Blacktown City Council v Hambly - [2020] NSWLEC 132

Land and Environment Court

New South Wales

Medium Neutral Citation: Blacktown City Council v Hambly [2020] NSWLEC 132
Hearing dates: 26 August 2020
Date of orders: 26 August 2020
Decision date: 26 August 2020
Jurisdiction: Class 4
Before: Preston CJ
Decision:
The Court:
(1) Declares that, in breach of s 4.3 of the Environmental Planning and Assessment Act 1979, Mr Derek Hambly has carried out development that is prohibited by erecting or authorising other persons to erect on the following land, being: Lots 1 and 2, Sec. O, DP 1653 Milton Street, Riverstone; Lots 19 and 20, Sec. O, DP 1653, Trafalgar Street, Riverstone; the adjacent unsealed road areas known as Argyle Lane, Milton Street and Trafalgar Street; and neighbouring land including: Lots 3 and 4, Sec. O, DP 1653, Milton Street, Riverstone and Lots 17 and 18, Sec. O, DP 1653, Trafalgar Street, Riverstone, the following unauthorised structures:
(a)   Three (3) caravans/camp trailers;
(b)   Three (3) canvas tents;
(c)   Two (2) camping cubicles;
(d)   A large structure comprised of multiple temporary shade structures with a tarpaulin roof, located on the southern side of the land; and
(e)   Other standalone temporary shade structures and various structures made from tarpaulin, poles and rope (the unauthorised structures).
(2) Declares that, in breach of s 4.3 of the Environmental Planning and Assessment Act 1979, Mr Derek Hambly has carried out development that is prohibited by occupying and using or authorising other persons to occupy and use the unauthorised structures on the land described in Order 1 for human habitation.
(3) Declares that, in breach of s 9.37 of the Environmental Planning and Assessment Act 1979, Mr Derek Hambly has failed to comply with the terms of a development control order dated 10 August 2018 given to him by Blacktown City Council pursuant to Division 9.3 of the Environmental Planning and Assessment Act 1979.
(4)   Orders Mr Derek Hambly, within 3 months of the date of the Court’s orders, to:
(a)   cease using the unauthorised structures on the land described in Order 1 for the purpose of human habitation;
(b)   remove all the unauthorised structures from the land described in Order 1; and
(c)   reinstate the land described in Order 1 to the condition or state it was in immediately before the unauthorised structures were erected on the land described in Order 1.
(5)   Orders Mr Derek Hambly to pay the Council’s costs of the proceedings.

Catchwords:
CIVIL ENFORCEMENT – erection and use of caravans, tents and other structures – development prohibited – development control order to cease use and remove unauthorised structures – failure to comply – breaches of Environmental Planning and Assessment Act 1979 – declaratory and injunctive relief

Legislation Cited:
Blacktown Local Environmental Plan 2015
Civil Procedure Act 2005 s 98
Environmental Planning and Assessment Act 1979 ss 1.4 4.2, 4.3, 9.37, 9.45, 9.46
Local Government Act 1993 s 68
Roads Act 1993
Uniform Civil Procedure Rules 2005 r 42

Cases Cited:
Lismore City Council v Vivian [2016] NSWLEC…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWLEC 132
Decision Date: 26 August 2020

CaseChat Overview and Summary

The case of Blacktown City Council v Hambly involved the Blacktown City Council bringing an action against Mr Derek Hambly for alleged breaches of planning laws. The Council alleged that Mr Hambly had erected and occupied unauthorised structures on various lots of land, including caravans, tents, and shade structures, on properties located on Milton Street and Trafalgar Street in Riverstone. The Council further alleged that Mr Hambly had failed to comply with a development control order given by the Council under the Environmental Planning and Assessment Act 1979.

The primary legal issues for determination by the Court were whether Mr Hambly had indeed erected and occupied unauthorised structures in breach of the Environmental Planning and Assessment Act, and whether he had failed to comply with the terms of a development control order issued by the Council. Specifically, the Court had to consider the definitions of "development" and "prohibited development" under the Act, and whether the structures in question fell within these definitions.

The Court found that Mr Hambly had erected and occupied a number of unauthorised structures on the properties in question, including caravans, tents, and shade structures. The Court held that these structures constituted "prohibited development" under the Act, as they were erected without the necessary planning approval. Additionally, the Court found that Mr Hambly had failed to comply with the terms of the development control order issued by the Council. The Court therefore made declarations to the effect that Mr Hambly had carried out prohibited development and failed to comply with the terms of the development control order. The Court also ordered Mr Hambly to remove the unauthorised structures from the properties and to reinstate the land to its previous condition. Finally, the Court ordered Mr Hambly to pay the Council's costs of the proceedings.

