Shoalhaven City Council v Reid

In person (First Respondent) N/A (Second Respondent) Maddocks Lawyers (Applicant)

Self represented (First Respondent) N/A (Second Respondent) File Number(s): 40403 of 2011

EX TEMPORE Judgment 1By a summons issued on 18 May 2011, the applicant Council seeks to restrain the use by Mr Robert Reid, the first respondent, of land being lots 161 and 162 in Deposited Plan 11629, known as 162 Inglewood Crescent Tomerong ( the land ). The land was purchased by Mr Reid in 1995. 2Since 1995, Mr Reid has erected a dwelling on the land, water tanks have been installed, caravans had been placed on the land, a sewage treatment system has been installed and dams have been constructed. Mr Reid, so the evidence indicates, resides on the land with six children. 3The erection of the dwelling and other structures, as well as the carrying out of the works that I have described, all constitute development within the meaning of s 4 of the Environmental Planning and Assessment Act 1979 ( the EPA Act ). No consent had been obtained under the EPA Act for any of that development. The Council submits that such consent is required, with the consequence that s 76A of the EPA Act has been breached. 4Until last week, Mr Reid had been legally represented by Mr W T Ellicott, solicitor, of Wollongong. Mr Ellicott had filed an appearance in the proceedings on behalf of Mr Reid and more recently had filed points of defence in response to the Council's points of claim. This had been done in accordance with directions given by the Court in that regard. 5By those points of defence, the erection of the dwelling to which I have referred, the placing of caravans on the land, the installation of the sewage treatment system and the construction of dams were all admitted. It was also admitted that the dwelling and caravans were used as part of the residential component of the land use. Finally, it was admitted that no consent had been obtained for the erection of the structures described or the carrying out of works on the land. 6Nonetheless, the points of the defence pleaded that Mr Reid "did not admit" that by the erection of structures and carrying out the works described he acted in breach of s 76A of the EPA Act, albeit that no exculpatory facts or particulars were pleaded. The pleading thereafter addresses, in the alternative, discretionary matters, seeking to have the Court refrain from making orders, or seeking the deferral of the operation of the orders that might otherwise be made. 7When the matter came before me for hearing this morning, Mr Ellicott appeared and indicated that he would seek leave to withdraw from the proceedings as his instructions from Mr Reid had been withdrawn from him last week. He filed in Court a Notice of Ceasing to Act in the matter. 8Mr Reid was present in Court. He announced his appearance and confirmed that he had withdrawn instructions from Mr Ellicott to act in the matter. He further indicated that as a citizen of "the free state of Australia" he did not recognise the force of laws of New South Wales and therefore did not recognise the jurisdiction of this Court to make any orders in the proceedings. That submission was not further developed. 9Although Mr Reid then indicated his intention to leave the Court forthwith, I indicated that it would be in his interest to remain so as to hear the Council's case and to make any submissions that he wished to make at the conclusion of that case. In the result, he remained in Court while some of the Council's evidence was read but in the course of that evidence he announced that he did not wish to hear more. Despite my request that he remain because of the potentially important matters that might affect him, he then left the Court. Prior to his departure I had explained the possible consequence of any orders that might be made in accordance with the Council's claim and also indicated the possibility that, if successful, the Council may seek an order for costs against him. While acknowledging my advice to him he left and did not return. As a consequence, no evidence was presented by him or on his behalf. 10The land in question is part of an area of land south of Nowra known as the Jerberra Estate. It is an area of land that was the subject of a "paper subdivision" effected on registration of a plan of subdivision in 1922. Until 1986, the entirety of the Jerberra Estate was held by two owners. However, from that year onwards individual lots created by the 1922 subdivision were sold. 11At the time at which sales commenced, the planning controls that applied to the land under the EPA Act were such that no development consent could be granted for the erection of a dwelling house or the carrying out of works on it that were incidental to residential occupation. From that time until the present, the land in the Jerberra Estate has been zoned part Rural B (Arterial and Main Road Protection) or Rural D (General Rural) under the provisions of Shoalhaven Local Environmental Plan 1985 (the LEP) . 12The subject land was and remains zoned Rural B. Clause 14 of the LEP that applies to land so zoned proscribes the erection of a dwelling upon it unless the land has an area of 40 hectares or more. Although there are some exceptions to that constraint, none are presently relevant. The land owned by Mr Reid has an area of less than 1 hectare. Indeed, it seems that while lots within the Jerberra Estate subdivision have varying areas, none of them exceed 2 hectares in area. 13Given the planning controls imposed by the LEP upon development of the land and given the admission that the erection of structures and carrying out of works that I have described were carried out by Mr Reid without obtaining a development consent, I find that the erection of those structures and the carrying out of those works has been undertaken in contravention of s 76A of the EPA Act. While dwelling houses are permissible upon the land, the minimum area requirement of cl 14 of the LEP is not met. Subsection (1) of s 76A relevantly provides as follows: "(1) 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." 14In spite of the planning controls that have applied to the Jerberra Estate since 1986, a number of lots within the Estate have had dwellings erected on them, none of which have been erected in consequence of any consent or approval given by the Council. More recently, the actions of lot owners in so doing has resulted in orders being made in this Court not only restraining the use of those dwellings but, in one case that has come before this Court, requiring the removal of the unlawfully erected structures ( Shoalhaven City Council v Bonner [2010] NSWLEC 251). 