Liverpool Plains Shire Council v Vella (No 2)

[2013] NSWLEC 75

Land and Environment Court

New South Wales

Medium Neutral Citation:

Liverpool Plains Shire Council v Vella (No 2) [2013] NSWLEC 75

Hearing dates:

22 May 2013

Decision date:

31 May 2013

Jurisdiction:

Class 4

Before:

Pepper J

Decision:

See orders at [42].

Catchwords:

CIVIL ENFORCEMENT: development without necessary consent - exercise of discretion to grant appropriate relief.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4, 76A, 121B, 124

Real Property Act 1900

Liverpool Plains Local Environmental Plan 2011, cl 2.7

Cases Cited:

ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67

Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308; (2011) 82 NSWLR 171

Canterbury City Council v Mihalopoulos [2010] NSWLEC 248

Fairfield City Council v Ly [2008] NSWLEC 322

Glaser v Poole [2010] NSWLEC 143

Liverpool Plains Shire Council v Vella [2013] NSWLEC 54

Lysaght v Edwards (1876) 2 Ch D 499

Nader v Sutherland Shire Council [2008] NSWCA 265

Shoalhaven City Council v Ellis [2012] NSWLEC 225

Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469

Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

Woollahra Municipal Council v Sahade [2012] NSWLEC 76

Category:

Principal judgment

Parties:

Liverpool Plains Shire Council (Applicant)
Mr Jonathan Vella (Respondent)

Representation:

Mr Matthew Fraser (Applicant)
No appearance (Respondent)
Moray & Agnew Lawyers (Applicant)
N/A (Respondent)

File Number(s):

41237 of 2012

EX TEMPORE Judgment

The Proceedings Were Heard Ex Parte

1. On the day this matter was listed for hearing, the proceedings were called three times outside the courtroom because there was no appearance by the respondent in this matter, Mr John Vella.

1. A man called "Elder Jonathan", however, approached, but refused to sit at, the bar table and stated that he was speaking on behalf of the Church of Jesus the Christ ("the Church") of the Independent Religious State - Free State of Australia ("FSA"). He stated that he was not the agent of Mr Vella. Furthermore, he was not making any application on behalf of the Church, or on behalf of himself, to be joined as a party. Rather, he wished to explain certain matters to the Court.

1. The Court refused to hear Elder Jonathan on the basis that he had no standing, and in any event, even if he did, the matters that he sought to elaborate upon were not relevant to the issues for determination in the proceedings.

1. Much of the factual background to these proceedings, including findings made with respect to the service of critical documents (the summons, the points of claim and the affidavits upon which the council seeks to rely), is contained in my earlier decision of Liverpool Plains Shire Council v Vella [2013] NSWLEC 54.

1. An updating affidavit of service of Ms Belinda Morris, affirmed 20 May 2013, was relied upon by the council to demonstrate that all of the evidence that the council sought to rely upon had been served on Mr Vella. In addition, the council tendered letters from their solicitors, Moray & Agnew, dated 2 April and 20 May 2013, that proved Mr Vella had been informed of the hearing date for these proceedings.

1. Based on this evidence, and the findings contained in Vella, I was satisfied that Mr Vella was not only aware of the hearing date, but had been served with all of the relevant material. In the circumstances, it was therefore appropriate to proceed to hear the matter on an ex parte basis in light of Mr Vella's unexplained absence.

Mr Vella Engages in Development Without Consent

1. The council alleges that Mr Vella has engaged in building work on Lot 1 DP 101903, otherwise known as 90 Dewhurst Street, Werris Creek, New South Wales ("the property"), absent obtaining the necessary development consent as required under the Liverpool Plains Local Environmental Plan 2011 ("the LEP").

1. The works consist of the partial demolition of an existing building on the property and the construction of an extension to the rear of that building, together with the construction of a carport.

