Shoalhaven City Council v Ellis

[2012] NSWLEC 225

Land and Environment Court

New South Wales

Medium Neutral Citation:

Shoalhaven City Council v Ellis [2012] NSWLEC 225

Hearing dates:

26 September 2012

Decision date:

27 September 2012

Jurisdiction:

Class 4

Before:

Biscoe J

Decision:

Orders set out at [46] - [51]

Catchwords:

CIVIL ENFORCEMENT - unlawfully constructed dwellings - orders restraining respondents from using or permitting the use of land as a dwelling - orders stayed for eight weeks.

Legislation Cited:

Commonwealth of Australia Constitution Act ss 76, 77, 116, 117, 118, 124
Environmental Planning and Assessment Act 1979 ss 56, 76A, 123, 124
Imperial Acts Application Act 1969 s 36
Judiciary Act 1903 (Cth) ss 39, 79B
Land and Environment Court Act ss 16, 20
Draft Shoalhaven Local Environmental Plan 2009
Shoalhaven Local Environmental Plan 1985 cl 14

Cases Cited:

Armidale Dumaresq Council v Vorhauer [2012] NSWLEC 154
Arnold v Minister Administering the Water Management Act 2000 [2008] NSWCA 338, 73 NSWLR 196
Fejo v Northern Territory of Australia [1998] HCA 58, 195 CLR 96
Plenty v Dillon [1991] HCA 5, 171 CLR 635
Shoalhaven City Council v Bonner [2010] NSWLEC 251
Shoalhaven City Council v Reid [2011] NSWLEC 193
The Commonwealth of Australia v The State of New South Wales [1923] HCA 34, 33 CLR 1
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

Category:

Principal judgment

Parties:

40257/12
Shoalhaven City Council (Applicant)
Grant Ellis (Respondent)

40258/12
Shoalhaven City Council (Applicant)
Robert Wayne Mitchell (First Respondent)
Patricia Ann Mitchell (Second Respondent)

40259/12
Shoalhaven City Council (Applicant)
Neil Francis Ash (First Respondent)
Barbara Marie Ash (Second Respondent)

40260/12
Shoalhaven City Council (Applicant)
David Anthony Pickering (Respondent)

40261/12
Shoalhaven City Council (Applicant)
Garrie Mills (Respondent)

Representation:

COUNSEL:
Mr S Free (Applicant)
Elder John, agent (Respondents)
SOLICITORS:
Maddocks (Applicant)
N/A (Respondents)

File Number(s):

40257-40261/12

Judgment

1. In these Class 4 civil enforcement proceedings, the applicant, Shoalhaven City Council, seeks orders in relation to the unlawful use of land in the Jerberra Estate at Tomerong, south of Nowra. There are five separate proceedings brought against the owners of five different parcels of land in the Jerberra Estate. In each case, the respondents are using dwelling houses that have been erected without development consent and in circumstances where no consent could be obtained for such development. The respondents in the five proceedings are Grant Ellis, Robert and Patricia Mitchell, Neil and Barbara Ash, David Pickering, and Garrie Mills.

1. The Council seeks orders in each case restraining the respondents from using, or permitting the use of, the dwelling houses and related structures that have been erected without development consent. In recognition of the hardship occasioned by such an order, the Council submits that there should be a stay of the orders for a period of four weeks from the judgment of the Court. The Council does not seek orders for demolition.

Previous cases relating to unlawful use of land in the Jerberra Estate

1. There have been two previous cases decided in the Court relating to unlawful use of land in the Jerberra Estate. On 2 December 2010 I delivered judgment in Shoalhaven City Council v Bonner [2010] NSWLEC 251 (Bonner). One of the orders made was that the respondents be restrained from using or permitting the use of the land in question as a dwelling. That order was stayed until and including 30 September 2011. The stay of the order for removal was found to be appropriate in light of the personal circumstances of the Bonner family, which included the imminent birth of a fourth child and because it would provide a window of opportunity for a potentially favourable rezoning of the land in question: at [50]. The current potential beneficial rezoning of the Jerberra Estate is considered below.

1. On 31 October 2011 Craig J gave judgment in Shoalhaven City Council v Reid [2011] NSWLEC 193 (Reid). His Honour ordered, inter alia, that the respondent be restrained from using or permitting the use of the land in question unless consent for such use is obtained. That order was stayed until and including 30 November 2011.

