Shellharbour City Council v Cooper

[2010] NSWLEC 122

Land and Environment Court

of New South Wales

CITATION:

Shellharbour City Council v Cooper [2010] NSWLEC 122

PARTIES:

APPLICANT
Shellharbour City Council

FIRST RESPONDENT
Paul Cooper

SECOND RESPONDENT
Antonia Cooper

FILE NUMBER(S):

40321 of 2010

CORAM:

Pepper J

KEY ISSUES:

INJUNCTIONS AND DECLARATIONS :- development without consent - storage of a shipping container - failure to comply with an order given by council for removal - consent orders made

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 ss 76A(1), 121B and 125
Shellharbour Local Environmental Plan 2000

CASES CITED:

Shoalhaven City Council v FB & FA McMahon Pty Ltd [2009] NSWLEC 122

DATES OF HEARING:

9 July 2010

EX TEMPORE JUDGMENT DATE:

9 July 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Cottom
SOLICITORS
Kells The Lawyers

RESPONDENTS
Mr P Cooper (in person)
SOLICITORS
N/A

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

9 July 2010

40321 of 2010 Shellharbour City Council -v- Paul Cooper & Antonia Cooper

EX TEMPORE JUDGMENT

Introduction

1 HER HONOUR: Shellharbour City Council (“the council”) originally sought by way of summons filed 29 April 2010, declaratory relief against the respondents, Mr Paul Cooper and Ms Antonia Cooper, for carrying out development on land (described as Lot 2051 DP 871363 and otherwise known as 38 Brindabella Drive, Shell Cove) (“the property”) for the purpose of storage of a shipping container. This was development that was carried out without development consent and therefore was in breach of s 76A(1) of the Environmental Planning and Assessment Act 1979 (“EPAA”).

2 The council also sought declaratory relief against the respondents for failing to comply with an order served on them by the council under s 121B of the EPAA on 3 February 2010, to cease the carrying out of the unlawful development. The council also sought an order that the respondents remove the shipping container within 28 days.

3 The parties have now reached agreement as to the orders they seek the Court to make. The orders are the declarations sought originally in the summons filed by the council. Because the Court should not make declaratory orders without being satisfied that those orders are appropriate, the parties have put before the Court a statement in support of the proposed orders as evidence sufficient for the Court to attain the requisite level of satisfaction (see Shoalhaven City Council v FB & FA McMahon Pty Ltd [2009] NSWLEC 122 at [2]).

Evidence in Support of Consent Declaratory Relief

4 The statement in support of the proposed consent order reveals the following facts. The respondents are the registered proprietors (as joint tenants) of the property. On 12 March 2009, the council received a report regarding a shipping container stored on the front yard of the property. Since at least that date the shipping container has been present on the front yard. A surveyor employed by the council has determined that the container encroaches onto the Brindabella Drive road reserve by approximately 350 mm.

5 On 5 June 2009, the council gave the respondents notice of its intention to issue an order under s 121B of the EPAA. That order would require the respondents to remove the shipping container within 28 days. It afforded the respondents the opportunity to make representations to the council as to why the order should not be made or as to some alternate period of compliance with the order.

6 Photographs were taken of the shipping container by an officer of the council on 24 August 2009. The photographs clearly show the size of the shipping container and its location at the front of the respondents’ property.

7 On 3 February 2010, the council served on the respondents the order that it had foreshadowed by the notice of intention served on 5 June 2009. The order sought that the shipping container be removed. The order gave five reasons for the removal, namely, because the container:

a. with a floor area exceeding 10m ² , is installed on your property without prior development consent, contrary to Section 3.15.7 of the Shell Cove Development Control Plan .

b. is located forward of the 4.5m front building line setback contrary to Section 3.5.3 (2)(iv) of the Shell Cove Development Control Plan .

c. is not visually attractive and does not blend with surrounding development because the external materials are not integrated with the design of the dwelling contrary to Section 3.15 of the Shell Cove Development Control Plan .

d. bulk, height and location obstructs views of the footpath and street in an easterly direction lowering pedestrian and vehicular safety as vehicles leave the western adjoining property

e. is located partially on the footpath reserve.

8 The order stated that the respondents had a right of appeal to this Court within 28 days of the service of the order. The order noted that failure to comply with it was an offence under s 125 of the EPAA. The order set out the maximum penalties for the offence. It also advised that if the order was not complied with, the respondents could be liable for a penalty infringement notice of $1,500.

9 No development consent has ever been obtained by the respondents or anyone else authorising development for the purpose of the storage of a shipping container on the property.

10 It is clear from the applicable legislative instruments that development consent is required for the purpose of storage of the shipping container on the property. So much so is apparent from the definition of “temporary structure” and “building” contained in s 4(1) of the EPAA. Furthermore, because the property falls under the Shellharbour Local Environmental Plan 2000 (“the LEP”), and in particular, is located within Zone 2 (f) (the Mixed Use Residential F Zone under that instrument), subcls 2-5 of cl 24 of that LEP provide the following general controls for development on the land within the zone:

(2) Objectives of the zone

(a) To allow for mixed use residential neighbourhoods to be developed providing for a range of household preferences and needs.

(b) To enable the development of a regional boat harbour facility and associated commercial and recreational activities.
(3) Allowed without development consent
Exempt development and development for the purpose of:
home-based child care; home businesses; home occupations (excluding an occupation or industry involving the handling or preparation (or both) of food for sale or the carrying out of skin penetration procedures as defined in the Public Health Act 1991 ).
(4) Allowed only with development consent
Development not included in subclause (3) or (5).
(5) Prohibited in the zone
Development for the purpose of:
advertisements not displaying the purpose for which the land is used; amusements parks; animal boarding, breeding or training establishments; aquaculture; brothels; car repair stations; extractive industries; gas holders that are not ancillary to an allowable use or a use granted consent; generating works; heavy industries; heliports; institutions; intensive horticulture; intensive livestock keeping; junk yards; light industries (other than those associated with and including boat manufacture or repair); liquid fuel depots; mineral sand mines; mines; motor showrooms (other than for caravans, boats or trailers); offensive or hazardous industries; plantation forestry; racecourses; roadside stalls; road transport terminals; rural industries; sawmills; stock and sale yards; timber yards; turf farms; warehouses; waste management facilities or works.

11 It is clear having regard to the terms of the LEP that development for the purpose of the storage of a shipping container is not exempt development. Accordingly, as the council asserts, the respondents have breached s 76A(1) of the EPAA by failing to obtain consent.

Conclusion and Orders

12 Having regard to the uncontested evidence contained in the statement in support before me I am satisfied that it is appropriate to make the orders sought. Accordingly, I make the orders in terms of the consent orders that have been signed by both the council and Mr Paul Cooper and Ms Antonia Cooper.

13 The orders that the Court makes are as follows:

1. Declaration that the respondents have:

(a) carried out development on land described as Lot 2051 DP 871363 known as 38 Brindabella Drive, Shell Cove (“Land”) for the purpose of storage of a shipping container (“Structure”), being development which may only be carried out with development consent; and

(b) breached section 76A(1) of the Environmental Planning and Assessment Act 1979 (“EPAA”) by carrying out that development on the Land without first obtaining development consent.

2. Declaration that the respondents have breached the EPAA by failing to comply with an order given to them by the applicant on 3 February 2010 under s 121B of that Act in respect of the Land.

3. Order that the first and second respondents and each of them by themselves, their servants or agents, remove the Structure and its contents from the Land within 28 days of the date of this order.

4. Order that the respondents pay the applicant’s costs of the proceedings as agreed or assessed.
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