Shoalhaven City Council v Bonner

Land and Environment Court (NSW)|2010-11-19|Before: Biscoe J

BACKGROUND CONDUCT OF THE PARTIES 20 A watershed event occurred on 19 October 2004. For the first time the council discriminated between existing development and future development on lots on the Estate when it resolved that: "Council continue to take appropriate legal action against any further unauthorised development since the date of the audit". 21 Thus, there was a moratorium on legal action against existing developments but legal action would be taken against further developments. The audit was of existing structures on lots in the Estate. The audit commenced earlier in 2004 but the "date of the audit" is treated as 19 October 2004. The word "continue" was inapt since the council had never taken legal action against unauthorised development on lots in the Estate.

22 By letters dated 29 October 2004 and 29 December 2006 the Council twice notified the terms of that resolution to the respondents and all other owners of lots in the Estate. Therefore after 29 October 2004 the respondents were in no doubt of the threat of legal action if they built structures on a lot in the Estate, as they did on the Land in 2008.

24 More needs to be said about the conduct of the parties since 2004.

25 On 23 February 2004 the Council wrote to the respondents stating that records indicated a building/structure had been constructed upon Lot 62; that Council had resolved in December 2003 that a detailed inspection be carried out on existing buildings/structures to ascertain compliance with BCA requirements, Planning for Bushfire Protection Guidelines and the relevant bushfire Australian Standard; and that existing effluent disposal systems would be inspected to determine compliance with environmental and public health requirements. The letter was in error as, at that time, there was no structure on Lot 62. The Council discovered the error and on 18 March 2004 wrote to the respondents stating that it had now amended its records and correctly identified Lot 62 as vacant as at 11 March 2004.

26 Following the construction by the respondents later in 2004 of a dwelling and garage on Lot 62, on 23 August 2004 the Council wrote to them noting that an inspection had revealed unauthorised development activities and requiring an undertaking that (among other things) they would not, without Council's written consent, carry out any further unauthorised development activities.

27 After Mr Bonner had notified the Council that he was seeking legal advice, the Council wrote to the respondents on 14 September 2004 requesting them to show cause why legal proceedings should not be commenced against them for unauthorised development activities on Lot 62.

28 On 28 September 2004 Mrs Bonner wrote to the Council saying they had no other reasonable alternative form of accommodation.

29 On 29 October 2004 Council sent a letter to owners of lots in the Estate notifying them of the terms of its watershed 19 October 2004 resolution: see [20] above. In terms of that resolution, the structures which the respondents had built on Lot 62 earlier in 2004 were safe from legal proceedings.

30 In December 2004 the respondents' house and belongings on Lot 62 were destroyed by a house fire. On 28 January 2005 Mr Bonner wrote to the Council advising of the destruction by fire and asking for permission to live in the garage and caravan on Lot 62, which were spared in the fire, as they had no other option but to live there. On 4 February 2005 the Council wrote to the respondents saying that the matter was being investigated. On 5 September 2005 the Council wrote again saying it had no legal ability to approve the occupation of the garage, that the Council was currently undertaking rezoning studies including in relation to Lot 62, that the outcome will take many months to finalise and that owners will be advised as the process proceeds.

31 On 29 December 2006 the Council wrote to owners of lots in the Estate updating on the progress of rezoning investigations, road design and constructions issues. The letter said Council did not have the legal ability to approve dwellings on individual lots in the estate and reiterated the resolution of 19 October 2004.

32 By August 2007 the Council estimated that there may be up to 100 persons residing in the Estate.

33 As previously stated, in 2008 Mr Bonner proceeded to construct a dwelling and associated structures on the Land.

34 On 8 April 2008 the council resolved to "issue a Notice of Intent to owners of unauthorised structures within the Jerberra Estate, Tomerong, detailing that as a result of the State Government failing to progress the rezoning of Jerberra Estate and deal with the matter satisfactorily that Council will have to take action to remove any unauthorised structures". Unlike the 2004 resolution, this resolution did not distinguish between structures built before and after 19 October 2004. In fact, it appears that no notices of intent have been issued as contemplated by the 2008 resolution. The explanation may be that since then there has been progress with the State government towards rezoning of the Estate, albeit not in relation to Council's preferred rezoning to permit one dwelling per lot.

