Blacktown City Council v Lacan Pty Limited and Anor

[2008] NSWLEC 172

Land and Environment Court

of New South Wales

CITATION:

Blacktown City Council v Lacan Pty Limited and Anor [2008] NSWLEC 172

PARTIES:

APPLICANT
Blacktown City Council

FIRST RESPONDENT
Lacan Pty Limited

SECOND RESPONDENT
Jadranka Jambrecina

FILE NUMBER(S):

41199 of 2007

CORAM:

Preston CJ

KEY ISSUES:

Civil Enforcement :- carrying out of development without consent - erection and use of sheds - breach found - order requiring removal stayed to allow development application

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 4, s 76A, s 85A, s 121B
Local Government Act 1993

CASES CITED:

Wilkie v Blacktown City Council (2002) 121 LGERA 444
Wyong Shire Council v Cohen (2004) 133 LGERA 355

DATES OF HEARING:

5 May 2008

EX TEMPORE JUDGMENT DATE:

5 May 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Kelso (solicitor)
SOLICITORS
Bartier Perry

FIRST RESPONDENT
Drago Jambrecina as agent for
Lacan Pty Limited

SECOND RESPONDENT
Jadranka Jambrecina
In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

5 MAY 2008

41199 OF 2007

BLACKTOWN CITY COUNCIL V LACAN PTY LIMITED and ANOR

JUDGMENT

1 HIS HONOUR: Blacktown City Council has brought class 4 proceedings to remedy and restrain a breach of s 76A of the Environmental Planning and Assessment Act1979 involving the carrying out of development that requires development consent without obtaining such consent and without carrying out development in accordance with such consent.

2 The development involves the erection and subsequent use of four sheds on land at Lot 258 in Deposited Plan 394455 and known as 29 Knox Road, Doonside.

3 The first respondent, Lacan Pty Limited, is the owner of the land. Mrs Jambrecina is a tenant at will of the land and resides there with her son.

4 At least three of the four sheds in question and possibly all four are said to be owned by Mrs Jambrecina. Mrs Jambrecina uses the sheds to store her personal belongings.

5 The Council seeks an order that the four sheds be removed, such order to be made firstly against Lacan Pty Limited and, in the alternative, against Mrs Jambrecina.

6 Both Lacan Pty Limited and Mrs Jambrecina deny they are in breach of the Act. However, they submit that if the Court were to find that they are in breach of the Act, any order requiring the removal of the sheds should be stayed for a period of time in order to allow them to make a development application with respect to the four sheds.

Outline of facts

7 Mr McDonald, a Council officer, inspected the land on 17 October 2007. He states that he “observed four sheds, each measuring about 4m x 3m, in the approximate positions shown on the photos annexed and marked “E””: para 8 of Mr McDonald’s affidavit of 31 October 2007.

8 Annexure E shows three relocatable office sheds in the back corner of the rear yard, as well as another shed closer to the house. These four sheds are the sheds that the Council says are in breach of the Act and ought to be removed. There is a further shed, which existed on the premises before the four sheds in question were placed there, however it is hidden in the photograph in annexure E by the three relocatable office sheds. The Council does not seek any order in relation to the existing shed.

9 Mr McDonald was not cross-examined, and he was not asked to be cross-examined neither by Mr Jambrecina, who appeared as agent for Lacan Pty Limited, nor by Mrs Jambrecina. Mr Jambrecina was previously married to Mrs Jambrecina but they have been separated since 1994.

10 The sheds were moved to the land either in late 2005 or early 2006. Mr Jambrecina gave evidence that the three office sheds were originally owned by Lacan Pty Limited and were on a site that Lacan Pty Limited owned in Queanbeyan. Lacan Pty Limited was then, and still is, involved in the business of concrete pumping. Lacan Pty Limited owns a concrete pumping truck which is driven by Mr and Mrs Jambrecina’s son. The son resides with Mrs Jambrecina at the Doonside land.

