North Sydney Council v Gilmour

[2009] NSWLEC 93

Land and Environment Court

of New South Wales

CITATION:	North Sydney Council v Gilmour [2009] NSWLEC 93
PARTIES:	PLAINTIFF North Sydney Council DEFENDANT John Gilmour
FILE NUMBER(S):	41323 of 2008
CORAM:	Pain J
KEY ISSUES:	CIVIL ENFORCEMENT :- exercise of discretion to enforce order under Local Government Act 1993 and condition of development consent under Environmental Planning and Assessment Act 1979
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Local Government Act 1993 s 124 North Sydney Local Environmental Plan 2001 cl 10, cl 11, cl 12 Uniform Civil Procedure Rules 2005 r 42.1
CASES CITED:	Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
DATES OF HEARING:	10 June 2009
EX TEMPORE JUDGMENT DATE:	10 June 2009
LEGAL REPRESENTATIVES:	PLAINTIFF Mr A Pickles SOLICITOR HWL Ebsworth Lawyers DEFENDANT In Person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

10 June 2009

41323 of 2008 North Sydney Council v Gilmour

EX TEMPORE JUDGMENT

1 Her Honour: The Council has commenced proceedings to enforce a development consent issued under the Environmental Planning and Assessment Act 1979 (the EP&A Act) and an order issued under s 124 of the Local Government Act 1993 (the LG Act). The order is issued under order no 27 in the table to s 124 concerning the removal of a structure from public land at Cremorne Point next to the tram shed occupied by the Defendant and his family. Exhibit B shows the location of the tram shed immediately adjacent to Sydney Harbour next to public land and fronting Milson Road near the Cremorne wharf and Robertsons Point.

2 In the alternative the Amended Points of Claim (APOC) allege that the hoarding fence erected on public land by the Defendant to enclose an area of public land adjacent to his land is prohibited as a permanent structure (APOC par 19-22). Further, the extension of that fence onto the Defendant’s land is not in accordance with the development consent. That fence requires development consent because the site is heritage listed and the fence is not exempt development (APOC par 23-24). The Council was represented by counsel. The Defendant represented himself.

3 There is no dispute about the circumstances detailed in the affidavits of Mr Long Huynh, environmental health and building officer for North Sydney Council, affirmed 23 December 2008 and 16 April 2009 which were relied on by the Council. Mr Huynh’s first affidavit annexes a copy of the development consent granted by the Council to the Defendant for the conversion of the tram shed into a residential dwelling, a letter from the Council giving notice of its intention to issue an order for the removal of the construction fence, the Defendant’s response via his consultant planner Andrew Darroch requesting that the order not be served and that discussions between the parties continue, and the final order served by the Council. Mr Huynh’s second affidavit identifies the Defendant’s land as a heritage item in the North Sydney local government area and states that a fence constructed on a heritage site is not exempt development. Mr Huynh’s affidavit sets out his observations of the site during two inspections in September 2008. Photographs taken at these inspections were annexed to his affidavit along with a map of the site and a map of the surrounding area.

4 The Defendant was granted development consent (DA 54/02) to refurbish the heritage listed tram shed on Sydney Harbour at Cremorne Point on 19 September 2002. The tram shed is zoned Residential D under the North Sydney Local Environmental Plan 2001 and dwellings are permissible with development consent. Condition F3 of the consent stated:

1. If the work involved in the erection or demolition of a building:-

a hoarding or fence must be erected between the work site and the public place
2. If necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into public place.
3. The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place.
4. Any such hoarding, fence or awning is to be removed when the work has been completed.

5 The permanent fencing approved under that development consent by the Council was for a paling fence of 1.5m in height on the boundary of the Defendant’s land.

6 The Defendant completed the refurbishment and was issued with a final occupation certificate in January 2008. The hoarding fence allowed by condition F3 remained in place until after the Notice of Intention to Issue an Order dated 7 April 2008. The Defendant then moved the temporary hoarding fence to a parallel location on the public land also next to the Defendant’s house. It now runs partly on public land and partly inside the boundary of the Defendant’s land. The order issued under s 124 of the LG Act was served on the Defendant on 16 May 2008.

7 There has been a change on the neighbouring public land (zoned public open space under the LEP) after the development consent was granted as the Council has relocated a bus shelter within a metre of the Defendant’s land. This has caused overcrowding in this area, according to the Defendant. The present gate access to the Defendant’s land is not on his boundary but is within his land in the new temporary hoarding fence next to the bus stop. If the gate was on the boundary it would be one metre from the bus shed.

8 An affidavit of Greg Mossemenear, executive planner for North Sydney Council, sworn 22 May 2009 was read for the Council. Mr Mossemenear sets out the planning history of the site including details of the 2002 development consent and the subsequent alienation of public land by the Defendant. He states that there are no safety issues warranting alienation of the public land and that the Defendant would have been aware of any private security concerns before the DA was lodged. Mr Mossemenear states that the current fence has an adverse visual impact because it is not in keeping with the heritage character of the area and is in a highly visible location. The fence that was rebuilt after the Defendant removed the fence he originally erected was relocated approximately one to two metres east of its original location and continues to enclose public land.