35 On 19 June 2008 the Council wrote to the respondents stating that a recent inspection had revealed that unauthorised development activities had taken place upon the Land, including a dwelling, swimming pool and waste facility, for which no development consent had been granted. The Council required all work to cease immediately; confirmation that the respondents would not, without Council consent, carry out development, and an explanation as to why unauthorised works had taken place. A question has arisen as to whether Mr Bonner continued work after receipt of this letter. It appears that he did so in relation to internal finishes.

36 In September 2008 Mr Bonner was interviewed by Council compliance officers and admitted that he had carried out the works on the Land.

37 In October 2008 the respondents moved into the dwelling on the Land.

38 After the September 2008 interview the respondents heard nothing more from the Council about structures on the Land until receipt, on 8 April 2010, of a Council letter dated 25 February 2010 stating that as they had constructed a dwelling and other structures on the Land without development consent, they were required to show cause within 14 days why the Council should not immediately commence proceedings seeking, among other things, demolition and removal and that they be restrained from using the Land for the purpose of a dwelling.

39 Mr Bonner attempted to show cause in a letter he wrote to the Council on 8 April 2010.

40 By letter dated 13 April 2010 the Council's lawyers indicated to the respondents in effect that they had 14 days to convince the Council not to commence proceedings seeking demolition and vacation.

41 Correspondence followed between the solicitors for the parties. On 11 May 2010 the respondents' solicitors requested nine months to vacate the property. I accept Mr Bonner's evidence that in fixing on that nine months he did not factor in his wife's pregnancy of which he was then unaware. On 26 May 2010 the Council's solicitors wrote that the Council would only be prepared to allow the respondents until 30 September 2010 to vacate the property and effect works to make it uninhabitable.

42 On 16 June 2010 the summons was served upon the respondents. At a directions hearing in July 2010 the Court suggested a mediation but the Council said it could not mediate.

PERSONAL CIRCUMSTANCES OF THE RESPONDENTS 43 The respondents have three dependent children aged 14, 10 and 16 months. Mrs Bonner is due to give birth to their fourth child in about a month, on Boxing Day 2010.

44 The respondents' financial position is modest. Mr Bonner is employed full time as a truck driver. Mrs Bonner is employed two days per week. She will of course have to stop work when the fourth child is born. She has worked through the childhoods of their present children. With a child under two years of age and a newborn, she had intended to have a break from employment. However, if they have to vacate the Land and pay rent elsewhere, it will make it very difficult for the respondents to manage financially given that they also have to service a mortgage over the Land, particularly if Mrs Bonner is unemployed.

THE DISCRETION TO REMEDY OR RESTRAIN A BREACH OF THE EPA ACT 45 The Court has a wide discretion as to the orders it may make under s 124 of the EPA Act which relevantly provides: " 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. (2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may: (a) where the breach of this Act comprises a use of any building, work or land - restrain that use, (b) where the breach of this Act comprises the erection of a building or the carrying out of a work - require the demolition or removal of that building or work..."

46 The authorities relating to the exercise of the discretion conferred by s 124 were surveyed by me in Barton v Orange City Council [2008] NSWLEC 104 at [43] ff. The discretion is not a warrant to set at nought the sensitively balanced provisions of the EPA Act by substituting for their operation the personal opinions of the judge hearing the case. But neither should the discretion be given an unduly restricted operation. It is just as much part of the statutory structure and scheme for the enforcement of the planning law as are the other parts: ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 82 (CA). Guidelines applicable to the exercise of the discretion were stated in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339 - 341 (CA). One guideline is to keep in mind that the restraint sought is the enforcement of the public duty imposed by the statute and the public interest which exists in the orderly development and use of the environment. Another guideline is that the discretion permits the Court to soften, according to the justice of the particular circumstances, the application of rules which may produce an unjust result in the particular case, sometimes by postponing the effect of the injunctive relief. For example, orders were suspended for 12 months in Canterbury Municipal Council v Perri (1982) 47 LGRA 111 at 117; for 14 months in Woollahra Municipal Council v Carr (1982) 47 LGRA 105 where the circumstances included the respondent's financial and other hardship; and a demolition order was suspended for six months with liberty to apply for a further extension in Barton v Orange City Council at [55].