Jurisdiction of the Court and constitutional issues raised by respondents

1. The respondents in the present matters are represented by an agent, "Elder John" of the "Free State of Australia". On 1 June 2012 the Court made an order noting that the address for service of all respondents was that of the authorised agent. Through their agent, the respondents have raised a number of issues regarding the jurisdiction of the Court and the applicability of the law of New South Wales. Their overarching position is that they are citizens of the Free State of Australia which is an independent religious state, that they are not bound by the law of New South Wales, and that this Court has no jurisdiction.

1. First, the respondents submit that as they gave notice of the constitutional issues to the Attorneys-General under s 79B of the Judiciary Act 1903 (Cth) and as none of the Attorneys-General has intervened in the proceedings, that establishes that the respondents are not bound by the law of New South Wales and that this Court has no jurisdiction. I reject the submission. The non-intervention of the Attorneys-General is irrelevant. Furthermore, the Council has contested the issues raised by the respondents.

1. Secondly, the respondents submit that the proceedings concern fee simple interests in land and issues under the Commonwealth of Australia Constitution Act (Commonwealth Constitution), that they are matters only within federal jurisdiction, that this Court has no federal jurisdiction, and that only the High Court has jurisdiction over those matters. I do not accept that fee simple interests constitute a matter only within federal jurisdiction. In any case, a similar argument by a respondent (without legal representation) that this Court has no federal jurisdiction was rejected by me in Armidale Dumaresq Council v Vorhauer [2012] NSWLEC 154 at [18] - [24] for reasons to which I adhere. This Court may exercise federal jurisdiction, and may in turn determine questions arising under the Commonwealth Constitution, by reason of ss 76(i) and 77(iii) of the Constitution and s 39(2) of the Judiciary Act. The relationship between the Court's federal jurisdiction and its ancillary jurisdiction under s 16(1A) of the Land and Environment Court Act 1979 was explained in Arnold v Minister Administering the Water Management Act 2000 [2008] NSWCA 338, 73 NSWLR 196 at [32] - [33], [38], [45] - [47], [67], [75] and [82] - [86]. The Court has the jurisdiction vested in it by or under the Land and Environment Court Act or any other Act: s 16(1). Relevantly for present purposes, the Court has jurisdiction, falling within Class 4 of its jurisdiction, to hear and dispose of proceedings under s 123 of the Environmental Planning and Assessment Act 1979 (EPA Act): s 20(1)(c). The present proceedings are proceedings under s 123 of the EPA Act, as they are brought to remedy or restrain breaches of the EPA Act.

1. Thirdly, the respondents submit that because they are the holders of estates in fee simple, they are not subject to the requirements of the EPA Act and this Court has no jurisdiction. The argument is misconceived. Ownership of an estate in fee simple does not mean that the law does not apply in respect of that land. The respondents cite Fejo v Northern Territory of Australia [1998] HCA 58, 195 CLR 96 at [47] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ:

Subject to whatever qualifications may be imposed by statute or the common law, or by reservation or grant, the holder of an estate in fee simple may use the land as he or she sees fit and may exclude any and everyone from access to the land

1. The respondents' reliance on Fejo is misplaced. As the opening words of the quotation make clear, restrictions on the use of land, including by the holder of an estate in fee simple, may be imposed by statute or the common law. Relevantly, the EPA Act imposes restrictions on the use of land within New South Wales, including the Jerberra Estate. The present proceedings are brought to restrain breaches of those restrictions.

1. The respondents also cited imprecisely the judgment of Isaacs J in The Commonwealth of Australia v The State of New South Wales [1923] HCA 34, 33 CLR 1 and cited s 36 of the Imperial Acts Application Act 1969 which provides:

36 Alienation of fee simple

Land held of the Crown in fee simple may be assured in fee simple without licence and without fine and the person taking under the assurance shall hold the land of the Crown in the same manner as the land was held before the assurance took effect.

1. I can see nothing in either which supports the respondents.

1. Fourthly, the respondents submit that, as asserted citizens of the "Free State of Australia", they are not subject to the law of New South Wales or the jurisdiction of this Court because of ss 116 to 118 of the Commonwealth Constitution, which provide:

116 Commonwealth not to legislate in respect of religion

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

117 Rights of residents in States

A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

118 Recognition of laws etc. of States

Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State.

1. The respondents' asserted citizenship of the "Free State of Australia" does not have any constitutional significance or affect the operation of the laws of New South Wales. Section 116 is irrelevant because, among other reasons, this case is not concerned with any Commonwealth law. Sections 117 and 118 are irrelevant because, among other reasons, the "Free State of Australia" is not a "State" within the meaning of those sections. The "Free State of Australia" has not been formed as a new State in accordance with the procedure in Chapter VI of the Commonwealth Constitution. Section 124 of the Commonwealth Constitution provides that a new State may be formed by separation of territory from an existing State, but only with the consent of the Parliament of that State. New South Wales has not consented to the "Free State of Australia", or any part of Jerberra Estate, forming a new State by way of separation from the territory of New South Wales.

