Blacktown City Council v Irani

[2003] NSWLEC 440

>

Land and Environment Court

of New South Wales

CITATION:	Blacktown City Council v Irani [2003] NSWLEC 440
PARTIES:	APPLICANT: Blacktown City Council RESPONDENT: J K Irani
FILE NUMBER(S):	40857 of 2002
CORAM:	Bignold J
KEY ISSUES:	Injunctions and Declarations :- Unlawfully established dwelling-house in rural zone-Remedy by way of declaration and mandatory injunction-stayed to afford opportunity for position to have regularised.
LEGISLATION CITED:
CASES CITED:	Blacktown City Council v Café unreported 28 November 1997; Strathfield Council v Poynting (2001) 116 LGERA 319
DATES OF HEARING:	28/07/2003
EX TEMPORE JUDGMENT DATE :	07/28/2003
LEGAL REPRESENTATIVES:	APPLICANT: T O'Connor, Solicitor SOLICITORS Houston Dearn O'Connor RESPONDENT: In person SOLICITORS N/A

JUDGMENT:

- 1 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

28 July 2003

40857 of 2002 BLACKTOWN CITY COUNCIL v JAL KHODAMURAD IRANI

JUDGMENT

CORAM

: HIS HONOUR

1 By a class 4 application filed on 4 November 2002 the Council seeks an order from the Court that the Respondent, Mr Irani, within 30 days of the date of Order to demolish and remove from premises known as lots 77 to 80 York Road, Riverstone, a dwelling situated upon the said premises.

2 Mr Irani has appeared for himself today in defence of the proceedings although in truth no defence was tendered but instead Mr Irani put matters to the Court which pertain to the appropriateness of any relief that might be claimed against him and in particular to the question of the timing of the relief. Those matters will become clearer as I develop these reasons for judgment.

3 The facts of the case are not in dispute and they may be summarised as follows. The Respondent has owned the aforesaid land since 1988. Since that time the premises have been zoned General Rural Zone in terms of the Blacktown Local Environmental Plan (the LEP) which came into force in 1988. The four lots have an aggregated area of some 1161 m2.

4 In terms of the LEP it is common ground that cl 12(3) applies, the effect of which is that a dwelling shall not be erected on land within the Zone unless the parcel of land has an area of not less than 10 hectares. Other aspects of cl 12 prescribe different minimum areas for different lands contained within the 1A Zone but the minimum area of 10 hectares prescribed by clause 12(3) of the LEP is the relevant standard in the present case.

5 The Council properly concedes that that provision of the LEP operates as a development standard within the meaning of State Environmental Planning Policy No 1—Development Standards and that therefore it is amenable to the objection process prescribed by that State Policy. That concession was in my opinion rightly made and is supported by the decision of the Court of Appeal in Strathfield Council v Poynting (2001) 116 LGERA 319.

6 It is also common ground that within the General Rural Zone created by the LEP, dwelling-house development is a purpose which may be carried out only with development consent. Within that Zone the only development not requiring the grant of development consent is agriculture other than intensive lot feeding of livestock and certain prescribed forms of exempt development that are not here relevant.

7 The prohibited categories of development are stated in the table to cl 9, Item 4, and include a wide range of development purposes, including for example “manufactured home estates in caravan parks”. The reason I mention these matters will become apparent later in these reasons. Thus it is clear that development consent is required for the development of land within the Zone that the subject land is located within and that in the present case the only legal capacity for the Council to grant the requisite development consent is by virtue of the exercise of the discretion available under State Environmental Planning Policy No 1 to grant the consent notwithstanding the fact that development does not comply with the development standard prescribing a minimum site area of ten hectares.

8 The Respondent in and about February 2002 caused to be placed upon the subject land a dwelling or a temporary dwelling or a mobile home. The precise categorisation of the physical development carried out on the land need not be determined other than to note the fact that the dwelling-house or building rests on its own weight upon the land supported by shallow foundations which are not of a permanent nature and that the accommodation provided in the building does not include a conventional kitchen facility.

9 The structure was purchased by the Respondent at the end of 2001 or the beginning of 2002 and was formerly a part of the Sydney Olympic Village Athletes Accommodation.

10 The Respondent purchased the building for some $46,000 being the contract price that included the transport to the subject land and its placement on the foundations that I have mentioned. In addition to that contract price the Respondent had installed an aero cycle septic tank system at an additional cost of $6,500.

