Palmer v Auburn City Council
[2011] NSWLEC 82
•11 May 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Palmer v Auburn City Council [2011] NSWLEC 82 Hearing dates: 11 May 2011 Decision date: 11 May 2011 Before: Sheahan J Decision: 1. The applicant's Notice of Motion is upheld in part, namely as to the time for compliance with the order challenged.
2. The substantive order is confirmed, but the time for compliance is extended to 31 January 2012.
3. The applicant is ordered to pay 50% of the Council's costs on the Notice of Motion, on a party-party basis, as agreed or assessed.
4. Exhibit C1 may be returned to the Council.
Catchwords: PRACTICE AND PROCEDURE: application to have orders of a Commissioner in a class 1 appeal varied; application refused as to substance of order, but time for compliance extended; finality of litigation Legislation Cited: Land and Environment Court Rules 2007 Cases Cited: Palmer v Auburn City Council [2010] NSWLEC 1308 Category: Procedural and other rulings Parties: Mr Raymond Palmer (Applicant)
Auburn City Council (Respondent)Representation: Mr R Palmer (Applicant in person)
Mr A Hudson, Solicitor
Applicant in person
Wilshire Webb Staunton Beattie (Respondent)
File Number(s): 10682 of 2010
EXTEMPORE Judgment
This is a Notice of Motion seeking a variation in orders made by Commissioner Hussey regarding a shed built without consent at 71 Victoria Street West, Lidcombe.
The applicant in the proceedings and on the motion, Mr Raymond Palmer, is a casual school teacher of modest means, with a collector's interest in vintage or classic Humber motor cars which, along with spare parts, need to be stored out of bad weather. He built the relevant shed for that purpose, but without obtaining development consent, or a construction certificate.
Council issued a s 121B order on 2 August 2010, requiring demolition, and Mr Palmer appealed against it in class 1 of the court's jurisdiction. He was represented throughout the appeal by planner/solicitor Mr Damien Briggs. The documents in Exhibit C1 indicate a lengthy debate between the parties over the shed, dating from October 2006, and construction began in March 2007. Council gave " notice of intention " on 9 August 2007. The detailed and relevant history of the dispute was placed before the Commissioner in a ten page joint statement of facts and contentions, and need not be repeated here, save to note that Council refused a building certificate on 10 March 2010.
Commissioner Hussey heard the appeal on 9 November 2010, largely on site. Council compromised its position and conceded it would accept a smaller structure. Commissioner Hussey accepted the compromise and gave judgment next day ([2010] NSWLEC 1308). Mr Palmer was and remains unhappy that the outcome will give him only three car spaces, and says that he will have to obtain off-site storage which he cannot afford.
Commissioner Hussey (at [15]) did not consider Mr Palmer's position on the matter "reasonable in the circumstances ". He noted (at [29]) that Mr Palmer had existing on-site parking for a further four vehicles, and explained his conclusions at some length ([16]-[30]), based as they were on detailed observations in the locality, where the controls allow for a maximum of two covered spaces per dwelling. He made a new order requiring the partial demolition, as conceded by the Council. Detailed orders were then negotiated and were ultimately made by the Commissioner, in chambers, on 31 January 2011.
This present Notice of Motion was filed on 11 March by Mr Palmer, now acting for himself. It seeks amendments to the plan annexed to the Order, representing a substantial moderation of the impact on the illegal structure. It also seeks an extension of time for compliance beyond the date stipulated, namely 21 May 2011. He told the court he has always acted in good faith, but the Council behaves inconsistently, and has taken a " draconian " approach, " too harsh " in the circumstances of his case. His proposal will cost him one space, but achieve a better environmental outcome.
The Commissioner's order has not been entered, so the court can entertain, under Land and Environment Court Rules 2007 r 7.6, a motion to vary it, but the discretion is to be sparingly exercised, due to the public interest in the finality of litigation. The intervention must serve the interests of justice in all the circumstances - this is not, and cannot be, an appeal against Commissioner Hussey's order.
In a s 56A appeal, Mr Palmer would need to prove an error of law, but none is asserted. I allowed him a great deal of latitude, however, to explain his case on the merits.
In essence, Mr Palmer has sought a total review of the Commissioner's consideration and decision, which, as I have noted, were characteristically expert and thorough. Such a general reopening of the case cannot be allowed under the Rule. Clearly the Commissioner heard all Mr Palmer has now put before me, and then reached his decision. The Council took a conciliatory approach which found favour with the Commissioner, and further discussions followed. The court acknowledges Mr Palmer's sense of regret about the outcome, but cannot accede to the amended proposal now advanced in his affidavit of 12 April 2011.
Council is prepared to allow Mr Palmer a further six months to comply. Mr Palmer has sought 26 months on the grounds of financial hardship, past, present and future. The court will allow him until 31 January 2012.
Having largely failed in this Notice of Motion he must bear some of the Council's costs.
I, therefore, make the following orders:
1. The applicant's Notice of Motion is upheld in part, namely as to the time for compliance with the order challenged.
2. The substantive order is confirmed, but the time for compliance is extended to 31 January 2012.
3. The applicant is ordered to pay 50% of the Council's costs on the Notice of Motion, on a party-party basis, as agreed or assessed.
4. Exhibit C1 may be returned to the Council.
Decision last updated: 11 May 2011
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