1. Fifthly, the respondents referred fleetingly in oral submissions to Plenty v Dillon [1991] HCA 5, 171 CLR 635 and trespass. I assume that this is intended to be a submission to the same effect as the submission I rejected in Armidale Dumaresq Council v Vorhauer at [35] - [38], namely, that entry by council officers would constitute trespass. Plenty v Dillon is irrelevant. It was an action in trespass to land against police officers who entered private property without proper authority.

Evidence

1. The following reasons for judgment largely adopt the Council's submissions, which are uncontested apart from passing reference in oral submissions to a couple of discretionary factors.

1. The Council's uncontested evidence establishes the following:

(a)   There have been letters between the Council and the respondents relating to rezoning proposals and the Council's intention to restrain unlawful use of land within the Estate. Each of the respondents has been on notice since 2010 that the Council intended to take action to prevent continued residential occupation if the respondents did not otherwise vacate the properties.

(b)   The history of the Jerberra Estate and the various attempts over recent decades to address the zoning of the area is described.

(c) The development controls and zoning in respect of each parcel of land are explained. In respect of each parcel of land, no consent has ever been sought from the Council under the EPA Act to undertake or carry out development on the land.

(d)   There is expert evidence that there is a significant risk of bushfires having a catastrophic effect on each of the dwellings.

(e) A council building surveyor describes the dimensions of each parcel of land and the dwelling houses and other related structures on each parcel. He intended to carry out an inspection of each property for the purposes of determining compliance with Building Code of Australia (BCA) requirements. He was unable to carry out that inspection because, in the case of the Ash, Mills, Mitchell and Pickering properties, he was refused access notwithstanding an order of the Court that access be permitted.

(f)   A council environmental officer describes the onsite waste management systems on the Ash land, the Mills land, the Mitchell land and the Pickering land. She intended to carry out an inspection of each of the properties for the purposes of determining compliance with applicable waste management guidelines and requirements. She was unable to carry out that inspection because she was refused access notwithstanding an order of the Court that access be permitted. Based on the inspections that she was able to carry out, she concludes that the waste management systems on the properties are non-compliant.

1. Notwithstanding orders made by the Court on 1 June 2012 and 20 July 2012, none of the respondents have filed points of defence responding to the specific allegations in the points of claim. Each of the respondents other than Grant Ellis has served a signed statement described as an "affidavit" (but not in proper form).

Background facts

The land and dwelling houses in issue

1. Grant Ellis is the registered proprietor of Lot 63 DP 11629 (Ellis Land), also known as Lot 63 Invermay Avenue, Tomerong. The Ellis Land has an area of approximately 2,300 square metres. A metal clad dwelling house has been erected on the Ellis Land, together with various associated structures including storage sheds and containers and water tanks. Development consent has never been sought for the development on the Ellis Land.

1. Robert and Patricia Mitchell are the registered proprietors of Lot 158 DP 11629 (Mitchell Land), also known as Lot 158 Inglewood Crescent, Tomerong. The Mitchells purchased the Mitchell Land in 1991 and have resided there since. The Mitchell Land has an area of approximately 3,000 square metres. A portal framed, metal clad dwelling with metal roof and carports has been erected on the Mitchell Land, together with various related structures. Development consent has never been sought for the development on the Mitchell Land.

1. Neil and Barbara Ash are the registered proprietors of Lot 132 DP 11629 (Ash Land), also known as Lot 132 Inglewood Crescent, Tomerong. The Ashes purchased the Ash Land in 1986 and have resided there since. The Ash Land has an area of approximately 7,500 square metres. A dwelling house has been erected on the Ash Land using train carriages and associated structures. Development consent has never been sought for the development on the Ash Land.

1. David Pickering is the registered proprietor of Lot 148 DP 11629 (Pickering Land), also known as Lot 148 Greenslopes Avenue, Tomerong. Mr Pickering purchased the Pickering Land in 1989 and has resided there since. The Pickering Land has an area of approximately 7,500 square metres. A timber clad, metal roof dwelling house has been erected on the Pickering Land, together with various related structures. Development consent has never been sought for the development on the Pickering Land.

1. Garrie Mills is the registered proprietor of Lot 163 DP 11629 (Mills Land), also known as Lot 163 Inglewood Crescent Tomerong. Mr Mills purchased the Mills Land in 1987 and has resided there since. The Mills Land has an area of approximately 3,250 square metres. A single storey fibro clad dwelling house has been erected on the Mills Land. Development consent has never been sought for the development on the Mills Land.

