Newcastle City Council v Jensen
[2013] NSWLEC 26
•21 February 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Newcastle City Council v Jensen [2013] NSWLEC 26 Hearing dates: 21 February 2013 Decision date: 21 February 2013 Jurisdiction: Class 4 Before: Craig J Decision: For orders see [10]
Catchwords: CIVIL ENFORCEMENT - accumulation of motor vehicle related items on residential land - failure to comply with notices issued under s 124 Local Government Act 1993 requiring removal and appropriate storage of those items - proceedings to enforce compliance with those orders - use of land for storage not permitted under applicable planning instrument - breach of the Environmental Planning and Assessment Act 1979 - respondent's ordered to comply with s 124 notices - Council authorised to carry out work in default - respondent restrained from using land in breach of Environmental Planning and Assessment Act 1979. Legislation Cited: Environmental Planning and Assessment Act 1979
Local Government Act 1993
Local Government Rules 2005
Newcastle Local Environmental Plan 2003
Newcastle Local Environmental Plan 2012
Uniform Civil Procedure RulesCategory: Principal judgment Parties: Newcastle City Council (Applicant)
Charles Michael Jensen (First respondent)
Susan Margaret Paul (Second respondent)Representation: P W Larkin SC (Applicant)
S Eather, Solicitor (Respondent)
Newcastle City Council Legal Services (Applicant)
Bibie Dan Solicitors (Respondent)
File Number(s): 41146 of 2012
ex tempore Judgment
Charles Jensen and Susan Paul, the first and second respondents respectively in these proceedings, are said by their solicitor to be "car enthusiasts". Over the years they have collected and accumulated on their respective properties a large number of motor vehicles in various states of repair, motor vehicle parts, motor vehicle engines, scrap metal, building materials and miscellaneous waste. The properties on which these items have been accumulated are located at 13 Andrea Close, Wallsend, owned by Mr Jensen, and 27 Andrea Close, Wallsend owned by Ms Paul.
Such has been the accumulation of these materials on the two properties in question that they received the attention of Newcastle City Council in whose local government area the properties are located. On 10 June 2011 each respondent was served with a notice under s 124, Item 22 of the Local Government Act 1993 requiring the removal of a large number of the accumulated items and also requiring the appropriate storage of other items located on the respective properties. These orders were not obeyed. Failure to do so resulted in a breach of the Local Government Act: s 672.
The planning controls currently applicable to each of those properties are those contained in Newcastle Local Environmental Plan 2012 under which each property is zoned R2 Low Density Residential. Use of land so zoned for the purpose of collecting and storing materials is prohibited.
Prior to commencement of the current planning instrument on 15 June 2012 the applicable planning instrument was Newcastle Local Environmental Plan 2003. Both properties were zoned Residential 2A under that instrument. In respect of land so zoned, collecting and storing materials was permissible, but only with the consent of the Council.
The only consents granted under the Environmental Planning and Assessment Act 1979 (EPA Act) for use of each of these properties was use for the purpose of a dwelling house. No consent has been granted for use of either property at any time for the collection and storage of motor vehicles, motor vehicle parts, motor bodies, engines or other materials of the kind earlier described. Use of the premises in the absence of any such consent potentially involves a breach of the EPA Act.
On 12 November 2012 the Newcastle City Council commenced proceedings against Mr Jensen and Ms Paul seeking orders directed to remedying the breaches of both the Local Government Act and the EPA Act. The parties appear before me today seeking to have orders made in a form upon which they have agreed. These orders are intended to remedy the breaches to which I have referred. For this purpose they have tendered an Agreed Statement of Facts (Exhibit A) which amply demonstrates the breaches of both Acts which are relied upon by the Council to found its proceedings. That statement is the basis upon which I have briefly summarised the facts attending the accumulation of material on the defendants' properties and the notices that have been served upon them.
Further, Mr Eather, the solicitor who appeared for Mr Jensen and Ms Paul, has acknowledged that the collection of items by them has become "out of hand" and involves much more than the pursuit of a hobby ordinarily carried on as incidental to the use of premises as a dwelling house. The thrust of the orders proposed is that the respondents comply with the orders served under s 124 of the Local Government Act on or before 22 March 2013. Orders are also sought seeking to restrain each of the respondents from conducting activities on their respective properties in the manner in which those activities have been conducted hitherto, other than their use as a dwelling house.
The Council also seeks an order that it be authorised to carry out the removal of items from each property in the event that the respondents, or either of them, fail to do so in accordance with the order that is proposed. Such an order is authorised by Pt 40, r 40.8 of the Uniform Civil Procedure Rules 2005. In light of the continuing failure of each respondent to have complied with the orders given in 2011 under the Local Government Act, I am satisfied that the substituted performance order proposed by the Council should be made. It is not opposed by the respondents.
