Fairfield City Council v Zorbas

[2005] NSWLEC 205

Land and Environment Court

of New South Wales

CITATION:

Fairfield City Council v Zorbas & Others [2005] NSWLEC 205

PARTIES:

APPLICANT
Fairfield City Council

FIRST RESPONDENT
George Zorbas

SECOND RESPONDENT
Nicholas Zorbas

THIRD RESPONDENT
Vicki Zorbas

FOURTH RESPONDENT
Z & G Properties Pty Limited

FIFTH RESPONDENT
Euro Formwork Pty Limited

SIXTH RESPONDENT
Voltrin Pty Limited

FILE NUMBER(S):

41629 of 2004

CORAM:

Talbot J

KEY ISSUES:

Injunctions and Declarations :- development without consent.

LEGISLATION CITED:

Fairfield Local Environmental Plan 1994
Environmental Planning and Assessment Act 1979

DATES OF HEARING:

13/04/2005

EX TEMPORE JUDGMENT DATE:

04/13/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr J C Thompson (Barrister)
SOLICITORS
Ritchie & Castellan

RESPONDENT
Mr M C Fraser (Barrister)
SOLICITORS
Rizos & Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

13 April 2005

41629 of 2004 Fairfield City Council v George Zorbas & Others

JUDGMENT

1 Talbot J: Fairfield City Council (“the applicant”) is seeking orders against George Zorbas (“the first respondent”), Nicholas Zorbas (“the second respondent”), Z & G Properties Pty Limited (“the fourth respondent”), Euro Formwork Pty Limited (“the fifth respondent”) and Voltrin Pty Limited (“the sixth respondent”) by way of declaration regarding the use of the property known as 29-35 Duff Road, Cecil Park as a warehouse, otherwise than in accordance with the provisions of Fairfield Local Environmental Plan 1994 (“Fairfield LEP”) and consequential orders against those respondents.

2 It is hardly in contention, nor could it be contended, that the use of the premises at the present time is for storing, handling, and effectively distribution of materials. The evidence is that the land is used as a place to store formwork used in building works. The process of storing involves handling of those materials by loading and unloading. There is evidence to that effect. From time to time those materials are distributed to various jobs throughout Sydney.

3 The question that Mr Fraser, who appears for the respondents, raises is whether all of the respondents, other than the third respondent, should be the subjects of the orders.

4 There is no question about the first respondent. Mr Fraser properly acknowledges his position as the owner of the land and his self-confessed position as, in effect, the controller of the activities that take place.

5 Insofar as the second respondent is concerned, he is the son of the first respondent. He is said to be employed by the fourth respondent, but the evidence is that at least on 25 September 2002, 3 October 2002, 7 October 2003 and 1 August 2003 when the Council officers visited the site, he was observed carrying out work associated with the activity of storing formwork on the land.

6 So far as the other respondents are concerned, although Mr George Zorbas may be the controlling head, mind and indeed soul of the whole business, it is obvious from his evidence, although internally conflicting in some respects, that the companies involved are sufficiently interwoven, cross controlled and directed in such a way that the activities of one are knitted closely into the activities of the others.

7 The conclusive evidence in that respect is the third paragraph of an affidavit sworn by Mr George Zorbas on 11 March 2005 when he says:-

I operate the business myself and the formwork, vehicles and other equipment I use are owned by Z & G Properties Pty Limited, Euro Formwork Pty Limited and Voltrin Pty Limited.

8 There is no need to rely on the registration particulars of the various vehicles observed on the site from time to time. The companies, except Z & G Properties, are registered proprietors. The evidence of Mr George Zorbas himself is that those companies own the materials and vehicles that are located on the site from time to time.

9 It is apparent therefore that it would not be prudent for the Court to leave those respondents free from any formal order not to carry on such one or other of the activities that they pursue or for which the land is used.

10 Mr Fraser has made a number of valiant submissions all directed towards indulging the respondents by allowing them further time in order to regularise the use of the property. I do not propose to go through the whole history of the use step by step.

11 Shortly after the purchase of the property a Council officer observed, on 25 September 2002, that the property was being used. He had a conversation with the second respondent in regard to that use and indicated quite clearly and unequivocally to him that the Council did not regard the use as lawful.

12 Subsequently the first and second respondents attended a meeting with Council officers and their solicitor on 3 October 2002 at the Council chambers. Mr George Zorbas gave evidence that he thought that meeting was more about whether or not a dwelling could be constructed than anything else. From the evidence of the Council officer present that was not the sole matter that was discussed. I would regard the question of the house as peripheral and possibly discussed as part a possible solution put forward in an attempt to overcome the problem of the illegal use.

13 Shortly after that meeting, on 10 October 2002, the Council wrote to the first respondent making a threat of orders to be made. On 28 October 2002 the solicitor for the respondents wrote and asked for 28 days further time. Ultimately on 8 April 2003 formal orders were made after notice of the proposed orders was given.

14 On 4 August 2003 the time to comply with the orders was extended. On 1 October 2003 a threat of a penalty was communicated to the respondents. Ultimately, on 2 March 2004 the first and second respondents were convicted of an offence in the Local Court. The offence charged was the unlawful use of the property for the very purpose that is the subject of the proceedings today.

15 The respondents contend that they should be given an opportunity to lodge a development application that purports to regularise the situation. However on 24 April 2003 a representative of the respondents had written to the Council indicating the development application would be lodged at the earliest possible date. Further correspondence shows that by 6 August 2003 there was still no sign of a development application. Finally on 17 February 2004 a development application was lodged. The application was in respect of a house and a guest house.

