Liverpool Plains Shire Council v Vella

[2013] NSWLEC 54

Land and Environment Court

New South Wales

Medium Neutral Citation:	Liverpool Plains Shire Council v Vella [2013] NSWLEC 54
Hearing dates:	22 April 2013
Decision date:	22 April 2013
Jurisdiction:	Class 4
Before:	Pepper J
Decision:	See orders at [32].
Catchwords:	DECLARATIONS AND INJUNCTIONS: ex parte application for interlocutory relief - development without necessary consent - serious question to be tried - balance of convenience heavily favours grant of relief - injunction granted.
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 76A, 121B
Cases Cited:	Dungog Shire Council v B and E Clarke [2009] NSWLEC 16 Hooper v Port Stephens Council [2009] NSWLEC 234 Hume Coal Pty Limited v Alexander [2012] NSWLEC 267 International Finance Trust Company Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 Save Our Figs Inc v General Manager Newcastle City Council [2011] NSWLEC 207; (2011) 186 LGERA 127 Seven Network Ltd v QIC Pty Ltd [2012] NSWLEC 201 Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103 Shoalhaven City Council v Ellis [2011] NSWLEC 225 Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1 Willoughby City Council v Sahade [2000] NSWLEC 38
Category:	Interlocutory applications
Parties:	Liverpool Plains Shire Council (Applicant) Mr John Vella (Respondent)
Representation:	Mr Matthew C Fraser (Applicant) N/A (Respondent) Moray & Agnew Lawyers (Applicant) N/A (Respondent)
File Number(s):	41237 of 2012

Ex Tempore Judgment

Mr Vella Engages in Construction Without Obtaining Development Consent

1. By amended notice of motion filed 12 April 2013, the applicant, Liverpool Plains Shire Council ("the council"), seeks a temporary injunction against the respondent, Mr John Vella, from carrying out any building work or development on Lot 1 DP 101903, otherwise known as 90 Dewhurst Street, Werris Creek, New South Wales ("the property").

1. The development, the partial demolition of an existing building on the property and the construction of an extension to that building, is being carried out absent the necessary development consent. Various formal and informal requests have been made by the council to Mr Vella to cease construction work at the property. They have all been ignored.

1. Accordingly, on 14 December 2012 the council commenced civil enforcement proceedings by way of summons.

1. It is within this procedural framework that the application for interlocutory relief has been pursued. And, for the reasons below, I grant the relief sought.

The Proceedings Against Mr Vella are Ex Parte

1. Mr Vella did not appear at the hearing of today's notice of motion. This is presumably because, as a member of the "Independent Religious State - Free State of Australia" ("FSA"), a purportedly sovereign religious state established within the Commonwealth of Australia, Mr Vella does not recognise the jurisdiction of this Court. This has been his position to date in the proceedings.

1. Unsurprisingly, the council has therefore had difficulty serving Mr Vella. Orders for substituted service were accordingly made by Court on 12 April 2013. Previously, at a directions hearing before Sheahan J on 22 March 2013, affidavits of service were provided to the Court demonstrating that Mr Vella had been served with the initiating summons and supporting affidavits.

1. The council relied on the following affidavits in order to demonstrate that Mr Vella was aware of the hearing of the application today:

(a) the affidavit of service of Mr Nathan Hennessey, sworn 8 April 2013;

(b) the affidavit of service of Ms Belinda Morris, affirmed 15 April 2013;

(c) the affidavit of Mr Mark Brothers, affirmed 19 April 2013; and

(d) the affidavit of Mr Michael Urquhart, sworn 10 April 2013.

1. Mr Urquhart, the Director of Corporate Services at the council, also gave oral evidence to the Court that on 19 April 2013, he was called to the front counter at the council's offices where he was handed two envelopes containing documents that had been physically handed by Mr Vella to the council's customer service officer, Ms Dale Lyon. Ms Lyon has had previous dealings with Mr Vella and is aware of his identity. The envelopes appear to have been, according to the evidence of Mr Urquhart, opened and then re-sealed.

1. The envelopes contained the affidavit of Mr Michael Urquhart sworn 10 April 2013, the affidavit Mr Mark Brothers sworn 9 April 2013, the amended notice of motion seeking injunctive relief and the order for substituted service. The amended notice of motion expressly states in handwriting on the front page that "this motion is listed at 9.00 am on 22 April 2013".