1. Various formal and informal requests have been made by the council to Mr Vella to cease construction work at the property. They have been ignored. Thus on 22 April 2013 the council sought and obtained an injunction restraining Mr Vella from carrying out building or development work at the property (see Vella). Building works have nevertheless continued on the property.

1. The council submits that Mr Vella has breached the LEP and s 76A(1)(a) of the Environmental Planning and Assessment Act 1979 ("the EPAA") by engaging in these building works without consent.

1. The council puts forward two bases for Mr Vella's liability for a breach of the EPAA and the LEP:

(a) first, as an owner of the property; and

(b) second, as the builder engaging in the development on the property.

Mr Vella is the Owner and Builder

1. It appears from a four page fax sent from "John of the Vella Family" to the Court on 21 March 2013 (relevant extracts of which are quoted in Vella at [27]), that Mr Vella disputes that he is the owner of the property. Rather, the suggestion is that the Church of the FSA is the owner of the property.

1. Relying on an affidavit of Mr Terrence Robinson sworn 13 March 2013, the council was able to demonstrate that up until 10 November 2011 when a transfer was executed the property was owned by Ms Kathleen Eykamp. Pursuant to a contract for the sale of land dated 12 October 2011, Ms Eykamp sold the property to "Jo Vella". Mr Robinson was the solicitor who acted for Ms Eykamp on the sale of the property.

1. On 14 November 2011 the sale to "Jo Vella" settled at the offices of Mr Robinson. Mr Robinson attests that a person he believes to be Mr Vella attended the settlement personally. At settlement, the certificate of title to the property, the transfer and the notice of sale were handed to Mr Vella, who produced cheques in accordance with the settlement adjustment sheet in order to complete the purchase.

1. I have no hesitation in drawing the inference that "Jo Vella" is the same person as Mr John Vella, the respondent in these proceedings. I also have no hesitation in finding that "John of the Vella Family", the author of the fax sent to the Court, is the same person as Mr John Vella, the respondent in these proceedings (I draw this inference having regard to the transcript of a directions hearing before Sheahan J on 22 February 2013, the affidavit of Mr Michael Urquhart, council officer, sworn 10 April 2013 and the four page fax from "John of the Vella Family").

1. The certificate of title, transfer and notice of sale have not been lodged with the Land and Property Information NSW ("LPI") since settlement of the sale. Therefore, LPI records show Ms Eykamp to be the registered proprietor of the property. While attempts have been made to persuade Mr Vella to attend to registration, to date these have not been successful.

1. While Mr Vella is not the registered owner of the property, he nevertheless holds an equitable interest in the property (Lysaght v Edwards (1876) 2 Ch D 499) and a contractual entitlement to legal title by registration under the Real Property Act 1900. He is, therefore, for the purposes of ss 76A and 124 of the EPAA, a person against whom orders can be made as an 'owner' of the property.

1. In any event, even if he is not the legal owner of the property, the affidavit of Mr Stephen Ryder, the council's Compliance Officer, filed on 15 March 2013, plainly demonstrates that Mr Vella is the builder in charge engaged in the development.

1. Therefore, either by reason of his interest in the property or because he is the builder engaging in the unlawful works, it is appropriate that the orders for relief sought by the council in the summons be made against Mr Vella.

The Court Has Jurisdiction to Grant the Relief

1. In the four page fax sent from Mr Vella to the Court, the issue of whether or not the Court has jurisdiction to grant the relief sought in the summons appears to be raised by him. There can be no doubt that the Court has jurisdiction (Shoalhaven City Council v Ellis [2012] NSWLEC 225).

The Development is in Breach of the LEP and the EPAA

1. The council relied on the following affidavits to demonstrate that the demolition, excavation and construction works engaged in by Mr Vella required development consent, and absent the granting of such consent, are therefore unlawful:

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

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

(c) the updating affidavit of Mr Stephen Ryder, sworn 20 May 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 has occurred is zoned R1 General Residential within 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 are permitted within the Zone with development consent. Clause 2.7 of the LEP further mandates that demolition works also require development consent. None has been obtained by Mr Vella.