11 The Respondent has candidly conceded that in bringing the building to the subject land in February or March 2002 and in subsequently occupying the building as his home he has done so without obtaining the requisite approval or consent from the Council.

12 Although such action might be seen and interpreted as an open defiance of the Council authority the Respondent in his evidence has indicated an understandable degree of frustration with the unresolved planning and zoning requirements of the Local Environmental Plan as they apply to an extensive area of land at Marsden Park and Riverstone which is included in the General Rural Zone, although it comprises land in existing residential subdivision pattern having been created at a time before planning controls operated in the state.

13 The nature of the problem posed to the Council as the planning authority of this pre-existing subdivision pattern is referred to extensively in my judgment in an earlier case brought by the Council in respect of a similarly unlawfully-created development at Riverstone which is reported in my judgment of 28 November 1997 being matter number 40178 of 1997 under the name Blacktown City Council v Café unreported 28 November 1997. The planning problems identified at that time and tracing back to the provisions contained in the 1988 Local Environmental Plan have not been unravelled or resolved in the six years intervening since the decision in Cafe.

14 Very recently, the Council has readdressed the problem posed for it in relation to what is commonly and locally described as “the schedule land areas of Marsden Park, Schofields, Riverstone and Vineyard” in a detailed report that was considered by the Council at its meeting in July of this year.

15 The report, without the accompanying annexures, was tendered as Exhibit 10 in the present proceedings. It reveals the nature of the planning problem, compounded by the fact that both before and after 1994 when the Council undertook some local census of development and use of the scheduled land area, sporadic but fairly widespread unlawful development has taken place, often in the form of substandard housing arrangements including caravan parks, primitive huts and the like. However, a smattering of permanent style dwelling-house development also has taken place and indeed the case that I have mentioned involved a substantial brick home built in 1997 by Mrs Cafe.

16 The Council Report that I have referred to (Exhibit 10) indicates the various ways in which the Council has sought to deal with the related problem of the unresolved planning issues concerning the scheduled lands and the problems of unlawful development by way of places of residence springing up on those lands without due authority or authorisation.

17 The Council’s resolutions passed at the meeting earlier this month were largely predicated upon the fact that some of the lands comprising the scheduled lands are to be the subject of an imminent urban development land release and in respect of those that are not, it is proposed to abandon the high minimum area threshold of ten hectares and substitute the minimum of 4000, although the Council planning officer in his evidence indicated that the Council had earlier proposed a minimum area of 2000 square metres.

18 The planning embargo, as it were, on development in the scheduled lands areas represents a decision of the State Planning Authority and not the Council. Indeed the Council has been seeking to bring about a more satisfactory solution, either by way of urban land release or relaxation of the high threshold standards, but to date without success.

19 In any event the Council’s decisions as reflected in its resolution were as follows:

1. Council take all necessary action to secure the removal of all caravans, temporary dwellings and temporary structures that have been established post-1994 in the scheduled lands.
2. The Council continue its stay of action on unauthorised permanent dwellings constructed between 1994 and June 2003 in the hope that these structures may be legalised when and if this land is released or rezoned.
3. The Council undertake immediate legal action in the Land and Environment Court in relation to unauthorised building works and temporary structures discovered to be constructed post-June 2003 to acquire immediate cessation and removal of such buildings and works.

20 This resolution, passed just a few days ago, of course comes eight or nine months after the Council initiated the present proceedings and it is not known whether the Council’s present proceedings were instituted with the approval of the Council or whether they were taken at delegated officer level. Be that as it may the decision of the Council together with the contents of the report (Exhibit 10) provide an important understanding of not only the background facts but also the present and likely future action in relation to the problem posed to the Council both as the planning authority and as the enforcement authority in relation to the scheduled lands.

21 Some debate has occurred throughout the hearing as to what particular part of the Council resolution the present case falls within. The Council’s case is that it falls within the action dealt with in par 1 of Council’s resolution although there may be some debate as to whether the case could be brought within par 2 of the resolution, depending upon whether changes are to be made to the development on the Respondent’s land as it exists.

22 As I have mentioned, the Respondent freely conceded that he knew when he brought about the state of affairs that I have mentioned in February or March in 2002 that what he was doing was in breach of the planning law. His only justification in so acting, as I say, was his sense of frustration at having owned the land since 1988 and having attempted to develop it on earlier occasions without success.

