Warrumbungle Shire Council v Yongmei Ou

[2018] NSWLEC 70

Land and Environment Court

New South Wales

Medium Neutral Citation:

Warrumbungle Shire Council v Yongmei Ou [2018] NSWLEC 70

Hearing dates:

30 April 2018

Date of orders:

04 May 2018

Decision date:

04 May 2018

Jurisdiction:

Class 4

Before:

Preston CJ

Decision:

See Declarations and Orders at [75]

Catchwords:

CIVIL ENFORCEMENT – partial erection of building without development consent – use of land for residential accommodation without development consent – installation of moveable dwelling without approval – orders to remedy and restrain breaches – stay of orders for limited time – orders for substituted performance if non-compliance with court orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 1.4(1), 1.5, 4.2(1)
Land and Environment Court Act 1979 s 23
Local Government Act 1993 s 68, Pt 3
Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 cl 77
Warrumbungle Local Environmental Plan 2013 cl 2.3(1)
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 cll 2.17, 2.18
Uniform Civil Procedure Rules 2005 rr 40.8, 42.1, 42.2
Civil Procedure Act 2005 s 98(1)

Cases Cited:

Lismore City Council v Vivian (2016) 218 LGERA 372; [2016] NSWLEC 108

Category:

Principal judgment

Parties:

Warrumbungle Shire Council (Applicant)
Yongmei Ou (Respondent)

Representation:

Counsel:
Ms H Irish (Applicant)

 

Solicitors:
Local Government Legal (Applicant)

  The Respondent was not represented and did not appear

File Number(s):

2017/286656

Publication restriction:

Nil

Judgment

Planning laws are breached

1. Ms Yongmei Ou lives in the rural village of Mendooran in the central west of New South Wales. She owns and resides at an urban allotment, being Lot 3 of Section 21 in Deposited Plan 758668, known as 56 Farnell Street, Mendooran (‘the land’). The legal problem is that Ms Yongmei Ou does not have the necessary approvals under two planning laws, the Environmental Planning and Assessment Act 1979 (‘EPA Act’) and the Local Government Act 1993 (‘LG Act’), to reside on the land. She has partly erected a building intended to be a used as a dwelling house, installed and lived in a garden shed, and installed and lived in a caravan on the land, all without the necessary approvals.

2. Warrumbungle Shire Council (‘the Council’) has endeavoured to stop Ms Yongmei Ou from breaking the law. The Council has written to her, spoken to her, and given her orders directing her to stop erecting the building and to stop living on the land without first obtaining the necessary approvals. The Council has explained what Ms Yongmei Ou needs to do to apply, and how she needs to apply, for the necessary approvals to be able to erect and use a dwelling house or install and occupy a caravan on the land. But Ms Yongmei Ou has not complied with the Council’s requests and directions.

Enforcement proceedings are brought

3. After giving her notice, the Council commenced proceedings asking the Court to declare that Ms Yongmei Ou has breached and is continuing to breach the two planning laws and to order her to cease using the land, including the shed and the caravan on the land, for residential accommodation and to demolish and remove the partly erected building.

The respondent does not appear in the proceedings

4. Ms Yongmei Ou has not appeared to defend the proceedings brought by the Council on any occasion that the proceedings have been before the Court, including at the final hearing of the proceedings. The Council has served on Ms Yongmei Ou all of the Court documents, including the summons and amended summons, Court directions, and the Council’s evidence, and has given her prior notice of every occasion on which the proceedings will be before the Court, including the final hearing. But Ms Yongmei Ou chooses not to appear in any way, whether in person at the Court, or by telephone, or by providing any written communication to the Court addressing the Council’s claim and evidence.