The Jerberra Estate

1. In order to put the Council's actions against the respondents in context, it is necessary to mention the history of the Jerberra Estate including recent developments affecting current and future planning controls over the Estate. That history was considered in Bonner at [2] - [4] and [20] - [23] and Reid at [15] - [23].

1. The Jerberra Estate is located to the east of the Princes Highway, one kilometre east of the village of Tomerong and 20 kilometres south of Nowra. The Jerberra Estate is a "paper subdivision" which was registered in 1922 and which became DP 11629. Until 1986 the lots in the Jerberra Estate were held by two owners. From 1986 onwards, a number of individual lots were sold.

1. As at 1986, the Council did not have the power to grant approval for dwellings to be erected on the individual lots in the Jerberra Estate. At that time, and at all times since then, the land in the Jerberra Estate was zoned 1(b) (Rural "B" (Arterial and Main Road Protection) Zone) or 1(d) (Rural "D" (General Rural) Zone) under the Shoalhaven Local Environmental Plan 1985 (Shoalhaven LEP). The land in issue in these proceedings is, and has at all times since 1985, been subject to the following zonings:

(a)   the Ellis Land, Lot 63, is zoned 1(b);

(b)   the Mitchell Land, Lot 158, is zoned 1(b);

(c)   the Ash Land, Lot 132, is zoned 1(d);

(d)   the Pickering Land, Lot 148, is zoned 1(d); and

(e)   the Mills Land, Lot 163, is zoned 1(b).

1. Clause 14 of the Shoalhaven LEP applies to land within zones 1(b) and 1(d). Subject to certain exceptions which are not presently relevant, cl 14(2) provides that a dwelling house may be erected on such land with the consent of the Council only if the land has an area of not less than 40 hectares. Development consent may not otherwise be granted for the erection of a dwelling house on land within those zones. None of the parcels of land owned by the respondents has an area of 40 hectares or more. It follows that no development consent could be issued under the present zoning for dwelling houses to be erected on any of the Ellis Land, the Mitchell Land, the Ash Land, the Pickering Land or the Mills Land. As noted above, no development consent has ever been sought for the erection of any of the dwellings. The dwelling houses have been erected unlawfully and their continued use should be restrained.

1. In 2011 the Council placed on exhibition the "Draft Shoalhaven Local Environmental Plan 2009" (Draft SLEP). Under the Draft SLEP, all of the land at issue in the present proceedings is proposed to be zoned "Rural Landscape (RU2)". The 40 hectare minimum lot size will continue to apply in respect of the land. It follows that, if and when the Draft SLEP 2009 comes into force, the change will not alleviate the position of any of the respondents.

Proposals to rezone the Jerberra Estate

1. From 1986 onwards, a number of proposals for rezoning of the Jerberra Estate were put to the Council for consideration. The Council attempted over many years to achieve a zoning which would permit one dwelling per lot. If that had been achieved, it would have benefited the respondents. In the face of State government opposition, the Council gave up those attempts in 2009.

1. In 2009 the Council resolved to pursue alternative options for limited development in and around a conservation area. Around September 2010 a brochure was prepared by the Council, in co-operation with the State government, outlining two rezoning options. The brochure was sent to landowners together with an invitation to attend an information day. Approximately 107 landowners attended the information day. In September 2010 the Council sent a survey to landowners regarding the rezoning proposals. Approximately one-third of landowners responded to the survey. The results of the survey were reported to the Council in January 2011. The report concluded that there was insufficient support from landowners to one of the options and recommended that the Council proceed with finalisation of the other option.

1. In August 2011 the Council submitted to the Department of Planning and Infrastructure the "Jerberra Estate Planning Proposal", seeking a gateway determination in accordance with s 56 of the EPA Act. The Jerberra Estate Planning Proposal involves the creation of up to 83 potential dwelling entitlements, 27 of which would require the amalgamation of two or more lots. By letter dated 2 September 2011 a delegate of the Minister for Planning and Infrastructure made a gateway determination that the Jerberra Estate Planning Proposal should proceed. The determination contemplates that the Jerberra Estate Planning Proposal may take effect as an amendment to either the Shoalhaven LEP or the Draft SLEP. On 27 October 2011 the Council resolved to complete the relevant documentation to progress the Jerberra Estate Planning Proposal. The Council has revised the Jerberra Estate Planning Proposal maps with the aim of achieving consistency with the gateway determination approval. Maps in evidence show the minimum lot sizes for the different areas within the Jerberra Estate under the Jerberra Estate Planning Proposal.

