Papadopoulos v Blue Mountains City Council

Background to the appeal

1. A conciliation conference was held on site with options discussed in regard to works that could be carried out to the containers that would satisfy the council.
2. The two containers were inspected during that conference and Mr Papadopoulos explained they were used to store personal items. No agreement was reached and the conciliation conference was terminated.
3. The containers remain on site.
4. The appeal does not include any issue in relation to tree removal, it is only concerned with the two containers.

The site and locality

1. The site to which the Order relates is legally described as Lot 4, Section 6 in Deposited Plan 2590 and known as Nos 7-9 Richmond Avenue Medlow Bath. It has an area of approximately 3200sqm and is developed with a single storey brick dwelling house with attached double garage and older style, dilapidated shed building.
2. The locality comprises dwellings on large allotments with significant vegetation.
3. The two containers are located within the rear yard of the site, one is coloured blue and the other terra cotta.

The planning controls

1. The site is zoned Living - Bushland Conservation zone under Blue Mountains Local Environmental Plan 2005 (LEP). The objectives of the zone are: (a) To allow for residential development in the form of single detached dwellings where this development is within the capacity of the environment to sustain such development and is undertaken in a manner that minimises impact on environmentally sensitive areas. (b) To preserve and re-establish native bushland in areas that exhibit a predominantly bushland character, where consistent with the protection of assets from bush fire. (c) To permit only low density residential land uses and to retain large allotment sizes in fringe urban locations or locations that do not have reasonable access to services and facilities. (d) To allow a limited range of non-residential land uses only where these are conducted in association with a predominantly residential land use. (e) To ensure that the form and siting of buildings, colours, landscaping and building materials are appropriate for and harmonise with the bushland character of the locality. (f) To encourage the retention and re-establishment of native bushland along significant fauna corridors and in areas of high visual significance, including escarpment areas and along the Regional Transport Corridor.
2. Clause 32 of the LEP contains a land use matrix that indicates the range of uses that is allowed without consent, with consent or is prohibited. In the Living - Bushland Conservation Zone, development ancillary to a dwelling house is permissible only with development consent.
3. Clause 33 of the LEP applies to development that is exempt of complying development and references those uses includes in Blue Mountains Development Control Plan No 33 (DCP). That development control plan took effect in August 1999 and has been superseded by the provisions of SEPP E&C. A container would not have been exempt development under the DCP.
4. SEPP E&C includes exempt development in Part 2. Subdivision 9 - Cabanas, cubby houses, ferneries, garden sheds, gazebos and greenhouses details those developments that are exempt development and importantly, the development standard in clause 2.18(f) mean that a shipping container is not exempt development.
5. The Dictionary to the LEP includes the following definitions: development ancillary to a dwelling house means a building, work or use that is ordinarily incidental or ancillary to the building, work or use and includes: (a) clearing of native vegetation, and (b) the provision of car parking and hard-stand areas, and (c) such measures as are required to meet the requirements of this plan, including the provision or use of stormwater control devices or sewage disposal areas, but does not include a building, work or use for the purpose of providing public utility services or that is elsewhere defined in this Dictionary. building has the same meaning as in section 4 of the Act.
6. Clause 4 of the EP&AAct includes the following definitions: building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure or part of a manufactured home, moveable dwelling or associated structure. temporary structure includes a booth, tent or other temporary enclosure (whether or not part of the booth, tent or enclosure is permanent), and also includes a mobile structure.

The evidence

1. The parties agreed that the site view and discussions that took place during the on-site conciliation conference should be taken into account in deciding the matter.
2. Mr Papadopoulos is the registered owner of the site. Exhibit 2 is a copy of a Title Search undertaken on 6 May 2015 that confirms this fact. He admits to having brought the containers to the site when he moved there in 2014 (see correspondence in council bundle and confirmed on site view).
3. The council tendered (Exhibit 3) a copy of its consent register for the site. This indicates that no consent has been issued by the council to place the containers on the land.
4. Neither party relied on expert evidence.

Submissions

1. Mr Papadopoulos says that he does not recognise the council's authority as it infringes his rights as a property owner and the law is repugnant to the Australian Constitution. He does not consider that he has done anything wrong and he intends to use the containers as storage sheds and as a workshop. He does not consider that it would be appropriate to seek consent to construct a shed on the land for those purposes given the site contains a number of large trees and is subject to strong winds and high rainfall.
2. At one stage during the hearing he submitted that the containers would be portable dwellings as he had attached wheels to them but when asked by the Court whether they contained a kitchen or bathroom so they can be occupies as a separate dwelling he responded that they were dwelling because he would spend time in them. When taken to the definition of dwelling he submitted that it was immaterial what a dwelling was for him and it unreasonable.
3. When asked whether he understood what the consequences of the Court making the Orders would be, Mr Papadopoulos stated that it would be another decision that's gone against the rights he has. If the council were to insist they should pay for construction of the sheds or whatever they're suggesting that he should put on the property. He accepted that the Court had a right to make the Orders but asked that it be fair acknowledging it was a decision that could be made. He advised that he comprehended the situation, that it was quite clear and that he also acknowledged his right of appeal should the Court dismiss his application.
4. Mr Baird, for the council, submits the legislation is legitimate, remains in force and continues to be valid until declared otherwise. The containers are not a manufactured home, moveable dwelling or associated structure and are a building. The Order has been validly issued and seeks removal of the two containers from the site. No development consent has been obtained for the containers and consent is required. The applicant is the owner of the land and full compliance with the provisions of Natural Justice has been afforded. The Order is clear and concise, there is no argument as to its certainty and it has been properly given to the proper person. The containers remain on the land and, from the statements made by Mr Papadopoulos, both on site and in Court, he understands what is required.
5. The site is a residential area in a bushland setting and the objectives of the zone seek to ensure the form and siting of buildings, colours, landscaping and building materials are appropriate for and harmonise with the bushland character of the locality. Mr Baird submits that the shipping containers fail to meet that objective.

Conclusion and findings

1. Having regard to the site view and the evidence before me, I am satisfied that the legislation under which the Order has been issued is valid, remains in force and applies to the land.
2. I am also satisfied the Order has been properly issued to the proper person, the owner of the land and the applicant in these proceedings.
3. I am satisfied the containers are buildings, that consent is required to install two containers on the site and that the necessary consent has not been obtained.
4. After consideration of Mr Papadopoulos's submissions, there are no reasons why the Order should not be confirmed. The placing of the two containers on the site is contrary to the objectives of the zone.
5. No submissions in relation to the time period in which the Order is to be complied with were made and I am satisfied the applicant comprehends the consequences of not complying with that Order.
6. For these reasons, it is appropriate that the Order is confirmed.
7. The Orders of the Court are: 1. The appeal is dismissed. 2. The Section 121B Order issued under the provisions of the Environmental Planning and Assessment Act 1979 by Blue Mountains City Council to the applicant on 13 October 2014 requiring the removal of two shipping containers from the site, Nos 7-9 Richmond Avenue Medlow Bath is confirmed with a time period for compliance with the Order of 28 days from the date of these Orders. 3. The exhibits are returned.

Sue Morris Commissioner of the Court

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: 21 May 2015