On 5 April 2019, I found that Mr Taylor and Ms Taylor had carried out development by erecting and using a tree house in breach of the Environmental Planning and Assessment Act 1979 and ordered them to demolish and remove the tree house within three months of the date of the order: Tweed Shire Council v Taylor [2019] NSWLEC 45. The date by which the tree house was to be demolished and removed was 5 July 2019. Mr Taylor and Ms Taylor have not done so.
They have applied for an extension of time in which to comply with the order to demolish and remove the tree house. Mr Taylor requested an extension to the "absolute maximum available at the Court's discretion" or at least two years.
The reason Mr Taylor gave was that he and his wife need to live in the tree house while they construct another house on the land. In his affidavit accompanying the notice of motion, Mr Taylor said that he and his wife had to move into the tree house "as no other accommodation is available to us".
In oral evidence on the hearing of the motion, Mr Taylor better explained the sequence of events that led to him and his wife living in the tree house.
Mr Taylor said that up until around September 2018, he and his wife had been living in the house that had been referred to in the proceedings as the BA house. This is a well-equipped dwelling house. Mr Taylor had been renting out the tree house as a holiday accommodation on Airbnb until August 2018. As I explained in my judgment, Mr Taylor ceased doing that by the end of August 2018. In order to still secure rental income from farmstay visitors, Mr Taylor offered the BA house instead of the tree house for visitor accommodation. He listed the BA house on Airbnb under the name "Harvest Moon". He has rented this house out since then to date.
This meant Mr and Mrs Taylor needed to move. They moved in September 2018 to a hut down near a lake on the property. Unfortunately, a catastrophic fire in December 2018 burnt that hut to the ground.
Tweed Shire Council v Taylor [2019] NSWLEC 102 | Case summary | Zoe
Mr and Mrs Taylor then moved to what is referred to as the granny flat, a habitable building near to the BA house or "Harvest Moon" house. This was the flat in which Mr Taylor and Mrs Taylor lived when the proceedings were heard in March 2019 and until I delivered judgment on 5 April 2019.
Although I ordered Mr Taylor and Mrs Taylor to demolish and remove the tree house within three months of the date of the Court's order, Mr Taylor took it upon himself to recommission the tree house as a habitable dwelling by putting the plumbing back in and reconnecting the electricity. He and his wife then moved into the tree house and have been residing there since shortly after the Court made its orders and are still living there today.
When asked why he moved into the tree house to live, when he had been ordered to demolish it, Mr Taylor responded that the Court had not made an express order that he was not to live in the tree house, so he did.
Mr Taylor said that he has no other house on the property in which he and his wife can live. They need to rent out the "Harvest Moon" house as that is the sole income for he and his wife. The granny flat is now occupied by his daughter, Ms Taylor, and her family. The building certificate house at the top of the property is being renovated. It is not currently habitable. Ms Taylor is undertaking the renovations but doing so slowly, and does not expect to complete the renovations for at least another year. The hut was demolished by fire in December 2018.
Mr Taylor said he could complete a new dwelling in two years, but in order to fund construction of a new house he needs to maintain the rental income from use of the "Harvest Moon" house as a farmstay.
Mr Taylor has no particular plans for what house he wishes to build or where he would like to build it - he has not progressed his thinking beyond the idea of building another house.
When asked by me what he would do if I only give a short extension of time of the Court order to demolish and remove the tree house, Mr Taylor said he did not know what he would do but "you can always find a place to live". He said he might "bring a caravan onto the property" and live in it. When asked whether he had thought about rebuilding the hut that had burnt down, he said he had thought about it but had not formulated any plan.
The only certain plan Mr Taylor has is to remain living in the tree house. He said he disagreed with my findings as to the structural stability and safety of the tree house (particularly in [71]-[72] of my judgment). He maintained that the tree house is safe for he and his wife to live in.
Mr Taylor raised one further matter of relevance to the Court's discretion as to whether or not to extend the time for compliance with the orders. Last week, Mr Taylor was burnt in a fire whilst he was carrying out work on the property. His hands were burnt and were heavily bandaged. His face was also burnt and was red. Mr Taylor said that the medical advice he had received was that it might take a couple of months for him to recover from the burns before he could resume active physical work.