11 In 1994, Mr Jambrecina and Mrs Jambrecina separated. As part of the settlement between them, the sheds were given to Mrs Jambrecina. This occurred in about 1996. However, the sheds were not moved to the Doonside land until late 2005 to early 2006. Mr Jambrecina said that Lacan Pty Limited assisted in arranging for a truck to transport the sheds for Mrs Jambrecina to the Doonside land that Lacan Pty Limited owned. This occurred when Mrs Jambrecina moved to that land and became a tenant at will.

12 Mrs Jambrecina said that from November 2005 she had been in contact with the Council and had asked about the potential use of the sheds on the land for storage purposes. She was given various information on exempt development by the Council.

13 Mrs Jambrecina said she came to the Council’s front desk in December 2005. In her letter of 4 April 2006, Mrs Jambrecina said:

“I have come to your Council front desk last December before then I had arranged to come to live at 29 Knox Rd, Doonside and asked is there anything that I need to get from the council before I move my belongings in above noted containers from my previous residence in Canberra (property was sold) and unload them off the trucks at the rear of the block”. [sic]

14 This would suggest that the “containers” to which Mrs Jambrecina referred came some time after “last December” 2005.

15 Also in her letter of 4 April 2006, Mrs Jambrecina said “most of my belongings are still stored in those containers for safe keeping.” Mrs Jambrecina was writing to the Council advising that she was about to fly to Europe and she wished to store “all my valuable possessions” in the “metal containers as they are not easy to be broken in, ambushed by members of crime society.” This is suggestive that the purpose for which the containers were to be used was one of storing Mrs Jambrecina’s personal belongings.

16 On 9 May 2006 Mrs Jambrecina wrote again to the Council. In that letter, she described the fact that “containers with furniture and personal belongings” were delivered to the land. Mrs Jambrecina referred to metal storage and shipping containers and portable sheds and analysed whether such structures could be considered to be exempt development in her opinion.

17 On 28 June 2006, Mrs Jambrecina applied to the Council for a complying development certificate. Mrs Jambrecina was described as the applicant. The owner of the land, who consented to the application, was Lacan Pty Limited. In the description of the proposal, Mrs Jambrecina said “temporary storage shed for house, household goods and gardens tools storage”. The application said, in answer to the question as to whether the application is for building development, “No. Prefab on site.” The floor area was given as 39.5 square metres.

18 The Council refused to issue a complying development certificate on 17 August 2006. In its letter the Council stated the reason for refusing the complying development certificate as follows:

“The development is not consistent with the complying development criteria. The limit is for a single shed up to a size of 40m2. Your proposal to install three temporary storage sheds, which are of a similar nature to a site shed, resulting in four sheds being installed on the property with a collective area of all four exceeding the 40m2 limitation.”

19 The letter continued that the development may not proceed without an approval required by the Act. The approval to which the Council referred was a development consent.

20 On 7 September 2006, Lacan Pty Limited itself applied for development consent for development described as follows:

“prefabricated (ATCO) sheds for material and tool storage and other health and safety needed for development further”.

21 Attached to the development application was a plan. The plan showed the existing residence and an existing shed in the back corner of the rear yard. In addition, three other “temporary sheds” were shown. The plans show the dimensions of two of the temporary sheds to be “4800” x “2900” and of the third temporary shed as being “4670” x “2900”. The plan did not show the other shed to which these proceedings refer, which is located closer to the existing residence. The three temporary sheds are shown on the elevation to have a maximum height of “2700” millimetres.

22 The Council granted development consent, but only to two of the sheds. Condition 25 of the development consent stated:

“The rear shed marked ‘existing’ (No. 3) on the site plan is to be relocated to 2m from the rear boundary and the second shed marked No. 4 is to maintain a 2m setback from the western end of that shed. Sheds Nos. 1 and 2 have not been approved as part of this Development Consent.”

23 The development consent was subject to a deferred commencement condition, condition 1. Condition 1 required that the development consent was not to operate until such time as:

“(a) The lodgement of a Development Application for a second dwelling (dual occupancy) on the subject site.
(b) The issue of Development Consent for the second dwelling (dual occupancy).
(c) The issue of a Construction Certificate for the second dwelling (dual occupancy) referred to above.
(d) The submission of written notice for the construction of the second dwelling (dual occupancy) is about to commence.”

