Shoalhaven City Council v Bonner
[2010] NSWLEC 251
•2 December 2010
Land and Environment Court
of New South Wales
CITATION: Shoalhaven City Council v Bonner [2010] NSWLEC 251 PARTIES: APPLICANT:
Shoalhaven City CouncilFIRST RESPONDENT:
SECOND RESPONDENT:
Glen Michael Bonner
Kim Louise BonnerFILE 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 105DATES OF HEARING: 17-19 November 2010
DATE OF JUDGMENT:
2 December 2010LEGAL REPRESENTATIVES: APPLICANT:
Mr A Galasso SC with Mr M Seymour
SOLICITORS:
RMB LawyersRESPONDENTS:
Mr I Hemmings
SOLICITORS:
Access Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
BISCOE J
2 December 2010
40474 of 2010
JUDGMENTSHOALHAVEN CITY COUNCIL v BONNER
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 until it was destroyed by fire in December 2004; and lived in the garage and in a caravan on Lot 62 for a time thereafter.
6 In 2005 the respondents purchased Lot 104 (the Land) in the Estate and sold Lot 62. In 2008 they constructed a dwelling and associated structures on the Land. Their dwelling on the Land is the latest or among the latest dwellings to be unlawfully constructed on lots in the Estate.
7 They knew that it was unlawful to construct a dwelling on Lot 62 and on the Land because the zoning did not permit it and therefore no development consent could have, or had, been granted.
8 Mr Bonner estimates the costs of the development on the Land at about $250,000. The Land is subject to a bank mortgage of $100,000, the structures are insured at an annual premium of $1,200, and the respondents have received government rebates for items such as roof insulation and solar panelling.
9 In June 2008 the Council wrote a letter to the respondents requiring all works on the Land to cease immediately.
10 In this proceeding commenced by the Council in June 2010, the Council claims orders that the respondents demolish the structures on the Land and cease using the Land for the purpose of a dwelling on the basis that the respondents are in breach of the Environmental Planning and Assessment Act 1979 (EPA Act) in carrying out development on the Land without development consent. The respondents admit the breach.
11 On the first day of the hearing the parties agreed that the unlawful structures could not stay on the land indefinitely and that a demolition or removal order should be made but stayed for three years to allow a reasonable opportunity for the potential rezoning to occur and, in that event, for a building certificate to be obtained.
12 The sticking point was that the Council only agreed to a three month stay of an order requiring the respondents to cease using the land for the purpose of a dwelling; whereas the respondents sought a stay of that order for three years also.
13 Thus, the only remaining issue is a discretionary one concerning the period of stay of the cease use order.
14 The Council’s acceptance of a stay of the cease use order for three months, that is until about the end of February 2011, was on the basis that Mrs Bonner is due to give birth to her fourth child within about a month and the time of year (Christmas). The Council opposed the respondents’ proposed three years stay of the cease use order having regard to the respondents’ conduct and its expert evidence obtained shortly before the hearing regarding (a) bushfire risk arising from a sub-standard asset protection zone around the dwelling (Mr Rose), (b) a sub-standard effluent disposal system (Ms Lowe), (c) non-compliance with BCA requirements (Mr Vince), and (d) an environmental concern (Mr Coombes). Thanks to a period of plentiful rain, the council concedes that the bushfire risk this summer is not such as to bar the respondents from residing on the Land through this summer.
15 The respondents did not tender expert evidence on these issues except that Mr Bonner produced a BCA assessment from a Mr Ferguson who was not called as a witness. Mr Ferguson identified certain works which in his opinion would bring the structures on the Land up to BCA standard. Mr Vince for the Council generally concurred with Mr Ferguson subject to some significant points of difference. Mr Bonner also gave evidence that Mr Ferguson had said they would need a different effluent system and had recommended an Envirocycle system.
16 In its closing address the Council did not oppose a stay of the cease use order for a relatively short period in excess of three months, but opposed anything that was little less than three years.
17 In their closing address, the respondents’ primary position was that the cease use order be stayed for six months with provision for it to be stayed for three years if they carry out certain work to meet the bushfire, effluent disposal and BCA requirements, and they submitted that Mr Rose’s evidence as to the bushfire risk was unsatisfactory and that the environmental risk is not significant. Alternatively, the respondents proposed a stay until 30 September 2011 on the basis that they would not carry out any works, having regard to Mrs Bonner’s pregnancy, the respondents’ financial circumstances and the commencement of the 2011-2012 summer bushfire risk.
