Liverpool Plains Shire Council v Rumble
[2013] NSWLEC 118
•25 July 2013
Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Liverpool Plains Shire Council v Rumble [2013] NSWLEC 118 Hearing dates: 25 July 2013 Decision date: 25 July 2013 Jurisdiction: Class 4 Before: Biscoe J Decision: Orders at [10]
Catchwords: CIVIL ENFORCEMENT - respondents unlawfully using land zoned residential to store, repair, sell and service motor vehicles, sell spare parts for motor vehicles and incidental uses - uses prohibited or impermissible without development consent - council seeks injunctions. Legislation Cited: Environmental Planning and Assessment Act 1979 s 121B
Liverpool Plains Local Environmental Plan 2011Cases Cited: Armidale Dumaresq Council v Vorhauer [2012] NSWLEC 154
Liverpool Plains Shire Council v Vella (No 2) [2013] NSWLEC 75
Shoalhaven City Council v Ellis [2012] NSWLEC 225Category: Principal judgment Parties: Liverpool Plains Shire Council (Applicant)
Robert George Rumble (First Respondent)
Lee Rumble (Second Respondent)Representation: M Fraser (Applicant)
No appearance (Respondents)
Mark Brothers, Moray & Agnew (Applicant)
N/A (Respondents)
File Number(s): 40202/13
EX TEMPORE Judgment
In these civil enforcement proceedings in class 4 of the Court's jurisdiction, the applicant, Liverpool Plains Shire Council, seeks to restrain the respondents, Robert George Rumble and Lee Rumble, from using land they own and occupy at 69 South Street, Quirindi and the adjacent road reserve for purposes that are unlawful under the Liverpool Plains Local Environmental Plan 2011 (LEP). The respondents have not appeared at any stage of the proceedings.
Quirindi is a rural township of approximately 3,500 people. The respondents' land fronts the Kamilaroi Highway, a major transportation route, and is in a highly visible and prominent location at the gateway to the township.
For some years the respondents have used the land, which has an area of 3,136 square metres, and the adjacent road reserve to store motor vehicles, ranging up to 150 in number; to repair, sell and service motor vehicles; to sell spare parts for motor vehicles; and for incidental activities. These uses are continuing. Under the LEP, such uses of the land are prohibited in the relevant zone, R1 General Residential, except that under cl 5.3 some may be permissible with consent insofar as they are within 50 metres of the adjoining 1NI General Industrial or 1N2 Light Industrial zones, if the council is satisfied as to certain matters. No such development application has been made.
This unlawful development has caused environmental harm in a number of ways:
(a) Visual intrusion inconsistent with the residential zoning, streetscape and surrounding neighbourhood.
(b) The coming and going of vehicles is a disturbance to the usual tranquil and peaceful neighbourhood.
(c) Noise and disturbance to neighbours and the community.
(d) Work is carried out on the road reserve.
(e) Engine oil, transmission fluid and gear oil either leak or are poured onto the ground, causing a strong odour noticed by neighbours, particularly in hot weather.
(f) Rainfall causes oil and other contaminants to flow noticeably down a nearby street known as Robey Lane leaving a heavy oil slick on the surface of the water.
(g) Cats, rats and other vermin are breeding or able to breed in the car bodies and other material present on the land.
(h) The land is filled with batteries, patches of engine oil, patches of dead grass, car body shells (with and without engines) and various other parts of vehicles strewn about the property, fibreglass objects, many wheels, tyres, rims, axles and other materials, which are a visual intrusion for neighbours, passers-by and visitors to Quirindi.
(i) Faeces of rats, mice, dogs and cats are widely present on the land and emanate strong, unpleasant smells.
The respondents have failed to take any action to cease the prohibited development or to correct the environmental harm. In particular:
(a) On 16 December 2008 the council issued a notice of intent to serve an order under the Environmental Planning and Assessment Act 1979 (EPA Act) to the respondents to remove the vehicles, giving them six days to make representations to the council.
(b) On 22 December 2008 the council issued an order under the EPA Act to the respondents which was intended to be under s 121B
(c) A further order was issued on 30 July 2009.
(d) On 5 August 2009 the council issued a further notice of intent to serve an order.
(e) On 12 August 2009 the council issued another order intended to be under s 121B of the EPA Act.
(f) The council took physical steps to enforce the orders by removing vehicles from the land on 13 and 14 August 2009. The respondents took proceedings against the council in the District Court alleging trespass and other wrongdoing.
(g) On 6 February 2013 the council's solicitors wrote to the respondents giving notice of these proceedings, and inviting them to offer an undertaking to remove vehicles and take other specified steps to remedy the breaches of the EPA Act alleged by the council without the need for court proceedings.
None of the above appears to be disputed by the respondents, except for an assertion in a document they delivered to the Court that they have cats to keep down rats and mice, and dogs to keep away intruders.
Although it is unnecessary to consider them because they have not been tendered in evidence, a bundle of documents that the respondents delivered to the Court prior to the hearing indicate, as I understand them, that the respondents raise two main matters.
First, they advance the philosophy that they have a right to do what they want on their land provided only that it does not infringe on the similar rights of others. The weakness in this philosophy is its failure to acknowledge that freedom from interference by others is subject to limits defined by law, often as a practical compromise and sometimes for reasons which cannot be clearly stated. There is a minimum area of personal freedom from interference by others in which people do not have to account for their activities to anyone, but only so far as it is compatible with organised society. The law defines the frontiers of that minimum area and the courts guard it.
Secondly, the respondents contend that they are not subject to the laws of New South Wales, the authority of the council or the jurisdiction of the courts because they have constituted their land as "The Independent Sovereign State of Australia" or "ISSA". Some of their documents bear seals endorsed with that name. One states: "ISSA is a bona fide State in Australia. Having its borders as the forshores [sic] of Australia. The State has been in force for 23 years. The law basis is sect.116 of the Australian Constitution... We do not recognise other states, corporations, courts or local councils having power of any kind over us". All this is without legal merit. For reasons to which I adhere, I rejected similar arguments in Armidale Dumaresq Council v Vorhauer [2012] NSWLEC 154- at [25] - [31] and Shoalhaven City Council v Ellis [2012] NSWLEC 225- at [5] - [13], which was followed on the jurisdictional aspect in Liverpool Plains Shire Council v Vella (No 2) [2013] NSWLEC 75- at [20] per Pepper J.
ORDERS
The Court makes the following orders along the lines of those sought in the summons (insofar as they are pressed by the council):
(1) The respondents are to remove or cause to be removed all vehicles (including vehicles partly or wholly disassembled and all vehicles components) from:
(a) Lots 8 & 9 Section 30 DP 758863 known as 69 South Street Quirindi NSW ("the premises"), and
(b) the road reserve adjacent to and nearby the premises
(other than those roadworthy and registered in NSW in the names of residents of the premises and used for their personal purposes) by 5.00pm on 30 August 2013.
(2) The respondents are restrained from using the premises in any way that:
(a) falls within the definition of "commercial premises", "transport depots", "vehicle body repair workshops", "vehicle repair stations" and/or "waste or resource management facilities" as defined in the Liverpool Plains Local Environment Plan 2011, or
(b) is not in conformity with the zoning of the premises "R1 General Residential" pursuant to the provisions of the Liverpool Plains Local Environment Plan 2011,
as and from 5.00 pm on 30 August 2013.
(3) The respondents are to pay the applicant's costs of the proceedings.
(4) The exhibits may be returned.
Amendments
05 August 2013 - removed field codes
Amended paragraphs: 1, 5 and 9
Decision last updated: 05 August 2013
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