The status of the land under current and proposed zoning

1. As noted earlier, it is not possible (and has not been possible at any time) for the Council to grant development consent under the Shoalhaven LEP for residential development of any of the Ellis Land, the Mitchell Land, the Ash Land, the Pickering Land or the Mills Land. This was the planning context in which each of the respondents acquired their land.

1. The rezoning proposal for the Jerberra Estate has now reached the stage where it appears that there is no realistic prospect of any of the land in question being rezoned in a way which would allow the unlawful status of the dwelling houses and residential use of the land to be rectified. Under the Jerberra Estate Planning Proposal:

(a)   The Ellis Land, Lot 63, will be zoned E2 (Environmental Conservation) and will be subject to a minimum lot size for a dwelling of 40 hectares. Given that the Ellis Land is only approximately 2,300 square metres, there is no prospect of the residential use of the dwelling on the Ellis Land being regularised under the Jerberra Estate Planning Proposal.

(b)   The Mitchell Land, Lot 158, will also be zoned E2 (Environmental Conservation) and will be subject to a minimum lot size for a dwelling of 40 hectares. Given that the Mitchell Land is only approximately 3,000 square metres, there is no prospect of the residential use of the dwelling on the Mitchell Land being regularised under the Jerberra Estate Planning Proposal.

(c)   The Ash Land, Lot 132, will be zoned E3 (Environmental Management) and will be subject to a minimum lot size for a dwelling of 15,000 square metres (1.5 hectares). Given that the Ash Land is only approximately 7,500 square metres, there is no prospect of the residential use of the dwelling on the Ash Land being regularised under the Jerberra Estate Planning Proposal.

(d)   The Pickering Land, Lot 148, will be zoned part E2 (Environmental Conservation) which will be subject to a minimum lot size for a dwelling of 40 hectares and part E3 (Environmental Management) which will be subject to a minimum lot size for a dwelling of 2 hectares. Given that the Pickering Land is only approximately 7,500 square metres, there is no prospect of the residential use of the dwelling on the Pickering Land being regularised under the Jerberra Estate Planning Proposal.

(e)   The Mills Land, Lot 163, will be zoned E4 (Environmental Living) and will be subject to a minimum lot size for a dwelling of 5000 square metres. The minimum lot size of 5000 square metres applying in the area of Lot 163 is required under the Jerberra Estate Planning Proposal because of bushfire Asset Protection Zone requirements in the areas adjacent to bushland. The Mills Land has an area of approximately 3,250 square metres. There is no prospect of the residential use of the dwelling on the Mills Land being regularised under the Jerberra Estate Planning Proposal, unless there were to be a consolidation of Lot 163 with the neighbouring Lot 162. There is no evidence to suggest that this is a realistic possibility.

Unlawfulness

1. There is no doubt about the unlawful nature of the development which has occurred on the Ellis Land, the Ash Land, the Mitchell Land, the Pickering Land and the Mills Land. A dwelling house has been erected on each parcel of land. The erected structures have been, and continue to be, used as dwellings. No consent for the erection or use of any of these structures has been sought or given. Consent is required under the applicable zoning for such development. In the absence of such consent the development is prohibited by s 76A of the EPA Act.

The Court's discretion

1. It follows that the only remaining issues before the Court are whether the Court should, in its discretion, make declarations as to the unlawful development and orders restraining the use of the unlawful dwellings and, if so, whether the operation of those restraining orders should be stayed for a period of time. The Court has a discretion in making an order restraining the unlawful use of land under s 124 of the EPA Act.

1. In Bonner at [45] - [46] I wrote:

45 The Court has a wide discretion as to the orders it may make under s 124 of the EPA Act which relevantly provides:

124 Orders of the Court

(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.

(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].

Public interest in ensuring compliance with the EPA Act

1. The orders are being sought by way of enforcement of a public duty and vindication of the public interest in orderly and lawful development in accordance with the EPA Act. The Council has a responsibility in the circumstances to enforce the EPA Act in order to protect the environment and maintain the integrity of the planning process: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 340D-E. The respondents have erected and used dwelling houses in circumstances where the unlawful nature of such development in the Jerberra Estate was well known. Allowing the respondents to continue to use their unlawful dwelling houses for an unduly prolonged period of time would be contrary to the important environmental objectives in the EPA Act and inequitable given that the community generally is required to comply with the EPA Act, with all of the costs and inconvenience that it may entail.

No evidence of hardship

1. The respondents have not advanced any evidence to support any argument that the Court should not, in its discretion, make the orders sought by the Council. There is no evidence of any hardship that would or could be suffered by the respondents. However, there is obviously an inherent hardship in the respondents having to cease using their dwellings.