18 I accept the respondents’ alternative submission which is not opposed by the Council.
19 It is necessary to consider the conduct of the parties and the personal circumstances of the respondents in more detail.
20 A watershed event occurred on 19 October 2004. For the first time the council discriminated between existing development and future development on lots on the Estate when it resolved that:
- “Council continue to take appropriate legal action against any further unauthorised development since the date of the audit”.
21 Thus, there was a moratorium on legal action against existing developments but legal action would be taken against further developments. The audit was of existing structures on lots in the Estate. The audit commenced earlier in 2004 but the “date of the audit” is treated as 19 October 2004. The word “continue” was inapt since the council had never taken legal action against unauthorised development on lots in the Estate.
22 By letters dated 29 October 2004 and 29 December 2006 the Council twice notified the terms of that resolution to the respondents and all other owners of lots in the Estate. Therefore after 29 October 2004 the respondents were in no doubt of the threat of legal action if they built structures on a lot in the Estate, as they did on the Land in 2008.
23 On the other hand, the Council also notified owners of lots in the Estate that it was attempting to have the zoning changed to permit one dwelling per lot and imposed special levies on owners of lots in the Estate, including the respondents, to recover the estimated costs associated with the rezoning and in relation to the design and construction of public roads within the Estate. This seems to explain why the Council took no legal proceedings until the proceeding commenced in 2010 against any owners of lots in the Estate on which structures were built after 19 October 2004. Although the evidence is vague, since the latter date it appears that structures have been built on several lots in the Estate, and that in 2010 the council sent letters to the owners of those lots threatening legal proceedings. Mr Bonner is aware of those letters but feels that they were a response to criticism that the Council was discriminating against him and his family.
24 More needs to be said about the conduct of the parties since 2004.
25 On 23 February 2004 the Council wrote to the respondents stating that records indicated a building/structure had been constructed upon Lot 62; that Council had resolved in December 2003 that a detailed inspection be carried out on existing buildings/structures to ascertain compliance with BCA requirements, Planning for Bushfire Protection Guidelines and the relevant bushfire Australian Standard; and that existing effluent disposal systems would be inspected to determine compliance with environmental and public health requirements. The letter was in error as, at that time, there was no structure on Lot 62. The Council discovered the error and on 18 March 2004 wrote to the respondents stating that it had now amended its records and correctly identified Lot 62 as vacant as at 11 March 2004.
26 Following the construction by the respondents later in 2004 of a dwelling and garage on Lot 62, on 23 August 2004 the Council wrote to them noting that an inspection had revealed unauthorised development activities and requiring an undertaking that (among other things) they would not, without Council’s written consent, carry out any further unauthorised development activities.
27 After Mr Bonner had notified the Council that he was seeking legal advice, the Council wrote to the respondents on 14 September 2004 requesting them to show cause why legal proceedings should not be commenced against them for unauthorised development activities on Lot 62.
28 On 28 September 2004 Mrs Bonner wrote to the Council saying they had no other reasonable alternative form of accommodation.
29 On 29 October 2004 Council sent a letter to owners of lots in the Estate notifying them of the terms of its watershed 19 October 2004 resolution: see [20] above. In terms of that resolution, the structures which the respondents had built on Lot 62 earlier in 2004 were safe from legal proceedings.
30 In December 2004 the respondents’ house and belongings on Lot 62 were destroyed by a house fire. On 28 January 2005 Mr Bonner wrote to the Council advising of the destruction by fire and asking for permission to live in the garage and caravan on Lot 62, which were spared in the fire, as they had no other option but to live there. On 4 February 2005 the Council wrote to the respondents saying that the matter was being investigated. On 5 September 2005 the Council wrote again saying it had no legal ability to approve the occupation of the garage, that the Council was currently undertaking rezoning studies including in relation to Lot 62, that the outcome will take many months to finalise and that owners will be advised as the process proceeds.
31 On 29 December 2006 the Council wrote to owners of lots in the Estate updating on the progress of rezoning investigations, road design and constructions issues. The letter said Council did not have the legal ability to approve dwellings on individual lots in the estate and reiterated the resolution of 19 October 2004.
