Queanbeyan City Council v Sun

[2012] NSWLEC 70

Land and Environment Court

New South Wales

Medium Neutral Citation:

Queanbeyan City Council v Sun [2012] NSWLEC 70

Hearing dates:

02/04/2012

Decision date:

02 April 2012

Jurisdiction:

Class 4

Before:

Lloyd AJ

Decision:

The Court:

1.Declares that the respondent has breached, and is in breach of section 76A(1) of the Environmental Planning and Assessment Act 1979 ("the Act") by carrying out development not in accordance with development consent no. 17-2003, as modified on 14 July 2004 ("the Modified Consent"), in respect of the land described as Lot 138 in Deposited Plan 8732 and known as 28 Aurora Place, Queanbeyan ("the Premises").

2.Declares that the respondent has breached, and is in breach of section 76A(1) of the Act by carrying out development not in accordance with development consent no. 463-2004 ("the Second Consent") in respect of the Premises.

3.Orders the respondent to comply with:

3.1condition 2 of the Modified Consent (so far as it relates to matters of fire safety); and

3.2 condition 2 (so far as it relates to matters of fire safety), and conditions 35-38 of the Second Consent, within 14 days of the date of this order.

4.Orders the respondent to comply with conditions 1, 2, 3, 4, 5-9, 20, 21, 23, 26, 30, 31, 32-34, 38, 39, 43 and 44 of the Modified Consent, within 90 days of the date of this order.

5.Orders the respondent to comply with conditions 2, 3, 17, 18, 19, 20, 23, 24, 26, 35, 36-38, 39 and 41 of the 'Second Consent, within 90 days of the date of this order.

6.Orders the respondent to pay the applicant's costs of the proceedings, as assessed or agreed.

7.Directs that these orders be entered forthwith.

Catchwords:

INJUNCTIONS and declarations - ex parte hearing - applicant required to prove all the facts entitling it to relief

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 76A(1), s 94, s 121B, s 121H, s 149
Queanbeyan Local Environmental Plan 1998

Cases Cited:

Jones v Sutherland Shire Council (1979) 40 LGERA 323

Category:

Principal judgment

Parties:

Queanbeyan City Council (Applicant)
Kuan Ren Sun (Respondent)

Representation:

T To (Applicant)
Herring & Associates Lawyers (Applicant)

File Number(s):

41226 of 2011

EX TEMPORE Judgment

1. The applicant, Queanbeyan City Council, seeks orders against the respondent claiming that the respondent is in breach of s 76A(1) of the Environmental Planning and Assessment Act 1979 in that the respondent has carried out the development consent not in accordance with a consent as modified and not in accordance with a subsequent consent.

1. The respondent has not appeared, but I am satisfied by the affidavit of Megan Tracy North that the respondent was duly served with the summons and the points of claim on this matter on 3 January 2012. I am further satisfied by the affidavit of Mr Herring, the Council's solicitor, that the respondent has been kept informed at all times of the various occasions when the matter was before the Court and of the fact that the matter has been set down for hearing today.

1. The relevant facts may be briefly described. The evidence shows that the respondent, Kuan Ren Sun, is the owner of a property known as 28 Aurora Avenue Queanbeyan. A certificate issued under s 149 of the Act shows that the premises are located within 4A Industrial Zone A under the Queanbeyan Local Environmental Plan 1998. Under that instrument it is clear that consent is required for what the respondent is doing on the land. On 18 January 2003 the respondent by his architect lodged with the Council a development application to erect a new industrial building on the land. That application was approved on 13 June 2003.

1. On 28 May 2004 the respondent applied to modify the consent and the Council approved that application with conditions on 14 July 2004. On 29 September 2004 the respondent applied to the Council for approval to erect an extension to the building and to use those premises for structural steel fabrication. The Council approved that application with conditions on 23 November 2004.

1. Since 30 November 2009 Mr Peter Reynders of the Council has conducted a number of inspections of the property and found that the premises are being used and that a number of conditions are not being complied with, in particular, a number of conditions related to fire safety within the premises. As a result of these observations, on 4 January 2010 the Council issued the respondent with a notice of proposed order, under s 121H of the Act. On 9 April 2010 the Council withdrew the notice of proposed order and issued a further notice of proposed order under s 121H of the Act.

1. The Council did not receive any correspondence from the respondent in response and on 5 May 2010 it issued the respondent with an order under s 121B of the Act. That order has not been complied with.

1. Further inspections by Mr Reynders disclose that a large number of conditions of both the modified consent and the second consent have not been complied with. On 5 March 2012, in particular, a joint inspection was carried out of the premises by Mr Reynders and Mr Phillip Coman, the Council's building surveyor, which disclosed that a large number of matters specified in the order under s 121B had not been complied with. In addition to the failure to carry out the required physical work on the premises, the evidence satisfies me that the respondent has also not made payments to the Council of contributions payable under s 94 of the Act, has not submitted to the Council a waste management plan as required by condition 38 of the modified consent, has not submitted a final fire safety certificate to the Council as required by condition 37 of the consent, and has not submitted to the Council any annual fire safety statements as required by condition 38 of the second consent.

1. The Council seeks both declaratory relief and orders requiring the respondent to comply with the various conditions within specified times. Where a person seeks a declaration he has to prove all the facts which are necessary to enable the declaration to be obtained; that is, the applicant takes it upon himself to prove all the conditions necessary to be established, including matters which he could require the other party to prove if he were the respondent: see Jones v Sutherland Shire Council (1979) 40 LGERA 323 at 327. In the present case Council has satisfied me that the orders that it seeks and the declarations that it seeks are proper and necessary in the circumstances, particularly since some of the conditions relate to a question of fire safety.

1. Accordingly, I make the declarations and orders specified in the draft set of orders that has been supplied.

The Court:

1. Declares that the respondent has breached, and is in breach of section 76A(1) of the Environmental Planning and Assessment Act 1979 ("the Act") by carrying out development not in accordance with development consent no. 17-2003, as modified on 14 July 2004 ("the Modified Consent"), in respect of the land described as Lot 138 in Deposited Plan 8732 and known as 28 Aurora Place, Queanbeyan ("the Premises").

2. Declares that the respondent has breached, and is in breach of section 76A(1) of the Act by carrying out development not in accordance with development consent no. 463-2004 ("the Second Consent") in respect of the Premises.

3.   Orders the respondent to comply with:

3.1.   condition 2 of the Modified Consent (so far as it relates to matters of fire safety); and

3.2.   condition 2 (so far as it relates to matters of fire safety), and conditions 35-38 of the Second Consent, within 14 days of the date of this order.

4.   Orders the respondent to comply with conditions 1, 2, 3, 4, 5-9, 20, 21, 23, 26, 30, 31, 32-34, 38, 39, 43 and 44 of the Modified Consent, within 90 days of the date of this order.

5.   Orders the respondent to comply with conditions 2, 3, 17, 18, 19, 20, 23, 24, 26, 35, 36-38, 39 and 41 of the 'Second Consent, within 90 days of the date of this order.

6.   Orders the respondent to pay the applicant's costs of the proceedings, as assessed or agreed.

7.   Directs that these orders be entered forthwith.

The exhibits may be returned.

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