9 An affidavit of Robert Johnstone, co-chair of the Cremorne Point Precinct, sworn 22 May 2009 was read for the Council. Mr Johnstone recalls the fencing being erected at the beginning of the construction phase of the development of the Defendant’s property in 2006. He states that the Precinct entered into ongoing correspondence with the Council concerning the fencing due to comments and complaints from members of the local community at Precinct meetings. He states that the reserve adjacent to the site is well used by local residents and visitors. Mr Johnstone attests that the fencing remains an encroachment on the reserve by preventing access to the sandstone seawall and enclosing a group of casuarina trees and the fencing appears to be crudely erected construction hoarding.

10 The Defendant swore two affidavits dated 4 May 2009 and 4 June 2009 which were read in part. The first of these affidavits sets out his concerns for the security of his premises after a number of break-ins during construction at the site. Annexed to his affidavit is a letter dated 16 April 2000 addressed to the commander of the Harbourside police command setting out his concerns about the fence and security of the site and seeking a crime risk assessment be produced for the purpose of these proceedings.

11 The Defendant’s second affidavit describes his acquisition of the site, lodgement of the development application, the problems in commencing construction due to the location of the bus shelter on his premises and the bus shelter’s subsequent relocation. The Defendant states that he constructed the temporary hoarding fence on public land to prevent public access to the private premises. The fence was moved to its current position after the Defendant received the Notice of Intention to Issue an Order. This was done in order to maintain the security of the property as a temporary measure in anticipation of the determination of an application to the Department of Lands made by the Council (the Council does not accept that it has any responsibility and obligation to make such an application). The Defendant describes his ongoing concerns about security if the existing fence were to be removed based upon anti-social behaviour that occurs in the surrounding public areas. He states that the public land blocked by the fence does not serve any public amenity purpose.

12 The Defendant otherwise relies on an affidavit of Detective Inspector Robert Monk of North Sydney Police sworn 3 June 2009 which identifies some of the policing difficulties in the area due to the sheer volume of persons visiting the area either to commute by ferry or for sight seeing and recreation on Sydney Harbour. There are community celebrations including New Years Eve and Australia Day where large crowds come to the foreshore area. The area is prone to experiencing significant community disruption and public order management issues caused mostly by noise and alcohol fuelled anti-social activities but also general crime including property and larceny offences. Detective Inspector Monk is aware of several break, enter and steal offences occurring at the Defendant’s premises. He states that the site requires constant patrolling by police as a crime prevention measure. The current fence optimises the security benefit for the Defendant’s premises and concerns are raised as to the adequacy of the fence which the Council has given consent to both in terms of security for the Defendant and for policing of the surrounding areas. This material raises issues which would be potentially relevant were this a Class 1 merit appeal concerning a development application by the Defendant but these are Class 4 enforcement proceedings. The Defendant raises as a relevant matter the safety of his family and the need to maintain privacy which necessitate in his view the enclosing of the public land adjacent to his land for private open space.

Council’s submissions

13 The Defendant has largely admitted the matters alleged in the APOC and otherwise raises a large number of issues on discretion that are irrelevant. The relevant authority in relation to the exercise of the Court’s discretion is Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335. The public interest clearly favours the enforcement of development consent conditions and that public land should not be alienated at will for private benefit. These considerations overwhelm any desire on the part of the landowner to provide secure fencing for the premises.

Defendant’s submissions

14 The Defendant raised a number of matters which were said to be relevant to the exercise of the Court’s discretion. One argument which I ruled was irrelevant to the exercise of my discretion was that there was some obligation on the Council to organise a land swap of the public land now enclosed by the temporary fence with an equivalent area of the Defendant’s land which he is willing to give up for public use. That is an issue entirely to be resolved, or not, between the parties and has no relevance to the matters before me.

15 In his written submissions the Defendant raised the issue that the Council’s s 124 order did not comply with the rules of natural justice. Section 130 of the LG Act states that if the division is complied with then the rules of natural justice have been complied with. The evidence discloses that the notice requirements of the Act and the content of the notice as specified in s 132 and 134 have been complied with. There is no further requirement under the LG Act for the Council to provide the Defendant with a further opportunity to be heard, contrary to the Defendant’s submissions. There is no basis for this argument to be upheld.

16 The Defendant also argued in his written submissions that he was owed a duty of care by the Council to be provided with a safe living environment as it had approved his land for residential use. I do not agree the Council owes him a duty of care in the way articulated in his submissions and the case law relied on does not support that argument. Any claim in negligence which the Defendant considers he has in relation to the council’s actions (about which I make no finding) cannot arise in these proceedings in this Court.

17 The Defendant seeks a period of 12 months to engage in further discussion with the Council about a land swap and to lodge a development consent for a different fence and gate access. The Council’s counsel confirmed from the bar table that the present development consent would allow a gate to be located anywhere on the boundary fence for which consent has been granted, provided that it opens inwards if along the pavement and is of the same height and appearance as the boundary fence which the Council has approved already. A letter to that effect will be sent to the Defendant by the Council’s in-house lawyer within 48 hours.