The Council accepted that some extension might be appropriate to be granted, but contended that the delay in complying with the Court order was self-induced by Mr Taylor. The Council submitted that the Court should take into account the following matters.
First, the principal reason Mr Taylor relied on for asking for an extension of time, the burning down of the hut in December 2018, occurred many months before the hearing and before the order to demolish and remove the tree house was made. Mr Taylor did not disclose this fact at the hearing and did not rely on it as a reason for the Court not ordering demolition and removal of the tree house.
Second, there is a house to live in, namely the "Harvest Moon" house, on the property. This was the house that Mr and Mrs Taylor were living in until September 2018 and they can again live there. It is only their desire to earn income from renting the house as a farmstay that prevents them from living there now.
Third, Mr Taylor accepted in evidence that he can always find a place to stay, whether it be the "Harvest Moon" house, a caravan or tent or elsewhere.
Fourth, Mr Taylor has adduced no evidence to persuade the Court that the concerns about the structural stability and safety of the tree house, found in the judgment, had been addressed adequately or at all.
Fifth, Mr Taylor has adduced no evidence of financial hardship, only making bare assertions. He has not proven that he has no other source of income than the rental income renting the "Harvest Moon" house as a farmstay, or what his assets are, or what access he might have to funds (such as being able to borrow funds).
Sixth, Mr Taylor has made no attempt at all to comply with the Court order to demolish and remove the tree house. Indeed, Mr Taylor has acted in defiance of the Court order by recommissioning the tree house and moving into the tree house as his dwelling.
Seventh, although by reason of his recent injury Mr Taylor might be delayed in complying with the Court order, he has not provided any firm plan or timetable as to when he might be able to demolish and remove the tree house. Mr Taylor did indicate in oral evidence that he had been talking to a neighbour who has substantial machinery that might be able to pull large sections of the tree house if it were to be broken down into sections. Mr Taylor indicated that the actual demolition could be done in a matter of days.
In the circumstances in which Mr Taylor finds himself, I am minded to give Mr Taylor more time to comply with the Court order to demolish and remove the tree house, but nothing like the two years Mr Taylor seeks.
The situation Mr Taylor finds himself in is self-induced. Mr Taylor chose to recommission the tree house and move into it, and therefore not demolish the tree house, contrary to the Court order. The circumstance that the hut he had been living in burnt down in December 2018 predates the hearing of the proceedings and the Court making its order. It is not a circumstance that arose after the Court made its order.
The solution to the dilemma that Mr Taylor sees himself to be in is entirely in his hands. He can live in the "Harvest Moon" house. He can live in a caravan on the property (if that be lawful and I express no opinion on that matter). He can rebuild the hut that burnt down, perhaps using some of the building materials recovered from the tree house when it is demolished. He can expedite the renovation of the building certificate house to have it ready for occupation much earlier than in a year's time. He can apply for permission to build another house elsewhere on his property, at a location at which he has a building entitlement.
But Mr Taylor has so far done none of these things or formulated a firm plan and a timetable to do any of these things. I do not find it acceptable that Mr Taylor and his wife live in the tree house. For the reasons I gave in my judgment, the tree house is not fit and safe for habitation. Although I made no order that no one should live in it, this was unnecessary given that I ordered that it be demolished and removed within three months.
For these reasons, I am not persuaded to give Mr Taylor an extension of two years or more before he is required to demolish and remove the tree house. Instead, I will give him a period of four months. This period comprises two months for Mr Taylor to overcome his recent burn injuries and another two months within which he must demolish the tree house. This period of time will also give Mr Taylor sufficient lead time to make alternative arrangements for finding a place to live. At the end of the four month period, the tree house will need to have been demolished and removed, so that Mr and Mrs Taylor will need to be living somewhere else by then.
The Council seeks its costs of the motion. Ordinarily, this would be appropriate. The Council has been brought to Court by reason of Mr Taylor's failure to comply with the Court order. However, Mr Taylor said that he is already suffering financially by having to pay, by the current Court order, the Council's costs of the proceedings to date. He said that he cannot afford to pay any further order for costs. In the circumstances, as a matter of discretion, I will make no order as to costs of this motion.
[2]
Orders
The Court therefore makes the following order:
1. The Court extends the time in order (2) of the Court's orders made on 5 April 2019 by omitting the words "three months" and inserting instead "seven months".
[3]
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Decision last updated: 19 July 2019