16 The development application was refused on 14 April 2004. Then nothing further happened until 12 April 2005, the day before the hearing. Documents have been lodged with the Council. Effectively there is no further formal development application. It is no more than an interim application. It needs to be completed.

17 It is a curious application that I do not propose to say too much about in the circumstances, as ultimately it is a matter for the Council to decide. However it would appear to be an attempt to regularise the use of the business by obtaining a development consent for the erection of a dwelling house and the use of the property for a home business.

18 The dwelling house proposed is a two-bedroom dwelling house. The definition of home business in the Fairfield LEP sets a number of hurdles that an applicant for that use must overcome. More particularly they are that the activity is to be one carried on for the purpose of the nominated businesses by means of, (a) a dwelling, (b) an allotment containing a dwelling, or (c) a building erected on an allotment containing a dwelling.

19 Mr Fraser helpfully suggested that there might be a deferred commencement consent condition that approved the house and deferred the use of the premises for the purposes of a home business until such time as the dwelling has been completed. That prima facie would be self-defeating given that the business is already being carried on.

20 Evidence comes to light today from a real estate agent who says he was approached in January of this year to assist with the search for an alternative property. The timing of that engagement raises an inference that the commencement of these proceedings would have been instrumental in that decision. The Class 4 Application was filed on 23 December 2004, and no doubt served shortly thereafter.

21 I am not satisfied that the first respondent, or the second respondent, who appear to be the real alter egos of the business, but in particular the first respondent, have shown genuine willingness or intent to regularise the use. They have ignored orders made against them. They have been convicted in the Local Court. They have been repeatedly warned over the years, from a least 25 September 2002, that the use is unlawful.

22 All of the circumstances point to a fair and reasonable opportunity to either cease the illegal use of the premises, or if they can, to regularise it.

23 The question of environmental harm is effectively all one way. I totally discount the evidence of a consultant town planner Mr Neil Kennan who, I think to his chagrin, was asked to give evidence before he had had any real opportunity to give proper and professional consideration to the questions and issues that he was asked to address. He had been engaged in January to consider the environmental aspects of the house, but it was only in the last few days that he was called upon to prepare an affidavit and a report to support the respondents’ case in the class 4 proceedings. He had to acknowledge in the witness box that his report was effectively wrong. He gave the impression that he had carried out an assessment of, for example, traffic impact, when indeed no such thing had occurred. His assessment of a visual impact and its comparison to the effect of the use of other properties in the district can only be described as cursory

24 Mr Peter Stas, a local resident who complained to the Council about the illegal use, has demonstrated to my satisfaction that the use of the property for the storage of formwork can be readily seen from various vantage points outside the property, including the road. There has been an attempt made on behalf of the respondents to persuade the Court that the activity could not be seen from the road because of the shield provided by some trees and vegetation. That depended upon the angle. The argument was based upon a very fine visual line.

25 The actual extent of environmental harm, in a professional sense, is unknown. However clearly the use is impacting upon at least one person living in the area in the context of visual amenity, noise and traffic.

26 In accordance with his instructions Mr Fraser has drawn the Court’s attention to a number of other properties in the area that are being used for various purposes. This has been a hobbyhorse argument of the respondents from the outset. It has been mentioned time and time again in conversations with Council officers. It is in effect ‘why should we be picked on?’, ‘there’s other doing it and nothing is happening about them.’

27 That excuse is just not tenable. Each case has to be dealt with on its merits. The Court has no way of knowing whether some of the uses are legal, illegal, based on existing use, based on consents, or are operating outside terms of consents or whatever the case may be. Nor whether they are permanent or whether they are temporary. There are all sorts of possibilities. The Court is entitled to disregard that argument.

28 The time has come for the respondents to place this property in order. Mr Fraser submitted that I should make a series of orders that would accommodate the making of a development application and that would give the opportunity for time to appeal to the Court and so on. I am not prepared to leave it on the basis that the orders be suspended for the suggested period of twelve months to allow that process to occur. As I have said the veracity of the respondents is already at stake and I find it to be wanting.

29 The orders I propose to make will be more or less in terms of the declaration requested in the Class 4 Application. The order will be in similar terms, if not exact terms, as it appears in the Application. It will be appropriate for the final form of the orders to be formulated to remove the alternatives set out.

30 Effectively there will be a declaration that the respondents, other than the third respondent, and each of them, are using or causing to be used, the property for the purpose of a warehouse otherwise than in accordance with Fairfield LEP 1994.

31 Secondly I will make an order in the terms of the second paragraph of the Application Class 4 namely that each of those persons, other than the third respondent, as described, and each of them, their servants, agents and assignees be restrained from using the property for the purpose of a warehouse or storage of formwork or otherwise in contravention of the provisions of the Fairfield LEP 1994, unless authorised under the provisions of the Environmental Planning and Assessment Act 1979.

32 That last part I add to foreshadow that there could be a change in zoning, or consent might be obtained for a particular use. The discharge of the order would then become self-executing.

33 The third order I make is that order two is suspended for a period of three months or such further time as the Court may allow upon application by either party before 1 July 2005.

34 The effect of the last order is that either party may apply before 1 July 2005 to extend the time of three months. Otherwise it will apply as a final order.

35 I order that the first, second, fourth, fifth and sixth respondents pay the Council’s costs. The exhibits are returned.

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