Auburn City Council v Chiciak

[2012] NSWLEC 219

Land and Environment Court

New South Wales

Case Title:	Auburn City Council v Chiciak
Medium Neutral Citation:	[2012] NSWLEC 219
Hearing Date(s):
Decision Date:	18 September 2012
Jurisdiction:	Class 4
Before:	Biscoe J
Decision:	Orders set out at [16] to [18]
Catchwords:	CIVIL ENFORCEMENT - non-compliance with Council orders under s 121B Environmental Planning and Assessment Act 1979 and s 124 Local Government Act 1993 - Council claims orders that the Council exercise the Council's functions by carrying out the works and actions required by the notices.
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 121B, 121ZJ Local Government Act 1993 ss 124, 678 Auburn Local Environmental Plan 2010
Cases Cited:
Texts Cited:
Category:	Principal judgment
Parties:	Auburn City Council (Applicant) Victor Chiciak (First Respondent) Irena Chiciak (Second Respondent)
Representation
- Counsel:	COUNSEL: Mr A Hudson, solicitor (Applicant) N/A (Respondents)
- Solicitors:	SOLICITORS: Wilshire Webb Staunton Beattie (Applicant) N/A (Respondents)
File number(s):	41132/11 and 41133/11
Publication Restriction:

EX TEMPORE JUDGMENT

1. These are two civil enforcement proceedings brought by Auburn City Council against Victor Chiciak and Irena Chiciak seeking orders under, respectively, s 121ZJ(11) of the Environmental Planning and Assessment Act 1979 (EPA Act) and s 678(10) of the Local Government Act 1993 (LG Act), and injunctions.

2. The proceedings are undefended and the respondents have not appeared at any stage of the proceedings.

3. At all relevant times the respondents have owned and occupied residential land on Lot 148 DP 8683 known as 27 Ostend Street, Lidcombe, on which are erected a dwelling house, a garage and two rear sheds.

4. The land is zoned R2 Low Density Residential under the Auburn Local Environmental Plan 2010 (LEP).

5. Since May 2007, the respondents have used the land for the purpose of collecting and storing motor vehicles, motor vehicle parts and miscellaneous materials and objects ("the collection and storage use").

6. Until October 2010, the collection and storage use was an innominate prohibited use under the previous local environmental plan. Since then it has been an innominate use permissible with development consent under the LEP. Development consent has never been granted for the collection and storage use on the land.

7. On 28 June 2011, the Council served each of the respondents with Order No 1(b) under s 121B of the EPA Act requiring them to cease using premises for a purpose for which development consent is required but has not been obtained, and Order No 21 under s 124 of the LG Act requiring them to do or refrain from doing specified things to ensure that premises are placed or kept in a safe or healthy condition, except that the latter order was served on Victor Chiciak on 9 September 2010.

8. The orders under the EPA Act required the respondents to:

   (a) cease the collection and storage use;
   (b) remove all objects and items from specified parts of the land referred to as the cleared area ("the cleared area");
   (c) cease using the cleared area for the collection and storage use;
   (d) remove items and objects from the detached garage and cease using the detached garage for the collection and storage use; and
   (e) only collect and store objects and items within specified areas on the land.

9. The orders under the EPA Act specified periods of compliance with their terms as follows:

   (a) remove all the relevant objects and items from the premises within 28 days from the date of the order, and
   (b) after 28 days from the date of the order cease the collection and storage use on the land.

10. The orders under the LG Act required the respondents to:

    (a) remove all the objects and items from specified parts of the land referred to as the cleared area ("the cleared area");
    (b) cease using the cleared area for the collection and storage use;
    (c) remove items and objects from the detached garage and cease using the detached garage for the collection and storage use;
    (d) only collect and store objects and items within specified areas on the land; and
    (e) remove all cats and cat faeces from the land.

11. The orders under the LG Act specified periods of compliance as follows:

    (a) remove all the relevant objects and items from the premises within 28 days from the date of the order, and
    (b) after all the relevant objects and items have been removed refrain from bringing onto the land and collecting and storing on the land any objects and items (except as provided by the Council's order).

