Fairfield City Council v Thuy Thanh Truc Nguyen

[2018] NSWLEC 113

Land and Environment Court

New South Wales

Medium Neutral Citation:	Fairfield City Council v Thuy Thanh Truc Nguyen [2018] NSWLEC 113
Hearing dates:	12, 13, 31 July 2018
Date of orders:	02 August 2018
Decision date:	02 August 2018
Jurisdiction:	Class 4
Before:	Robson J
Decision:	See orders at [66]
Catchwords:	CIVIL ENFORCEMENT – erection of secondary dwellings without development consent – matter heard ex parte – suspected use of the dwellings for residential accommodation by unknown persons – where orders may have the effect of making residents homeless – orders to remedy and restrain breaches   COSTS – costs of proceedings sought – specific sum sought by reference to affidavit – whether appropriate to award costs in a specified sum
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW) ss 4.2, 9.45, 9.46 Fairfield Local Environmental Plan 2013 Land and Environment Court Act 1979 (NSW) s 20(1) Protection of Environment Operations (Waste) Regulation 2014 (NSW) State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Cases Cited:	Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Category:	Principal judgment
Parties:	Fairfield City Council (Applicant) Thuy Thanh Truc Nguyen (Respondent)
Representation:	Counsel: AJJ Thompson, solicitor (Applicant) No appearance (Respondent)   Solicitors: Ritchie & Castellan Solicitors (Applicant) No appearance (Respondent)
File Number(s):	2017/00381570

Judgment

1. Before the Court are Class 4 proceedings brought by Fairfield City Council (‘Council’) by way of a summons filed 18 December 2017 seeking relief in relation to two secondary dwellings which Council alleges Ms Thuy Thanh Truc Nguyen (‘respondent’) has constructed without consent.

2. The respondent is the owner of the land in Lot B, DP 101106, known as 57 Longfield Street, Cabramatta (‘site’). The land is zoned R2 Low Density Residential under the Fairfield Local Environmental Plan 2013 (‘LEP’). Secondary dwellings are permitted in the R2 zone, but require development consent.

3. Council alleges that in or about 2012, the respondent constructed two additions to the rear of the existing dwelling on the site, each of which is occupied. Council says use of each structure meets the definition of “secondary dwelling” within the LEP and seeks orders for the demolition of the secondary dwellings.

4. For the reasons below, I consider that Council is entitled to relief not dissimilar to that sought in the summons filed 18 December 2017.

Background

5. On or about 3 November 2016, Council issued an order pursuant to what was then s 121B of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’). Schedule 1 of the order contained the following order (styled “Order 2” in the document):

Within a period of THIRTY (30) DAYS from the date of the Order, demolish and remove the unauthorised building works, i.e. building on northern fence line constructed of white insulation panels.

6. On or about 12 September 2017, Council carried out an inspection of the site and concluded that the order made on 3 November 2016 had not been complied with and was still outstanding. The summons commencing these proceedings was filed in the Court registry on 18 December 2017.

7. The summons seeks the following orders:

1.   That the defendant comply with the Order, a copy of which is annexed and marked “A” made by the plaintiff dated 3 November 2016 within 28 days of Order.

2.   An Order that the defendant cease using the unauthorised secondary dwelling attached to the rear of the dwelling at 57 Longfield Street, Cabramatta within 14 days of Order.

3.   An Order that the defendant demolish the secondary dwelling attached to the rear of the dwelling at 57 Longfield Street, Cabramatta within 28 days of Order.

4.   An Order that after compliance with Prayer 3, the defendant do all things necessary to restore the rear of the dwelling at 57 Longfield Street, Cabramatta to the satisfaction of the plaintiff.

5.   That the defendant pay the plaintiff’s costs.

6.   Further or other Orders.

8. It is clear that the relief sought in the summons relates to the two secondary dwellings on the site said to be constructed without consent.

9. On 16 February 2018, Molesworth AJ heard a notice of motion in these proceedings filed by Council on 29 January 2018. His Honour upheld the motion, and made orders as follows, as they appeared in Council’s motion:

1.   Time for service of the Summons extended to 28 February 2018.

2.   Pursuant to Uniform Civil Procedure Rule 2005, Rule 10.14(1), leave be granted to the plaintiff to serve the defendant by way of substituted service, by ordinary post and by affixing a copy of the Summons and Points of Claims to the front door of the residents [sic] at 57 Longfield Street, Cabramatta NSW.