1. Based on the evidence contained in the affidavits referred to above and Mr Urquhart's oral evidence, I am satisfied that Mr Vella was aware of today's hearing.

1. However, when the matter was called on for hearing at 11.00am, no one appeared for Mr Vella. The matter was called three times outside the courtroom. The matter therefore proceeded in his absence.

The Interlocutory Relief Should be Granted

1. The council relied on the following affidavits in support of its application for injunctive relief, which I have read and considered:

(a) affidavit of Ms Donna Ausling, filed 15 March 2013;

(b) the affidavit of Mr Stephen Ryder, filed 15 March 2013;

(c) the affidavit of Mr Terrence Robinson, sworn 13 March 2013;

(d) the affidavits of Mr Mark Brothers, sworn 9 and 19 April 2013; and

(e) the affidavit of Mr Urquhart, sworn 10 April 2013.

1. Ms Ausling is the Manager-Planning and Development with the council. On 14 November 2012 she prepared a planning report in relation to the property. That report indicates that the land upon which the development is occurring is zoned R1 General Residential within the Liverpool Plains Local Environmental Plan 2011 ("the LEP"). In her opinion, the works that have been undertaken on the property consist of "alterations and additions to an existing dwelling" within the terms of the LEP. The works would be permitted with development consent within the Zone. Clause 2.7 of the LEP mandates that demolition works also require development consent.

1. Mr Ryder, the Compliance Officer of the council, undertook a number of drive-by inspections of the property. Mr Ryder attempted to enter onto the property to carry out an inspection of the building works but Mr Vella refused him entry and threatened to sue him for trespass.

1. As a consequence of these inspections, on 15 October 2012 a request to immediately cease all building work was served on Mr Vella by the council. This was followed up by a letter to similar effect on 2 November 2012, which attached a Notice of Intention to Issue an Order under s 121B of the Environmental Planning and Assessment Act 1979 ("the EPAA"). Also attached to Mr Ryder's affidavit were photographs showing the extent of the building works and their ongoing nature. Building works were observed to have been carried out as recently as 2 April 2013.

1. The affidavit of Mr Ryder plainly demonstrates that the building works taking place on the property involved both demolition and construction.

1. Mr Ryder's evidence was supported by, and consistent with, that of Mr Mark Brothers.

1. The development works on the property include:

(a) the addition of cladding and wall lining to an extension of a building at the rear of the property;

(b) cladding added to the side of the building;

(c) the removal of walls and windows at the front and side of the building; and

(d) the addition of roof sheeting to the building.

1. It appears, at least from the affidavit evidence of Mr Urquhart, that Mr Vella claims that he is merely "the builder" and that the property in fact belongs to the "Church of Jesus Christ", and therefore, the council has sued the wrong entity.

1. However, the affidavit of Mr Robinson deposes to the fact that in late 2011, Ms Kathleen Eykamp sold the property to "Jo Vella". The solicitor acting for Ms Eykamp believed "Jo Vella" to be the same person as the respondent in these proceedings. Attached to the affidavit is a certificate of transfer which names the transferee as "Jo Vella". Settlement took place on 14 November 2011, at which Mr Vella attended personally.

1. I find, as a matter of inference, that the property is owned by Mr Vella.

1. A search of the council files reveals that no consent has been applied for or obtained by Mr Vella in respect of the development undertaken at the property. The development is, therefore, on the evidence presently before the Court, being carried out in breach of s 76A of the EPAA.

Applicable Legal Principles

1. The legal principles to be applied in determining whether or not to grant interlocutory relief have been set out in a number of cases in this Court and are not repeated here, but are respectfully adopted and applied (Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1; Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103 at [4]-[6]; Save Our Figs Inc v General Manager Newcastle City Council [2011] NSWLEC 207; (2011) 186 LGERA 127 at [37] and Hume Coal Pty Limited v Alexander [2012] NSWLEC 267 at [69]-[82]).

Serious Question to Tried

1. On the admittedly untested evidence before me, I am satisfied that the council has an arguable case for the past and continuing breach of the EPAA insofar as Mr Vella is clearly engaging in construction work without the necessary development consent on the property.

1. There is nothing presently before the Court that suggests an arguable defence to the substantive proceedings is available to Mr Vella (see Shoalhaven City Council v Ellis [2011] NSWLEC 225). There is, therefore, a serious question to be tried.