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

1. It was as a consequence of these inspections that, on 15 October 2012, a request to immediately cease all building work was served on Mr Vella by the council, which was followed up by a letter to similar effect on 2 November 2012, attaching a Notice of Intention to Issue an Order under s 121B of the EPAA.

1. Also attached to Mr Ryder's affidavit were photographs showing the extent of the building works and their ongoing nature. The photographs depict substantial works taking place on the property, and the evidence of Mr Ryder clearly demonstrates that the building taking place on the property involved demolition, excavation and construction.

1. These works included:

(a) the demolition or removal of large sections of the building, including removal of trusses;

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

(c) cladding being added to the side of the building;

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

(e) the removal and replacement of roofing to the building; and

(f) the partially completed construction of a carport.

1. The most recent affidavit of Mr Ryder attached additional photographs taken by him of the works occurring on the property on 15 May 2013. He noted that the following building work had been carried out since his last inspection of the property on 13 May 2013:

(a) the interior of the carport, when compared with earlier photographs taken by him, appeared to have been partially excavated and a grey sand or road base material had been laid within it;

(b) an area to the left side of the carport had been excavated; and

(c) steel reinforcing mesh had been brought onto the property and could be seen leaning against the fence.

1. Mr Ryder stated that in his experience these works appeared to be in preparation for concreting of the floor of the carport and the area to the left of the carport.

1. Mr Ryder further deposed that on 20 May 2013 he took additional photographs of the works appearing on the property. He noted that the interior of the carport had been laid out with reinforcing material and half of it had been, as he foreshadowed, concreted since his previous inspection.

1. I find that the development undertaken by Mr Vella on the property is in breach of the LEP and the EPAA.

Likely Presence of Asbestos

1. The council submitted that there was likely to be asbestos waste on the property due to the nature of the materials involved in the demolition and construction works. This submission was consistent with Mr Ryder's evidence that there was "likely" to be asbestos present on the property.

1. Mr Ryder's belief was, however, entirely based on hearsay evidence. The view expressed by Mr Ryder in this regard was, in my opinion, inadmissible to prove that there is, or is even likely to be, asbestos on the property. At its highest, the opinion expressed by him does no more than note the concern of council that there may be asbestos present.

1. The council sought to remedy this evidential lacuna by attempting to adduce oral evidence from Mr Ryder to the effect that he had seen what was, in his experience, asbestos sheeting on the property. I refused to permit this evidence to be adduced because Mr Vella was not present at the hearing and he had been given no notice that the council would seek to put this evidence before the Court. While it is unlikely that Mr Vella would have attended even if such notice had been given, this is not an assumption I was willing to entertain in these ex parte proceedings.

The Injunctive Relief Sought Should be Granted

1. The principles governing the exercise of the Court's discretion to grant injunctive relief were analysed in the seminal decisions of Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-341 and ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 82. They are well settled (see Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308; (2011) 82 NSWLR 171 at [149]) and have been applied in this Court on many occasions. Applying these principles necessitates an examination of, amongst other things:

(a) the nature of the breach of the EPAA;

(b) whether the breach was more than merely technical in nature;

(c) the harm to the environment generally caused by the unlawful conduct; and

(d) the hardship and other matters personal to Mr Vella.

1. Having regard to the evidence of the council and applying the factors stated above, the injunction sought by the council should be granted because:

(a) first, the breach by Mr Vella offends against and undermines the planning regime of the council, and ultimately of the State;

(b) second, as the evidence of Mr Ryder demonstrates, the breach is not trivial in nature. The partial demolition and construction of the extension to the building and the carport can only be characterised as extensive;

(c) third, as the evidence demonstrates, the breach, if not restrained, will continue. To date, Mr Vella has ignored all requests by the council to cease construction on the property and there is evidence that Mr Vella has breached the injunction ordered by the Court on 22 April 2013;

(d) fourth, the harm caused to the environment is not simply limited to the undermining of the planning regime. The absence of any inspection or certification of the development means that the council cannot be certain as to its structural integrity and, therefore, there is a risk that the extension and carport are not safe for human occupation. Moreover, while there is no evidence that there is asbestos present on the property, the council is nevertheless concerned that there may be, and therefore wishes to be given the opportunity of inspecting the property to ascertain whether or not this concern is real; and

(e) fifth, the impact on Mr Vella of granting the injunctive relief is not known, by reason of his failure to attend the hearing.