24 The deferred commencement condition specified the time period by which each of these steps was to be undertaken. The first event, the lodgement of a development application for a second dwelling (dual occupancy), was nominated to be carried out by 1 April 2007. This was one month after the date of grant of consent on 1 March 2007. The condition also specified the dates for the subsequent events.

25 As a matter of fact, none of the events required to be undertaken by condition 1 of the development consent have ever been undertaken. Accordingly, the development consent has not yet become operative.

26 On 19 March 2007, Mr Jambrecina wrote to the Council asking the Council to provide answers to four questions, two of which concerned sheds in backyards. The second question was what law “prohibits prefabricated buildings, sheds in backyards of residential 2A Zone” and the fourth question was what law determines “what number of sheds is allowed in backyards under complying development”. Mr Jambrecina asked the Council to respond within seven days.

27 On 21 March 2007, Mrs Jambrecina wrote to the Council by email. Mrs Jambrecina asked whether approval or consent of the consent authority would be needed to relocate from one spot to another in her backyard “small buildings - structures” that she said had been “installed previously to comply with Exemptions Policy”. The small buildings - structures to which Mrs Jambrecina referred were described by her as:

“one 10m2 Cabana/changing room, and attached to it 5m2 cubby house or children’s play area,
two 10m2 floor area gardening sheds/lockups and
one aluminium porta room or mobile structure normally used in CP as temporary accommodation.”

28 Mrs Jambrecina said in her email:

“I am the owner of small buildings - structures above. I have got first owner’s permission in year 2005 and second one early last year to install the above. I have to relocate it now as property owners have got their application approved by Council to install their two sheds to use for construction storage on site. My exempt development is in their way”.

29 On 22 March 2007, the Council responded to Mrs Jambrecina’s email of 21 March 2007. That email referred to one of the criteria for exempt development specified in Blacktown Local Environmental Plan 1988 as being that the subject land must not be identified as bushfire-prone on the Council’s bushfire-prone land map. The Council advised that the land had been identified as being bushfire-prone and, therefore, the development cannot be considered as exempt development and requires development consent from the Council.

30 On 3 April 2007, the Council responded to Mr Jambrecina’s letter of 19 March 2007 which had requested answers to four questions. In relation to the second question concerning sheds in yards the Council stated that the placement of prefabricated buildings is not listed as exempt under Blacktown’s Local Environmental Plan. In relation to the fourth question, the Council set out the criteria from Blacktown Environmental Plan with which complying development must conform. It also advised that there was a requirement for the complying development not to be on land identified as bushfire-prone on the Council’s bushfire-prone land map and the Council advised that the land fell within that category. The Council advised Mr Jambrecina that “a Complying Development Consent cannot be issued for work already carried out, nor is there any right of appeal”.

31 On 16 May 2007, Mr Jambrecina again wrote to the Council. Mr Jambrecina referred to a letter he had received from the Council dated 7 May 2007 stating that the Council intended to issue “yet another order under the section 121B Order No. 2 of the Environmental Planning and Assessment Act1979, to have Company demolish and/or remove Unauthorised buildings from its backyard” [sic]. Mr Jambrecina noted that he was advised that he may make representations concerning the proposed order. Mr Jambrecina gave two reasons why the order should not be made. The first was “because there is no buildings in Company’s backyard”. The second reason referred to an earlier letter Mr Jambrecina had written to the Council dated 10 April 2007 and said that before issuing an order or penalty infringement notice the Council should advise the company of “what it is guilty of, what rules or regulation have Company breached, so that Company can take appropriate action” [sic].

32 Mr Jambrecina also referred to the definition of “building” which refers to “a manufactured home, moveable dwelling or associated structure or part of a manufactured home, moveable dwelling or associated structure or a temporary structure within the meaning of the Local Government Act 1993”.