The respondents have been given reasonable notice of Council's action

1. Each of the respondents has been given fair warning of the Council's action and has already been given a reasonable opportunity to make alternative arrangements:

(a)   In June and July 2010 the Council's solicitors sent a letter to each of the respondents indicating that the Council had resolved to take steps to cease the current occupation of unauthorised dwellings within the Jerberra Estate and prevent any future occupation of those dwellings. The letter expressly foreshadowed that proceedings would be commenced against the respondents seeking orders requiring the vacation of the land. The letter invited each of the respondents to discuss a timetable for vacating the land.

(b)   The Council's solicitors received, in response to a letter of 24 June 2010, a petition signed by David Pickering, Neil Ash, Patricia and Robert Mitchell and others seeking a three month extension to obtain legal advice. The Council via its solicitors responded to Neil and Barbara Ash, Patricia and Robert Mitchell and Mr Pickering declining to grant a three month extension but requesting that the landowners' lawyer contact the Council's representatives to discuss a timetable for the landowners to obtain advice.

(c)   In March 2011 the Council's solicitors wrote to each of the respondents providing an update on the progress of the rezoning proposal and advising of the outcome of the Bonner proceedings. The letter proposed that, as an alternative to litigation, each of the respondents enter into a deed which would restrain them from using their land as a dwelling after 30 September 2011. The letter also offered the Council's assistance in finding alternative accommodation.

1. For a long period of time, until 2009, the Council sought to explore alternative options for rezoning the Jerberra Estate in ways which might have benefited the respondents. It eventually became apparent that the alternative options were unrealistic and the Council accepted that such a solution could not be achieved. The Council then resolved to take steps to prevent the unlawful use of land within the Jerberra Estate. Each of the respondents has been on notice for over two years that this was the Council's position and that the use of unlawful dwellings would have to stop. None of the respondents has at any point during this time suggested that there was any basis to argue that their use of the land was lawful, apart from the constitutional and jurisdictional issues which I have earlier rejected. No defence on the merits has been advanced in the present proceedings.

1. The respondents have had the benefit of a long period of time in which they made use of unlawful development on their land while the Council pursued all available options for regularising as much of that development as possible. Since 2010 the Council has made it clear that this situation could not be allowed to continue. The respondents have had a reasonable time to prepare to vacate the land, including to take responsibility for obtaining alternative accommodation. While it is unquestionably a hardship to be compelled to leave their land, it is a hardship which is unavoidable and which has been all but inevitable for some years. The Council made reasonable offers to facilitate an orderly end to the unlawful use of the land. Each of the respondents has refused those offers, necessitating litigation.

No prospect of more favourable zoning

1. On the evidence there is no meaningful prospect of any change in the applicable zoning or development constraints that would assist any of the respondents. The point has been reached where it appears that all steps that could reasonably be taken to investigate development options have been taken. The Jerberra Estate Planning Proposal seems to represent the only identified, realistic prospect of a rezoning which may facilitate lawful development within the Estate. However, the implementation of that proposal will not provide a basis for regularising the current use of the Ellis Land, the Ash Land, the Mitchell Land, the Pickering Land or the Mills Land in the future.

Safety concerns with continued occupation

1. The continued unlawful use of the land presents safety concerns:

(a) The Jerberra Estate as a whole is classified as an "Extreme risk" asset under the Shoalhaven Bush Fire Risk Management Plan 2010. This is on the basis that the likelihood status of fire is "likely" and the consequence status for Jerberra Estate is "catastrophic". The greatest risks of fire in the area are from the north-west and south-west. The areas to the west, north-west and south of the land are forested, bushfire prone lands, which provide a potential pathway for bushfire. Recent climatic conditions have led to significant vegetation growth and fuel accumulation. Because of the location and the nature of the bushfires which could arise, any dwellings in the area in question would need to be capable of withstanding a bushfire of uncontrollable intensity. This requires an assessment against the standards in the Planning for Bushfire Protection 2006 (PBP) standard. According to expert evidence, it appears that none of the dwellings in question comply with the relevant standards. None of the dwellings has a compliant Asset Protection Zone between the dwelling and the nearby vegetation. The expert concludes, to the extent that he is able without having had the benefit of a close inspection of the dwellings, that none of the dwellings has been constructed to a standard that satisfies the applicable "Bushfire Attack Level" criteria in the PBP.

(b)   It has not been possible to determine whether any of the dwellings comply with BCA requirements. The building surveyor who sought to inspect the dwellings has not been able to make a determination about compliance with the BCA requirements because he has not been allowed to access the inside of the dwellings.