CONCLUSION 47 The primary course proposed by the respondents is a kind of Court imposed notional development consent, outside the EPA Act, for three years residential use subject to conditions requiring certain works to be carried out to meet health and safety standards. It sits uncomfortably with the scheme of the EPA Act, where, if a development consent could be granted lawfully, the Council would assess and determine the development application according to a range of mandatory and perhaps non-mandatory considerations and subject to other statutory requirements. That inclines me against a three year stay of the cease use order. It is unnecessary to address other specific reasons proffered by the Council for opposing a three year stay.

48 Having regard to the conduct of the parties and the personal circumstances of the respondents, it is more appropriate in my opinion to stay the cease use order for about nine months to 30 September 2011, which is prior to the commencement of next summer and the associated potentially higher bushfire risk.

49 At all material times the respondents have known it was illegal to construct dwellings on lots in the Estate because the zoning did not permit it and development consent could not be granted. They have known since 2004 that the Council's policy was to take legal proceedings in respect of new structures. However, as he testified, Mr Bonner believed that the risk of legal proceedings would not be realised because rezoning of one dwelling per lot would be achieved, and he never envisaged that the Council would single out his family for legal proceedings. His belief was encouraged by the Council's conduct in pursuing a one dwelling per lot zoning, doing nothing to implement its 2004 policy until 2010, notifying owners of lots in the Estate of its attempts to bring about a rezoning, and imposing rezoning and road levies on owners.

50 The respondents will be in dire financial circumstances if they are evicted in as little as three months, as proposed by the Council, because Mrs Bonner's income is important to the family unit; it is unlikely she will be able to return to employment in such a short time; and it would be quite inappropriate for her to do so with three children, one of whom is under two years of age, and a new baby. It will be very difficult for the respondents to afford rented premises whilst continuing to service their mortgage over the Land, particularly if Mrs Bonner is not in employment. A stay of the cease use order for about nine months will provide some breathing space to permit her to return to work if she wishes to do so, but not too soon after the birth of her fourth child. It will also provide a window of opportunity for potential rezoning which might in turn lead to an approval that would permit them to continue to reside on the Land. In all the circumstances, that is the best that the Court can reasonably do to alleviate the financial hardship that will beset this hardworking young couple who have the misfortune to be the first owners of a lot in the Estate against whom proceedings of this nature have been brought. Their investment in the Land will be protected for three years for, as the parties agree, they will not be required to remove the structures for that period to allow for the opportunity of a rezoning which permits them.

51 The Court has power, by an appropriate order, to ensure that its order does not operate after the statutory basis upon which it was made ceases to exist: Permewan Wright Consolidated Pty Ltd v Attorney General (1978) 35 NSWLR 365 (CA). Accordingly, provision should be made for liberty to apply for a permanent stay of the removal and cease use orders in the event that the Estate is rezoned and a dwelling on the Land becomes lawful.

52 It is not clear in all the circumstances, including the poor financial position of the respondents, that the Council wishes to press for a costs order against them. Therefore I will reserve costs.

The respondents are to remove the dwelling and associated improvements on Lot 104 DP 11629 (the Land). 2. Order 1 is stayed until and including 31 December 2013. 3. The respondents are restrained from using or permitting the use of the Land as a dwelling. 4. Order 3 is stayed until and including 30 September 2011. 5. Liberty to apply to permanently stay Orders 1 and 3 in the event that a dwelling on the Land becomes lawful. 6. Costs are reserved. Unless an application for costs is made by 9 December 2010 by letter to the Registrar accompanied by written submissions there will be no order for costs. 7. The exhibits may be returned. 54 If a party proposes different orders they are to arrange with my Associate to have the matter listed before me on or before 7 December 2010 to settle the orders, otherwise the orders will be as I have proposed.

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.

CITATION : Shoalhaven City Council v Bonner [2010] NSWLEC 251

ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 Barton v Orange City Council [2008] NSWLEC 104 CASES CITED: Canterbury Municipal Council v Perri (1982) 47 LGRA 111 Permewan Wright Consolidated Pty Ltd v Attorney General (1978) 35 NSWLR 365 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Woollahra Municipal Council v Carr (1982) 47 LGRA 105

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