33 On 3 June 2007, Mr Jambrecina again wrote to the Council. Apparently in the intervening period, there had been a letter from the Council dated 24 May 2007. In that letter of 24 May 2007, the Council had informed Lacan Pty Limited that there was a list of structures that are excluded from the definition of a “building”. Mr Jambrecina asked the Council to forward a copy of that list to the company for its consideration. Mr Jambrecina asserted that the “structures placed in back yard at 29 Knox Rd Doonside, are not buildings but associated structures of a manufactured homes and movable dwellings, within meaning of Environmental Planning and Assessment Act1979. For this reason Council have no legal basis to issue order under s 121B of Environmental Planning and Assessment Act1979” [sic]. Mr Jambrecina then again referred to the definition of “building” in the Environmental Planning and Assessment Act1979.

34 On 12 June 2007, Mr Jambrecina again wrote to the Council. He had received in the interim a letter from the Council dated 4 June 2007 which quoted a definition of “building” from the Environmental Planning and Assessment Act1979. Mr Jambrecina again asked the Council to forward a list of other things that the Environmental Planning and Assessment Act1979 defines as a building, to the company for its consideration.

35 On 14 June 2007, the Council responded to Mr Jambrecina letter of 12 June 2007. The Council stated that its previous correspondence dated 24 May 2007 erroneously referred to a “list of structures to be excluded from the definition of a building” rather than the exact wording from the Environmental Planning and Assessment Act1979. The letter then set out the exact wording from the definition of “building” in the Environmental Planning and Assessment Act1979.

36 Mr Jambrecina gave oral evidence both in cross-examination and in re-examination. In that evidence, Mr Jambrecina again asserted that each of the sheds had been given to Mrs Jambrecina in the way that I have earlier described.

37 Mrs Jambrecina did not give oral evidence, other than in her affidavits which were read before the court. Mrs Jambrecina asserted that the sheds were used for the purposes that she set out in her letter and that I have earlier set out. This was reproduced in her affidavit where she said:

“Two of 10m2 sheds are used only as garden shed and lock-up, one is used as 10m2 greenhouse and there is 5m2 play room area and change room. In total they make area of about 35m2.”

38 She says “they have been used as so for about 2 years now”.

Elements of breach of Act

39 In order for the Council to establish that there is a breach of the Act, the Council needs to establish that:

(a) that the placing of the sheds on the land involves the carrying out of development within the meaning of the Act;

(b) the carrying out of such development requires development consent under the Act; and

(c) development consent for such development has not been obtained and the development is not being carried out in accordance with any such development consent.

Carrying out development.

40 The concept of “development” is defined in s 4(1) of the Act to include “(c) the erection of a building”. A “building” is defined as “includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure or part of a manufactured home, moveable dwelling or associated structure”.

41 Each of the sheds that I have described clearly can be described as a “structure”: see Wyong Shire Council v Cohen (2004) 133 LGERA 355 at 360 [19] and 361 [25].

42 Each of the exceptions, namely manufactured home, moveable dwelling or associated structure, are defined in s 4(1) of the Act. Each of “manufactured home”, “moveable dwelling” and “associated structure” is defined as having same meaning as in the Local Government Act 1993.

43 Turning to the dictionary in the Local Government Act 1993, “manufactured home” is defined to mean:

“a self-contained dwelling (that is, a dwelling that includes at least one kitchen, bathroom, bedroom and living area and that also includes toilet and laundry facilities), being a dwelling:
(a) that comprises one or more sections;
(b) that is not a registrable vehicle within the meaning of the Road Transport (Vehicle Registration) Act 1997 ,
and includes any associated structures that form part of the dwelling”.

44 “Moveable dwelling” is defined in the Local Government Act 1993 to mean:

“(a) any tent, or any caravan or other van or other portable device (whether on wheels or not), used for human habitation, or

(b) a manufactured home, or

(c) any conveyance, structure or thing of a class or description prescribed by the regulations for the purposes of this definition”.

