Shoalhaven City Council v Igor Lepan

Applicant's written submissions

1. These are Class 4 proceedings in which the Applicant seeks orders in relation to the unlawful use of land in the Jerberra Estate at Tomerong, south of Nowra.
2. Mr Lepan is using a dwelling house and associated structure that has been erected without development consent and in circumstances where no consent could be obtained for such development.
3. The Applicant seeks orders - by consent - for demolition of the dwelling house and associated shade structure, and for costs.

Previous cases

1. There have been three previous cases decided in the Court relating to unlawful development of land in the Jerberra Estate: 1. On 2 December 2010 Biscoe J delivered judgment in Shoalhaven City Council v Bonner [2010] NSWLEC 251 (Bonner). His Honour ordered, inter alia, that the respondents in that case be restrained from using or permitting the use of the land in question as a dwelling. That order was stayed until and including 30 September 2011. His Honour also ordered that the respondents remove the dwelling and associated improvements on the land. That order was stayed until and including 31 December 2011. The deferral of the order for removal was found to be appropriate in light of the personal circumstances of the Bonner family, which included the imminent birth of a fourth child: see [50], The deferral was also said to be justified because it would provide a 'window of opportunity' for a potentially favourable rezoning of the land in question: [50]. 2. On 31 October 2011 Craig J gave judgment in Shoalhaven City Council v Reid [2011] NSWLEC 193 (Reid). His Honour ordered, inter alia, that the respondent be restrained from using or permitting the use of the land in question (Lots 161 and 162 in DP 11629) unless consent for such use is obtained. That order was stayed until and including 30 November 2011. 3. On 25 September 2012 Biscoe J gave judgment in five separate, but similar, proceedings in Shoalhaven City Council v Ellis [2012] NSWLEC 225 (Ellis). His Honour ordered, inter alia, that the respondents be restrained from using or permitting the use of the land in question (Lots 63, 158, 132, 148 and 163 in DP 11629) unless consent for such use is obtained. Those orders were stayed for a period of approximately 4 weeks to 22 November 2012.
2. In addition, orders have been made by the Court in a number of other Jerberra Estate proceedings.

Evidence

1. The Applicant relies upon the following evidence: 1. the Statement of Agreed Facts; 2. Affidavit of Eric Hollinger sworn 12 January 2017. Mr Hollinger is employed by the Applicant as a Senior Project Planner. His affidavit describes the planning history of the Jerberra Estate. Mr Hollinger's affidavit refers to documents exhibited in one folder marked EH1. The exhibit contains the key documents relating to planning controls over the Jerberra Estate; and 3. Affidavit of Tony Pearman sworn 12 January 2017. Mr Pearman is employed by the Applicant as a Team Supervisor - Compliance. His affidavit attests that no consent was sought from the Applicant under the EPA Act to undertake or carry out development on the land (including the use of the land for residential purposes). His affidavit describes inspections of the land he undertook on 19 December 2012, 8 January 2013 and 7 July 2016. His affidavit also sets out that Applicant served a Penalty Infringement Notice for the offence of 'development without development consent' on 24 June 2013 and a 121B order on Mr Lepan on 1 November 2013. The evidence makes clear that Mr Lepan has been on notice since at least December 2012 that Applicant intended to take action to prevent continued residential occupation if Mr Lepan did not otherwise vacate the property.

Breach of the Act

1. Mr Lepan is the registered proprietor of Lot 75 DP 11629 (Land), known as 75 Invermay Avenue, Tomerong. The Land is approximately 1,858 square metres in size.
2. On or about 19 December 2012 Mr Lepan constructed a single storey timber clad dwelling and detached Colorbond and shade cloth structure (the Dwelling) on the Land. The erection and use of a dwelling house requires development consent. Development consent was not sought or issued for the construction or occupation of the Dwelling prior to its construction. Mr Lepan has used and continues to use the Dwelling for the purpose of a dwelling.
3. Mr Lepan has breached s 4.2 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) (formerly s 76A(1)(a)). Mr Lepan has carried out development without development consent, namely the construction of the Dwelling on the Land, and the use of the Land for the purpose of a dwelling house.
4. Clause 14 of the Shoalhaven Local Environmental Plan 1985 relevantly applied to land within zones 1(b) and 1 (d). Subject to certain exceptions which are not presently relevant, clause 14(2) provided that a dwelling house may be erected on such land with the consent of the Applicant only if the land has an area of not less than 40 hectares. Development consent may not otherwise be granted for the erection of a dwelling house on land within those zones.
5. The land owned by Mr Lepan does not have an area of 40 hectares or more. It follows that no development consent could have been issued under the Shoalhaven Local Environmental Plan 1985 for a dwelling house to be erected on the Land or for the Land to be used as a dwelling. As noted above, development consent was not sought for the construction or occupation of the Dwelling prior to its construction. Mr Lepan has used and continues to use the Dwelling for the purpose of a dwelling.
6. On 22 February 2014 both the Shoalhaven Local Environmental Plan (Jerberra Estate) 2014 (Jerberra Estate LEP) and the Development Control Plan No. 125 (Jerberra Estate) (Jerberra Estate DCP) commenced. The controls in Development Control Plan No. 125 have been transferred to the document 'Chapter N20 Jerberra Estate'.
7. The Land is zoned 'E4 Environmental Living' (E4 Zone) under the Jerberra Estate LEP. Clause 2.3 of the Jerberra Estate LEP and the associated Land Use Table specifies that development of the Land for the purpose of a dwelling house, including erection of a dwelling house and use of a dwelling house, may only be carried out with development consent in land zoned E4 Environmental Living.
8. Clause 4.2A of the Jerberra Estate LEP is relevant to the erection of dwelling houses on land zoned E4 Environmental Living. Clause 4.2A(3)(a) of the Jerberra Estate LEP imposes a minimum lot size for a dwelling house to be permissible on the Land in the E4 Zone. The Land satisfies the minimum lot size requirement of 2000 sqm. However: 1. under cl 4.2A(4) in order for development consent to be granted for a dwelling house on the site, the unauthorised Dwelling currently on the Land would need to be removed; 2. clause 5.4 of the Jerberra Estate DCP, which relates to bushfire risk management, requires all buildings to be located within identified potential building areas and constructed to the appropriate standard under AS3959 and Asset Protection Zones identified in Figure 2 of the Jerberra Estate DCP established to manage the bushfire risk. Mr Lepan's existing dwelling is not located within an identified potential building area; 3. before the Land can be developed an easement must first be registered over the adjoining properties Lot 74 DP11629 and Lot 76 DP 11629 for the purpose of an Asset Protection Zone; and 4. clause 5.8 of the Jerberra Estate DCP, which relates to building envelopes and setbacks, requires all buildings to be located within the potential building area identified in Figure 11 of the Jerberra Estate DCP. Mr Lepan's existing dwelling is not located within an identified potential building area.