3.   Matter listed for first return date on 9 March 2018.

10. An affidavit of service sworn 5 March 2018 by Darrell Willenberg, a licensed process server, states that service was effected in compliance with these orders on 20 February 2018.

11. Notwithstanding the service of the originating process in accordance with the orders for substituted service, when the matter came before the Court on 12, 13 and 31 July 2018, there was no appearance by the respondent. The matter was called three times on each occasion, and subsequently the hearing proceeded ex parte.

12. In addition to affidavits relating to service of documents, Council initially relied upon the affidavit of Mr Charbel Gittany, dated 29 May 2018, a qualified building surveyor who is employed at Council as a compliance officer. Council’s evidence also comprises a folder styled “Court Book” which contains relevant Court documents, and two other bundles of documents styled “Evidence Book” and “Applicant’s Bundle of Tender Documents” respectively.

13. Subsequent to the hearing on 12 and 13 July 2018, Council filed a further four affidavits to address some concerns expressed by the Court which were read at the further hearing on 31 July 2018. Two were affidavits of Ms Townsend relating to service, and there was also an affidavit of Angelo Donni and a further affidavit of Mr Gittany.

14. In his affidavit dated 27 July 2018, Mr Donni, Council’s coordinator of compliance, deposes that he has searched Council’s register of development applications and consents, and has been unable to find any consent issued for the site in respect of a secondary dwelling.

15. The history of Council’s relevant dealings, concerns and attendances in relation to the two additions on the site is lengthy, and a summary gleaned from the documents included in the Applicant’s Bundle of Tender Documents provided as follows.

16. On 31 January 1973, Council issued an approval for the erection of a building on the site. The building in question was a portable dwelling which was to be relocated from 54 Broomfield Street, Cabramatta.

17. At that time there was an existing temporary dwelling on the site, but it was a condition of the consent issued by Council that within 12 days all partition walls and fittings were to be removed from the temporary dwelling, which was not to be used again for residential purposes.

18. Mr Thompson, solicitor for Council, advised the Court that Council does not consider that either of the buildings the subject of these proceedings, which it says are secondary dwellings constructed without consent, is the “existing temporary dwelling” referred to in the plans annexed to the 1973 consent. This appears clear from the evidence.

19. On 21 January 2013, Council officers conducted an inspection of the site and took photographs of the unauthorised building works. The photographs are included in the Applicant’s Bundle of Tender Documents and depict the exterior and interior of various buildings constructed of what appears to be painted fibrous sheeting or insulation panels.

20. On 4 March 2013, Council issued the respondent with a “Notice of Council’s Proposal to Serve an Order to you”. The order, which required the demolition of “the building constructed from a white insulation panel which has been erected on the rear of the subject premises” within 30 days, was issued on 20 May 2013.

21. On 24 September 2013, Council issued the respondent with a “Notice of Entry”, advising that unobstructed access to the site was required on 3 October 2013 in accordance with what was then s 118C of the EPA Act.

22. A further order, again requiring the demolition of “the building constructed from a white insulation panel which has been erected on the rear of the subject premises” within 30 days, was issued on 2 December 2013.

23. Correspondence from Council seeking an appointment to inspect the site was sent on 16 March 2013, 14 July 2015, and 1 September 2015. On 16 September 2015, a notice of intention to serve a further order, requiring the demolition and removal of “the unauthorised building works, i.e. building on northern fence line constructed of white insulation panels” within 30 days, was issued to the respondent. The order was issued on 4 November 2015.

24. On 11 February 2016, Council issued the respondent with a letter advising that, as the time to comply with the order of 4 November 2015 had expired, a Penalty Infringement Notice (‘PIN’) would be issued if the order was not complied with within a further 10 days.

25. On 17 March 2016, a PIN was issued to the respondent, with a fine of $3,000 being payable. It is unclear from the evidence before the Court whether this fine was ever paid.

26. On 22 March 2016, a notice of intention to serve a further order, once again requiring the demolition and removal of “the unauthorised building works, i.e. building on northern fence line constructed of white insulation panels” within 30 days, was issued to the respondent. The order was issued on 12 May 2016.

27. On 21 September 2016, a notice of intention to serve another further order, once again requiring the demolition and removal of the “the unauthorised building works, i.e. building on northern fence line constructed of white insulation panels” within 30 days, was issued to the respondent. The order was issued on 3 November 2016, and is the order referred to in prayer 1 of the summons presently before the Court.