5. The final hearing of the proceedings occurred on 30 April 2018. Ms Yongmei Ou had been notified of the date, time and place of the final hearing on numerous occasions. Nevertheless, I requested the Council at the start of the hearing to try again to contact Ms Yongmei Ou so as to inform her that the hearing is taking place and the consequence for her if the Council is successful in obtaining the orders that it seeks (Ms Yongmei Ou could be made homeless) and to invite her to participate in the hearing by telephone to say whatever she wants in response to the Council’s claim, and in particular about the orders that the Council seeks that would stop her living on her land. The Council endeavoured to telephone Ms Yongmei Ou to ask her if she would wish to participate in the hearing by telephone. She did not answer the call. The Council then sent an email to her at 10:33am saying:

“Dear Ms Ou

We are currently in the hearing and the Chief Judge of the Court has asked that we contact you by telephone. We have not succeeded in using the mobile number we have so we are writing to you instead. The Judge is particularly concerned that order number 4 sought by the Council in the Amended Summons, if made, would make you homeless and that you should be told of that, and given an opportunity to telephone to say what you want to say to the Chief Judge. If you reply to my email, we will obtain the telephone number and immediately send it to you.

Regards

Rachael Webb

Local Government Legal”

6. Ms Yongmei Ou replied to the email at 11:01am saying:

“Dear,

That’s just not Australian at all--making people homeless. For how long you’ve been scamming?

By the way, you may have interest in my New Nation campaign of GUAQUIN. It’s possibly much better than what you are working for.

Don’t be silly to create conflicts and pain in your own country! Or I would suspect whether you are legally serving at a court! (Are you a citizen of Australia? I am.)

Thanks for your harassment and threat via your job conduct. You need to quit to be right!

Good luck!

Yours sincerely,

Yongmei Ou”

7. In these circumstances, and having regard to Ms Yongmei Ou’s response, the final hearing proceeded without Ms Yongmei Ou’s participation.

The illegal erection of the building, use of the land and installation of the caravan

8. On 30 October 2014, Ms Yongmei Ou, having recently purchased the land, made enquiries with the Council about erecting a “new prefab house” on the land. She attached a Preliminary Development Enquiry Form and a photograph and plans of a house manufactured by a Chinese company, Hege Steel Modular Housing Co Ltd. Ms Yongmei Ou stated in her email that the “materials are ready on the ground of this lot” and “development can start immediately”.

9. On 3 November 2014, the Council responded, attaching documents for Ms Yongmei Ou to fill out and return to the Council with the appropriate fees. The Council advised her “you cannot start any building work until you receive your approval”.

10. On 3 and 4 November 2014, Ms Yongmei Ou sent to the Council certain completed forms, including a completed development application under the EPA Act, and some other information.

11. On 19 November 2014, the Council wrote to Ms Yongmei Ou saying:

“Council has been notified that you have commenced building work on your property (56 Farnell Street) prior to a development approval and construction certificate being issued. Council is currently in receipt of your application for a development approval and construction certificate, but at present these applications have not been approved.

Please be advised that it is an offence under the Environmental Planning and Assessment Act 1979 to begin work prior to the issuing of a development consent and construction certificate. As such, Council asks that you cease building work immediately. If building work continues at your property prior to approval being issued, Council may issue you with an order to stop work under the Environmental Planning and Assessment Act.”

12. On 20 November 2014, officers of the Council met with Ms Yongmei Ou on the land and inspected the partly erected building. Ms Yongmei Ou advised that the building is a kit home that has been imported from China and the plans accompanying the kit home are partly in Chinese.

13. On 20 November 2014, the Council wrote to Ms Yongmei Ou requesting further information in order for development approval and construction certificate to be issued:

“• A copy of your Owner Building Certificate, as provided by the Department of Fair Trading NSW.

• A site plan showing the location of the proposed dwelling, and including distances to boundary, location of septic tank & effluent disposal area.

• An application to install an on-site sewage management system, including completed plans and designs. You will also need to attach the specifications of the tank you are planning to use. This tank needs to be approved by NSW Health.

• A licenced plumber is required to undertake plumbing and drainage work. The details of this plumber need to be provided to Council.

• A professional engineer needs to be engaged. An engineer is required to certify the plans of the dwelling, and to design the footings for your proposed dwelling. These plans then need to be provided to Council.

• The Residential Building Specifications for your dwelling.

• Evidence needs to be provided as to how the floor framing, wall framing and roof trusses comply with the Building Code of Australia.

As your dwelling and associated plans are imported from overseas, the process to gain approval may become difficult to accomplish without help from a professional consultant. Council recommends engaging someone to help you with the process if at any stage you find the process too difficult.”