Relief

1. There does not appear to be any doubt about the unlawful nature of the development which has occurred on the Land. A dwelling has been erected on the Land. The Dwelling has been, and continues to be, used as a dwelling. Development consent was not sought for the construction or occupation of the Dwelling prior to its construction. Consent is required under the applicable zoning for such development. In the absence of such consent the development is prohibited by s.4.2 of the EPA Act.
2. It follows that the issue before the Court is whether the Court should, in its discretion, make orders requiring demolition of the unlawful development. The Court has a discretion in making an order requiring demolition under s.9.46 of the EPA Act (formerly s.124): Bonner at [45]-[46]; Barton v Orange City Council [2008] NSWLEC 104 at [43]-[49] and authorities there cited.
3. The starting point in any consideration of the Court's discretion should be that the orders are being sought by way of enforcement of a public duty and vindication of the public interest in orderly and lawful development in accordance with the EPA Act: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339G. The Applicant has a responsibility in the circumstances to enforce the EPA Act in order to protect the environment and maintain the integrity of the planning process: see Sedevcic at 340D-E. Allowing Mr Lepan to continue to use his unlawful dwelling house for any prolonged period of time would be contrary to the important environmental objectives in the EPA Act and inequitable given that the community generally is required to comply with the Act, with all of the costs and inconvenience that it may entail.
4. There is no evidence of any hardship that would or could be suffered by Mr Lepan. Mr Lepan does not reside in the Dwelling permanently [Affidavit of Tony Pearman sworn 12 January 2017].

Orders sought

1. The Parties have come to an agreement as to the orders sought from the Court. I am satisfied that such orders are appropriate and within the power of the Court to so order.

Orders

1. In circumstances where parties have reached an accommodation and present a Court with proposed consent orders, irrespective of how confident the parties are that the orders are lawful and appropriate, the Court has an absolute duty to satisfy itself that the orders are appropriate in their entirety. Determining whether orders are appropriate requires a multi-stage approach to the task. First, the judge must determine whether the orders are consistent with the applicable law. This will require a review and understanding of both the statutory power to be exercised by the Court, together with a review and understanding of the statutory provisions relevant to the issues which are the subject of the proceedings.
2. Secondly, the judge must determine whether the resolution of the proceedings in accordance with consent orders will achieve a fair and just outcome. The Court most probably can only confidently arrive at such a conclusion if the relevant factual circumstances are understood in the context of the relevant statutory provisions. This task will require a review of the evidence that was produced to the Court and an analysis of such evidence which is, most probably, guided by submissions from the parties seeking the consent orders. Determining whether the outcome is fair and just will often depend on discretionary factors, in relation to which the Court will frequently be guided by judicial authorities in cases which are relevant because they addressed and resolved similar issues. Accordingly, if the parties in proceedings have placed case law before the Court, then the judge should have reviewed them in order to determine their relevance in understanding the law and guiding the exercise of discretion in similar circumstances.
3. In this case, having analysed the relevant statutory law, the planning controls, the case law referred to in the Applicant's submissions, reviewed the two affidavits which were placed before the Court, I am confident that the accommodation the parties have reached, resulting in the consent orders, constitutes an appropriate determination of the proceedings. Accordingly, I have decided that I should make the orders placed before the Court by consent.
4. The Court, therefore, orders by consent: 1. The respondent is to demolish and/or remove from the Land the following item identified on the annexed plan within six months of the date of these orders: 1. the Dwelling marked 'A'; 2. the shade structure located to east of the Dwelling marked 'B'; and all demolished materials and debris is to be removed from the Land within six months of the date of these orders. 1. Compliance with Order 1 shall be to the full satisfaction of the Applicant. 2. The Respondent is to pay the Applicant's costs of these proceedings, as agreed or assessed.

ANNEXURE A 1. 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: 23 April 2018