45 Finally “associated structure” is defined in the Local Government Act 1993 to mean:

“(a) a carport, garage, shed, pergola, verandah or other structure designed to enhance the amenity of a moveable dwelling and attached to or integrated with, or located on the same site as, the dwelling concerned, or
(b) a separating wall between 2 moveable dwellings”.

46 None of the sheds described by Mr McDonald answer the description of a manufactured home, moveable dwelling or associated structure. Accordingly, none of the exceptions to the definition of “building” in the Environmental Planning and Assessment Act1979 are applicable. For this reason, the sheds answer the description of being a building.

47 The placing of the sheds on the land also involves the erection of a building. Section 4(2) of the Environmental Planning and Assessment Act1979 states that the erection of a building includes a reference to “the placing or relocating of a building on land”: s 4(2)(b)(ii).

48 Accordingly, the placing of the sheds involved the carrying out of development within the meaning of the Act.

Development required development consent

49 Mr McDonald states that the land is zoned 2(a) (Residential “A” zone) under Blacktown Local Environmental Plan 1988. In that zone, there is no development that does not require development consent. Prohibited development includes residential flat buildings and purposes listed in schedule 1. None of the purposes listed in schedule 1 are of relevance in this case. Any purpose other than a purpose included in item 2 (that is development that does not require consent) or item 4 (that is development that is prohibited) requires development consent.

50 Under cl 9(2) of Blacktown Local Environmental Plan development that may be carried out only with development consent, is that which is specified in the table to which I have referred. Clause 9(2A) provides that exempt development may be carried out without development consent in any zone. Clause 9A states that exempt development is development that is specified in schedule 6 and which satisfies the applicable criteria in that schedule and the criteria set out in cl 9A. Schedule 6 specifies a list of different types of developments. The only type of development of possible relevance to the sheds in this case is item 18 “garden shed/lawn locker”.

51 However, the criteria that are specified in Schedule 6 for that type of development include criteria that, first, each shed must have a maximum floor area of 10m sq and, secondly, that there must be a maximum of two sheds for each property: see paras (c) and (f).

52 In this case, Mr McDonald’s evidence is that there are four sheds, in addition to the existing shed, on the property and that each of the four sheds has an area that he observed to be 4m x 3m, that is 12 square metres. This accords with the specification given in the plans that were lodged with the development application that I have earlier set out above. I also note that the Council’s reasons for rejection of the complying development certificate contains the statement that the four sheds had an area greater than 40m sq. Accordingly, the sheds in this case do not comply with the criteria for garden shed and are therefore not exempt development.

53 Clause 9B of Blacktown Local Environmental Plan specifies that development specified in schedule 7 is complying development if it is local development of a kind that can be carried out with consent on the land on which it is proposed and provided that it satisfies all of the criteria, if any, in that Schedule and the development also complies with the criteria specified in cl 9B.

54 As I have noted, the erection of the sheds is development that may be carried out with consent on the land in the relevant Residential 2A zone. Schedule 7 sets out the types of complying development. One of the types of development that is specified to be complying development is item 6 “garage or shed (freestanding or attached to another building)”. A number of criteria are set out for that type of development. The Council does not assert for the purposes of this case that each of the four sheds the subject of these proceedings would not meet the criteria for that type of development. However, it does submit that, by implication, one could not have an unlimited number of garages or sheds. However, the Council’s case is that even if the sheds could be considered to fall with item 6 “garage or shed” in schedule 7, this would require a complying development certificate to be obtained and no such certificate has been obtained.

Breach of Act

55 The placement of the sheds involved the carrying out of development for which development consent was required. Under s 76A(2), development consent may be obtained in two ways, first, by obtaining the grant of development consent or, secondly, in the case of complying development, by the issue of a complying development certificate.

56 In this case, although there was application for a complying development certificate, such certificate was refused. Under s 85A(10), there can be no right of appeal against the determination of, or a failure or refusal to determine, an application for a complying development certificate by a Council. As a matter of fact, there is no complying development certificate for these four sheds.