14. Also on 20 November 2014, a Council officer emailed Ms Yongmei Ou suggesting the names and contact details of engineers who could certify the plans of the dwelling and design the footings as well as the name and contact details of a building consultant who could assist Ms Yongmei Ou with “the whole process with Council”.

15. Later in the afternoon on 20 November 2014, Ms Yongmei Ou emailed the Council saying:

“After our meeting, I reconsidered the ‘formal classic procedure’ and feel that if I progress forward on this path, it would be just endless charges and fees, which, I’m afraid, would totally jeopardise my home coming into being.

…

I may still ask the local engineer but I would try to be ‘exempt’. And I’m not happy with that many ‘fees’ while I can ask people about water and sewage and find proper workers…”

16. On 21 November 2014, the Council emailed Ms Yongmei Ou, attaching the Council’s letters of 19 and 20 November 2014, and giving further advice about the need for Council approval to build her home on the land, for her to pay the required fees, and for her to connect to the town water supply and to install an on site sewage management system on the land. As to the need for Council approval, the Council said:

“Under the Warrumbungle Local Environmental Plan your land is zoned RU5. To build your home on this land you need Council approval. You must not carry out development on this land without Council approval. Please refer to the Environmental Planning and Assessment Act Part 4 for more information regarding gaining consent before development can occur. The building works you are proposing are NOT exempt. The process involved for your development application is standard across NSW.”

17. On 21 November 2014, Ms Yongmei Ou responded to the Council’s earlier email on that day. She did not respond to the substantive matters raised in the email or attached letters. Amongst other statements, Ms Yongmei Ou said:

“By the way, I had no intention to have a classic building. I self applied exempt according to a law your website pointed to. And you are not a solicitor either. So I have all the reason not to trust your judgement on my building.

Your attitude doesn’t make any sense to me. You only need money and you strangely do not need proper fees for water and waste management.”

18. On 26 November 2014, Ms Yongmei Ou responded by email to the Council’s two letters of 19 and 20 November 2014, although she did not respond to the substantive matters raised in those letters.

19. Little occurred over the next few months in relation to progressing the development application for the dwelling house. Ms Yongmei Ou did not provide any of the further information requested by the Council, however, she did not carry out any further work on the partly erected building.

20. Instead, Ms Yongmei Ou chose to erect a garden shed on the land, which she later lived in. On 26 March 2015, Ms Yongmei Ou emailed the Council advising “a garden shed will happen to the site…” She attached a completed Exempt Development form describing the works as “make a garden shed happen with already purchased and delivered parts”. She identified the policy under which the garden shed was said to be exempt development as “State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, Subdivision 9 Garden Sheds”. In a separate email, Ms Yongmei Ou described the shed as “a local designed Easy Shed brand shed. Sold via Mitre 10 in Dubbo” and “about 3x6x2.1m”. She said she “put it as 5 metres away from the boundaries at the back of the land”.

21. Sometime afterwards, Ms Yongmei Ou erected the garden shed and started living in it.

22. On 30 June 2015, the Council held a meeting with Ms Yongmei Ou on the land. The purpose of the meeting was to assist her with her development application and construction certificate application for the dwelling and shed proposed to be erected on the land. The Council Officers explained that the dwelling and shed are not exempt development and require development consent and provided her with relevant excerpts of the Warrumbungle Local Environmental Plan 2013 and State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. The Council summarised the outstanding information that it required in order to assess the development application and construction certificate application. The Council officers recorded in the file note of the meeting that Ms Yongmei Ou:

“was getting frustrated and didn’t want to have to comply. She said she felt uncomfortable with our requirements. Her comments included that she didn’t like the government/the regulation and that there was merit/good reason in her just going ahead without the required approvals.”

23. On 13 July 2015, the Council wrote (and also emailed) a letter to Ms Yongmei Ou summarising again the information that the Council required in order to undertake assessment of the development application and construction certificate application. The Council provided an estimate of the fees that she would need to pay for the applications.

24. Later that day, Ms Yongmei Ou responded by email, raising two concerns, one about the basis of calculation of the fees payable and the other concerning what is meant by a legal dwelling.

