Council of the City of Botany Bay v Tripolitis (No 2)

[2016] NSWLEC 95

Land and Environment Court

New South Wales

Medium Neutral Citation:	Council of the City of Botany Bay v Tripolitis (No 2) [2016] NSWLEC 95
Hearing dates:	1 August 2016
Date of orders:	01 August 2016
Decision date:	01 August 2016
Jurisdiction:	Class 4
Before:	Pepper J
Decision:	See orders at [46].
Catchwords:	CIVIL ENFORCEMENT: failure to comply with s 121B order – use of premises as warehouse and distribution centre for clothing – whether use of premises for this purpose prohibited within the zone – ex parte hearing – declaratory and injunctive relief granted – costs ordered.
Legislation Cited:	Botany Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979, ss 121B, 123
Cases Cited:	Council of the City of Botany Bay v Tripolitis [2016] NSWLEC 85 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Texts Cited:
Category:	Principal judgment
Parties:	Council of the City of Botany Bay (Applicant) John Tripolitis (First Respondent) Robyn Tripolitis (Second Respondent)
Representation:	Counsel: Mr Shneider (solicitor) (Applicant) No Appearance (First Respondent) No Appearance (Second Respondent)   Solicitors: Housten Dearn O’Connor (Applicant) No Appearance (First Respondent) No Appearance (Second Respondent)
File Number(s):	2016/151803
Publication restriction:

EX TEMPORE Judgment

The Council Seeks Orders to Cease the Use of Premises as a Warehouse for and the Distribution of Clothing

1. By summons filed 23 March 2016, the Council of the City of Botany Bay (“the council”), seeks declaratory and injunctive relief pursuant to s 123 of the Environmental Planning and Assessment Act 1979 (“EPAA”) in respect of a failure by first respondent, Mr John Tripolitis, and the second respondent, Mrs Robyn Tripolitis, to comply with an order issued by the council on 22 October 2013, under s 121B (“the s 121B order”) of the EPAA.

2. The order was to cease using premises located at Lot B, DP 359736, 64 Pemberton Street, Botany, New South Wales (“the premises”), as a warehouse for the distribution of clothing, a use prohibited in Zone B4 Mixed Use under the Botany Local Environmental Plan 2013 (“the LEP”).

3. Time for compliance with the order was 60 days from the date of its service. That time has long since passed. Thus, the council brings these proceedings.

4. Based on the material before the Court, I have determined that it is appropriate to grant the relief sought in the summons, albeit with a minor amendment to the form of the declaration posited by the council.

The Proceedings Were Heard Ex Parte

5. The respondents have never participated in the proceedings and did not attend Court when the matter was called for hearing at 10.00 am today.

6. Because the proceedings are ex parte, the Court is required to be satisfied that all of the documents the council relies upon to found its claim for relief have been served on Mr and Mrs Tripolitis, and that they were notified of the date of the hearing of the matter today.

7. When the matter was last before the Court on 14 July 2016, it was revealed that Mrs Tripolitis had not been personally served with the summons as required, and therefore, the hearing of the matter was vacated (Council of the City of Botany Bay v Tripolitis [2016] NSWLEC 85).

8. However, as the affidavits of Mr Martin Folkes, sworn 22 July 2016, and Mr Michael Guest, sworn on the same date, make clear, Mrs Tripolitis has since been properly served with the summons pursuant to an order for substituted service made by the Court on 19 July 2016.

9. These affidavits, together with affidavits of Mr Steven Shneider sworn on 15 and 29 July 2016, also make it clear that all of the evidence the council seeks to rely upon at today’s hearing has been served on Mrs Tripolitis, and moreover, that she has been notified of today’s final hearing date.

10. The Court had earlier held that Mr Tripolitis has been personally served with a copy of the summons, the points of claim and an affidavit of Mr Tony de Kievit, a Development Control Officer employed by the council, sworn on 15 March 2016 (Tripolitis at [17]).

