Rockdale City Council v Findlay

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40589 of 2004 ROCKDALE CITY COUNCIL v JOHN BRIAN HYDE FINDLAY

1 In these proceedings Rockdale City Council ("the council") seeks a declaration that the respondent has carried out development on land known as 58 Connemarra Street, Bexley ("the land") without development consent as required by the Rockdale Local Environmental Plan 2000 ("the LEP"). The council also seeks consequential orders. 2 The development referred to is the placement of a shipping container upon the top of which is erected a caravan and annex. The evidence of the council is contained in four affidavits, namely the affidavits of Philip Lee Brown sworn 22 July 2004, Teangi Stephanie Lukins sworn 13 July 2004, and Alan Leonard Croucher sworn 14 July 2004 and 24 September 2004. 3 The land comprises lot C in deposited plan 103425. The land is traversed by an easement for stormwater channel nine feet wide shown in deposited plan 189502. Currently a concrete channel approximately five foot six in width and four foot in depth crosses the land, presumably located within the easement. 4 The affidavit of Ms Lukins establishes that the land is located in an area zoned 2(a) - low density residential zone as prescribed by the LEP. The zoning table contained in the LEP states the zone objectives and controls set out in cl 12 of the LEP. Specifically in relation to the 2(a) low density residential zone no development may be carried out without development consent first being obtained from the council. It follows that in respect of the land any development is prohibited unless consent is first obtained. 5 Section 4 of the Environmental Planning & Assessment Act 1979 ("the EP&A Act") defines "development" as follows:- development means: (a) the use of land, and (b) the subdivision of land, and (c) the erection of a building, and (d) the carrying out of a work, and (e) the demolition of a building or work, and (f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument, but does not include any development of a class or description prescribed by the regulations for the purposes of this definition.

The term "building" is also defined in the EP&A Act as follows:- building includes part of a building and any structure or part of a structure, but does not include: (a) a manufactured home, a moveable dwelling or associated structure or part of a manufactured home, a moveable dwelling or associated structure, or (b) a temporary structure within the meaning of the Local Government Act 1993 . 6 The provisions of the Local Government Act 1993 ("the LG Act") which are also relevant to these proceedings include matters which require approval of the council as set out in Part 1 Chapter 7. Section 68 of the LG Act refers to the requirement for approval of council and subsection (1) provides:- 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.

The table which follows is divided into various categories. Part A includes the following category of development requiring consent:- Part A Structures or places of public entertainment 1 Install a manufactured home, moveable dwelling or associated structure on land 2 Install a temporary structure on land 3 Use a building or temporary structure as a place of public entertainment or permit its use as a place of public entertainment 7 The council submits that insofar as the caravan may comprise a manufactured home, a moveable dwelling or associated structure or part of a manufactured home as described in the definition of building contained in s 4 of the EP&A Act, the provisions of s 68 of the LG Act requires approval of the council for such construction. 8 The photographs attached to the affidavit of Ms Lukins showed that the work carried out by the respondent has resulted in the caravan being placed above the shipping container, that is approximately 10 feet above ground level. Accordingly, insofar as the caravan may have been classified under the EP&A Act as a moveable dwelling or associated structure, the positioning of the caravan is such that it is not moveable. It cannot be conveyed on wheels to another place because it is attached to the shipping container. 9 The affidavits of Mr Croucher establish the nature of the development. In his affidavit of 14 July 2004 Mr Croucher deposes:- 7. During my inspection I made several observations in relation to various elements of the structure. In relation to the annex support posts, I observed that two of the support posts are about 50 x 50 mm square and that the other support post is a galvanised pipe approximately 100 m in diameter. All of the posts are approximately 3.5 metres high with a spacing of approximately 3 metres apart. 8. I observed that the two 50 x 50 mm posts appeared to be supported upon individual pad footings separate to the existing slab on the ground. I observed that the galvanised pipe is supported off the brick wall of the culvert. 9. I observed that all three of the annex support posts have no directional bracing to resist wind and impact loads that may result from, for example, vehicles and floating objects.