25. On 14 July 2015, the Council replied to Ms Yongmei Ou, including explaining what was meant by a legal dwelling:

“Legal Dwelling – To live in the house after it is built it needs to be lawfully constructed – this means it needs to be assessed and approved against NSW planning laws and the Building Code of Australia. If it is not legally constructed (abides by our country’s laws) then you cannot live in it. Our letter outlines what you need to do to legally construct your house – we can guide you through this process. A Statutory Declaration signed by a JP does not mean that you can build and live in the house. If you are not setting up a legal dwelling then you will be unable to live in it.”

26. Later that day, Ms Yongmei Ou responded to the Council’s email, challenging the Council’s advice about a legal dwelling. Amongst other statements, Ms Yongmei Ou said:

“I am saying I don’t need to follow the law because I have never needed to follow any law like what you explained. This law can’t be that special to me.”

27. On 15 July 2015, the Council responded to her, reiterating that “to build the ‘thing’ (whether you live in it or not) you still need consent from us, being Warrumbungle Shire Council; to continue to build it without consent is illegal and unlawful”.

28. Later that day, Ms Yongmei Ou responded dealing with the issue of payment of fees for the application. The Council replied also on that day giving details of where the fees could be paid and attaching the onsite sewage management system application form.

29. On 16 July 2015, Ms Yongmei Ou emailed the Council attaching the bank transfer receipt for payment of the fees and saying that she will fill in the onsite sewage management system application form at a later time. Ms Yongmei Ou also noted that a Council Supervisor “came in May saying the shed was not fit for living”. Ms Yongmei Ou disagreed with this statement and explained why.

30. On 16 July 2015, the Council responded to Ms Yongmei Ou offering to assist her with the form as the Council has knowledge on sewage. The Council also asked Ms Yongmei Ou to send specifications for the kit home from China.

31. On 17 July 2015, Ms Yongmei Ou replied that she does not have detailed specifications but only a list of the materials shipped to her from China. Ms Yongmei Ou provided the website of the Chinese building company supplying the prefab house.

32. On 30 July 2015, the Council emailed Ms Yongmei Ou thanking her for the payment of fees, and advising that information on the engineering specifications for the building was unable to be located on the Chinese website provided by Ms Yongmei Ou. The Council requested that she ask the company in China for the engineering specifications, which could be forwarded to the Council.

33. On 31 July 2015, the Council wrote to (and emailed) Ms Yongmei Ou. The letter referred to the application being “logged” on 16 July 2015. This was the date that Ms Yongmei Ou paid the application fees. She had submitted the development application form earlier, around 3 November 2014. The Council again advised Ms Yongmei Ou that additional information was required in order to determine the development application and construction certificate application. For the development application, the Council requested the following information:

“• A site plan is required showing the location of the proposed dwelling, including distances from the street, side boundaries and location of the septic tank and on site sewage effluent disposal area. Council requires a minimum set back of at least 6 metres to Farnell Street. The rear effluent disposal area should be located to provide the following set backs of 12 metres uphill, and 6 metres downhill of adjoining property boundaries.

• The building will need to have a current BASIX building certificate that reflects the building proposed to be built, this can be found at The BASIX commitments are to be shown on your plan.”

34. For the construction certificate, the Council requested information concerning the type of concrete footings on which the building would be placed, a certificate of a qualified practising engineer stating that the steel structure will comply with all Australian Standards, details of the builder, plumber and electrician, an application to install an on site sewage management system for the proposed dwelling, and a certificate for a practising structural engineer stating that the building will be fit to use as a dwelling.

35. On 1 August 2015, Ms Yongmei Ou replied by email contesting that she should have to provide the information and documents requested by the Council. Amongst other statements, she complained that “nobody in Australia has been providing such things for a size of 50 square metre home station”.

36. Ms Yongmei Ou did not provide the requested information or documents afterwards.

37. On 25 September 2015, the Council’s solicitors wrote to Ms Yongmei Ou advising that the part erection of the kit home building and the use of the garden shed for the purpose of residential occupation are breaches of the EPA Act. The Council’s solicitors noted that the Council had requested Ms Yongmei Ou to provide additional information to enable the Council to adequately assess her development application for the kit home. The Council had instructed the solicitors that unless she provided the requested information by 19 October 2015, “the Council will refuse the DA and consider taking formal enforcement action against you, which may result in Class 4 legal proceedings being brought against you in the Land and Environment Court”. The solicitors advised that: “In the event that Class 4 proceedings are commenced, legal costs will be incurred and Council will also be seeking an Order that those costs be paid by you”.