23 Coupled with the fact that he had recently been retrenched from his permanent job and lost the benefit of his then-existing leased accommodation, I accept that the Respondent was at the time under pressure to reaccommodate himself but the actions that he took, though understandable, are not commendable because it is apparent that he knew at all material times that the land that he had owned since 1988 was incapable of obtaining consent for a dwelling whilever the 10 hectare minimum lot size standard applied.

24 There is an additional problem for the development of the land and that is that it appears to lie wholly within the one in one hundred year flood level. This itself is not an absolute bar to development and in this respect I refer to the LEP, cl 20(2) of which gives the Council power to refuse an application to carry out development on land affected by the one per cent annual exceedence flood probability in certain events but it has not been demonstrated in the present case that any of the circumstances enunciated in cl 20(2) exist.

25 In any event the Respondent, upon learning of that fact soon after these proceedings were launched against him, lodged a development application with the Council, (Exhibit 9) proposing to raise the height of the building on the land to a level giving sufficient freeboard over the one in one hundred year flood levels. That would mean raising the structure some two and a half metres above ground level.

26 That is precisely what the application sought and is supported by detailed engineering plans. As I say, that application was made during the pendency of the present proceedings and it seems it was made if not at the invitation of, at least with the willing knowledge and support of the Council officers.

27 In the result, the application fell on hard ground because in the Notice of Determination given on 29 May 2003 the application was refused for the three reasons stated in the notification, the first one of which was to rely upon the fact that the land contained less than the 10 hectares prescribed by cl 12(3) of the LEP and that accordingly the Council was not in a position to approve the application.

28 That appears to me to have been stating the obvious and it was perhaps because of that fact that the third reason assigned recognises the amenability of the 10 hectare requirement to action taken pursuant to State Environmental Planning Policy No 1 but the Council’s third reason anticipating such an application goes on to say that the Council would not support it because the site is below the one in one hundred annual exceedence flood probability and this land does not have flood-free access. Thus, it appears that the Council’s determination involved less than an assessment of the application on its planning merits being content (and I say this without criticism of the Council) to simply rely upon the fact that the application was unsupported by an objection under State Environmental Planning Policy No 1.

29 If, as seems to be the case, the Council had acquiesced, if not solicited the development application from Mr Irani, it should have walked the extra mile and advised him to lodge a SEPP1 objection with it. Why that did not happen was not explained in the evidence and I say no more about it, other than to note that it would obviously be open to Mr Irani to seek a review by the Council of its decision pursuant to of Environmental Planning and Assessment Act, s 82A on the basis that the application is now supported by an objection to the 10 hectare minimum area pursuant to State Environmental Planning Policy No 1. Indeed, in the course of the case Mr Irani indicated that he now proposed to exercise his right of appeal against the Council’s decision by appealing to this Court to obtain, if he could, a favourable decision on the planning merits.

30 It seems to me that before he does that he would be well advised to seek the Council’s reconsideration of the application under the EP&A Act, s 82A supported by an objection under State Environmental Planning Policy No 1 as to why the 10 hectare minimum area should not be applied in this case.

31 Another problem confronting the Respondent in this development of the subject land was exposed in the affidavit of Mr Ludlow when he pointed out that the subject land was shown to be in the Council’s bushfire-prone land map (Exhibit 6). In that respect Mr Ludlow in his affidavit of 5 December 2002 par 10 speaks about the need for the sub-floor space to be fully enclosed with non-combustible sheeting. These problems for the development of the land involving potential flood liability and bushfire risk appear on the evidence to be overcomeable.

32 I have some sympathy with Mr Irani when he stated in the case that the Council’s requirements appear to be eking out of the Council in piecemeal fashion and he is in some doubt as to what ultimately the Council requires. It appears to me to be necessary for the Council to address these matters with some particularity to assist Mr Irani in putting to the Council the need for the Council to reconsider its decision and in propounding his objection under State Environmental Planning Policy No 1.

33 These matters of course do not essentially come to terms with the fundamental difficulty confronting the present development of the land, that is the planning law provisions (apart from bushfire risk and flood liability risk) and of course the problem confronting Mr Irani in pursuing an objection under State Environmental Planning Policy No 1 is to persuade the Council that in the circumstances of this case it is unnecessary or unreasonable for his development to comply with that standard in circumstances where the standard operates in respect of hundreds if not thousands of lots and most probably hundreds if not thousands of owners. Nonetheless the Respondent should have the opportunity of pursuing the matter on the merits if that is what he desires and in so doing he should also have the benefit recognised in the Council’s Report and Resolution that I have referred to and also in previous decisions of this Court concerning allowing for some time within which the planning solution may unravel before ordering mandatory relief to take effect.

