Coe v Liverpool City Council

[2017] NSWLEC 1468

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Coe v Liverpool City Council [2017] NSWLEC 1468

Hearing dates:

18 August 2017

Date of orders:

30 August 2017

Decision date:

30 August 2017

Jurisdiction:

Class 1

Before:

Bish C

Decision:

1. The Order dated 15 March 2017, served on Mr Coe by Liverpool City Council relating to the premises known as Lot 31 DP 212134 (known as 13 Clingan Avenue, Lurnea) under s 121B of the Environmental Planning and Assessment Act 1979 is modified under s 121ZK(4)(b) by: substituting the compliance period for Orders 1(a) and 2(a), with 21 days from the date of this Court order.

2. The appeal is otherwise dismissed.

Catchwords:

ORDER: garage conversion; granny flat; orders to vacate and demolish fitout.

Legislation Cited:

Environment Protection and Assessment Act 1979
Land and Environment Court Act 1979
Liverpool Local Environmental Plan 2008
Local Government Act 1993

Cases Cited:

Ong v North Sydney Council [2011] NSWLEC 1070 [28]

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Mr Martin Coe (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
Mr M Coe (Applicant)
Mr S Nash, Barrister (Respondent)

Solicitors:
Self Represented (Applicant)
Liverpool City Council (Respondent)

File Number(s):

98289 of 2017

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against Orders 1(a) and 2(a), dated 15 March 2017 served by the Liverpool City Council under s124 of the Local Government Act 1993 (LG Act) regarding the use of a building, a converted garage, as a residence at Lot 31, DP 212134, 13 Clingan Ave, Lurnea (the site). The Orders require:

To cease using premises for a purpose specified in the order, being:

Cease using the garage as a granny flat.

Also to demolish or remove a building, being:

Demolish unauthorised fitout of the garage into a granny flat on the north-western lot boundary, including all modifications and additions to create:

internal walls, external walls, windows, doors, unauthorised kitchen, bathroom, combined living/dining room and bedroom.

2. In this matter, at a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was unable to reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The conciliation was terminated on this basis. Both parties consented to the Commissioner disposing of these proceedings forthwith on the basis of what occurred at the conciliation conference in accordance with s 34(4)(b)(ii) of the Court Act.

3. At the site visit, the Court was unable to gain access to the internal area of the converted garage, however Council provided with consent of Mr Coe, photographic evidence taken by on a previous visit. The photographs provided can be summarised as:

Image 1: Driveway/pergola leading to converted garage

Image 2: Power cables leading to converted garage

Image 3: Living room/lounge looking into Kitchen

Image 4: Kitchen

Image 5: Toilet/bathroom

Image 6: Shower

Image 7: Bedroom

Image 8: Partition walls

Image 9: Outside of converted garage

Background and issue

4. Situated on the site is an existing dwelling used by the applicant as his primary place of residence. At the rear of the site, on the north-western boundary is a garage that has been internally converted for residential habitation. A building permit (2658/92) was issued for the garage on 7 January 1993, and the permit noted (at condition 9) that the structure should not be used for human habitation.

5. Mr Coe has stated that he purchased the property with the garage already converted for residential habitation, and which he has used it for this purpose for over 15 years.

6. The Council became aware that the garage was being used for the purpose of human habitation, without Council approval or consent, around 15 March 2015. On 24 February 2017, Council issued a ‘Notice of Proposed Order’ to allow Mr Coe the opportunity to make representation prior to issuing an Order. Mr Coe approached the Council on 2 March 2017 to seek a deferment in the Order, due to financial constraints. He provided to Council, on 10 March 2017, a Complying Development Certificate (from Private Certifier Urban Approvals) authorising a secondary dwelling on the site. At the time of the s34 conciliation conference, a secondary dwelling at the rear of the property was partially built, with the frame already in place.

7. In consideration of the representation by Mr Coe to construct a secondary dwelling at the site, on 15 March 2017, Council issued Orders 1(a) and 2(a). The Orders allowed sixty (60) days to achieve compliance, and were issued by Council pursuant to Part 6, Division 2A of the Environmental Planning and Assessment Act 1979 (EP&A Act). Non-compliance with an Order from a consent authority, pursuant to clause 125, is an offence and subject to legal proceedings and possible penalty.

