Shoalhaven City Council v Bonner - [2010] NSWLEC 251

Land and Environment Court

of New South Wales

CITATION: Shoalhaven City Council v Bonner [2010] NSWLEC 251

PARTIES:
APPLICANT:
Shoalhaven City Council
FIRST RESPONDENT:
Glen Michael Bonner
SECOND RESPONDENT:
Kim Louise Bonner

FILE NUMBER(S): 40474 of 2010

CORAM: Biscoe J

KEY ISSUES: CIVIL ENFORCEMENT :- order for removal of unlawfully constructed dwelling – stay of order for about three years – order that respondents be restrained from using or permitting the use of the land as a dwelling – order stayed for about nine months.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 124

CASES CITED: ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67
Barton v Orange City Council [2008] NSWLEC 104
Canterbury Municipal Council v Perri (1982) 47 LGRA 111
Permewan Wright Consolidated Pty Ltd v Attorney General (1978) 35 NSWLR 365
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Woollahra Municipal Council v Carr (1982) 47 LGRA 105

DATES OF HEARING: 17-19 November 2010

DATE OF JUDGMENT:
2 December 2010

LEGAL REPRESENTATIVES:
APPLICANT:
Mr A Galasso SC with Mr M Seymour
SOLICITORS:
RMB Lawyers
RESPONDENTS:
Mr I Hemmings
SOLICITORS:
Access Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

2 December 2010

40474 of 2010

SHOALHAVEN CITY COUNCIL v BONNER

JUDGMENT

INTRODUCTION

1 HIS HONOUR: This is the first legal proceeding that the Shoalhaven City Council has taken for the demolition or removal and cessation of residential use of one of the many dwellings and other structures unlawfully constructed over the last quarter of a century on lots in the Jerberra Estate at Tomerong, south of Nowra.

2 The Jerberra Estate is a 1922 paper subdivision of about 150 lots. Planning controls affecting the Estate were first introduced in 1964. Since 1985 the Estate has had a rural zoning which requires a minimum lot size of 40 hectares under the Shoalhaven Local Environmental Plan 1985. The lots in the Estate vary in size but are all less than two hectares.

3 The Estate ceased to be in two ownerships in the 1980s. Since then, despite the zoning, many owners have unlawfully constructed dwellings and other structures on lots in the Estate and have lobbied for a rezoning which would make such construction lawful.

4 Since the 1990s the Council has been lobbying State government agencies to rezone the Estate so as to permit a dwelling on each lot, but without success. The point has been reached where other rezoning options are being considered by the State government and the Council under which there is a prospect of a rezoning that might permit a construction certificate to be issued to protect structures unlawfully constructed on lots in the Estate or on some of them, albeit this may require amalgamation of lots or a pooling/community title structure.

5 In 2003 the respondents, Glen and Kim Bonner, purchased Lot 62 in the Estate. They constructed a relocatable dwelling and a garage on Lot 62 in 2004; lived in the dwelling…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWLEC 251
Decision Date: 2 December 2010

CaseChat Overview and Summary

In Shoalhaven City Council v Bonner, the court considered whether to grant the Council's application for orders requiring the respondents, Glen and Kim Bonner, to remove a dwelling and associated structures constructed without consent on Lot 104 in the Jerberra Estate at Tomerong, and to cease using the lot for residential purposes. The Bonners admitted that their construction was unlawful, as the zoning did not permit a dwelling on the lot. The primary issue was the length of any stay on the orders for removal and cessation of residential use. The Council sought a three-year stay on the removal order, and a three-month stay on the cease use order. The Bonners sought a three-year stay on both orders, or alternatively a stay until September 2011. The court considered the conduct of the parties, and the Bonners' personal circumstances, which included the imminent birth of their fourth child and their modest financial position. The court concluded that a nine-month stay on the cease use order was appropriate to allow the Bonners some breathing space and a window of opportunity for potential rezoning. The orders made were that the Bonners must remove the dwelling and associated structures, but this order is stayed until December 2013; the Bonners are restrained from using the lot for residential purposes, but this order is stayed until September 2011; and the Bonners have liberty to apply to permanently stay the orders if the Estate is rezoned to permit a dwelling on the lot. Costs were reserved.

Orders