(c)   The onsite waste management systems servicing the dwellings on the Ash Land, the Mills Land, the Mitchell Land and the Pickering Land do not comply with the relevant Australian Standards and guidelines. A council environmental officer explains in her evidence that there are deficiencies of various kinds with the waste management systems that have been constructed on the properties. There is a composting toilet on the Ash Land which is being used in a way which creates a health risk. The homemade septic tank on the Ash Land is not designed or constructed in accordance with the relevant standard, AS/NZS 1546: 2008 On-site domestic wastewater treatment Part 1: Septic Tanks. The septic tank on the Mitchell Land is non-compliant for the same reasons. The septic tank on the Pickering Land is significantly smaller than the recommended minimum in the AS/NZS 1547:2012 On-site Domestic Wastewater Management. Wastewater from the dwelling on the Ellis Land is applied to the ground surface without treatment or disinfection, contrary to the Environment and Health Protection Guidelines On-site Sewage Management for Single Households. The same problem was observed with wastewater on the Mitchell Land.

1. The respondents submitted briefly in oral submissions that bushfire works affect everyone who lives in nature. That ignores planning laws addressing that risk. The respondents submit that the zoning is not permissible without their consent and that waste management and the BCA are matters for the "Free State of Australia". That submission depends on the constitutional arguments raised by the respondents which I have earlier rejected.

Stay of orders for a period

1. Although the respondents have not advanced any specific evidence of hardship, there is an inherent hardship in orders restraining the respondents from continuing to live on their land in Jerberra Estate. In light of this hardship the Council submits that (a) the operation of an order restraining further use should be deferred for four weeks to allow the respondents to vacate their properties and make alternative arrangements for accommodation; (b) the allowance of four weeks should suffice to allow each of the respondents to organise their departure from the land; and (c) any longer period of suspension of the order would be inappropriate, particularly having regard to the significant bushfire risks and the onset of the bushfire season.

1. I agree that there should be a stay of the orders for a period to mitigate hardship. In my view, the stay should be for eight weeks.

Orders

1. For the reasons set out above, I propose to make orders to the same effect as those sought in each summons, including orders restraining the respondents, their servants and agents, from using or permitting to be used the land or any buildings or structures on the land without obtaining development consent under the EPA Act. The orders restraining or preventing use should be stayed for a period of eight weeks.

1. In matter No 40257 of 2012, Shoalhaven City Council v Grant Ellis, the orders of the Court are as follows:

(1)   Declaration that the buildings and ancillary structures on Lot 63 DP 11629, also known as Lot 63 Invermay Avenue, Tomerong (Land) were erected without obtaining development consent pursuant to Part 4 of the Environmental Planning and Assessment Act 1979 (Act) and that the respondent has used, and is currently using, the buildings and ancillary structures as a dwelling without having obtained development consent pursuant to Part 4 of the Act.

(2)   Order that the respondent, his servants and agents, be restrained from using, or permitting to be used, the Land or any buildings or structures on the Land that were erected without obtaining development consent under Part 4 of the Act.

(3)   Order that the respondent, his servants and agents, take all reasonable steps to prevent the use by any person of the Land or any buildings or structures on the Land (including notifying any successors in title) until the respondent, or his successors in title, obtain development consent for the use of the Land in accordance with the Act.

(4)   Order that the respondent, his servants and agents, be restrained from carrying out further work on the Land, unless the respondent, or his successors in title, obtain development consent for the work to be carried out in accordance with the Act or the work is permitted by any other Act.

(5)   Orders 2 and 3 are stayed until and including 22 November 2012.

(6)   Order that the respondent pay the applicant's costs of and incidental to these proceedings.

(7)   The exhibits may be returned.

1. In matter No 40258 of 2012, Shoalhaven City Council v Robert Wayne Mitchell & Patricia Ann Mitchell, the orders of the Court are as follows:

(1)   Declaration that the buildings and ancillary structures on Lot 158 DP 11629, also known as Lot 158 Inglewood Crescent, Tomerong (Land) were erected without obtaining development consent pursuant to Part 4 of the Environmental Planning and Assessment Act 1979 (Act) and that the respondents have used, and are currently using, the buildings and ancillary structures as a dwelling without having obtained development consent pursuant to Part 4 of the Act.

(2)   Order that the respondents, their servants and agents, be restrained from using, or permitting to be used, the Land or any buildings or structures on the Land that were erected without obtaining development consent under Part 4 of the Act.

(3)   Order that the respondents, their servants and agents, take all reasonable steps to prevent the use by any person of the Land or any buildings or structures on the Land (including notifying any successors in title) until the respondents, or their successors in title, obtain development consent for the use of the Land in accordance with the Act.