Balance of Convenience

1. In my opinion, the balance of convenience favours, heavily, the granting of the injunction. First, the building and demolition works are not trivial, they are extensive. Second, the council deposed that it has serious concerns regarding the structural integrity of the building works. To date it has been unable to inspect those building works because Mr Vella has refused the council permission to enter upon the property. Third, given the resistance to date by Mr Vella to accept service, to participate in these proceedings, or to acknowledge, let alone to accede to, the council's requests to cease development on the property to date, I find that, absent granting the relief sought, the unlawful building works will continue unless he is ordered to cease development on the property.

1. An illustration of Mr Vella's attitude to the council and to the proceedings was contained in a four page document written by an individual describing himself as "John of the Vella Family" faxed to the Court on 21 March 2013. The document stated that:

6. I, John of the Vella Family say, the property known as 90 Dewhurst Street, Werris Creek 2341 Australia is lawfully registered and titled within the Land Register of the Independent Religious State - Free State Australia, and is no longer a legal title within the Land Register of the corporate State of New South Wales ...

7. I, John of the Vella Family say, the property known as 90 Dewhurst Street, Werris Creek 2341 Australia is a lawful Estate housing the "Ministry of Jesus Christ the Redeemer" and a place for worship of the Lord Jesus Christ, the Lord of Lords and King of Kings.

8. I, John of the Vella Family say, the property known as 90 Dewhurst Street, Werris Creek 2341 Australia is a lawful Estate within in the Jurisdiction of the Independent Religious State - Free State Australia, (Religious State).

9. I, John of the Vella Family, a lawful citizen of Independent Religious State - Free State Australia, (Religious State) lawfully seceded from the corporate State of New South Wales, and the corrupted State of New South Wales.

10. I, John of the Vella Family, a lawful citizen of Independent Religious State - Free State Australia, and the Independent Religious State, Free State Australia say, the said Administration prescribing itself, as the Land and Environment court of New South Wales is without power or jurisdiction to consider or interpret any section or sections of the Commonwealth of Australia Constitution Act 1990 (UK).

11. I, John of the Vella Family, a lawful citizen of Independent Religious State - Free State Australia, and the Independent Religious State, Free State Australia say, the said Administration prescribing itself as the Land and Environment court of New South Wales is without power or jurisdiction to interpret s116 of the Commonwealth of Australia Constitution Act 1990 (UK).

12. I, John of the Vella Family, a lawful citizen of Independent Religious State - Free State Australia, and the Independent Religious State, Free State Australia say, the said Administration prescribing itself, as the Land and Environment court of New South Wales is without power or jurisdiction to adjudicate over maters attaining to Religion, Religious belief, Religious standing, or Religious interpretation, that being a consequence only possible to individuals or assembles for obedience and way of life that which excels far beyond that of any Governance or alleged power.

1. I have no hesitation in finding that "John of the Vella Family" is the same person as the respondent in these proceedings.

1. Fourth, although the council offers no undertaking as to damages, this is in no way fatal to the council's application. The council has a public interest in upholding the planning laws of this State (see Willoughby City Council v Sahade [2000] NSWLEC 38 at [24]; Tegra at [28]-[31]; Hooper v Port Stephens Council [2009] NSWLEC 234 at [28] and Dungog Shire Council v B and E Clarke [2009] NSWLEC 16 at [14]).

1. Fifth, there has, moreover, been no conduct by the council, such as a delay, precluding a grant of injunctive relief.

1. Accordingly, I find that it is appropriate to grant the injunction as sought, mindful as I am of the principles stated in International Finance Trust Company Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 per Heydon J at [146]-[150] as cited in Bridgewater Investments at [6] and Seven Network Ltd v QIC Pty Ltd [2012] NSWLEC 201 at [50].

Orders

1. I therefore make the following orders:

(1) that, until further order of the Court, the respondent and his servants and agents be restrained from carrying out building or development work at Lot 1 DP 101903, known as 90 Dewhurst Street, Werris Creek, New South Wales 2341 ("the property");

(2) that the respondent pay the applicant's costs of and incidental to this motion;

(3) that the service of any further documentation on the respondent in these proceedings be effected either by:

(a) sending a copy of the document to the property by express post; or

(b) by affixing a copy of the document to the property.

(4) liberty to restore on three days notice.

**********

Decision last updated: 24 April 2013