1. Additional reasons for granting the injunctive relief include that it is necessary to enforce the public duty imposed by the EPAA not to carry out development which requires development consent without first obtaining such consent. Enforcing this public duty upholds the public interest which exists in the orderly development and use of the environment. Provisions of planning and environmental laws regulating the carrying out of development should be upheld, otherwise private advantage may be gained by a particular individual at the expense of others (Sedevcic at [339]-[340]).

1. Finally, it is the council, and not any neighbours, that have made the application for enforcement of the law, and therefore, the Court is less likely to deny injunctive relief (Sedevcic at [340]).

The Unlawful Works Should be Removed

1. The council submits that the unlawful development works should be removed. I agree.

1. In addition to the reasons discussed above, Mr Vella has won a private advantage for himself by constructing the extension and the carport without first applying for and obtaining development consent as required under the LEP and the EPAA. Ordering the removal of the unlawful works would remedy the breaches of the LEP and EPAA by putting Mr Vella back in the position he would have been in of having to make a development application seeking development consent to construct the extension and the carport. Again, I am mindful of the fact that the breach of the EPAA is not merely technical or without any environmental impact.

1. There are many illustrations of this Court ordering the removal of unlawful development works (Woollahra Municipal Council v Sahade [2012] NSWLEC 76; Canterbury City Council v Mihalopoulos [2010] NSWLEC 248; Glaser v Poole [2010] NSWLEC 143; Fairfield City Council v Ly [2008] NSWLEC 322 and Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469, upheld on appeal: Nader v Sutherland Shire Council [2008] NSWCA 265).

1. Having regard to the totality of the circumstances governing these proceedings, I am of the opinion that ordering removal of the unlawful development is appropriate.

Orders

1. The Court makes the following orders:

(1) that the respondent, including by his servants, agents and invitees, be restrained from carrying out any further work in the nature of building work or development, as "development" is defined in s 4 of the Environmental Planning and Assessment Act 1979 ("the EPAA") at Lot 1 DP 101903, otherwise known as 90 Dewhurst Street, Werris Creek, New South Wales ("the property"), unless and until the respondent has obtained from the applicant a consent for the carrying out of such building work or development, as required by the Liverpool Plains Local Environmental Plan 2011, and in accordance with, the EPAA;

(2) that the respondent be restrained from allowing any person from entering onto the property until further order of the Court, other than to give effect to orders 3 and 4 below;

(3) that the respondent demolish and remove from the property all buildings and building works which do not have existing development consent within 90 days of the date of this order;

(4) that the respondent allow the applicant, by such officers as are nominated by the General Manager of the applicant in writing, upon two days' written notice to the respondent, at such times and days as nominated by the council but restricted to between 8am and 5pm weekdays, to enter upon the property for the purpose of inspecting the interior and exterior of all buildings on the property;

(5) that the respondent cause the stockpile of building material on the property to be covered with a tarpaulin, or such other material as the applicant approves in writing, within seven (7) days of the date of this order;

(6) that the respondent pay the applicant's costs of the proceedings;

(7) that the parties have liberty to apply on 3 days' written notice to vary any of these orders upon good cause being shown by the notifying party;

(8) that the applicant inform the respondent in writing of the making of these orders as soon as reasonably practicable; and

(9) that the exhibits be returned.

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Decision last updated: 31 May 2013