15There is no doubt that the erection of these dwellings and carrying out of other works on various lots within the Jerberra Estate has presented difficulties for the Council. Indeed, it is fair to observe that since the early 1990's, the Council has made considerable efforts to have planning controls imposed upon the land within the Jerberra Estate that would allow one dwelling per lot to be a permissible form of development with the consent of the Council. 16From 1992 until very recently, the Council has persisted in negotiating with the State Government in an endeavour to have the Minister for Planning amend the planning controls applicable to the land so that the Council's desired form of development could be achieved. This the Council did notwithstanding reports obtained by it during the period of negotiation that identified serious concerns with development of the Estate at the rate of one dwelling on each lot. Those concerns were reflected in reports identifying environmental impacts upon significant flora and fauna within the Estate occasioned by clearing for dwellings together with the environmental effect that would be had by the provision of onsite sewage disposal systems for each lot. 17A further concern identified in reports commissioned by the Council related to the danger presented to structures on and occupants of the Estate by the onset of bushfires. The area surrounding the Jerberra Estate is heavily vegetated and, according to the expert reports that have been obtained, the bushfire risk was high with those reports recommending against residential development, at least at the intensity contemplated by the Council. It was in the face of these reports that the Council sought to have implemented the planning control that would have allowed residential use of each lot in the Jerberra Estate. 18It was not until May 2009 that the Council finally acknowledged its inability to achieve residential development at the level sought by the individual lot owners in the Jerberra Estate. Having then acknowledged that its preferred position could not be achieved, it would seem from the evidence before me that the Council then endeavoured to address the aspirations of lot owners in the Estate. 19In September 2010 the Council issued a brochure to all lot owners in the Jerberra Estate indicating the alternatives for some form of residential development that was possibly achievable on parts of the Estate. The brochure identified alternate planning proposals that could be sought and which might achieve these alternatives. Subsequent to distribution of the brochure, information meetings were held so that landowners' views could be considered. 20Ultimately, in August of this year the Council submitted a rezoning proposal which, if accepted, would allow some residential development on part only of the Jerberra Estate. However, this proposal did not avail the subject land. As it related to it, the proposal contemplated that the minimum allotment area for a dwelling on or in the vicinity of lot 161 would be 40 hectares while the minimum area for the erection of a dwelling on or near to lot 162 required a minimum area of 5,000 m 2 or half a hectare. 21By letter dated 2 September 2011 a delegate of the Minister for Planning gave a gateway approval pursuant to s 56 of the EPA Act enabling the Council to proceed with the rezoning proposal that it had submitted. While the evidence suggests that rezoning in accordance with the Council's proposal is likely, such rezoning will not avail Mr Reid for the reasons that I have indicated, related to the minimum allotment size for the erection of a dwelling on or in the vicinity of the land. 22I have set out the Council's endeavours directed to rezoning of the Jerberra Estate because of the concerns that it has shared over the years with lot owners within that Estate as to the ability to develop their respective lots by the erection of a dwelling on each of them. The Council has not been able to achieve its preferred rezoning. 23That having been said, it must also be noticed that it is now some time since the Council first gave notice to owners of land within the Jerberra Estate that many of them would be disappointed by the inability of Council to achieve its preferred form of rezoning. Mr Reid is no exception to those who were given notice. As long ago as June 2008 Mr Reid, along with other owners of land in the Estate, were given notice by which it was indicated that they were unlikely to be able to retain their unlawfully erected structures on the land, given the manner in which planning proposals were then being formulated. 24As I have already found, the structures erected and works carried out on the subject land is development carried out in breach of s 76A of the EPA Act. A significant breach of the law is involved. There is a necessity to recognise an obligation to enforce public duties and obligations. The orders sought are a vindication of the public interest in the orderly and lawful development of land in accordance with the EPA Act ( Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339G). The need to obtain development consent when such consent is required by law is essential to the orderly development of land within this Estate. It is directed to protection of the environment and maintaining the integrity of the planning process. 25As was submitted on behalf of the Council, this matter involves no technical breach of the law. The evidence before me abundantly supports this proposition. Not only have I been provided with evidence which demonstrates the planning background which I have summarised but I have also been provided with evidence identifying the consequence of allowing the current residential occupation of the unlawfully erected structures to continue. That evidence is directed to three important matters. The first is the state of the dwelling itself, the second is the threat presented by bushfire and the third is the continued operation of the sewage treatment system located on the land. 26The principal dwelling (if it may be so described) erected on the land has been inspected on more than one occasion by Council Officers. The most recent inspection indicates that in many respects the dwelling does not meet Building Code of Australia requirements. That shortcoming is reflected in the miscellany of materials that have been used to form both walls and roof, leaving much to be desired in the manner in which the building has been pieced together. External walls which are incomplete comprise a combination of materials including refrigeration panels, plastic sheets and sarking together with some timber panels. Internal inspection was not available as Mr Reid declined to allow this to take place. 