12. The respondents have not complied with the orders and are thereby in breach of the EPA Act and the LG Act. The Council claims orders under ss 121ZJ(11) of the EPA Act and 678(10) of the LG Act.

13. Section 121ZJ of the EPA Act relevantly provides:

    121ZJ Failure to comply with order-carrying out of work by consent authority

    (1) If a person fails to comply with the terms of an order given to the person under this Division, the person who gave the order may do all such things as are necessary or convenient to give effect to the terms of the order, including the carrying out of any work required by the order.
    ...
    (11) In any proceedings before the Land and Environment Court that are brought by a person who gave an order against another person as a result of the other person's failure to comply with the order, the Court may, at any stage of the proceedings, order the person who gave the order to exercise the person's functions under this section. Having made such an order, the Court may continue to hear and determine the proceedings or may dismiss the proceedings.

14. Section 678 of the LG Act relevantly provides:

    678 Failure to comply with order-carrying out of work by the council

    (1) If a person fails to comply with the terms of an order given to the person under Part 2 of Chapter 7, the council may do all such things as are necessary or convenient to give effect to the terms of the order, including the carrying out of any work required by the order.
    ...
    (10) In any proceedings before the Land and Environment Court that are brought by a council against a person as a result of the person's failure to comply with an order under Part 2 of Chapter 7, the Court may, at any stage of the proceedings, order the council to exercise the council's functions under this section. Having made such an order, the Court may continue to hear and determine the proceedings or may dismiss the proceedings.

15. In my opinion, in the circumstances that I have recounted, the relief sought should be granted.

16. Accordingly, in the EPA Act proceedings (41132/11) I make orders in accordance with paragraphs 1 to 4 of the amended summons as follows:

    (1)An order pursuant to s 121ZJ(11) of the Environmental Planning and Assessment Act 1979 (EPA Act) that the applicant (the Council) exercise the functions under s 121ZJ of the EPA Act by carrying out on Lot 148 DP 8683 known as 27 Ostend Street, Lidcombe (the Premises), the works and actions required by and in accordance with paragraphs (2)(a) and (c) and (3) of the terms of the s 121B EPA Act orders to the Respondents dated 28 June 2011 within 28 days from the date of service of these orders.

    (2)An order that upon completion of the works and actions required by Order 1 above, the respondents be restrained from using the premises for the separate purpose of collecting and storing motor vehicles, motor vehicle parts and miscellaneous goods, materials, objects and items except in accordance with paragraphs (2)(d) and (e) and (3) of the terms of the two s 121B EPA Act orders to the respondents dated 28 June 2011.

    (3)An order that the respondents pay the Council's reasonable expenses of carrying out Order 1 of these orders as determined by agreement between the Council and the respondents or failing agreement by the Court on a motion in these proceedings.

    (4)An order that the respondents pay the Council's costs of and incidental to these proceedings as agreed or assessed.

17. In the LG Act proceedings (41133/11) I make orders in accordance with paragraphs 1 to 4 of the amended summons as follows:

    (1)An order pursuant to s 678(10) of the Local Government Act 1993 (LG Act) that the applicant (the Council) exercise the Council's functions under s 678 of the LG Act by carrying out on Lot 148 DP 8683 known as 27 Ostend Street, Lidcombe (the Premises), the works and actions required by and in accordance with paragraphs (1), (3), (7) and (8) of the terms of the two s 124 LG Act orders to the respondents dated 9 September 2010 and 28 June 2011 within 28 days form the date of service of these orders.

    (2)An order that upon completion of the works and actions required by Order 1 above, the respondents be restrained from collecting and storing objects or items on the Premises except in accordance with paragraphs (5), (6) and (7) of the terms of the two s 124 LG Act orders to the respondents dated 9 September 2010 and 28 June 2011.

    (3)An order that the respondents pay the Council's reasonable expenses of carrying out Order 1 of these orders as determined by agreement between the Council and the respondents or failing agreement by the Court on a motion in these proceedings.

    (4)An order that the respondents pay the Council's costs of and incidental to these proceedings as agreed or assessed.

18. The exhibits may be returned.