34. On 1 October 2015, the Council gave Ms Yongmei Ou notice of intention to serve an order under s 121B (order 1) of the EPA Act. The proposed order required Ms Yongmei Ou “to cease using the shed erected on the Premises for the purpose of a dwelling”. Ms Yongmei Ou was given until 19 October 2015 to make representations about the proposed order.

35. On 1 October 2015, Ms Yongmei Ou wrote a letter to the Council (who received it on 7 October 2015) making representations about the proposed order. She said in part:

“I put in a shed in addition to my development application for the home building according to another Act…I have to treat it as a temporary camping facility before my home building can be completed…The condition of shed fits for living as a camping site. I now attached Application for an Approval to Operate An On-Site Sewage Management Facility.”

40. She explained that: “The shed has a plastic bath tube and a plastic barrel as toilet…The bath tube has a drain pipe lead out of the shed and will lead to the effluent area by 19th Oct.” Ms Yongmei Ou then discussed the Council’s various requests for information to enable them to assess the development application and construction certificate application, although she did not provide the particular documents or information that the Council had requested.

41. On 28 January 2016, the Council refused Ms Yongmei Ou’s development application for the dwelling house. The reason given was that insufficient information had been submitted.

42. On 21 December 2016, the Council gave Ms Yongmei Ou a second notice of intention to serve an order under s 121B (Order 1) of the EPA Act. The proposed order required Ms Yongmei Ou “to cease using the shed erected on the Premises for the purpose of a dwelling”. Ms Yongmei Ou was given until 31 January 2016 to make representations concerning the proposed order. As an effect of the Order might be that Ms Yongmei Ou would be made homeless, the Council advised Ms Yongmei Ou of the availability of satisfactory alternative accommodation in the locality at either the Royal Hotel, Mendooran, or the Caravan Park, Dunedoo.

43. Ms Yongmei Ou did not make any representations concerning this second proposed order.

44. On 13 February 2017, the Council issued Order No 1 under s 121B of the EPA Act requiring Ms Yongmei Ou “to cease using the shed erected on the Premises for the purposes of a dwelling”. She was required to comply with the Order within 28 days of the date of the Order (i.e. by 13 March 2017). Ms Yongmei Ou was advised that she may appeal to the Land and Environment Court against the Order within 28 days after service of the Order on her.

45. Ms Yongmei Ou did not appeal against the Order.

46. On 28 August 2017, the Council’s solicitors wrote a letter to Ms Yongmei Ou before commencing proceedings in the Court. The solicitors referred to their earlier letter to Ms Yongmei Ou dated 25 September 2015, and enclosed a further copy, advising that the part erection of the kit home building and the use of the shed erected on the land for the purpose of a dwelling were breaches of the EPA Act. The solicitors noted that Ms Yongmei Ou had been requested to provide additional information to enable the Council to assess her development application for the dwelling house. However, the information provided was insufficient and the Council determined the development application by refusal. The solicitors noted that the Council had issued an order under s 121B (Order No 1) of the EPA requiring her to cease using the shed erected on the land for the purpose of a dwelling. The solicitors stated that recent inspections by Council officers had revealed that she was continuing to live in the garden shed, in breach of the Order and the EPA Act. The solicitors then gave notice to Ms Yongmei Ou:

“Unless you cease using the garden shed on the land for the purposes of a dwelling by 4pm on Friday 8 September 2017, we are instructed to commence Class 4 legal proceedings against you in the Land and Environment Court seeking a Court Order for your use of the Land to cease, and for the partly erected dwelling be removed. A copy of the draft Summons, commencing Class 4 proceedings is enclosed.

In the event the Class 4 proceedings are commenced, legal costs will be incurred and Council will also be seeking an Order that those costs be paid by you.”

47. On 21 September 2017, the Council commenced proceedings in the Court. The summons commencing the proceedings, the points of claim and the affidavits and other evidence of the Council were subsequently served on Ms Yongmei Ou.