11. The council therefore relied upon the affidavits of Mr Shneider referred to above, to demonstrate that the remaining documents it intended to rely upon at the final hearing had been served on Mr Tripolitis, and that he too was notified of the final hearing date.

12. Having read the various affidavits of service referred to above, I am satisfied that all of the relevant documents have been served in a timely manner on both respondents for the purposes of today. I am similarly satisfied that both respondents were aware of today’s hearing date. For these reasons, it is therefore appropriate to proceed to deal with the matter on an ex parte basis, Mr and Mrs Tripolitis having elected not to appear today.

Use of the Premises as a Clothing Warehouse

13. The council read three affidavits sworn by Mr Tony de Kievit on 15 March, 15 June and 27 July 2016, respectively. As stated above, he is a Development Control Officer employed by the council.

14. Mr de Kievit’s first affidavit made it clear that the property is zoned B4 Mixed Use under the LEP, and moreover, that Mr and Mrs Tripolitis are the registered owners, as joint tenants, of the premises.

15. Mr de Kievit outlined the history of the use of the premises. In particular, he deposed that the premises have been used by various entities associated with Mr Tripolitis, including Jamaica Clothing Company Pty Ltd (“Jamaica”) (Mr Tripolitis was a share-holder in the company), and Tightrope Wholesale Pty Ltd (“Tightrope”).

16. On 8 June 2001 Mr Tripolitis submitted development application 01/524 to the council seeking consent to use the premises for clothing manufacture.

17. On 9 August 2001 conditional development consent (“the consent”) was granted for the purposes of clothing manufacture, fabric cutting and associated storage, subject to the conditions (“the development consent”).

18. The conditions attached to the consent relevantly provided that:

13.   All loading and unloading of vehicles in relation to the use of the premises shall take place wholly within a dedicated loading dock/area, which is wholly within the building.

14.   No deliveries to the premises shall be made direct from a public place or street.

15.   Vehicles making deliveries to the premises shall be limited to small rigid trucks only.

16.   All goods and materials associated with the use shall be stored wholly within the building at all times.

…

18.   The hours of operation and deliveries shall be restricted to between 8am and 5pm Monday to Friday (exclusively).

19. The consent was the only development consent granted by the council in relation to the premises.

20. Class 4 proceedings were commenced against Jamaica in 2002 for alleged unlawful use of the premises as a warehouse and for the storage of goods on the mezzanine level without consent. Proceedings were commenced because of the fire risk the storage of the goods posed. The proceedings were concluded by Jamaica and the council entering into consent orders.

21. Between 2002 and 2010, Mr de Kievit stated that Jamaica continually breached the consent orders. Contempt proceedings were threatened, but were not instituted by the council until September 2011, by which time, however, the company had been placed into administration.

22. At that time, the council became aware that the premises were being occupied by Tightrope.

23. An ASIC search of Tightrope undertaken on 10 December 2014, identified that:

1. since 14 February 2006 the premises were Tightrope’s principal place of business;

2. Mr Tripolitis is the sole director, secretary of, and a shareholder in, Tightrope; and

3. since 18 December 2013 Tightrope has been placed under external administration.

24. Between 2011 and January 2016, Mr de Kievit attended the premises on a number of occasions and observed that they were being used for the purposes of warehousing and the distribution of clothing contrary, in his view, to the consent, and contrary to the permissible use of land within the zone. He stated that he had seen goods being warehoused at the premises and that were being stored in combustible cardboard containers.

25. On 25 October 2011 the council gave to both Tightrope and, separately, Mr Tripolitis, a notice of intention to give an Order 15 as contained in the table of s 121B of the EPAA (“2011 notice of intention”).

26. Presumably in response to the 2011 notice of intention, the council received a letter dated 24 February 2012 from Mr Carlo Di Giulio, a senior planner at Willana Associates, an urban planning and facilities firm. The letter appeared to acknowledge the change in use from that permitted in the consent to a use that was not permitted. It stated as follows:

Willana have been engaged to act on behalf of Tightrope Wholesale Pty Limited.