32 By August 2007 the Council estimated that there may be up to 100 persons residing in the Estate.
33 As previously stated, in 2008 Mr Bonner proceeded to construct a dwelling and associated structures on the Land.
34 On 8 April 2008 the council resolved to “issue a Notice of Intent to owners of unauthorised structures within the Jerberra Estate, Tomerong, detailing that as a result of the State Government failing to progress the rezoning of Jerberra Estate and deal with the matter satisfactorily that Council will have to take action to remove any unauthorised structures”. Unlike the 2004 resolution, this resolution did not distinguish between structures built before and after 19 October 2004. In fact, it appears that no notices of intent have been issued as contemplated by the 2008 resolution. The explanation may be that since then there has been progress with the State government towards rezoning of the Estate, albeit not in relation to Council’s preferred rezoning to permit one dwelling per lot.
35 On 19 June 2008 the Council wrote to the respondents stating that a recent inspection had revealed that unauthorised development activities had taken place upon the Land, including a dwelling, swimming pool and waste facility, for which no development consent had been granted. The Council required all work to cease immediately; confirmation that the respondents would not, without Council consent, carry out development, and an explanation as to why unauthorised works had taken place. A question has arisen as to whether Mr Bonner continued work after receipt of this letter. It appears that he did so in relation to internal finishes.
36 In September 2008 Mr Bonner was interviewed by Council compliance officers and admitted that he had carried out the works on the Land.
37 In October 2008 the respondents moved into the dwelling on the Land.
38 After the September 2008 interview the respondents heard nothing more from the Council about structures on the Land until receipt, on 8 April 2010, of a Council letter dated 25 February 2010 stating that as they had constructed a dwelling and other structures on the Land without development consent, they were required to show cause within 14 days why the Council should not immediately commence proceedings seeking, among other things, demolition and removal and that they be restrained from using the Land for the purpose of a dwelling.
39 Mr Bonner attempted to show cause in a letter he wrote to the Council on 8 April 2010.
40 By letter dated 13 April 2010 the Council’s lawyers indicated to the respondents in effect that they had 14 days to convince the Council not to commence proceedings seeking demolition and vacation.
41 Correspondence followed between the solicitors for the parties. On 11 May 2010 the respondents’ solicitors requested nine months to vacate the property. I accept Mr Bonner’s evidence that in fixing on that nine months he did not factor in his wife’s pregnancy of which he was then unaware. On 26 May 2010 the Council’s solicitors wrote that the Council would only be prepared to allow the respondents until 30 September 2010 to vacate the property and effect works to make it uninhabitable.
42 On 16 June 2010 the summons was served upon the respondents. At a directions hearing in July 2010 the Court suggested a mediation but the Council said it could not mediate.
PERSONAL CIRCUMSTANCES OF THE RESPONDENTS
43 The respondents have three dependent children aged 14, 10 and 16 months. Mrs Bonner is due to give birth to their fourth child in about a month, on Boxing Day 2010.
44 The respondents’ financial position is modest. Mr Bonner is employed full time as a truck driver. Mrs Bonner is employed two days per week. She will of course have to stop work when the fourth child is born. She has worked through the childhoods of their present children. With a child under two years of age and a newborn, she had intended to have a break from employment. However, if they have to vacate the Land and pay rent elsewhere, it will make it very difficult for the respondents to manage financially given that they also have to service a mortgage over the Land, particularly if Mrs Bonner is unemployed.
45 The Court has a wide discretion as to the orders it may make under s 124 of the EPA Act which relevantly provides:
(1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.“ 124 Orders of the Court
(2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may:
- (a) where the breach of this Act comprises a use of any building, work or land—restrain that use,
(b) where the breach of this Act comprises the erection of a building or the carrying out of a work—require the demolition or removal of that building or work...”
46 The authorities relating to the exercise of the discretion conferred by s 124 were surveyed by me in Barton v Orange City Council [2008] NSWLEC 104 at [43] ff. The discretion is not a warrant to set at nought the sensitively balanced provisions of the EPA Act by substituting for their operation the personal opinions of the judge hearing the case. But neither should the discretion be given an unduly restricted operation. It is just as much part of the statutory structure and scheme for the enforcement of the planning law as are the other parts: ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 82 (CA). Guidelines applicable to the exercise of the discretion were stated in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339 – 341 (CA). One guideline is to keep in mind that the restraint sought is the enforcement of the public duty imposed by the statute and the public interest which exists in the orderly development and use of the environment. Another guideline is that the discretion permits the Court to soften, according to the justice of the particular circumstances, the application of rules which may produce an unjust result in the particular case, sometimes by postponing the effect of the injunctive relief. For example, orders were suspended for 12 months in Canterbury Municipal Council v Perri (1982) 47 LGRA 111 at 117; for 14 months in Woollahra Municipal Council v Carr (1982) 47 LGRA 105 where the circumstances included the respondent’s financial and other hardship; and a demolition order was suspended for six months with liberty to apply for a further extension in Barton v Orange City Council at [55].