Mr Croucher made other detailed observations in relation to the structure. Mr Croucher made the following observation at para 14:- In my opinion the structure as a whole is very unstable, as there are no mechanisms in place, in particular the lack of directional bracing to the annex support posts, to resist wind loads or impact loads which may result from vehicles and or floating objects.

Mr Croucher also formed the view that the annex support posts were undersized. He concluded:- 17. In my opinion access to the annex and caravan is unsafe and undesirable. 18. In my opinion the structure's instability presents a real risk of persons, whether inside the structure or in the vicinity of the structure, being seriously injured, were the structure to fall. 10 In his second affidavit sworn 24 September 2004 Mr Croucher expressed his opinion that the support posts would not withstand the impact from any vehicle. 11 The respondent has provided the Court with a statement of facts, being exhibit 1. It establishes that a shed approximately ten metres by ten metres was previously located on the land. The shed contained the respondent's furniture, clothing, tools and other possessions. In 1998 the channel became flooded and inundated the land in consequence of which the respondent's possessions were apparently destroyed. To avoid a repetition, the respondent placed the container on the land with the caravan on top to position his possessions above the level of flood water. 12 The respondent has tendered a letter from Willing & Partners, consulting engineers who were retained either by the council or by Sydney Water. The letter, dated 3 September 1999, is addressed to Mr Brian Findlay of 87 Queen Victoria Street, Bexley, which adjoins the land. The addressee is the respondent's father who is the owner of the premises adjacent to the land. The letter refers to the channel which affects his property and also that of the respondent. The letter states inter alia:- Your property. The report confirms that the properties at 58 Connemarra Street and 87 Queen Victoria Street have a very high to extreme flood hazard rating. This is due to the high velocities of flow in the open concrete channel, the restricted capacity of the channel and downstream culvert and the rapid rate of the rise and depth of flood waters during flood events. Our modelling studies confirm your observations and the information discussed at our site meeting. Because of this hazard rating the two properties are recommended as being the highest priority for remedial action. The report thereafter proposed a solution to the flooding problem by increasing the width and depth of the channel and by covering the channel. 13 Mr Brian Findlay who has appeared as agent today for the respondent, informed the Court that he has been endeavouring to arrange to have Sydney Water and/or Rockdale City Council carry out the work described in the letter of Willing & Partners. He has informed the Court that no action has been taken and that Sydney Water has indicated that the proposed work is not on their list of priorities for the next twenty years. However, the council does not own the easement and accordingly has no control over the operations of Sydney Water. 14 The provisions of the EP&A Act section 76A require that development consent to be obtained before any development is carried out. The combined effect of section 76A of the EP&A Act together with the provisions of cl 12 and cl 68 of the LEP make it plain that development without consent is prohibited. 15 The container of itself is a structure: see Wyong Shire Council v Cohen & Anor [2004] NSWLEC 171. The Court is satisfied that the structure which now exists on the land is one which requires consent, as does the former caravan since it is now immobile. 16 Accordingly the Court is satisfied that the council is entitled to the declaration as sought in the amended application. 17 The council has made an application that its costs of these proceedings be paid by the respondent. The council submits that as declarations and orders are to be made in its favour it is entitled to costs to compensate it for its costs and expenditure incurred in the litigation. 18 The respondent says that it has consulted with the council from time to time but the consultations have been unproductive. The solicitor who was retained by the respondent withdrew and the respondent says he was unable to find a solicitor who was prepared to take proceedings against Sydney Water. The respondent submits that the council has the power to control developments. As a consequence of development in the area the respondent claims that it was necessary to place his goods in a location where they would not be subjected to flooding. 