(4)   Order that the respondents, their servants and agents, be restrained from carrying out further work on the Land, unless the respondents, or their successors in title, obtain development consent for the work to be carried out in accordance with the Act or the work is permitted by any other Act.

(5)   Orders 2 and 3 are stayed until and including 22 November 2012.

(6)   An order that the respondents pay the applicant's costs of and incidental to these proceedings.

(7)   The exhibits may be returned.

1. In matter No 40259 of 2012, Shoalhaven City Council v Neil Francis Ash and Barbara Marie Ash, the orders of the Court are as follows:

(1)   Declaration that the buildings and ancillary structures on Lot 132 DP 11629, also known as Lot 132 Inglewood Crescent, Tomerong (Land) were erected without obtaining development consent pursuant to Part 4 of the Environmental Planning and Assessment Act 1979 (Act) and the respondents have used, and are currently using, the buildings and ancillary structures as a dwelling without having obtained development consent pursuant to Part 4 of the Act.

(2)   Order that the respondents, their servants and agents, be restrained from using, or permitting to be used, the Land or any buildings or structures on the Land that were erected without obtaining development consent under Part 4 of the Act.

(3)   Order that the respondents, their servants and agents, take all reasonable steps to prevent the use by any person of the Land or any buildings or structures on the Land (including notifying any successors in title) until the respondents, or their successors in title, obtain development consent for the use of the Land in accordance with the Act.

(4)   Order that the respondents, their servants and agents, be restrained from carrying out further work on the Land, unless the respondents, or their successors in title, obtain development consent for the work to be carried out in accordance with the Act or the work is permitted by any other Act.

(5)   Orders 2 and 3 are stayed until and including 22 November 2012.

(6)   Order that the respondents pay the applicant's costs of and incidental to these proceedings.

(7)   The exhibits may be returned.

1. In matter No 40260 of 2012, Shoalhaven City Council v David Anthony Pickering, the orders of the Court are as follows:

(1)   Declaration that the buildings and ancillary structures on Lot 148 DP 11629, also known as Lot 148 Greenslopes Avenue, Tomerong (Land) were erected without obtaining development consent pursuant to Part 4 of the Environmental Planning and Assessment Act 1979 (Act) and the respondent has used, and is currently using, the buildings and ancillary structures as a dwelling without having obtained development consent pursuant to Part 4 of the Act.

(2)   Order that the respondent, his servants and agents, be restrained from using, or permitting to be used, the Land or any buildings or structures on the Land that were erected without obtaining development consent under Part 4 of the Act.

(3)   Order that the respondent, his servants and agents, take all reasonable steps to prevent the use by any person of the Land or any buildings or structures on the Land (including notifying any successors in title) until the respondent, or his successors in title, obtain development consent for the use of the Land in accordance with the Act.

(4)   Order that the respondent, his servants and agents, be restrained from carrying out further work on the Land, unless the respondent, or his successors in title, obtain development consent for the work to be carried out in accordance with the Act or the work is permitted by any other Act.

(5)   Orders 2 and 3 are stayed until and including 22 November 2012.

(6)   Order that the respondent pay the applicant's costs of and incidental to these proceedings.

(7)   The exhibits may be returned.

1. In matter No 40261 of 2012, Shoalhaven City Council v Garrie Mills, the orders of the Court are as follows:

(1)   Declaration that the buildings and ancillary structures on Lot 163 DP 11629, also known as Lot 163 Inglewood Crescent, Tomerong (Land) were erected without obtaining development consent pursuant to Part 4 of the Environmental Planning and Assessment Act 1979 (Act) and the respondent has used, and is currently using, the buildings and ancillary structures as a dwelling without having obtained development consent pursuant to Part 4 of the Act.

(2)   Order that the respondent, his servants and agents, be restrained from using, or permitting to be used, the Land or any buildings or structures on the Land that were erected without obtaining development consent under Part 4 of the Act.

(3)   Order that the respondent, his servants and agents, take all reasonable steps to prevent the use by any person of the Land or any buildings or structures on the Land (including notifying any successors in title) until the respondent, or his successors in title, obtain development consent for the use of the Land in accordance with the Act.

(4)   Order that the respondent, his servants and agents, be restrained from carrying out further work on the Land, unless the respondent, or his successors in title, obtain development consent for the work to be carried out in accordance with the Act or the work is permitted by any other Act.

(5)   Orders 2 and 3 are stayed until and including 22 November 2012.

(6)   Order that the respondent pay the applicant's costs of and incidental to these proceedings.

(7)   The exhibits may be returned.

Decision last updated: 03 October 2012