28. On 20 December 2016, Council issued the respondent with a letter advising that, as the time to comply with the order of 3 November 2016 had expired, a Penalty Infringement Notice (‘PIN’) would be issued if the order was not complied with within a further 14 days.

29. On 16 January 2017, Council issued a letter to the respondent requesting that Council be allowed to enter the site and conduct an inspection on 23 January 2017. A number of photographs taken on 23 January 2017, but apparently without access having been obtained to the inside of the unauthorised dwellings, are included in Applicant’s Bundle of Tender Documents.

30. On 19 May 2017, Council issued a letter to the respondent requiring that the respondent contact Council to arrange a mutually convenient time for the inspection of the site within 14 days. The letter advised that a failure to attend to this may result in legal action being instigated.

31. On 27 September 2017, Council issued a “Notice to Attend Council to Answer Questions”, which required the respondent to attend Council’s offices at 12pm on Wednesday 11 October 2017. The letter advised that a failure to comply with this notice would lead to a PIN being issued.

32. On 2 November 2017, a PIN was issued to the respondent in respect of her failure to comply with the notice of 27 September 2017, with a fine of $3,000 being payable. It is again unclear from the evidence before the Court whether this fine was ever paid. Further, it is unclear what, if any response, was received from the respondent.

33. On 22 November 2017, Council issued a further “Notice to Attend Council to Answer Questions”, which required the respondent to attend Council’s offices at 12pm on Wednesday 6 December 2017. The letter advised that a failure to comply with this notice would lead to a PIN being issued.

34. During the course of the ex parte hearing on 12 July 2018, I observed that at the time the 121B order was issued on 3 November 2016, s 121G of the EPA provided as follows:

121G Orders that make or are likely to make residents homeless

(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.

35. I noted that it does not appear that Council took s 121G into account when issuing the order of 3 November 2016, but I accepted that it had not been easy for Council to obtain access to the site. My concern in relation to the likely effect upon any residents residing within the structures arose out of my consideration of the evidence of Mr Gittany, whose affidavit indicated to me that the unauthorised dwellings were likely to be presently occupied.

36. A requirement in the same terms as s 121G of the EPA Act is now contained in Schedule 5 of that Act, and although such a requirement does not arise in the circumstance of civil enforcement proceedings, when the matter came before the Court on 12 and 13 July 2018, I indicated that I would take the potential of the relief sought to render persons homeless into account when exercising the Court’s discretion. Accordingly, the matter was adjourned to 31 July 2018, to allow Council to make enquiries and attempt to contact persons who might currently be living on the site and to make further submissions in that regard.

37. In response to my observations, Council filed the further affidavits referred to at [13] above. In addition to his further affidavit, Mr Gittany also gave oral evidence on 31 July 2018.

Evidence of Ms Townsend

38. Ms Townsend deposes that she sent a letter to the respondent requesting the names of any occupants of the unauthorised dwellings; their contact details; their occupations; the details of any leases entered into with the occupants; the expiry date of any such leases; and whether the occupants of the dwellings are currently employed. Tracking information from Australia Post indicates that the letter was delivered to the site.

39. Ms Townsend additionally deposes that on 27 July 2018, she served the further affidavits of Mr Gittany and Mr Donni as well as Proposed Short Minutes of Order to the respondent by post. Tracking information from Australia Post indicates that the letter was delivered to the site on 30 July 2018.

Evidence of Mr Gittany

40. On Wednesday 8 May 2018 at approximately 9am, Mr Gittany visited the site with Mr Haider Ali, a fellow Council officer, and two officers from Fairfield Police. The door was answered by an elderly lady who did not speak English, but who granted access after communicating with one of the police officers.

41. Mr Gittany observed two unauthorised buildings behind the primary (“main”) residence which he opines were each being used for the purpose of an unauthorised dwelling. The building he refers to as “Unauthorised Dwelling No 1” (‘First Dwelling’) is located to the immediate rear of the approved dwelling and is adjacent to the eastern boundary. The building he refers to as “Unauthorised Dwelling No 2” (‘Second Dwelling’) is located near the rear boundary of the property.

42. Mr Gittany attests that the First Dwelling is 4.5m in width, 13.5m in length, and 3.5m high. He says it is constructed of painted fibrous sheeting erected on a slab on the ground, comprising two buildings which open up onto each other. One of the buildings has roof tiles and the other has a metal roof. The First Dwelling contains three bedrooms, a bathroom, and a kitchen. From his observations, Mr Gittany formed the belief that the First Dwelling is currently being used as a dwelling by unknown occupants.

