Coolamon Shire Council v Sandhill Village Pty Lilmited

[2010] NSWLEC 84

Land and Environment Court

of New South Wales

CITATION:

Coolamon Shire Council v Sandhill Village Pty Lilmited & Ors [2010] NSWLEC 84

PARTIES:

APPLICANT
Coolamon Shire Council

FIRST RESPONDENT
Sandhill Village Pty Limited

SECOND RESPONDENT
Bruce John Maples

THIRD RESPONDENT
Castlereagh Building Construction Pty Ltd

FILE NUMBER(S):

40413 of 2009

CORAM:

Sheahan J

KEY ISSUES:

CIVIL ENFORCEMENT :- building work performed without development consent, declaration and orders agreed upon, satisfaction that a declaration should be made by consent, stay of orders, costs, liberty to apply

DATES OF HEARING:

26 May 2010

EX TEMPORE JUDGMENT DATE:

26 May 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Staunton, Barrister
Solicitors
Henningham Law

FIRST AND SECOND RESPONDENTS
Mr B Maples
THIRD RESPONDENT
Mr S Lymbery, agent

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

26 May 2010

No.40413 of 2009 Coolamon Shire Council v Sandhill Village Pty Limited & Ors

EXTEMPORE JUDGMENT

1 His Honour: The evidence before the court today establishes the applicant Council’s longstanding concern that the “Farmers Home” Hotel in Matong is structurally unsound and a possible danger to the public, at least partly due to fire damage and possibly complicated by some alleged undermining by water from the public domain.

2 Council has also remained concerned about fire safety.

3 These proceedings seek a declaration and five consequential orders regarding “building work” carried out on the hotel without development consent.

4 The first respondent was, from 24 July 2007 and at the time of the proceedings, but apparently no longer, the trustee of the Farmers Home Trust which owns the hotel site. The third respondent is a builder engaged in the works carried on at the hotel without the Council’s approval. The second named respondent Bruce John Maples is the sole director and secretary of both those companies.

5 Mr Maples comes from the building industry, and today represented himself and the first respondent. Mr Stephen Lymbery, the foreman/overseer of the third respondent’s building work, including at least some at the hotel, appeared for the third respondent.

6 Once Mr Maples had a proper opportunity to consider some of the material upon which the Council relied, the parties were able to agree on a resolution of the proceedings. As that agreement involves the court in making the declaration and the orders the Council sought in the summons, all the evidence relied upon by the Council has been read, to give the court a level of comfort, in the absence of legal representation of the respondents, that that declaration and those orders can be fairly made against them.

7 On considering the evidentiary material presented I have achieved that level of comfort and am prepared to make the declaration and orders sought by the applicant and now agreed to by the respondents.

8 Regrettably, this agreement could have been reached some time ago had the respondents taken more interest in the actual progress of the proceedings through the court on the way to today’s hearing. Nonetheless the parties are to be congratulated on resolving their differences, and on agreeing on some further orders to regulate the hotel project from now on.

9 The principal Council witness on the substantive issue is Anthony Donoghue, who is the Executive Manager, Planning and Environmental Services, at the Council. He has deposed to a series of inspections of the hotel since 2007.

10 Council served Notices of Intention to issue an Order on the former owner in June 2008, and on the first respondent in December 2008. The relationship between the Council and the respondents deteriorated through 2008-9. A search warrant had to be obtained, and police attendance at the premises was arranged when the Council visited them. A DA was lodged and withdrawn, and work continued on the building despite orders to cease.

11 Eventually these proceedings were commenced on 22 June 2009.

12 An agreement was reached that no further works would be undertaken beyond 24 July 2009, and Mr Donoghue’s evidence indicates that little if any work has been done since then. However, the respondents continue to rely upon an engineer’s certificate which the Council has found inadequate, in that it certified some of the new work done without consent, but not the structural soundness of the underlying building.

13 The Coolamon LEP 1995 and other relevant instruments (see Exhibit C2, tabs 39-42) require development consent for all building work in this area of Matong, especially given the heritage qualities of the hotel building. Normally these requirements would come to the notice of a purchaser, and could easily be checked. Mr Maples should be seen as no stranger to the building/development industries.

14 He appears not to have received a letter from the Council dated 4 March 2010 explaining what else was required for him to obtain the necessary approval, but a solicitor who was appearing for the third respondent and himself in April this year was faxed, on 22 April, a copy of that highly relevant letter.

15 Clearly the building work depicted in all the photographs before the court required Council’s consent and there is conclusive evidence that there is no consent in place. Accordingly, the court should and will make the declaration sought.

16 In those circumstances, the comprehensive orders upon which the parties have now agreed are entirely appropriate. To facilitate better future communication among the parties they even stipulate a single address for all three respondents.

17 All the orders and the declaration are set out in short minutes dated today which I will initial, date and place with the court file, and to which are attached a copy of the orders dated 6 October 2009 (which I actually made on 7 October 2009, following a mediation on that date).

18 Accordingly:

1. I make the declaration in par 1 of the short minutes;
2. I make the orders in pars 2-5, on the “ joint and several ” basis in par 11;

3. I stay orders 4 and 5, as provided in order 6;

4. I grant the liberty to apply detailed in pars 7-9;

5. I make the usual costs order in par 10; and

6. I note the service arrangements in par 12.

19 The exhibits may be returned.

20 I will publish these remarks and the short minutes overnight.