34 It is of course not for this Court to comment upon the appropriate unravelling of the planning solution but it is apparent from the Council’s resolution and the report which generated the resolution, that the Council itself recognises the generality and universality of the problem and is seeking to solve it not on a piecemeal basis but on a fair and principled basis affecting all people and I accept the obvious fact (which is referred to in the report to the Council) that if citizens such as Mr Irani simply help themselves to development of the land because of their frustrations or because of their economic personal hardship plight then of course chaos and planning anarchy would reign and the Court would not want to give any suggestion of condonation of such an outcome.

35 These are matters which are referred to at some length in my judgment in the Cafe case and it is now appropriate that I turn to the question of the outcome in the present case and in particular the type of orders that should be made. In the Cafe case, the facts of which are not materially different from the present case (save for the fact that the dwelling-house in that case was a brick constructed house obviously of permanent nature) I declared that the development had been carried out without the requisite consent under the EP&A Act, and the requisite approval then required under the Local Government Act 1993.

36 I ordered the Respondent to be restrained from using the dwelling-house for the purpose of a residence and I ordered the removal of the house and the reinstatement of the land. However, I suspended those orders for a period of 18 months with a view to Mrs Cafe either seeking to regularise the situation under the planning law (and there were means available to her so to do) or in the event of the planning solution for the current problem caused by the scheduled lands being resolved.

37 I also ordered that the injunctions be permanently stayed in the event of the obtaining of requisite approval within the period of eighteen months. In my opinion a similarly structured remedy is called for in the present case.

38 Ultimately I did not understand Mr Irani to suggest that the Court in the exercise of its discretion in the present case would refuse Council relief. For the reasons that I gave in the Cafe decision in the circumstances which are equally applicable to the present case, it would involve a wrong exercise of discretion if the Court were to decline to grant relief in the present case.

39 It is important, I think, that Mr Irani appreciate that the planning merits of his application (which are rightly matters for consideration on his development application and on any application for reconsideration that he wishes to make and any appeal to this Court that he may wish to make) do not truly arise in the exercise of judicial discretion upon proof of breach of the planning laws, such as is presented by the present case.

40 In the evidence of Mr Ludlow, the Council’s Building Surveyor, it is apparent that he regards the building as a “mobile home” or “moveable dwelling”, as the term is now used in the Local Government Act. In the course of today’s presentation of the case, Mr O’Connor on behalf of the Council submitted that the absence of kitchen facilities in the dwelling rather suggested that it did not qualify as a moveable dwelling.

41 The position is not entirely clear, but curiously enough if that submission were right it would mean that we have on this property something which is not classified as a dwelling under planning law as well, which would appear to be an anomalous result. I simply add that the restrictive provisions of cl 12 of the LEP prescribing large minimum areas for dwelling-house development simply would not apply if what you were dealing with was something less than a dwelling, to wit something akin to a dwelling but without basic kitchen facilities. Such a result would be anomalous.

42 Accordingly, it is better I think that the matter be left on the basis that what is there is either a “moveable dwelling” or a building being used for some residential purposes but it would be both illogical and unsound to say that the absence of kitchen facilities renders the development not a moveable dwelling for the purposes of the Local Government Act but renders it a dwelling for the purposes of the EP&A Act. That would be incongruous and wrong. The same result and the same classification should apply in both cases.

43 The Council already has the benefit, in the present case I should note, of unfulfilled orders made pursuant to the EP&A Act, s 121B made against the subject land and served on Mr Irani. Copies of these instruments are annexed to the affidavit of Mr Apps. By not complying with those orders and not appealing against them, of course Mr Irani has exposed himself to the consequences of non-compliance with statutory enforcement orders.

44 In one sense, by dint of that outcome the Council has almost the benefit of a demolition order already enforceable against Mr Irani, but perhaps consistent with its policy on non-enforcement of demolition orders (indeed Mr Apps conceded under cross-examination that not one unlawful building has been required to be demolished from the scheduled lands areas), the Council, in seeking injunctions from the Court is obviously seeking to advance its position beyond that which was obtained simply by virtue of service of the orders under 121B and the absence of appeal from them. In all of the circumstances I am satisfied that in the exercise of discretion I should make orders along the lines that were made in the case of Mrs Café. However in view of the fact that Mr Irani sought the Council approval for the raising of the level of the habitable rooms of the structure above the flood level and the appropriate annexation of the structure to the land by dint of a concrete pad and reinforced steel piles that matter should, in my opinion, be reviewed by the Council upon application by Mr Irani supported by an appropriate objection under State Environmental Planning Policy No 1.