Mr Eather has stated that he has provided the draft orders to Mr Jensen and Ms Paul to allow them to read them and that he has explained their import to them. He also states that he has explained to them the consequence of non-compliance, including the possibility that such non-compliance may result in proceedings being taken against them for contempt of Court. On the evidence before me and having regard to the matters addressed by Mr Eather I consider it appropriate to make the orders in the terms agreed between the parties.
I therefore make the following Orders:
By consent, the Court:
1. Orders that the First Respondent do all things necessary to achieve, on or before 22 March 2013, complete compliance with
(a) the order under s 124 of the Local Government Act 1993 dated 10 June 2011 in respect of Lot 16 DP 243635, being the premises at 13 Andrea Close, Wallsend ("the No 13 Order") a copy of which is annexed to these orders and marked "A", and
(b) the order under s 124 of the Local Government Act 1993 dated 10 June 2011 in respect of Lot 27 DP 243635, being the premises at 27 Andrea Close, Wallsend ("the First No 27 Order") a copy of which is annexed to these orders and marked "B".
2. Orders that the Second Respondent do all things necessary to achieve, on or before 22 March 2013, complete compliance with the order under s 124 of the Local Government Act 1993 dated 10 June 2011 in respect of Lot 27 DP 243635, being the premises at 27 Andrea Close, Wallsend ("the Second No 27 Order") a copy of which is annexed to these orders and marked "C".
3. In default of the First Respondent complying with order 1(a) or 1(b), Newcastle City Council is at liberty to execute the Council's functions under s 678 of the Local Government Act 1993 by completing the work which is required to be carried out by the No 13 order and the First No 27 Order.
4. In default of the Second Respondent complying with order 2, Newcastle City Council is at liberty to execute the Council's functions under s 678 of the Local Government Act 1993 by completing the work which is required to be carried out by the Second No 27 Order.
5. The First Respondent and the Second Respondent, by themselves, their servants and agents, be restrained from obstructing, preventing or hindering the Newcastle City Council (whether acting by its servants, agents or contractors) from carrying out any work which is reasonably required to execute the Council's functions under s 678 of the Local Government Act 1993 to complete the work which is required by No 13 Order, the First No 27 Order and the Second No 27 Order.
6. Orders that, except as provided by Order 7, the First Defendant by himself, his servants and agents, be restrained from using the premises at 13 Andrea Close, Wallsend, and the premises at 27 Andrea Close, Wallsend for the purposes of collecting and storing motor vehicles, motor vehicle parts, and miscellaneous materials and objects, including without limitation:
(a) unregistered vehicles;
(b) scrap vehicles;
(c) vehicle parts;
(d) building materials;
(e) machinery;
(f) tyres
(g) furniture;
(h) building waste;
(i) scrap metal.
7. Order 6 does not apply to the storage of not more than 5 motor vehicles for repair and restoration and a reasonable quantity of parts for the repair and restoration of such motor vehicles, at 13 Andrea Close, Wallsend provided
(a) all parts are kept inside a garage or shed on the premises; and
(b) no more than 2 vehicles are stored on a hardstand area in the rear yard of the premises at 13 Andrea Close, Wallsend and otherwise such vehicles are stored in a garage or shed, and
(c) the storage of such vehicles is ancillary to the residential use of those premises.
8. Orders that except as provided by order 9, the Second Defendant by herself, her servants and agents, be restrained from using the premises at 27 Andrea Close, Wallsend for the purposes of collecting and storing motor vehicles, motor vehicle parts, and miscellaneous materials and objects, including without limitation:
(a) unregistered vehicles;
(b) scrap vehicles;
(c) vehicle parts;
(d) building materials;
(e) machinery;
(f) tyres;
(g) furniture;
(h) building waste;
(i) scrap metal.
9. Order 8 does not apply to the storage of not more than 4 motor vehicles for repair and restoration and a reasonable quantity of parts for the repair and restoration of such motor vehicles at 27 Andrea Close, Wallsend, provided
(a) all parts are kept inside a garage or shed on the premises; and
(b) no more than 2 such vehicles are stored on a hardstand area in the rear yard of the premises at 27 Andrea Close, Wallsend and otherwise such vehicles are stored in a garage or shed, and
(c) the storage of such vehicles is ancillary to the residential use of those premises.
10. Orders the First Respondent and the Second Respondent to pay the Applicant's costs as agreed or as assessed.
Exhibits A, B, C attached:
Exhibit A (PDF)
Exhibit B (PDF)
Exhibit C (PDF)
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Decision last updated: 28 February 2013
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