Castaneda v Blacktown City Council
[2023] NSWLEC 1545
•21 September 2023
Land and Environment Court
New South Wales
Medium Neutral Citation: Castaneda v Blacktown City Council [2023] NSWLEC 1545 Hearing dates: Conciliation Conference on 23 June and 31 July 2023 Date of orders: 21 September 2023 Decision date: 21 September 2023 Jurisdiction: Class 1 Before: Byrne AC Decision: The Court orders:
(1) The appeal is upheld.
(2) The Applicant is to immediately cease using the caravans located on the land legally identified as Lot 44, Section B, DP 193074 and known as Lot 44 Grange Avenue Schofields (the Property), until such time as Orders (3) and (4) are complied with.
(3) The Applicant is to remove the unauthorised structures (not including the three caravans) from the Property which consist of dilapidated building materials such as canvas, corrugated iron, prefabricated steel sheeting, timber, corrugated fibreglass sheets, timber doors, screen doors, glass panels, and other scrap like timber and all other associated dilapidated building materials from the land forming the unauthorised structure, as depicted in Annexure A, within 120 days of the date of these orders.
(4) The Applicant is to remove all imported land fill from the Property which is spread over an approximate area of 187 square metres and approximately 2 metres in depth, as depicted in Annexure B, within 180 days of the date of these Orders.
Catchwords: APPEAL – development control order – stop use order – demolish works order – restore works order – unauthorised structures – importation of fill – flood prone land – environmental harm – conciliation conference – agreement between the parties – compliance orders
Legislation Cited: Environmental Planning and Assessment Act 1979, s 8.18, Div 9.3, Sch 5
Land and Environment Court Act 1979, ss 17, 34, 63
Land and Environment Court Rules 2007, r 7.7
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
State Environmental Planning Policy (Precincts—Central River City) 2021, Appendix 9, cl 2.3
Category: Principal judgment Parties: Elizabeth Castaneda (Applicant)
Blacktown City Council (Respondent)Representation: Counsel:
Solicitors:
D Castaneda (Agent) (Applicant)
L Raffaele (Solicitor) (Respondent)
Nil (Applicant)
Bartier Perry (Respondent)
File Number(s): 2023/26320 Publication restriction: No
Judgment
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COMMISSIONER: This is a Class 1 Miscellaneous Appeal pursuant to s 8.18(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) and s 17(d) of the Land and Environment Act 1979 (LEC Act) from a Development Control Order (DCO) issued by Blacktown City Council (the Council) to the Applicant over land identified as Lot 44, Section B, DP 193074, known as 44 Grange Avenue, Schofields (the land). The DCO was issued in respect of unauthorised habitable structures, building debris, and rubbish on the land in large quantities and unlawful landfilling on the land.
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The land is located in Zone E2 Environmental Conservation pursuant to cl 2.3 of the State Environmental Planning Policy (Precincts—Central River City) 2021 - Appendix 9 Schofields Precinct Plan.
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The Development Control Order (DCO) was issued on 30 November 2022 under Div 9.3 of the EPA Act, being Orders No 1, 3 and 10 in Sch 5 of the EPA Act. The DCO is a combined stop use order (No 1), demolish works order (No 3) and restore works order (No 10).
The Parties – Agent for Applicant
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The Applicant, Elizabeth Castaneda commenced these proceedings under s 8.18 of the EPA Act as the person who was issued with the DCO in her capacity as registered proprietor of the land. Ms Castaneda nominated her father, Mr Danilo Castaneda as her agent on the class 1 application and in an email dated 12 February 2023. Section 63(2) of the LEC Act states that leave is required for a party to proceedings in the Court to appear by an agent.