45 Seeing the matter is more advanced than had been the position in Mrs Café’s case, it appears to me that the period of 12 months suspension of Orders should be made and that that period should include the mechanism for the Council on application to extend the period if the circumstances warrant.

46 Because the Council expressed some concern about the lack of substantial annexation of the building to the ground, the flood liability problem and the bushfire problem, I should also give the Council the opportunity in the event of some real concern emerging to approach the Court for additional relief. However, on the evidence as adduced (including the manner in which the Council determined the development application by Mr Irani) no such basis for concern has been demonstrated in the present case save for the matter being considered as a matter of general principle.

47 Accordingly, I make the following orders—

1. I declare that the placement of the dwelling type structure on land known as Lots 77 to 80 York Road Riverstone has occurred without the requisite development consent under the Environmental Planning and Assessment Act 1979 and without any approval under the Local Government Act 1993 insofar as such an approval may be required for a moveable dwelling.

2. Order the Respondent be restrained from using that structure for the purpose of a residence.

3. Order the Respondent to remove that structure from the land and render the land safe and stable following removal.

4. Order the suspension for a period of 12 months or such additional period that the Council may extend in writing of Orders 2 and 3.

5. Order a permanent stay of orders 2 and 3 in the event of the Respondent obtaining the requisite consent and/or approval within the period of 12 months.

6. Order the return of the exhibits.

7. Grant liberty to apply to the Council for any additional relief on three days’ notice.

Any other order, Mr O’Connor?
O’CONNOR: I’m seeking an order for costs, your Honour.

HIS HONOUR: Mr Irani, in Mrs Cafe’s case I ordered Mrs Cafe to pay the Council’s costs but I suspended that order for the period of suspension. What do you say?

IRANI: I’m wiling to pay the costs but not in the whole lump sum, in a reasonable time and reasonable amount, to be fair on the Council and for myself.

HIS HONOUR: Over a period of six months?

IRANI: It depends on what the amount is and they haven’t told me.

HIS HONOUR: Yes, are you able to assist Mr Irani, Mr O'Connor, for a ballpark figure?

O'CONNOR: I don’t know the figure, your Honour. I haven’t looked at the costs. I did in discussions had with Mr Irani on Friday--

HIS HONOUR: Mentioned a figure.

O'CONNOR: Yes, I mentioned a rough figure.

IRANI: Which I accept, whatever the cost I’ll pay for it, but give me say - you know, time for the amount he’s asking and, you know, I don’t know, he said a ballpark figure, okay, I’ll pay it to him.

HIS HONOUR: Thank you.

48 I will order the Respondent to pay the Applicant’s costs of the proceedings in the sum agreed, or failing agreement, as assessed, such payment to be made--

Six months, did you say, Mr Irani?

IRANI: Six months or eight or ten months. It depends on the figure what he’s going to give me.

HIS HONOUR: Is 12 months too distant, Mr--

IRANI: No, 12 months I can reasonably step by step pay.

O'CONNOR: No, your Honour, that’s okay.

HIS HONOUR: Yes, thank you, Mr O'Connor.

--as assessed within a period of 12 months from the date of demand.
HIS HONOUR: Anything else, Mr O'Connor?
O'CONNOR: No, your Honour.

HIS HONOUR: Thank you, Mr O'Connor, Mr Irani. Mr Irani, you know what you have to do, what is available to you. You will get this judgment in typescript in due course, so will Mr O'Connor of course, but you need to prepare a case for relief under State Planning Policy No 1 in relation to the ten hectare minimum size and you need to say to the Council what you said in Court today. “What do you want in relation to bushfire? What do you want in relation to flood?” And if, as you say, they are reasonable requests you will meet them and put your application to the council.

If the Council says no on a s 82A you can then file an appeal to this Court and as Mr O'Connor said a Commissioner of the Court will then hear the case and determine it on the planning merits. You understand all of that?

IRANI: I hope I do, your Honour.

HIS HONOUR: Well you will have the benefit of--

IRANI: I’ll have benefit, yes.

HIS HONOUR: You will have the benefit of my reasons for judgment in typescript in due course.

IRANI: Yes, it’s only the question of how the Council cooperates with me. You know?

HIS HONOUR: I think they should, and I would expect that they will.

IRANI: I hope. Thank you.