Orders

Orders of the court

The Court:

(1) Declares that, in breach of s 4.3 of the Environmental Planning and Assessment Act 1979, Mr Derek Hambly has carried out development that is prohibited by erecting or authorising other persons to erect on the following land, being: Lots 1 and 2, Sec. O, DP 1653 Milton Street, Riverstone; Lots 19 and 20, Sec. O, DP 1653, Trafalgar Street, Riverstone; the adjacent unsealed road areas known as Argyle Lane, Milton Street and Trafalgar Street; and neighbouring land including: Lots 3 and 4, Sec. O, DP 1653, Milton Street, Riverstone and Lots 17 and 18, Sec. O, DP 1653, Trafalgar Street, Riverstone, the following unauthorised structures:

(a) Three (3) caravans/camp trailers;

(b) Three (3) canvas tents;

(d) A large structure comprised of multiple temporary shade structures with a tarpaulin roof, located on the southern side of the land; and

(e) Other standalone temporary shade structures and various structures made from tarpaulin, poles and rope (the unauthorised structures).

(2) Declares that, in breach of s 4.3 of the Environmental Planning and Assessment Act 1979, Mr Derek Hambly has carried out development that is prohibited by occupying and using or authorising other persons to occupy and use the unauthorised structures on the land described in Order 1 for human habitation.

(3) Declares that, in breach of s 9.37 of the Environmental Planning and Assessment Act 1979, Mr Derek Hambly has failed to comply with the terms of a development control order dated 10 August 2018 given to him by Blacktown City Council pursuant to Division 9.3 of the Environmental Planning and Assessment Act 1979.

(4) Orders Mr Derek Hambly, within 3 months of the date of the Court’s orders, to:

(a) cease using the unauthorised structures on the land described in Order 1 for the purpose of human habitation;

(b) remove all the unauthorised structures from the land described in Order 1; and

(c) reinstate the land described in Order 1 to the condition or state it was in immediately before the unauthorised structures were erected on the land described in Order 1.

(5) Orders Mr Derek Hambly to pay the Council’s costs of the proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Blacktown City Council v Hambly [2020] NSWLEC 132
Hearing dates:	26 August 2020
Date of orders:	26 August 2020
Decision date:	26 August 2020
Jurisdiction:	Class 4
Before:	Preston CJ
Decision:	The Court: (1) Declares that, in breach of s 4.3 of the Environmental Planning and Assessment Act 1979, Mr Derek Hambly has carried out development that is prohibited by erecting or authorising other persons to erect on the following land, being: Lots 1 and 2, Sec. O, DP 1653 Milton Street, Riverstone; Lots 19 and 20, Sec. O, DP 1653, Trafalgar Street, Riverstone; the adjacent unsealed road areas known as Argyle Lane, Milton Street and Trafalgar Street; and neighbouring land including: Lots 3 and 4, Sec. O, DP 1653, Milton Street, Riverstone and Lots 17 and 18, Sec. O, DP 1653, Trafalgar Street, Riverstone, the following unauthorised structures: (a) Three (3) caravans/camp trailers; (b) Three (3) canvas tents; (c) Two (2) camping cubicles; (d) A large structure comprised of multiple temporary shade structures with a tarpaulin roof, located on the southern side of the land; and (e) Other standalone temporary shade structures and various structures made from tarpaulin, poles and rope (the unauthorised structures). (2) Declares that, in breach of s 4.3 of the Environmental Planning and Assessment Act 1979, Mr Derek Hambly has carried out development that is prohibited by occupying and using or authorising other persons to occupy and use the unauthorised structures on the land described in Order 1 for human habitation. (3) Declares that, in breach of s 9.37 of the Environmental Planning and Assessment Act 1979, Mr Derek Hambly has failed to comply with the terms of a development control order dated 10 August 2018 given to him by Blacktown City Council pursuant to Division 9.3 of the Environmental Planning and Assessment Act 1979. (4) Orders Mr Derek Hambly, within 3 months of the date of the Court’s orders, to: (a) cease using the unauthorised structures on the land described in Order 1 for the purpose of human habitation; (b) remove all the unauthorised structures from the land described in Order 1; and (c) reinstate the land described in Order 1 to the condition or state it was in immediately before the unauthorised structures were erected on the land described in Order 1. (5) Orders Mr Derek Hambly to pay the Council’s costs of the proceedings.
Catchwords:	CIVIL ENFORCEMENT – erection and use of caravans, tents and other structures – development prohibited – development control order to cease use and remove unauthorised structures – failure to comply – breaches of Environmental Planning and Assessment Act 1979 – declaratory and injunctive relief
Legislation Cited:	Blacktown Local Environmental Plan 2015 Civil Procedure Act 2005 s 98 Environmental Planning and Assessment Act 1979 ss 1.4 4.2, 4.3, 9.37, 9.45, 9.46 Local Government Act 1993 s 68 Roads Act 1993 Uniform Civil Procedure Rules 2005 r 42
Cases Cited:	Lismore City Council v Vivian [2016] NSWLEC…