19 The Court is mindful of the steps that were taken by the council to avoid the litigation. Prior to the institution of any proceedings a notice dated 5 September 2002 issued pursuant to section 121H of the EP&A Act was served on the respondent relating to the structures on the land. In fact the notice was addressed to Mr J B H Findlay at 87 Queen Street, Bexley. However the Court has evidence that both the respondent and his father resided in the adjoining premises. 20 On 11 November 2002 an order was issued pursuant to section 121H of the EP&A Act. On 30 December 2002 the council wrote to the respondent advising him of the requirement to obey the order and that a further ten days would be allowed to meet the council's requirements. 21 On 16 January 2004 Abbott Tout, solicitors for the council, wrote to the respondent requiring him to make written representations setting out details to justify the existence of the structures, the purpose for which they were used and why legal action should not be taken. In response a letter was written to the council by Mr Brian Findlay advising that he was responding on behalf of his son. The letter states:- Our solicitors have advised me that I should inform you they have arranged a conference for us with senior counsel for February 24 2004 re this and related matters. 22 No further communication had been received from the respondent by 4 April 2004. On this day the council's solicitors again wrote advising that unless a response was received by 13 April 2004 the institution of proceedings would be recommended to the council. 23 By facsimile dated 5 April 2004 a letter was forwarded by Mr Brian Findlay to the council's solicitors. The letter did not suggest any resolution or constructive proposals to avoid legal proceedings. 24 On 28 April 2004 the council's solicitors advised that proceedings would be commenced. They were commenced shortly after by the filing of an application on 20 May 2004. 25 Pursuant to section 69 of the Land And Environment Court Act 1979 the Court has a broad discretion in respect to the award of costs. The extent of the power was discussed in detail by the High Court of Australia in Oshlack v Richmond River Council (1998) 193 CLR 72. The discretion is unlimited save only that it must be exercised judicially: see Latoudis v Casey (1990) 170 CLR 534 particularly at p 541 per Mason CJ and at page 558 per Dawson J. At p 97 in Oshlack McHugh J said as follows:- The expression the "usual order as to costs" embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party [104] . If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation. [104] Latoudis (1990) 170 CLR 534 at 543, per Mason CJ; at 562-563, per Toohey J; at 566-567, per McHugh J; Cachia v Hanes (1994) 179 CLR 403 at 410, per Mason CJ, Brennan, Deane, Dawson and McHugh JJ. 26 In Ritter v Godfrey (1920) 2 KB 47 the Court held that ordinarily costs follow the event and that a successful litigant is to receive his costs in absence of special circumstances justifying some other order. Such a principle has been adopted repeatedly in Australian Courts: see for example Oshlack, Melouhowee Pty Ltd (Receiver and Manager Appointed) v Steenbohm (Waddell CJ in Equity, Supreme Court of New South Wales, 6 February 1992, unreported). 27 The costs in these proceedings have been incurred because the respondent has opposed the relief sought by the council. The Court is sympathetic to the predicament of the respondent. However in Save The Showground For Sydney Incorporated v Minister for Urban Affairs and Planning (1998) 105 LGERA 294 the former chief judge stated the principles concerning award of costs at pp 255-256. Costs orders are made in the exercise of the Court's discretion which must be exercised judicially. The council sought to avoid the litigation but the respondent wished to have the matter determined by the Court, as is his right. That right has been exercised and it is only appropriate that the unsuccessful party should meet the council's costs. 28 Accordingly the Court will make the following declarations and orders:- 1. a DECLARATION that the Respondent has by himself, his servants or agents carried out development or caused, permitted or suffered the carrying out of development being the erection of a building comprising an elevated annex, caravan platform, support poles, shipping container and elevated caravan on the subject property being lot C DP 103425, 58 Connemarra Street, Bexley;

an ORDER that the annex structure located on poles at the subject property be demolished within 30 days of the date of this order;

an ORDER that the caravan located on a shipping container on the subject property be removed from the shipping container within 60 days of the date of this order;

an ORDER that the caravan may remain on the subject property provided that it is fixed to the ground;

an ORDER that the shipping container located on the subject property be removed within four months unless development consent is first obtained to allow it to remain on the site;

an ORDER that the Respondent pay the Applicant's costs;

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.