48. On 8 February 2018, a Council Officer, Mr Robert Jehu, observed that a caravan had been installed on the land, approximately 20 metres from the roadway with the door of the caravan towards the west (away from the road). Mr Jehu observed a power cord plugged into the caravan and leading to the box on the on site power pole. A hose was also connected to the caravan from a tap near the power pole. Mr Jehu observed a small portable clothesline with clothes on it beside the pathway between the shed and the caravan.

49. On 23 March 2018, the Court granted leave to the Council to amend its summons to add a claim concerning the caravan on the land. The amended summons and amended points of claim were served on Ms Yongmei Ou on 28 March 2018.

50. On 26 April 2018, a Council Officer, Mr Dale Oliver, visited the land. He observed that the caravan was still there and that both side windows facing the street were open. He observed that the caravan was not connected to the water tap located next to the on site power pole. He observed that the electrical cord plugged into the power box on the on site power pole lead to the shed. He did not see any power connection to the caravan. He observed a well-worn track to the caravan from a worn patch of earth adjacent to the caravan, where a car had been parked, indicating that a person had traversed from the car to the caravan over a period of time.

51. Mr Oliver attended the land again on 27 April 2018 to serve court documents on Ms Yongmei Ou. He observed Ms Yongmei Ou “exiting the shed at the rear of the Property in a nightgown with a thermos and a cup in her hand”. Ms Yongmei Ou shut the shed door and walked towards him whilst he waited beside the caravan. There then followed a conversation concerning service of the Court books the Council proposed to use at the hearing. Mr Oliver took photographs showing the caravan, the partly erected building, and the shed on the land.

The breaches of the planning laws

52. Section 4.2(1) of the EPA Act provides that:

“If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:

(a) such a consent has been obtained and is in force, and

(b) the development is carried out in accordance with the consent and the instrument.”

53. One environmental planning instrument applying to Ms Yongmei Ou’s land is Warrumbungle Local Environmental Plan 2013 (‘the LEP’). The LEP zones land in the local government area within various zones. Ms Yongmei Ou’s land is zoned RU5 Village under the LEP. The Land Use Table for each zone specifies the development permitted without consent (item 2), permitted with consent (item 3), and prohibited (item 4) on land in the zone (cl 2.3(1) of the LEP). None of the types of development specified in the Land Use Table for the RU5 zone as being permitted without consent or as being prohibited is relevant to the development carried out by Ms Yongmei Ou on the land.

54. Development of “dwelling houses” and “any other development not specified in item 2 or 4” are developments permitted with consent in the RU5 zone. A “dwelling house” means “a building containing only one dwelling”. A “dwelling” means “a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile”. Other development that may fall within the innominate category of “any other development not specified in item 2 or 4” includes “residential accommodation”, which is defined to mean:

“a building or place used predominantly as a place of residence, and includes any of the following:

(a) attached dwellings,

(b) boarding houses,

(c) dual occupancies,

(d) dwelling houses,

(e) group homes,

(f) hostels,

(g) multi dwelling housing,

(h) residential flat buildings,

(i) rural workers’ dwellings,

(j) secondary dwellings,

(k) semi-detached dwellings,

(l) seniors housing,

(m) shop top housing,

but does not include tourist and visitor accommodation or caravan parks.”

55. The concepts of “development” and “carrying out of development” are broad and include “the use of land” and “the erection of a building” (see s 1.5 of the EPA Act). A “building” is defined in s 1.4(1) to be:

“building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993.”

56. A “manufactured home” is defined in the LG Act to mean:

“a self-contained dwelling (that is, a dwelling that includes at least one kitchen, bathroom, bedroom and living area and that also includes toilet and laundry facilities), being a dwelling:

(a) that comprises one or more major sections, and

(b) that is not a motor vehicle, trailer or other registrable vehicle within the meaning of the Road Transport Act 2013,

and includes any associated structures that form part of the dwelling.”

57. A “moveable dwelling” is defined in the LG Act to mean:

“(a) any tent, or any caravan or other van or other portable device (whether on wheels or not), used for human habitation, or

(b) a manufactured home, or

(c) any conveyance, structure or thing of a class or description prescribed by the regulations for the purposes of this definition.”

