Wyong Shire Council v Cohen and Anor

APPLICANT Mr D. Parry (Barrister)

SOLICITORS Abbott Tout LEGAL REPRESENTATIVES: RESPONDENTS Mr P. Cohen (Litigant-in-person)

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 41325 of 2003

10 February 2004 Wyong Shire Council Applicant v Phillip Lawrence Cohen First Respondent Jennifer Anne Cohen Second Respondent Judgment

1 Wyong Shire Council ("the council") seeks a declaration that the first and second respondents have carried out or caused to be carried out development on land identified as Lot 91 Deposited Plan 844608, known as 3 Stimsons Lane (formerly known as 9 Halloran Lane) Tumbi Umbi ("the land") in breach of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). 2 The respondents are the owners of the land and the issue in these proceedings relates to two structures located on the land which the council claims required development consent. 3 The first structure is a large demountable site office located at the northern corner of the land and adjacent to the intersection of Halloran Lane and Stimsons Lane. The office is of metal construction with a metal roof. It is 7.2 metres long by 4.8 metres wide. The office contains equipment which is used for the purpose of the first respondent's business of an accountant. The office contains desks, chairs, a fax machine, telephones, bookshelves, a whiteboard, filing cabinets and a bar refrigerator. The office is divided into two rooms. The office is erected upon concrete blockwork piers. Electricity is connected to the office but it is not connected to a water supply. 4 The other item in respect of which council seeks relief is a green painted shipping container located at the rear of the land south of the existing dwelling. The container is made of metal. It is used for the purpose of storage of both domestic and household goods, tax records and other financial data which the first respondent has accumulated in the course of his practice as an accountant. 5 The subject land is affected by the provisions of the Wyong Local and Environmental Plan 1991("the LEP"). Pursuant to that plan the land is zoned Zone No 7 (c) (Scenic Protection: Small Holdings Zone). The objectives of that zone are stated as follows:- (a) to enable development for the purposes of small rural-residential holdings to be carried out on land which is suitable for those purposes and which is unlikely: (i) to inhibit the potential for urban expansion, particularly at the urban fringe, or (ii) to create a demand for the uneconomic provision of services, or (iii) to detract from the scenic quality of rural lands, and (b) to allow for non-residential uses where those are compatible with rural-residential development and are unlikely to create an unreasonable demand for public services or substantially reduce the adequacy of existing levels of those services. 6 Home occupations may be carried out without development consent in such zone and with development consent a range of activities may be carried out including dwelling houses. Any other use is prohibited. The uses of the 7(c) zone are authorised pursuant to cl 10 of the LEP which indicates the zone objectives and development control table. 7 The term "home occupation" is defined in cl 7 of the LEP. It means relevantly:- … the use of a dwelling or the curtilage of a dwelling by the permanent residents of the dwelling for the purposes of an office or business, which does not involve: (a) the registration of the building under the Factories, Shops and Industries Act 1962 , (b) interference with the amenity of adjoining properties or the locality in which the dwelling is situated, (c) the display or sale of goods other than those produced on the premises at which the home occupation is carried out, (d) the provision of any essential service main of a greater capacity than that already available in the locality, (e) the generation of traffic or a carparking demand which would adversely affect the amenity of the locality, (f) persons other than the permanent residents of the dwelling being employed in that use, (g) the exhibition of any advertisement or sign, other than one exhibited on the dwelling or within the curtilage of the dwelling to indicate the name and occupation of the resident and which would fit within a rectangular figure 0.8 metres in length and 0.4 metres in breadth, or (h) the exposure to view from any adjacent properties of any unsightly matter, or any raw material, equipment, machinery, product or stored finished goods. 8 The evidence in support of the application is contained in the affidavit of Anthony James Maguire sworn 28 November 2003. Mr Maguire's affidavit includes the fact that a complaint had been received in relation to the demountable site office on the land and also of the shipping container. 9 On 19 September 2002 Mr Maguire caused a letter to be forwarded to the respondents requiring removal of each of those items. On 23 October 2002 Mr Maguire carried out an inspection of the premises and took photographs of the two items. On 3 December 2002 the council issued an order to the first and second respondents requiring removal of the container and the office. On 28 January 2003 the respondents commenced class 1 proceedings in this court appealing against the order. On 5 August 2003 the order was withdrawn and the class 1 application was dismissed. 