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However, Mr Danilo Castaneda is not a lawyer and did not file a Notice of Motion with supporting Affidavit as required under r 7.7 of the Land and Environment Court Rules 2007 to seek leave to appear as agent. Mr Castaneda was at all times willing to assist and appeared on site and at Court at the listed times. In consultation with the Registrar, I dispensed with the requirement for a Notice of Motion and Affidavit and granted leave to Mr Danilo Castaneda to appear as agent for the Applicant for the purposes of the s 34A Conciliation Conference pursuant to my powers under s 34(7) LEC Act. I relied on the following evidence in emails sent to the Court from Mr Danilo Castaneda, the class 1 application, Council’s evidence and observations on site:
Listed by the Applicant as Agent on the class 1 application
Father of the Applicant
Handwritten letter of “Trust Appointment” by the Applicant in respect of the land signed by Elizabeth Castaneda and Danilo Castaneda dated 21 November 2011 (attached to email to the Court of 26 June 2023)
Mr Castaneda has keys to the gates to access the property and let the Court and Council in for the site visit
Mr Castaneda stated to the Court and Council representatives: (i) his daughter (Applicant) is not a resident in NSW; (ii) he has a financial interest in the property; (iii) he has used the property – BBQs etc
Council agreed that Mr Danilo Castaneda be granted leave to be agent for the Applicant for the purposes of the proceedings.
The Conciliation Conference
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The Court arranged a conciliation conference under s 34(1) of the LEC Act between Mr Danilo Castaneda and the Council (the parties), which was held on site on 23 June 2023 and thereafter at Court on 31 July 2023. I presided over the conciliation conference.
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Following the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, being a decision that the Court could have made in the proper exercise of its functions.
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I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision which involves the Court exercising the function under s 8.18(4) of the EPA Act to make an order with respect to compliance with the DCO the subject of the appeal.
Jurisdictional Requirements
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There are jurisdictional pre-requisites which require my satisfaction before the power to make an order under s 8.18(4)(e) of the EPA Act can be exercised by the Court. The Council outlined jurisdictional matters of relevance in these proceedings in an agreed Jurisdictional Statement filed on 15 August 2023 which is reproduced as follows:
“A. DEVELOPMENT CONTROL ORDERS - RELEVANT PROVISIONS OF THE EPA ACT ARE SATISFIED
Division 9.3 and Schedule 5 Development control orders
14. Council is a relevant enforcement authority that may give a DCO pursuant to section 9.35(1)(b) of the EPA Act.
15. DCO general orders or stop use or restore works may be given to the owner of the Site, and a general order to demolish works may be given to the owner of the building. The Applicant is the registered proprietor of the Site and the buildings thereon and therefore is the appropriate recipient of the DCOs.
Natural justice requirements
16. Pursuant to clause 6 of schedule 5, before giving a DCO, the relevant enforcement authority must comply with natural justice requirements set out in clauses 2, 8 and 9 and part 7 of schedule 5 of the EPA Act.
17. Council is not required to comply with clause 2 of schedule 5 on account of the Applicant’s repeated representations to Council that no one lives at the Site.
18. Council has complied with clause 8 of schedule 5 by giving a Notice of Intention to the Applicant (NOI).
19. Council is not required to comply with clause 9 of schedule 5 as the requirement to give notice to other persons and bodies is not required in the present circumstances.
20. Council has complied with part 7 of schedule by considering several representations made by the Applicant to Council in response to the NOI, and having done so determined to give the DCO in accordance with the NOI.
Other requirements for giving a DCO
21. Council has complied with clause 4 of schedule 5 by serving the DCO by post and email, and included notice that the DCO may be appealed to the Land and Environment Court, and stated the period within which an appeal may be made.
22. Council has complied with clause 5 of schedule 5 by stating reasons for giving the DCO within the DCO itself.
23. Council has complied with clause 27(1) of schedule 5 by requiring the Applicant to demolish the unauthorised structures and restore land by 7 April 2023, being 128 days from the date of the DCO, a reasonable period satisfying clause 27(1).
24. Council has complied with clause 27(2) of schedule 5 by requiring the Applicant to immediately stop use of the Site for the purposes of habitation as the building pose a serious risk to the health or safety of any occupants of the unauthorised structures, satisfying clause 27(2).
25. Council has complied with clause 38 of schedule 5 by issuing the DCO requiring the Applicant to stop use, demolish works and restore works in the same instrument.