58. An “associated structure” is defined in the LG Act to mean:

“(a) a carport, garage, shed, pergola, verandah or other structure designed to enhance the amenity of a moveable dwelling and attached to or integrated with, or located on the same site as, the dwelling concerned, or

(b) a separating wall between 2 moveable dwellings.”

59. The erection of the steel structure of the kit home on the land involved the carrying out of development by the erection of a building (which includes a structure) that was intended when completed to be used as a dwelling house. Although the building being erected was apparently a kit home, imported from China, it was not a manufactured home, moveable dwelling or associated structure as those terms are defined in the LG Act. Amongst other features, the building is designed to sit on and be tied to concrete footings. The purpose of the intended use of the building when completed would be dwelling house. The carrying out of that development on the land required prior development consent. Ms Yongmei Ou applied for, but did not obtain, development consent to erect and use the dwelling house. The part erection of the kit home building was, therefore, in breach of s 4.2(1) of the EPA Act.

60. The use of the garden shed on the land for residential accommodation involved the carrying out of development by the use of land for residential accommodation. As noted, residential accommodation means “a building or place used predominantly as a place of residence” and includes specified types of residential accommodation. The garden shed is a form of building as defined. It is not a manufactured home, moveable dwelling or associated structure within the meaning of the LG Act, so as to fall outside the definition of building. The land, including the land on which the shed is installed, is a place. Ms Yongmei Ou used the shed (a building) and the land (a place) as her place of residence. This constituted a use of land for residential accommodation. The carrying out of that development of the use of land required prior development consent. Ms Yongmei Ou never sought or obtained development consent to use the shed or the land for any type of residential accommodation. The use of the garden shed and land for residential accommodation was, therefore, in breach of s 4.2(1) of the EPA Act.

61. The use of the garden shed for residential accommodation was not exempt development under cl 2.17 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008. Clause 2.17 does specify that the construction or installation of a garden shed is development specified for the Code as being exempt if it complies with the development standards in cl 2.18. The development that is exempt under the Code, however, is the construction or installation of the garden shed and the use as a garden shed. Use of the garden shed for residential accommodation is not exempt development and still requires development consent.

62. The use of the caravan on the land for residential accommodation also involved the carrying out of development by the use of land for residential accommodation. The caravan is not a building as defined as it is a moveable dwelling within the LG Act. Nevertheless, the land on which the caravan is installed is a place. Ms Yongmei Ou has used, and still is using, the land (including the caravan on the land) as her place of residence. The caravan is a means by which the land is made to serve as her place of residence. The carrying out of that development of the use of land required development consent. Ms Yongmei Ou never sought or obtained development consent to use the land for any type of residential accommodation. The use of the land (including the caravan on the land) for residential accommodation was, therefore, in breach of s 4.2(1) of the EPA Act.

63. The use of the shed was also in breach of the EPA Act by the failure to comply with the Order under s 121B of the EPA Act to cease using the shed as a dwelling. The s 121B Order required Ms Yongmei Ou to cease using the shed for the purpose of a dwelling within 28 days of the date of the Order (i.e. by 13 March 2017). Ms Yongmei Ou did not comply with the s 121B Order. She continued to use the shed for the purposes of a dwelling after 13 March 2017 until she installed and started occupying the caravan on the land (by 8 February 2018). The failure to comply with the s 121B Order, which is a breach of the EPA Act, would therefore have extended for around 11 months. The breach may, however, be still continuing. The evidence is not clear that Ms Yongmei Ou has ceased to use the shed in association with the caravan for residential accommodation. The observation of the Council Officer, Mr Oliver, on 27 April 2018 of Ms Yongmei Ou exiting the shed at 8:15am in the morning in her nightgown with a thermos and cup in her hand might suggest that she continues to use the shed in association with the caravan for residential accommodation. If so, Ms Yongmei Ou would still be failing to comply with the s 121B Order and would be continuing to breach the EPA Act.