10 These proceedings were commenced on 4 November 2003. Mr Maguire has sworn a further affidavit on 5 February 2004 in which he confirms that no development application has been made by the respondents in respect of either of the items the subject of these proceedings. The affidavit also refers to further communication with the respondents and to site visits. 11 The council also relies upon the affidavit of Andrew Patrick Roach sworn 5 February 2004. Mr Roach is a development planner and has provided evidence concerning the presence of the demountable office and the shipping container. In summary he considers that the character and amenity of the area has been prejudiced by their presence and that the demountable office structure is obtrusive. The shipping container is located in a prominent position and is large, angular and "boxy". He considers that it has been positioned without regard to its visual impact. In his opinion the container is unsympathetic to the semi-rural locality and is not compatible with developments in the area nor desirable development for land in the 7(c) zone. He deposed that the shipping container did not achieve the objectives of the zone and detracts from the amenity of the area. 12 The evidence of the council has not been the subject of challenge. The first named respondent has sworn an affidavit setting out details of a conversation which he has had with a council officer. It also annexes the correspondence which has passed between the council and the respondents. 13 There is no factual dispute concerning the presence of either structure, nor of the fact that development consent has not been sought. The critical matter at issue is whether development consent is required for such items pursuant to the provisions of the EP&A Act. Mr Cohen, the first name respondent who appears in person on behalf of himself and the second respondent claims that he is entitled to the benefit of the provisions of home occupation as defined in the LEP and that as a result there is no obligation to seek development consent of the council. 14 The EP&A Act contains the definition of "development" in s 4(1) which is defined as:- 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, (g) but does not include any development of a class or description prescribed by the regulations for the purposes of this definition. 15 The term "building" is also defined in s 4(1) of 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 . 16 The Local Government Act 1993 ("the LG Act") contains the definition of "temporary structure" in the Dictionary to that Act as follows:- temporary structure includes: (a) a booth, tent or other temporary enclosure, whether or not a part of the booth, tent or enclosure is permanent, and (b) a mobile structure. 17 The term "mobile" is defined in the Macquarie Dictionary 3rd edition at p 1226 as "movable, moving readily". 18 Section 4(2)(b) of the EP&A Act provides:- A reference in this Act to: … (b) the erection of a building includes a reference to: (i) the rebuilding of, the making of alterations to, or the enlargement or extension of, a building, or (ii) the placing or relocating of a building on land… The remaining subsections are not relevant for the present purposes. 19 Turning to the metal clad office structure, the Court has little difficulty in determining that such is a "building" as defined in s 4(1) of the EP&A Act. It has been submitted by Mr Cohen that the building is movable, that is not connected to the ground and that therefore it should be regarded as within the exemption contained in the definition of "building". However, it is apparent from the evidence, including the photographs that the office constitutes a building as defined in s 4(1) of the EP&A Act. It is connected to the electricity. There is no suggestion that it is readily moveable as if it were a structure placed on wheels. The office is connected to the telephone. It relies for its support upon piers set into the ground, and is neither a "home" nor a "moveable dwelling" or part thereof. 20 Because of its construction the shipping container raises different issues. It has metal sides and a metal roof and is built of steel components. When the Court is required to categorise such items, the Court is satisfied that the approach of Mahoney JA in Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 at 305-308 is correct. 21 The Court must take notice of the purpose of the Act. The purpose of the EP&A Act as was considered by Sheahan J in Conomos v Chryssochoides (1997) 97 LGERA 113, especially at p 120. In that decision His Honour determined that pipes were relevantly a "structure" and were therefore a building as defined in the Act. 22 Mr Cohen submitted that the container comprised a temporary structure within the meaning of the LG Act and that it was mobile. There is nothing which would enable the Court to find that it was readily movable. It was not fitted with wheels, it could not be readily moved and for that reason the Court considers that the exemptions provided in subsections (a) and (b) of the term "building" contained within s 4(1) of the EP&A Act have no application.