43. Mr Gittany attests that the Second Dwelling is 4.5m in width, 11.5m in length and 3.5m high. It is constructed of insulated panels on a slab on the ground with metal roof sheeting. It contains two bedrooms, a bathroom, and a kitchen, and Mr Gittany again formed the belief from his observations that the building was being used as a dwelling by unknown occupants.

44. Attached to Mr Gittany’s first affidavit are photographs of each of the First Dwelling and Second Dwelling which show both the external and internal configurations of the dwellings in question.

45. In Mr Gittany’s second affidavit, he refers to visiting the site on 25 July 2018. Between 5 and 6pm, before entering the premises, Mr Gittany saw a male of Asian appearance, aged between 45 to 55, enter the primary dwelling; a female leave the premises; and a young male of Asian appearance leave the premises.

46. At approximately 6pm, accompanied by Mr Ali, two officers from Fairfield Police, and Thuy Dang, an interpreter from the Department of Home Affairs, Mr Gittany entered the premises. The door to the main dwelling was answered by an elderly lady who did not speak English, but Ms Dang was able to communicate with her in Vietnamese.

47. The lady indicated that she was subletting the premises pursuant to a private agreement with the respondent, paying her $110 per week. She gave her consent for the premises to be inspected. She advised that there were people living in the two unauthorised dwellings but that they were not at home.

48. However, an occupant of the First Dwelling was at home, and informed Mr Gittany that he was unaware of the Council orders requiring the First Dwelling to be removed. He advised that he was not paying rent to stay in the First Dwelling but had been living there for one month instead of living on the street. He said he was the only occupant of the First Dwelling, but that others used it for storage. He read a letter provided to him by Mr Gittany and said he would attend Court to inform the Court of his concerns.

49. Mr Gittany left a letter for the occupiers of the Second Dwelling with the tenant. The letter informed the resident of the Court proceedings and advised that the hearing would resume on 31 July 2018 at 10am.

50. Notwithstanding the fact that an appearance from one of the residents was foreshadowed in the evidence, no such appearance was made when the matter resumed before the Court on 31 July 2018. In those circumstances, Mr Gittany gave oral evidence as to research he had conducted about the availability of alternative accommodation.

51. Council also tendered a letter prepared by Mr Gittany which will be provided to the residents in the event that the Court makes the orders sought. The letter lists web addresses at which real estate agents can be contacted, as well as appending a list of all the real estate agents currently operating in and around the Fairfield local government area. The letter also provides a web address and phone number for the Fairfield and Liverpool Multipurpose Homelessness, Accommodation and Support Service for Families which is operated by the NSW Department of Family and Community Services.

The legislative context

52. As noted above, the land is zoned R2 Low Density Residential under the LEP. Dwelling houses and secondary dwellings are permitted with consent in the zone.

53. Section 4.2(1) of the EPA Act provides:

4.2 Development that needs consent (cf previous s 76A)

(1) General

If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:

(a)   such a consent has been obtained and is in force, and

(b)   the development is carried out in accordance with the consent and the instrument.

Maximum penalty: Tier 1 monetary penalty.

…

54. The relevant power to enforce s 4.2 is found in s 9.45 of the EPA Act:

9.45 Restraint etc of breaches of this Act (cf previous s 123)

(1)   Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.

(2)   Proceedings under this section may be brought by a person on his or her own behalf or on behalf of himself or herself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.

(3)   Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.

(4)   (Repealed)

55. This Court is vested with the jurisdiction to hear proceedings brought under s 9.45 of the EPA Act by virtue of s 20(1)(c) of the Land and Environment Court Act 1979 (NSW).

Breaches of planning laws

56. I am satisfied on the evidence before me that the two “secondary dwellings” on the site were constructed without development consent being obtained contrary to s 4.2(1) of the EPA Act. I am further satisfied that neither structure is “exempt development” for the purposes of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

57. Council does not seek declarations to the effect that the First Dwelling and the Second Dwelling are being used unlawfully, but rather orders that the First Dwelling and the Second Dwelling cease to be used, be demolished, and the site be restored to the satisfaction of Council.

58. The powers of the Court to make orders remedying beaches of the EPA Act are found in s 9.46 (previously s 124):

9.46 Orders of the Court (cf previous s 124)

(1)   Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.

(2)   Without limiting the powers of the Court under subsection (1), an order made under that subsection may:

(a)   where the breach of this Act comprises a use of any building, work or land—restrain that use,

(b)   where the breach of this Act comprises the erection of a building or the carrying out of a work—require the demolition or removal of that building or work, or

(c)   where the breach of this Act has the effect of altering the condition or state of any building, work or land—require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed.

