the Respondent the latest photographs taken by Mr Bailey on 18 and 22 August 2016 suggest that the Property is no longer lived on, and the Respondent refers to living elsewhere in conversations with Mr Bailey. The Respondent has been aware of the Council's concerns since a show cause letter was sent on 10 September 2014 and has not complied with the notices issued under the EPA Act and the LG Act in May 2015. Making the orders for removal of the caravans and structure will not cause undue hardship to the Respondent.
I am satisfied on the evidence and in the exercise of my discretion that I should make the enforcement orders sought. The order sought for substituted performance by the Council after three months if the Respondent does not comply with the orders to remove in 90 days can be made pursuant to r 40.8 of the Uniform Civil Procedure Rules 2005 (NSW) and/or s 23 of the Land and Environment Court Act 1979 (NSW).

Costs

The Council has been successful in obtaining orders in these proceedings and the usual order in such a case is that it obtain an order that the Respondent pay its costs. The Council seeks a gross sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) relying on an affidavit of Mr Young sworn 19 August 2016 and an exhibit to that affidavit. It identifies the legal costs of the Council to date and the opinion of a legal costs assessor that the Council would be entitled to an order of about $21,000 for costs were the matter to proceed to costs assessment. Assessment alone would cost an additional approximately $4,800.
Principles to consider when making a gross sum costs order were identified by Einstein J in Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 at [9]: 9 For present purposes it seems convenient to commence with a recitation of the principles which inform the exercise of the discretion: i. the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation: Beach Petroleum NL v Johnson (1995) 57 FCR 119, Von Doussa J p 265: [following Purchase J in Leary v Leary [1987] 1 All ER 261 who described the purpose of the rule allowing the fixing of a gross sum as "the avoidance of expense, delay and aggravation involved in protracted litigation arising out of taxation" (All ER p 265)]; ii. the touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable: Beach Petroleum at [16]; iii. the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available: Harrison v Schipp (2002) 54 NSWLR 738, per Giles JA at [22]; [following (Wentworth v Wentworth (CA, 21 February 1996 unreported, per Clarke JA) and adopted in Sony Entertainment v Smith (2005) 215 ALR 788 Sony Entertainment v Smith (2005) 215 ALR 788 [2005] FCA 228; BC200500963 at [199]; at 200500963 at [199]; iv. a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place: Harrison v Schipp at [22]; v. the gross sum "can only be fixed broadly having regard to the information before the Court": Beach Petroleum at 124; [In Hadid v Lenfest Communications Inc [2000] FCA 628 at [35] it was said that the evidence enabled fixing a gross sum "only if I apply a much broader brush than would be applied on taxation, but that … is what the rule contemplates".] vi. nevertheless the power to award a gross sum must be exercised judicially, and after giving the parties an adequate opportunity to make submissions on the matter: Leary v Leary [1987] 1 WLR 72 at 76, and Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120"; vii. In terms of the necessity for the approach taken to be logical, fair and reasonable, Von Doussa J in Beach Petroleum NL & Anor v Johnson & Ors (No 2) (1995) 57 FCR 119, put the matter as follows, at paras [16]: On the one hand the Court must be astute to prevent prejudice to the respondents by overestimating the costs, and on the other hand must be astute not to cause an injustice to the successful party by an arbitrary "fail safe" discount on the cost estimates submitted to the Court: Leary v Leary at 265 …
The Respondent had the opportunity to consider the matter of costs as she has been on notice since the first letter to her from Mr Young dated 13 October 2015 that the Council would be seeking its costs if the matter went to court and that was repeated in later emails including one of 1 August 2016. That the Council intended to seek a gross sum order for costs was notified to the Respondent by email of 22 August 2016 (Exhibit E) when the Council's solicitor emailed his affidavit of 19 August 2016 and the exhibit.
In the interests of finalising this litigation and avoiding an expensive cost assessment process a gross sum costs order is warranted. The amount of $13,000 sought by the Council appears to be eminently logical, fair and reasonable given the material contained in the exhibit to Mr Young's affidavit.

Orders

The Court makes the following orders: 1. That the Respondent remove: 1. the 3 caravans; and 2. the building attached to the caravan, from the property described as 28 Sandy Point Road Monaltrie (Folio Identifier 3/22/758489) (Property), being the caravans/structures marked at the locations "A", "B" and "C" on the plan attached to this Order (Plan). 1. That the Respondent comply with Order 1 within 60 days of the date of this Order. 2. That the Respondent cease using the Property for residential purposes until such time as all necessary development consents and approvals are obtained. 3. That in circumstances where the Respondent has not complied with Orders 1 and 2 within 90 days of making that Order, the Applicant may enter the Property (including entry into the caravans and the unapproved building) and may: 1. remove the caravans marked on the Plan and 2. remove or demolish the associated building "A" marked on the Plan, without further order and without further notice being given to the Respondent. 1. That pursuant to s 98(4)(c) of the Civil Procedure Act the Respondent pay the Applicant's costs of and incidental to the proceedings in the sum of $13,000.

Lismore CC v Vivian 16-160500 - Plan (407 KB, pdf) Lismore CC v Vivian 16-160500 - Plan (407 KB, pdf) 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: 02 September 2016

Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005(NSW)

Lismore City Council v Vivian

At a glance

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Judgment (8 paragraphs)

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Legislation Cited (6)

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