We understand that our Clients were served with an Order to Give Notice. They responded to this Order by engaging Willana, to better understand the planning implication of this Order and what could be done to address the situation.

Subsequently, our Clients have altered their operations, temporarily, in the following manner:

No containers are delivered or unloaded at the site,

Some stock is delivered back to 64 Pemberton in a van, and

Some stock is dispatched from 64 Pemberton by a small box truck only.

These altered operations are consistent with 4(b) zoning and are in accordance with the permissible use of “light goods dispatch”. Despite this, these measures, as previously mentioned, are of a temporary nature only.

Our Clients request a meeting with you to discuss future, long term, solutions to ensure the ongoing operation of their business at this address.

The Clients are currently in the process of having plans drawn up to undertake alterations and additions to the existing building on the site and it is envisaged that such plans would accompany a development application for a change of use.

27. On 1 October 2013 the council issued the respondents with a notice of intention to give an Order 1 as contained in the table of s 121B of the EPAA. No response was received by the council.

28. Thus, on 22 October 2013 the council issued the respondents with a s 121B order. The s 121B order was addressed as follows:

J & R Tripolitis

64 Pemberton Street

BOTANY NSW 2019

29. The order stated that:

Environmental Planning and Assessment Act 1979

Section 121B

Order(s) Number 1

To J & R Tripolitis (being the owner of the premises)

Circumstances

The subject premises, known as 64 Pemberton Street, Botany, is being used for a purpose namely, as a warehouse for the distribution of clothing, a use which is prohibited in Zone B4 Mixed Use, Botany Local Environmental Plan 2013

Location of subject premises

64 Pemberton Street, Botany

Lot B in DP 359736

DETAILS OF THE ORDER

Council orders you to cease using the premises for the warehousing and distribution of clothing.

COMPLIANCE DATE

This order must be complied with within sixty days (60) from its date of service upon you.

30. On 8 January 2014, 78 days after the s 121B order was issued, Mr de Kievit attended the premises and observed that it continued to be used for the warehousing and distribution of clothing.

31. On 2 December 2014 Mr de Kievit attended the premises and observed that it was being used for the warehousing and distribution of clothing. On this occasion he took two photographs which were annexed to his affidavit. The first photograph depicted a corner building with a roller door. In front of the roller door were a number of pallets stacked with boxes wrapped in plastic. The second photograph was a magnified version of the first photograph. It depicted at least four pallets stacked with boxes, with each pallet being stacked two boxes high. Adjacent to the roller door was a building number, which could be made out as being number “64”.

32. On 19 January 2016 Mr de Kievit attended the premises and noted its same use. Mr de Kievit likewise took two photographs on this occasion. The first photograph was a close up of the premises. It depicted a man loading a large blue van with a large full bag. The state of the premises immediately behind the roller door was clear. It contained a large number of boxes and bags stacked on top of each other. In this photograph, the number “64” was also clearly visible. The second photograph depicted the man from the first photograph loading a bag into the van.

33. In his first affidavit Mr de Kievit deposed to the fact the premises are not fit for the purpose of the warehousing of clothing or as a distribution point for clothing that has been warehoused because there are fire risks associated with this use, including a lack of fire safety precautions and a lack of clear ingress and egress passage from the building if a fire breaks out.

34. In Mr de Kievit’s second affidavit he deposed to attending the premises on 17 May 2016, where he took four photographs. Photographs three and four showed a large blue van parked in the driveway of the premises. Behind the van and in front of the premises were two racks of clothes and a pile of large white bags. Photographs one and two showed the same two racks of clothes and a pile of large white bags. In the left hand corner of the second photograph a large blue van is partially visible.

35. Finally, Mr de Kievit’s third affidavit was in the nature of an updating affidavit. It stated that between May and 26 July 2016, he had attended the premises on many occasions. It was his opinion that the premises continue to be used for the purpose of a warehouse and distribution centre. He noted that it did not appear that the premises had been vacated. He attached photographs to his affidavit supporting his observations.