Finding

18 The Defendant does not dispute that he has erected a fence on the public land next to his house and on his own land in a location different to that approved by the Council. It is clear that the fence on public land is not permitted by the development consent (DA 54/02). The original fence erected pursuant to condition F3 has been moved but the present hoarding fence continues to enclose public land immediately adjacent to the harbour, resulting in its alienation. The wording of the s 124 order is sufficiently broad to encompass the more recently erected hoarding fence on public land next to the Defendant’s land. The order has not been complied with.

19 Further condition F3(4) of the development consent was not complied with as the original fence was not removed at the time the occupation certificate was issued in January 2008. As already noted it was relocated this year before the s 124 order was served on the Defendant. The relocated hoarding fence does not have the necessary development consent as a temporary structure on public land and it is presently constructed without the necessary consent. The evidence and admissions of the Defendant suggest that I should make the declarations sought by the Council.

20 As submitted by the Council’s counsel the main issue is the exercise of my discretion in this matter whether to make orders for relief as sought by the Council. The exercise of that discretion is more limited than the Defendant has submitted. The Defendant has sought to raise issues that would more properly arise if the Court was considering a Class 1 merit appeal. There is also a failure in the Defendant’s submissions to recognise the importance of complying with the conditions of development consent he has obtained from the Council. Essentially all that can be considered is whether the unauthorised fence should be allowed to remain for a period of time or be removed forthwith. The s 124 order specified a period of 21 days for compliance.

21 A telling matter in relation to the exercise of the limited discretion the Court has to enforce the order and the consent is that a permanent fence on the public land is prohibited development under the North Sydney Local Environmental Plan 2001 (the LEP) clauses 10, 11 and 12. If development consent was sought for this fence to be installed as a permanent fence it would not be granted by the Council. To have it remain in the present location as a temporary fence also requires development consent from the Council. None has been sought by the Defendant although the requirement to comply with condition F3(4) arose in January 2008, well over twelve months ago.

22 The issues of safety and privacy raised by the Defendant to support what would be alienation of public land to facilitate the use of and provide a benefit to private land if the current temporary hoarding fence remains are not sufficient to justify departure from an important public policy principle of ensuring that public land remains in the hands of the public for their enjoyment. Unilateral enclosure of public land without legal sanction should not be encouraged as a matter of public policy. As identified in the affidavit of Mr Mossemenear, the Defendant has chosen to live with his family immediately next to and surrounded by a popular public area right on the harbour at Cremorne Point. It is not a responsibility of the Council to ensure through the alienation of public land adjacent to the private land that the use of that land is carried out in the way the Defendant wishes. Nor should the Court encourage such a practice. This view is further confirmed by the affidavit of Mr Johnstone of the precinct committee who attest to the public use of the area.

23 I consider such an approach is consistent with the principles raised by Kirby P in Sedevcic at 339-340 particularly guideline 4, which emphasises that the Council is enforcing a public duty under the EP&A Act to enable the integrated and co-ordinated nature of planning law. Guideline 5 refers to the intention of the Act being that those engaging in development will comply with the terms of the legislation. There are no special circumstances which suggest that the Defendant should not be required to comply with the development consent and s 124 order. The removal of the temporary hoarding fence is not time consuming or costly for the Defendant.

24 The temporary fence is unsightly in any event and that is another reason for its removal sooner rather than later. The Defendant’s offer to build it as a more permanent structure overlooks the fact that such development is prohibited. The Court would be very reluctant to sanction development that is otherwise prohibited.

25 I am also mindful that the Defendant presently has development consent for a boundary fence to protect his property. This can be constructed within 28 days. The fence on public land can be removed in the same time frame. I will ask the Defendant if he wishes to maintain the existing gate and fence on his own land for which he does not currently have consent. This could remain for a period to enable him to lodge a s 96 modification application if he wishes.

26 An order for the removal of the existing hoarding fence on public land next to the Defendant’s land within 28 days should be made. The order should restrain the erection of any temporary fence in this public area without the necessary development consent. No order is needed in relation to the erection of the boundary fence for which there is already development consent but I note that the Defendant considers this can be erected in 28 days also.

27 It is outside the issues the Court can consider as to whether there should be a land swap with the Defendant and whichever government entity owns the public land. The making of these declarations and orders will not affect the Defendant’s ability to lodge any further development application that he wishes and to engage in any negotiations with the Council or other government entity that both parties consider appropriate.

Costs

28 The Council seeks an order that its costs of the summons be paid by the Defendant. It has been successful in obtaining orders and has been put to the expense of commencing these proceedings.

29 The Defendant opposes the making of such an order. He has tried at all times to negotiate with the Council and achieve an outcome by way of mediation but has not been able to achieve that outcome. He has co-operated with the rebuilding of the tram shed. He submits the appropriate order is that each party pay their own costs.

30 Costs in Class 4 proceedings are dealt with under r 42.1 of the Uniform Civil Procedure Rules 2005. The Council has been successful in these proceedings and there is no disentitling conduct suggesting it should not get its costs.

31 A draft form of declaration and orders will be provided to the parties for further consideration before finalising the matter today.