8. Mr Coe filed an appeal against the Orders on 31 March 2017, citing a request to delay the cessation of habitation of the converted garage until the secondary dwelling is habitable. Mr Coe has indicated that due to financial constraints, as he is a part pensioner, he has been unable to complete the secondary dwelling, however is now in a financial position to complete the building to facilitate habitation.

9. Mr Coe is seeking approval by the Court to vacate the converted garage after 10-15 weeks from the date of the site visit. Mr Coe explained that he needs time to engage a builder to complete the building work on the secondary dwelling. He has stated that his stepson and wife are currently resident in the converted garage, and when the secondary dwelling is completed will move into it as their domicile residence.

10. Mr Coe was agreeable for the converted garage to be demolished once the secondary dwelling is completed and his family are able to move in.

11. The Council do not agree to the proposed 10-15 week delay to effect the Orders, although the Council put forward an option of three (3) weeks to allow building completion, which was rejected by the Mr Coe.

12. The internal area of the existing dwelling was able to be viewed at the site visit. A total of three adults and one child currently reside in the existing dwelling, occupying 3 of the 4 bedrooms. The fourth bedroom is currently used for storage of personal possessions. Upon questioning regarding use of the fourth bedroom, Mr Coe agreed that this could be used by the residents of the converted garage, until the secondary dwelling is completed. However, he was of the opinion that it would be ‘uncomfortable’ and ‘inconvenient’, with only one bathroom and living space shared for all residents.

13. The Council indicated that their principal concern with regards to the continued habitation of the converted garage was the risk due to fire, although acknowledged that the fire risk is low. The Council’s expert building surveyor, Mr Latimor, stated that he was concerned by the lack of a brick wall between the converted garage and the neighbouring property (as it is located close to the boundary), and the potential for a fire from indoor heating and the kitchen area. The converted garage has only one exit through the front door.

14. Mr Coe confirmed that the converted garage does not have any windows that could be used as an escape in the event of a fire, although the garage has a smoke alarm (although its working order is untested).

15. In consideration of the need to vacate the converted garage, which is currently occupied, the Court must have mind of the availability and possibility of the residents of the converted garage to find alternative suitable accommodation, pursuant to clause 125(G), EP&A Act.

(1) If an order will or is likely to have the effect of making a resident homeless, the person who gives the order must consider whether the resident is able to arrange satisfactory alternative accommodation in the locality.

(2) If the resident is not able to arrange satisfactory alternative accommodation in the locality, the person who gives the order must provide the resident with:

(a) information as to the availability of satisfactory alternative accommodation in the locality, and

(b) any other assistance that the person considers appropriate.

Findings

16. The consideration to place greater emphasis on risk to person over inconvenience is supported by Commissioner Murrell in Ong v North Sydney Council [2011] NSWLEC 1070 [28].

An individual personal preference cannot override or neglect to have proper regard to the Australian Standard that reflects the collective knowledge and experience of experts for the protection and safety of the community.

17. I find that the risk of fire is real, and therefore continued habitation in the converted garage is unacceptable. I also find that the applicant, however inconvenient it may seem, does have the option to move his family residing in the converted garage into the existing dwelling, in the interim, while the secondary dwelling is being completed for habitation.

18. I agree with the option suggested by Council for a period of three weeks to effect the orders and vacate the converted garage.

Orders

19. The orders of the Court are:

1. The Order dated 15 March 2017, served on Mr Coe by Liverpool City Council relating to the premises known as Lot 31 DP 212134 (known as 13 Clingan Avenue, Lurnea) under s 121B of the Environmental Planning and Assessment Act 1979 is modified under s 121ZK(4)(b) by: substituting the compliance period for Orders 1(a) and 2(a), with 21 days from the date of this Court order.

2. The appeal is otherwise dismissed.

…………….

Sarah Bish

Commissioner

Amendments

01 September 2017 - Sequencing of orders

Decision last updated: 01 September 2017