57 There was a grant of development consent on 1 March 2007. However, that development consent was only for two of the four sheds and it was also subject to a deferred commencement condition which has not been satisfied. That development consent does not authorise the four sheds in question in this case.

58 Accordingly, there is no development consent of either kind specified in s 76A(2) of the Act. For that reason, there is the carrying out of development without consent contrary to s 76A(1).

Person carrying out development

59 The Council contends that both Lacan Pty Limited and Mrs Jambrecina have carried out development contrary to s 76A(1). The Council says that Lacan Pty Limited is a person who has carried out development in that it is the owner of the land on which the sheds have been erected and are being used, it assisted in moving the sheds from Queanbeyan and placing them on the land at Doonside, it lodged the development application for the placing of, and use of, three of the sheds; and it engaged in a series of correspondence with the Council about the sheds, through its agent, Mr Jambrecina. In the circumstances, the Council submitted that Lacan Pty Limited has knowingly participated in the carrying out of the development, which is not in accordance with s 76A(1). The Council refers to the Court of Appeal’s decision of Wilkie v Blacktown City Counciland Others (2002) 121 LGERA 444.

60 In the alternative, the Council says that Mrs Jambrecina has carried out development. On her evidence, she owns each of the four sheds. Her belongings are contained in the sheds. She is using the sheds for a variety of different purposes. She has engaged in correspondence with the Council about the use. The sheds were also moved to and placed on the land with her consent. For these reasons, the Council asserts Mrs Jambrecina is carrying out the development that was involved in the erection of the buildings and their subsequent use.

61 In my opinion, both Lacan Pty Limited and Mrs Jambrecina can be considered to be persons who have carried out development, being the erection of the buildings that are the sheds and their subsequent use. I therefore consider both of Lacan Pty Limited and Mrs Jambrecina to be persons who are in breach of s 76A(1) of the Act.

Remedy

62 For the reasons that I have given, the development involved in this case, namely the placing and the subsequent use of the sheds, is development that is permissible with development consent. I consider that an appropriate order in this case should be that the court should order the removal of the sheds, however, such an order should be stayed for a period of time in order to allow Lacan Pty Limited and/or Mrs Jambrecina to make application to the Council for consent to use each of the sheds. I will allow the parties a period of time to frame the terms on which the Court order requiring the removal of the sheds should be stayed. The terms of the stay should include a timetable for the making of a development application, the consideration by the Council and the lodging of any appeal to the court if the Council declines to grant consent.

Orders

63 The Court:

1. Declares that the existing development on the property being land described as Lot 258 DP 39455, known as 29 Knox Road, Doonside (“the Property”), comprising 4 sheds each approximately 4m long x 3m wide is a breach of the Environmental Planning and Assessment Act 1979 (“the Act”).

2. Orders that each of the Respondents remove the sheds from the property or demolish or dismantle the sheds and remove from the property the demolished or dismantled components of the sheds.

3. Orders that Order 2 be stayed:

(a) Until the expiration of 6 weeks from the date of this Order; but if, prior to the expiration of that period, the Respondents or either of them lodge with the Applicant an application for development consent to the use of the sheds or any of them, then
(b) As to those sheds the subject of that application (but no others), until the expiration of 28 days either from notification by the Applicant of the determination of that application, or from the date upon which that application is taken to have been determined under s 82(1) of the Act, whichever is the earlier; but if, prior to the expiration of that period, the Applicant for consent appeals to the Court against the determination or deemed determination of the application, then
(c) Until the expiration of twenty-eight (28) days from the final decision of the Court on that appeal.


4. Orders that, if development consent is granted to any one or more of the sheds, the stay in respect of that shed or those sheds be continued until further order of the Court; and that any party be at liberty to apply to have the matter relisted before the Court on 5 days’ notice to the others.

5. Notes the agreement of the parties that:

(a) Those of the Respondents making application for development consent will answer promptly any request by the Applicant for further information; and
(b) The Applicant will deal with any such application for consent promptly.


6. Orders that each Respondent pay one half of the Applicant’s costs assessed at $3,000.

7. Orders that exhibits be returned.

**********