The Use of the Premises Was Prohibited Within the Zone

36. The Land Use Table contained in the LEP relevantly states the following in relation to the B4 Mixed Use Zone (emphasis added):

Zone B4 Mixed Use

…

4 Prohibited

Advertising structures; Agriculture; Air transport facilities; Airstrips; Animal boarding or training establishments; Biosolids treatment facilities; Boat building and repair facilities; Boat launching ramps; Boat sheds; Camping grounds; Caravan parks; Cemeteries; Charter and tourism boating facilities; Correctional centres; Crematoria; Depots; Eco-tourist facilities; Electricity generating works; Environmental facilities; Exhibition homes; Exhibition villages; Extractive industries; Farm buildings; Forestry; Freight transport facilities; Heavy industrial storage establishments; Helipads; Highway service centres; Home occupations (sex services); Industrial training facilities; Industries; Jetties; Marinas; Mooring pens; Moorings; Mortuaries; Open cut mining; Port facilities; Recreation facilities (major); Research stations; Residential accommodation; Resource recovery facilities; Rural industries; Sewage treatment plants; Sex services premises; Storage premises; Transport depots; Truck depots; Vehicle body repair workshops; Vehicle repair stations; Warehouse or distribution centres; Waste disposal facilities; Water recreation structures; Water recycling facilities; Water supply systems; Wharf or boating facilities; Wholesale supplies.

37. The Dictionary to the LEP provides that:

warehouse or distribution centre means a building or place used mainly or exclusively for storing or handling items (whether goods or materials) pending their sale, but from which no retail sales are made.

38. The Land Use Table extracted above plainly identifies that the use of the premises as a warehouse or distribution centre is prohibited.

The s 121B Order Has Not Been Complied With

39. In my opinion, the evidence of the council discloses that, on the balance of probabilities it may reasonably be inferred that the premises were being used as a warehouse or distribution centre for clothing between at least 8 January 2014 and 17 May 2016, and have continued to be used for this purpose. As the zoning of the premises in the LEP makes clear, the use of the premises for this purpose is unlawful.

40. The evidence also demonstrates, in my view, that the current use of the premises could not be classified as “associated storage” for which consent has been granted.

41. Furthermore, there is no evidence that the prohibited use of the premises has ceased. If anything, the evidence is to the contrary.

42. I am therefore satisfied that the s 121B order has not been complied with. In addition, I am satisfied, based on Mr de Kievit’s evidence, that the failure to comply with the order poses a very real safety concern insofar as the current use of the premises gives rise to a fire risk.

43. In my view, it is therefore appropriate that I make the declaration sought. Doing so serves the public interest. It is also, in light of the continued prohibited use of the premises and its attendant risk to human safety, appropriate that I exercise my discretion and grant the injunctive relief sought (Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335).

Costs

44. As the successful party, the council also seeks its costs of the proceedings. It is usual in Class 4 proceedings that costs follow the event. With one qualification, I am persuaded that an award of costs in favour of the council ought to be made. The council has successfully demonstrated that Mr and Mrs Tripolitis are in breach of the s 121B order.

45. The one qualification is that of the costs of the aborted hearing on 14 July 2016 due to the failure of the council to properly serve Mrs Tripolitis with the originating process. Mr and Mrs Tripolitis ought not bear these costs; the vacation of the hearing having been occasioned through no fault of their own.

Orders

46. The orders of the Court are as follows:

1. the Court declares that the first and second respondents have not complied with the s 121B order issued to them by the applicant on 22 October 2013;

2. the first and second respondents must immediately cease using 64 Pemberton Street, Botany, New South Wales (“the premises”), as either a warehouse, or for the distribution of clothing;

3. the first and second respondents must not cause, permit or allow any other person or entity to use the premises as a warehouse, or for the distribution of clothing;

4. the first and second respondents are to pay the applicant’s costs of the proceedings, except any costs incurred in respect of the hearing on 14 July 2016; and

5. the exhibits are to be returned upon the publication of this judgment on CaseLaw.

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Decision last updated: 01 August 2016