(3)   Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may:

(a)   adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and

(b)   in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned.

(4)   The functions of the Court under this Division are in addition to and not in derogation from any other functions of the Court.

(5) Nothing in this section affects the provisions of Division 3 of Part 3 of the Land and Environment Court Act 1979.

59. In Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, Kirby P, as his Honour then was, dealt with the exercise of this Court’s discretion under what was then s 124 of the EPA Act. At 340, his Honour said:

…There is nothing in the Act by which the discretion is fettered or limited to “special cases”, as Mahoney J, as he then was, pointed out in analogous circumstances in Blacktown Municipal Council v Friend. But the obvious intention of the Act is that, normally, those concerned in development and use of the environment will comply with the terms of the legislation. Otherwise, if unlawful exceptions and exemptions became a frequent occurrence, condoned by the exercise of the discretion under s 124, the equal and orderly enforcement of the Act could be undermined. A sense of inequity could then be felt by those who complied with the requirements of the Act or who failed to secure the favourable exercise of the discretion under s 124.

60. Whilst these proceedings have been conducted ex parte, I am satisfied that Council has continuously sought to bring its concerns regarding the structures to the attention of the respondent. In the circumstances, I am satisfied that it is appropriate to grant relief and make orders similar to those suggested by Council in its Proposed Short Minutes of Order, a copy of which Council attempted to provide to the respondent when it forwarded the further affidavits referred to at [13] above. The short minutes made changes to the form of the orders sought in the summons which I suggested to Mr Thompson during the hearing should, given the history of Council’s concerns (over a long period of time), provide further time for compliance compared to the orders originally sought in the summons.

61. I am also satisfied that the further evidence provided by Council addresses my concerns in relation to the possibility of residents being rendered homeless, and that the information with which they will be provided as well as the further time for compliance with the orders allowed by the Proposed Short Minutes affords them the opportunity of seeking alternative accommodation.

62. During final submissions, I canvassed with Mr Thompson the appropriateness of more detailed orders regarding the conduct of the demolition and this was addressed in a further order suggested by Council regarding the disposal of waste. I consider it appropriate to make the order regarding waste as suggested by Council.

Costs

63. In the circumstance that the Court grants the relief sought, Council seeks its costs of the proceedings and that the Court make a specific order in the sum of $13,613.67. In this regard, Council relies on an affidavit of Austin Thompson, Council’s solicitor, in which he affirms that the Council’s total costs (as at 9 July 2018) are $20.994.09 and that, in his opinion, Council would be entitled to recover 65% of its costs on assessment.

64. Whilst I consider it understandable that Council wishes to avoid the process of formal costs assessment, which can be protracted, particularly when there has been no response from the respondent, I consider that, in the present circumstances, the usual order for costs is appropriate.

65. Thus, whilst I am satisfied that, having achieved the relief sought, Council is entitled to its costs on a party-party basis, I do not consider it is appropriate for the Court to make an order in a specific amount, especially when the matter has proceeded ex parte.

Orders

66. The Court orders that:

1. The respondent cease using the unauthorised secondary dwelling attached to the rear of the dwelling at 57 Longfield Street, Cabramatta within 90 days of this order.

2. The respondent demolish the unauthorised secondary dwelling attached to the rear of the dwelling at 57 Longfield Street, Cabramatta within 120 days of this order.

3. After compliance with Order (2), the respondent do all things necessary to restore the rear of the dwelling at 57 Longfield Street, Cabramatta to the satisfaction of Fairfield City Council within 120 days of this order.

4. The respondent cease using the unauthorised secondary dwelling located along the rear northern boundary of the property at 57 Longfield Street, Cabramatta within 90 days of this order.

5. The respondent demolish the unauthorised secondary dwelling located along the rear northern boundary of the property at 57 Longfield Street, Cabramatta within 120 days of this order.

6. An order that the respondent provide to Fairfield City Council within 120 days of these orders a receipt or receipts from a scheduled waste facility as defined in the Protection of Environment Operations (Waste) Regulation 2014 (NSW) confirming that waste materials generated by complying with Orders (2), (3) and (5) have been deposited with a scheduled waste facility.

7. The respondent to pay Fairfield City Council’s costs as agreed or assessed.

8. A sealed copy of these orders be served on the respondent on or before 24 August 2018.

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Decision last updated: 03 August 2018