CONCLUSION
47 The primary course proposed by the respondents is a kind of Court imposed notional development consent, outside the EPA Act, for three years residential use subject to conditions requiring certain works to be carried out to meet health and safety standards. It sits uncomfortably with the scheme of the EPA Act, where, if a development consent could be granted lawfully, the Council would assess and determine the development application according to a range of mandatory and perhaps non-mandatory considerations and subject to other statutory requirements. That inclines me against a three year stay of the cease use order. It is unnecessary to address other specific reasons proffered by the Council for opposing a three year stay.
48 Having regard to the conduct of the parties and the personal circumstances of the respondents, it is more appropriate in my opinion to stay the cease use order for about nine months to 30 September 2011, which is prior to the commencement of next summer and the associated potentially higher bushfire risk.
49 At all material times the respondents have known it was illegal to construct dwellings on lots in the Estate because the zoning did not permit it and development consent could not be granted. They have known since 2004 that the Council’s policy was to take legal proceedings in respect of new structures. However, as he testified, Mr Bonner believed that the risk of legal proceedings would not be realised because rezoning of one dwelling per lot would be achieved, and he never envisaged that the Council would single out his family for legal proceedings. His belief was encouraged by the Council’s conduct in pursuing a one dwelling per lot zoning, doing nothing to implement its 2004 policy until 2010, notifying owners of lots in the Estate of its attempts to bring about a rezoning, and imposing rezoning and road levies on owners.
50 The respondents will be in dire financial circumstances if they are evicted in as little as three months, as proposed by the Council, because Mrs Bonner’s income is important to the family unit; it is unlikely she will be able to return to employment in such a short time; and it would be quite inappropriate for her to do so with three children, one of whom is under two years of age, and a new baby. It will be very difficult for the respondents to afford rented premises whilst continuing to service their mortgage over the Land, particularly if Mrs Bonner is not in employment. A stay of the cease use order for about nine months will provide some breathing space to permit her to return to work if she wishes to do so, but not too soon after the birth of her fourth child. It will also provide a window of opportunity for potential rezoning which might in turn lead to an approval that would permit them to continue to reside on the Land. In all the circumstances, that is the best that the Court can reasonably do to alleviate the financial hardship that will beset this hardworking young couple who have the misfortune to be the first owners of a lot in the Estate against whom proceedings of this nature have been brought. Their investment in the Land will be protected for three years for, as the parties agree, they will not be required to remove the structures for that period to allow for the opportunity of a rezoning which permits them.
51 The Court has power, by an appropriate order, to ensure that its order does not operate after the statutory basis upon which it was made ceases to exist: Permewan Wright Consolidated Pty Ltd v Attorney General (1978) 35 NSWLR 365 (CA). Accordingly, provision should be made for liberty to apply for a permanent stay of the removal and cease use orders in the event that the Estate is rezoned and a dwelling on the Land becomes lawful.
52 It is not clear in all the circumstances, including the poor financial position of the respondents, that the Council wishes to press for a costs order against them. Therefore I will reserve costs.
53 The orders I propose are as follows:
1. The respondents are to remove the dwelling and associated improvements on Lot 104 DP 11629 (the Land).
2. Order 1 is stayed until and including 31 December 2013.
3. The respondents are restrained from using or permitting the use of the Land as a dwelling.
4. Order 3 is stayed until and including 30 September 2011.
5. Liberty to apply to permanently stay Orders 1 and 3 in the event that a dwelling on the Land becomes lawful.
6. Costs are reserved. Unless an application for costs is made by 9 December 2010 by letter to the Registrar accompanied by written submissions there will be no order for costs.
7. The exhibits may be returned.
54 If a party proposes different orders they are to arrange with my Associate to have the matter listed before me on or before 7 December 2010 to settle the orders, otherwise the orders will be as I have proposed.
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