23 Mr Cohen relied upon the decision of Sheahan J in Garbatz and ors v Morton and Anor 40225 of 1999, otherwise entitled [2000] NSWLEC 17 in which the Court found that a marquee was not a building. When the facts of that decision are considered it is apparent that the structure in question was of an entirely different nature to the container or the office. His Honour held that a marquee was one which could be readily dismantled and re-erected frequently, and adopted the purposive approach to construction of the definition to determine that the marquee did not qualify as a "building". That is an entirely different factual situation. 24 Mr Cohen's reliance upon the definition of home occupation does not assist. The home occupation provisions relate entirely to the uses of land, not to physical structures which are erected on land. The definition of home occupation does not exempt a person from obtaining the relevant consents for the purposes of the erection of buildings or other development. Accordingly the home occupation provisions of the LEP are irrelevant. 25 In this case the container comprises a structure as that term is considered in R v Lowe (1954) 19 LGR (NSW) 345 at 351. Accordingly it is a "structure" in the definition of "building" contained in s 4(1) of the EP&A Act. 26 It follows that pursuant to s 76A(1) of the EP&A Act the respondents were obliged to obtain development consent for both the office building and for the container. In the absence of development consent pursuant to the provisions of the EP&A Act the council has established its entitlement to relief. 27 The Court now turns to the question of discretion. The office and the container have been located on the site since at least 19 February 2002. The order issued by council was issued on or about 3 December 2002. The proceedings in class 1 of this jurisdiction were in some way resolved in August when the class 1 proceedings were withdrawn and the order was withdrawn. The respondents had not been prepared to remove the structures from the land, nor to make a development application. Mr Cohen has said that he would like to keep the office and the container for a period of up to two years. 28 In accordance with the principles contained in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, the Court must weigh the various competing interests of the parties. A breach of the EP&A Act exists and there is evidence that the existing structures are unsightly. To permit them to remain would result in an advantage to the respondents over other residents in the area and to the detriment of the environment. Accordingly the Court considers that there is no reason for the orders not to be made. 29 The council suggests that a period of twenty-eight days be allowed for the structures to be removed. Bearing in mind they have been present on the site for over twelve months, twenty-eight days seems a short period in which to permit their removal. However, the Court considers that the structures should be removed within a period of ninety days from today's date.

Costs 30 The council submits that the usual rule as to costs should apply. Mr Cohen submits that he would have been willing to remove the structures under certain conditions. Every opportunity has been made available for the possibility of mediation with a view to reaching a resolution, but that has not been availed of. The Court is satisfied that the respondents were not prepared to remove the structures unless ordered to do so by the Court. 31 In the circumstances there is no reason why the respondents should not bear the council's costs. The costs are not punitive, but compensatory. Had the respondents obtained legal advice at an early stage it is highly likely that the costs could have been avoided. Instead these proceedings have been pursued to the end. Costs will follow the event. Orders 32 Accordingly the Court makes the following declarations and orders:-

1. DECLARATION that the First and Second Respondents and each of them by themselves, their servants or agents have carried out or caused to be carried out development on the land identified as Lot 91 DP 844608 and known as No. 3 Stimsons Lane (formerly known as No. 9 Halloran Lane), Tumbi Umbi ("the Land") in breach of the Environmental Planning and Assessment Act 1979;

2. DECLARATION that the First and Second Respondents and each of them by themselves, their servants or agents have carried out or caused to be carried out an activity on the Land without an approval having been obtained from the Applicant therefore pursuant to the Local Government Act 1993;

3. ORDER that the First and Second Respondents and each of them by themselves, their servants or agents, remove or cause to be removed the green shipping container and the white demountable site office type structure from the Land within 90 days of the date of this Order;

4. ORDER that the First and Second Respondents pay the Applicant's costs;

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