Blacktown City Council v Nguyen

[1999] NSWLEC 194

Land and Environment Court

of New South Wales

CITATION:	Blacktown City Council v Nguyen [1999] NSWLEC 194
PARTIES	APPLICANT Blacktown City Council
RESPONDENTS Thanh Vuong Nguyen and Vinh Hien Nguyen
NUMBER:	40058 of 1999
CORAM:	Sheahan J
KEY ISSUES:	Development Consent :- erection of dwelling without appropriate consent
LEGISLATION CITED:
DATES OF HEARING:	08/09/1999
EX TEMPORE JUDGMENT DATE:	08/09/1999
LEGAL REPRESENTATIVES:	APPLICANT SOLICITORS Michell Sillar RESPONDENTS Mr T V Nguyen and Mr V H Nguyen (in person)

JUDGMENT:

IN THE LAND AND Matter No: 40058 of 1999

ENVIRONMENT COURT Coram: Sheahan J

OF NEW SOUTH WALES 9 August 1999

BLACKTOWN CITY COUNCIL

Applicant

v

THANH VUONG NGUYEN & VINH HIEN NGUYEN

Respondents

JUDGMENT

1. The facts and issues in this matter are quite clear.

2. The respondents are two brothers who impress the Court as diligent hardworking citizens, endeavouring to develop a family enterprise on a small rural holding at Riverstone. Mr T V Nguyen is a widower with a large family. After the loss of his wife, his brother, Mr V H Nguyen, appears to have taken the leading role in managing and working their little farming enterprise. Mr V H Nguyen’s wife speaks no English, but she supports his efforts on the farm and they wish to spend the long working hours which are involved, in company with their two very young children, on the subject property.

3. To provide some amenities for the family, a dwelling house was moved to the land at the end of May 1998 without the appropriate consent of the Council. I use the word “ appropriate ” because Mr V Nguyen believes that he has, or had, some sort of consent from Council, but I am afraid I must inform him that the law does not translate congenial negotiations, or some degree of understanding, into a consent required and envisaged in the planning laws of the State.

4. The Council has serious responsibilities in two principal respects in regard to this property. There is overwhelming evidence that this building is actually a “ house ”. The land on which it sits is seriously flood liable. Not only that, there is evidence that all of the land is either in, or immediately proximate to, a hazardous floodway.

5. Secondly, the relevant planning instruments and the development control plan, building upon policies already upheld by this Court, work strongly against the approval or erection of amenities buildings which are easily capable of permanent habitation, and there is some evidence that from time to time the respondents have seen this house building as a possible on-site residence. Even de facto, given the working hours apparently spent on this land, the building will be used as such.

6. The Court is as sympathetic to the plight of this family as the Council officers professed during their oral evidence, but the Court agrees with Council that the current situation on this land is neither in conformity with the law, nor in the public interest, and both Court and Council must uphold both.

7. The prospect of a residence on this site must be resisted. The provision of some amenities such as the respondents say the dwelling house will provide, can be supported. However, these are not proceedings dealing with such a proposal, any more than they involve an appeal against Council’s refusal of the respondents’ development application of 14 May 1998.

8. The Court has a discretion, upon which the authorities are clear, and, while I have sincere sympathy for the range of problems and challenges confronting this family, and I am very happy to extend maximum consideration to them, I cannot, on the evidence before me, including the frank and forthright admissions made by the two respondents, refuse Council the relief it has sought.

9. I will, accordingly, make the orders sought in the Class 4 application, save that I will give the respondents until 31 October 1999 to remove this building.

10. On the question of costs, I say simply this. The respondents see the threat of costs as a weapon used by the Council in furtherance of an agenda that they see as covering up what was called, colourfully, a “ stuff up ”. If parties bring proceedings in Class 4 of the Court’s jurisdiction, and succeed in them, they generally get their costs. The Council and its solicitors seem to have threatened proceedings quite frequently before commencing them, but the respondents not only did not comply with the requests to remove the building, they appear to have consolidated it in position.

11. The Council’s proceedings have now been successful, and the Court will, therefore, make an order for costs.

12. As I apprehend that that will compound the sense of hardship these respondents will feel in view of my decision on the substantive issues in the matter, I will allow twelve months for the costs order to be paid.

13. The respondents can avail themselves of the mechanisims available to citizens to see that the costs payable are appropriate, but I should also alert the respondents to the serious consequences that can flow from the disobedience of orders of this Court.

14. Accordingly the formal orders of the Court will be:

1. Order made in the terms of par 1 of the Class 4 application.
2. An order that the respondents by themselves, their servants, agents and assigns remove the building situated on the property by 31 October 1999.
3. An order that the respondents pay the costs of the applicant council, as agreed, or as assessed according to law, within twelve months of such agreement or assessment.
4. All exhibits to be returned.

I HEREBY CERTIFY THAT THE PRECEDING 14 PARAGRAPHS ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT OF THE HONOURABLE JUSTICE T.W. SHEAHAN.

Associate:

Dated: 9 August 1999