27Miss McVey, an officer of the Council well versed in the requirements of effective and hygienic sewage treatment, has indicated the unsatisfactory state of the treatment system on the site, having carried out inspections of it. There appear to be two such systems, one of which is not operative. Observations of the operative system indicate that, amongst other things, there is no primary treatment for much of the effluent discharge from the premises and, in addition, runoff from the septic tank is not disinfected and surcharges onto an area that is not fenced or secured to prevent human contact. That situation is entirely unsatisfactory, not only for the health of persons in and around the dwelling itself but in terms of the impact that it is likely to have upon the environment. 28The third discipline that has been addressed in the evidence is that of bushfire safety. Mr Rose, an expert whose statement has been tendered as exhibit B, has indicated the difficulties that would be presented in dealing with the hazard of bushfire in the vicinity of the subject dwelling. He identified the nature of the terrain and the problem this would present in the event of bushfire. By reference to the standards ordinarily applied to bushfire assessment he concluded that the subject land falls within the "extreme" category. 29Mr Rose said that the Shoalhaven Bush Fire Risk Management Plan 2010 includes an asset register that ranks Jerberra Estate as an extreme risk and the forth highest asset risk of 245 "assets" listed for the City of Nowra local government area. The determination of "extreme risk" is a combination of the bushfire ranking as "likely" with a consequence status of "catastrophic". He indicated that in his experience the extreme risk for the Jerberra Estate emanates from the poor design of many buildings unable to withstand bushfire risk, coupled with inadequate setbacks in the form of asset protection zones separating buildings from the fire hazard. 30The conclusion expressed in his statement best encapsulates the present problem. Speaking of the position as of October 2011 he said: "Conditions now exist such that if a bushfire occurred under adverse weather conditions, it is possible for it to approach the subject building with a speed and intensity that occupants of the subject dwelling would not have time to evacuate. Under this scenario it is my expert opinion the subject dwelling could be quickly ignited and destroyed, as the occupants of the subject dwelling would not have an adequate refuge for such a fire scenario within or nearby the buildings, this represents an extremely undesirable and grave life-threatening situation for all building occupants." 31Even if that was the only concern in relation to the continued occupation of the dwelling on the subject land, it would, in my view, be sufficient to warrant the making of the orders sought and allowing only a relatively short period of stay upon those orders. However, as I have said, the concern expressed in relation to bushfire hazard is one that needs to be added to those concerns expressed in relation to the sewage effluent system and the inadequacies of the dwelling to accommodate human habitation. 32It is to be regretted that Mr Reid left the hearing of these proceedings before the Council's evidence had concluded. I am therefore denied the benefit of any submissions on his behalf, indicating any subjective circumstances that might apply to his cessation of occupation of the land. 33For its part, the Council has indicated that while having sympathy with the position in which Mr Reid finds himself in having to leave the premises, by reason of the matters that I have identified pertaining to the general safety and amenity of the dwelling erected on the land, there should only be a relatively short time during which the orders sought by the Council should be suspended. I agree. That evidence identified a potentially dangerous situation for Mr Reid and those that reside with him, particularly as it is now at the end of October and within the next month the bushfire "season" can be expected to present real dangers to those on the land should the appropriate climatic conditions occur. It is therefore as much in the interests of Mr Reid and his family as it is in the community at large that the subject dwellings not be occupied when that danger becomes acute. In the circumstances, I am prepared to make the orders sought and to suspend their operation for a period of only one month. 34The Council has indicated that in the event that I find in its favour, as I have indicated I do, an order should be made requiring that Mr Reid pay its costs. That was a matter about which I forewarned Mr Reid before he left the hearing but, as I have said, he chose to leave on the basis that he wished to take no further part in the proceedings. In the circumstances, the Council having been successful in obtaining the orders that it sought, it is appropriate that I make an order for Mr Reid to pay its costs. 35The orders that I make are as follows: (1)An order that the first respondent, his servants and agents be restrained from using or permitting to be used, the land being lots 161 and 162 in DP 11629, known as 162 Inglewood Crescent Tomerong or the buildings or structures standing on that land that were erected without obtaining consent therefore under Part 4 of the Environmental Planning and Assessment Act 1979. (2)Order that the first respondent, his servants and agents take all reasonable steps to prevent the use by any person of the land described in Order 1 or of any building or structure erected on that land, including notifying any successors in title of this order, until there is obtained consent for the use of that land and any structures erected on it in accordance with the Environmental Planning and Assessment Act 1979. (3)Orders 1 and 2 are stayed up to and including 30 November 2011. (4)The first respondent is to pay the applicant's costs. (5)Exhibits may be returned.