Stop Use Orders
26. DCO general orders for stop use orders may be given in accordance with circumstances identified in Column 1 in Part 1, Schedule 2 of the EPA Act which include:
• When premises are being used for a prohibited purpose, or for a purpose for which a planning approval is required but has not been obtained;
• When building is being used in a manner that constitutes or is likely to constitute a life threatening hazard or a threat to public health or public safety, and in a manner that is not regulated or controlled under any other Act by a public authority;
• When premises are being used for an activity (that would or would be likely to require planning approval that constitutes or is likely to constitute a life threatening hazard or a threat to public health or public safety, and is not regulated or controlled under any other Act by a public authority.
27. Use of the Site as a dwelling and/or any form of accommodation is not permissible with or without consent pursuant to the land use table for E2 Environmental Conservation.
28. Council is not aware of the origin of the unauthorised imported landfill and cannot be certain the landfill does not contain contaminants which may pose a risk to occupants of the Site and surrounding land.
29. The unauthorised development and unauthorised imported landfill on the Site constitutes a serious risk to health and safety to persons on the Site and to surrounding land.
Demolish Works Orders
30. DCO general orders for demolish work orders may be given in accordance with circumstances identified in Column 1 in Part 1, Schedule 2 of the EPA Act which include:
• For a building requiring a planning approval is erected without approval, or is or is likely to become a danger to the public, or is so dilapidated that it is prejudicial to persons or property in the neighbourhood, or is erected in contravention of the EPA Act.
31. Use of the Site as a dwelling and/or any form of accommodation is not permissible with or without consent pursuant to the land use table for E2 Environmental Conservation.
32. The unauthorised structures on the Site consist of dilapidated building materials that do not comply with the provisions of the National Construction Code.
Restore Works Orders
33. DCO general orders for restore work orders may be given in accordance with circumstances identified in Column 1 in Part 1, Schedule 2 of the EPA Act which include:
• For an unauthorised building the subject of a Demolish works Order or where unauthorised works have been carried out.
34. The unauthorised importation of landfill onto the Site are unauthorised works carried out.
B. RELEVANT PROVISIONS OF RELEVANT EPIs
State Environmental Planning Policy (Precincts—Central River City) 2021 - Appendix 9 Schofields Precinct Plan
Clause 2.3 Zone objectives and land use table
35. The Site is located in Zone E2 Environmental Conservation pursuant to clause 2.3 of the Schofields Precinct Plan.
36. The unauthorised development on the Site is not permitted without consent pursuant to the land use table for E2 Environmental Conservation.
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
37. Pursuant to clause 2.3 of the Schofields Precinct Plan no development is permitted without consent in zone E2 Environmental Conservation.
38. The unauthorised development is not exempt development pursuant to part 2 of the Codes SEPP.”
Conclusion
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Taking into account the Jurisdictional Statement which I accept, the evidence before me, my observations on site and oral submissions made to me on site, I am satisfied that the DCO was lawfully issued, and there is no jurisdictional impediment to the Court making the proposed compliance order.
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As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I make the following orders pursuant to s 8.18(4)(e) of the EPA Act requiring compliance with the DCO.
Orders
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The Court orders:
The appeal is upheld.
The Applicant is to immediately cease using the caravans located on the land legally identified as Lot 44, Section B, DP 193074 and known as Lot 44 Grange Avenue Schofields (the Property), until such time as Orders (3) and (4) are complied with.
The Applicant is to remove the unauthorised structures (not including the three caravans) from the Property which consist of dilapidated building materials such as canvas, corrugated iron, prefabricated steel sheeting, timber, corrugated fibreglass sheets, timber doors, screen doors, glass panels, and other scrap like timber and all other associated dilapidated building materials from the land forming the unauthorised structure, as depicted in Annexure A, within 120 days of the date of these orders.
The Applicant is to remove all imported land fill from the Property which is spread over an approximate area of 187 square metres and approximately 2 metres in depth, as depicted in Annexure B, within 180 days of the date of these orders.
L Byrne
Acting Commissioner of the Court
26320.23 Annexure A
26320.23 Annexure B
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Decision last updated: 21 September 2023
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