Tweed Shire Council v Taylor - [2019] NSWLEC 45

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Tweed Shire Council v Taylor [2019] NSWLEC 45
Hearing dates: 14 March 2019
Date of orders: 05 April 2019
Decision date: 05 April 2019
Jurisdiction: Class 4
Before: Preston CJ
Decision:
The Court:
(1)   Orders the respondents not to use the building identified in the Identification survey and photographs attached to the Development Control Order issued by Tweed Shire Council on 20 April 2018 to the respondents (“the Building”) erected on a Crown road reserve and land in Lot 5 DP 631620, known as 656 Upper Crystal Creek Road, Upper Crystal Creek (“the Land”) for the purpose of a serviced apartment.
(2)   Orders the respondents, within 3 months of the date of these orders, to demolish and remove the Building and leave the Land and Crown road reserve in a state free of residual building materials.
(3)   Grants liberty to the parties to apply to vary, replace or supplement Order 2 on sufficient cause being shown.
(4)   Orders the respondents to pay the applicant’s costs of the proceedings.

Catchwords: CIVIL ENFORCEMENT – unlawful erection and use of a building – appropriate order to remedy breach – whether demolition of building appropriate – demolition ordered
Legislation Cited: Civil Procedure Act 2005
Crown Land Management Act 2018
Environmental Planning and Assessment Act 1979
Planning for Bush Fire Protection 2006
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Tweed Local Environmental Plan 2014
Uniform Civil Procedure Rules 2005
Cases Cited: Barton v Orange City Council [2008] NSWLEC 104
Canterbury City Council v Mihalopoulos [2010] NSWLEC 248
Congregational Christian Church Samoa Parish of Sydney v Georges River Council [2017] NSWLEC 71
Fairfield City Council v Ly [2008] NSWLEC 322;
Georges River Council v Stojanovski [2018] NSWLEC 125
Glaser v Poole [2010] NSWLEC 143
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Nader v Sutherland Shire Council [2008] NSWCA 265
Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Woollahra Municipal Council v Sahade [2012] NSWLEC 76
Category: Principal judgment
Parties: Tweed Shire Council (Applicant)
Murray Arthur Taylor (First Respondent)
Jerri Harrison Taylor (Second Respondent)
Representation:
Counsel:
Mr N Eastman (Applicant)
Murray Arthur Taylor (First Respondent) (Self-represented)
Jerri Harrison Taylor (Second Respondent) (Self-represented)
Solicitors:
Sparke Helmore (Applicant)

File Number(s): 2018/259482
Publication restriction: Nil

Judgment

A tree house is erected and used unlawfully

Mr Taylor built a tree house in forest near to Upper Crystal Creek in northern New South Wales in September 2016. The building is built in and around trees in the forest.
The building was constructed and adapted to provide self-contained accommodation to tourists or visitors. The building comprised a furnished, open plan living area and bedroom, together with a separate kitchen area. Doors fronting the living and bedroom area opened onto a balcony area. The balcony area was constructed around a number of existing trees. There was a separate bathroom building connected to the…

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: [2019] NSWLEC 45
Decision Date: 05 April 2019

CaseChat Overview and Summary

The case of Tweed Shire Council v Taylor was heard by the Land and Environment Court of New South Wales. The council brought an action against the respondents, the Taylors, who had constructed a building on a Crown road reserve and adjacent land without proper authorisation. The council sought orders for the cessation of use of the building, its demolition, and for the respondents to leave the site clear of any residual materials. Additionally, the council sought costs.

The central legal issues addressed by the court involved the unauthorised use and construction of the building on a Crown road reserve and whether the respondents had the right to occupy and use the building as a serviced apartment. The court also needed to determine whether the council's Development Control Order, issued on April 20, 2018, was valid and enforceable against the respondents.

In its decision, the court found that the respondents had indeed constructed the building without appropriate authorisation and were using it in a manner that contravened the council's regulations. The court held that the Development Control Order was valid and binding on the respondents. The court emphasised the importance of adhering to planning and zoning laws to maintain public order and safety. Consequently, the court ordered the respondents to cease using the building as a serviced apartment and to demolish and remove it within three months, leaving the site free of any construction materials. The court also granted the parties the ability to apply to modify the demolition order if sufficient cause was demonstrated and ordered the respondents to pay the council's costs of the proceedings.

Orders

Orders of the court

The Court:

(1) Orders the respondents not to use the building identified in the Identification survey and photographs attached to the Development Control Order issued by Tweed Shire Council on 20 April 2018 to the respondents (“the Building”) erected on a Crown road reserve and land in Lot 5 DP 631620, known as 656 Upper Crystal Creek Road, Upper Crystal Creek (“the Land”) for the purpose of a serviced apartment.

(2) Orders the respondents, within 3 months of the date of these orders, to demolish and remove the Building and leave the Land and Crown road reserve in a state free of residual building materials.

(3) Grants liberty to the parties to apply to vary, replace or supplement Order 2 on sufficient cause being shown.

(4) Orders the respondents to pay the applicant’s costs of the proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Tweed Shire Council v Taylor [2019] NSWLEC 45
Hearing dates:	14 March 2019
Date of orders:	05 April 2019
Decision date:	05 April 2019
Jurisdiction:	Class 4
Before:	Preston CJ
Decision:	The Court: (1) Orders the respondents not to use the building identified in the Identification survey and photographs attached to the Development Control Order issued by Tweed Shire Council on 20 April 2018 to the respondents (“the Building”) erected on a Crown road reserve and land in Lot 5 DP 631620, known as 656 Upper Crystal Creek Road, Upper Crystal Creek (“the Land”) for the purpose of a serviced apartment. (2) Orders the respondents, within 3 months of the date of these orders, to demolish and remove the Building and leave the Land and Crown road reserve in a state free of residual building materials. (3) Grants liberty to the parties to apply to vary, replace or supplement Order 2 on sufficient cause being shown. (4) Orders the respondents to pay the applicant’s costs of the proceedings.
Catchwords:	CIVIL ENFORCEMENT – unlawful erection and use of a building – appropriate order to remedy breach – whether demolition of building appropriate – demolition ordered
Legislation Cited:	Civil Procedure Act 2005 Crown Land Management Act 2018 Environmental Planning and Assessment Act 1979 Planning for Bush Fire Protection 2006 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Tweed Local Environmental Plan 2014 Uniform Civil Procedure Rules 2005
Cases Cited:	Barton v Orange City Council [2008] NSWLEC 104 Canterbury City Council v Mihalopoulos [2010] NSWLEC 248 Congregational Christian Church Samoa Parish of Sydney v Georges River Council [2017] NSWLEC 71 Fairfield City Council v Ly [2008] NSWLEC 322; Georges River Council v Stojanovski [2018] NSWLEC 125 Glaser v Poole [2010] NSWLEC 143 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Nader v Sutherland Shire Council [2008] NSWCA 265 Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Woollahra Municipal Council v Sahade [2012] NSWLEC 76
Category:	Principal judgment
Parties:	Tweed Shire Council (Applicant) Murray Arthur Taylor (First Respondent) Jerri Harrison Taylor (Second Respondent)
Representation:	Counsel: Mr N Eastman (Applicant) Murray Arthur Taylor (First Respondent) (Self-represented) Jerri Harrison Taylor (Second Respondent) (Self-represented) Solicitors: Sparke Helmore (Applicant)
File Number(s):	2018/259482
Publication restriction:	Nil