64. Ms Yongmei Ou’s installation and occupation of the caravan on the land is also a breach of the LG Act. Under s 68(1) of the LG Act, a person may carry out an activity specified in the Table to s 68 only with the prior approval of the Council, except in so far as the LG Act, the Regulations or a local policy adopted under Pt 3 of the LG Act allows the activity to be carried out without that approval. Part A, Item 1 of the Table to s 68 specifies the activity of “install a manufactured home, moveable dwelling or associated structure on land” as requiring the prior approval of the Council. The Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 (‘the Regulation’) does specify activities that can be carried out without approval under s 68 of the LG Act. Clause 77 of the Regulation provides:

“The prior approval of the council is not required for:

(a)  the installation of not more than 2 caravans, campervans or tents on any land, so long as they are not occupied for more than 2 days at a time and are not occupied for more than 60 days (in total) in any single period of 12 months, or

(b)  the installation of not more than one caravan or campervan on land occupied by the owner of the caravan or campervan in connection with that owner’s dwelling-house, so long as it is used for habitation only by the owner or by members of the owner’s household and is maintained in a safe and healthy condition, or

(c)  the installation of a caravan or campervan on pastoral or agricultural land, so long as it is merely occupied seasonally by persons employed in pastoral or agricultural operations on the land.”

65. Ms Yongmei Ou’s installation of the caravan on the land does not fall within any of the exceptions in cl 77 of the Regulation. Ms Yongmei Ou has occupied the caravan since at least 8 February 2018 and was still observed to be occupying it on 27 April 2018. A well-worn track between the car parking space and the caravan is further evidence of continual occupation. Ms Yongmei Ou’s occupation of the caravan therefore exceeds the time limits of occupation imposed in paragraph (a) of cl 77. Ms Yongmei Ou has not completed erection of, and there is no development consent for, the dwelling house on the land. Ms Yongmei Ou’s occupation of the caravan is not, therefore, in connection with any dwelling house on the land. The installation of the caravan does not fall within paragraph (b) of cl 77. The caravan is not installed on pastoral or agricultural land, but rather on land in the village of Mendooran, and is not merely occupied seasonally by persons employed in pastoral or agricultural operations on the land. The installation of the caravan therefore does not fall within paragraph (c) of cl 77. As none of the exemptions in cl 77 of the Regulation apply, Ms Yongmei Ou required prior approval for the installation and occupation of the caravan on the land. Ms Yongmei Ou has not sought or obtained such approval, in breach of s 68 of the LG Act.

Remedying the breaches of the planning laws

66. The Council seeks declarations concerning the various ways in which Ms Yongmei Ou has breached the EPA Act and LG Act: first, that Ms Yongmei Ou’s use of the land (including the shed and the caravan on the land) for residential accommodation without prior development consent is in breach of s 4.2(1)(a) of the EPA Act; second, that Ms Yongmei Ou’s part erection of the building intended to be used as a dwelling house on the land without prior development consent is in breach of s 4.2(1)(a) of the EPA Act; and third, Ms Yongmei Ou’s installation of the caravan on the land without prior approval is in breach of s 68 of the LG Act. The Council submits that it is necessary for the Court to make declarations to publicly and authoritatively pronounce that Ms Yongmei Ou’s conduct in using the land, partly erecting the building and installing the caravan, are breaches of the law.

67. I agree that the Court should make declarations that Ms Yongmei has breached the planning laws in the various ways that I have found.

68. The Council seeks orders that Ms Yongmei Ou stop breaching the planning laws in two ways: first, that Ms Yongmei Ou cease using the caravan on the land for residential accommodation without obtaining development consent under the EPA Act and approval under s 68 of the LG Act and, secondly, that Ms Yongmei Ou demolish and remove the partly erected structure from the land. At the hearing, the Council submitted that the first order should be widened to require Ms Yongmei Ou to cease using not only the caravan itself but all of the land for residential accommodation. This would ensure that any use of the shed or other parts of the land for residential accommodation is restrained.

69. The Council accepted that Ms Yongmei Ou should be given some time to remedy the breaches before she is required to comply with the orders. This could be achieved by staying the operation of the orders for a period of time. The Council submitted that the order that Ms Yongmei Ou cease using the land (and the caravan and the shed on the land) for residential accommodation be stayed for 50 days and the order that Ms Yongmei Ou demolish and remove the partly erected structure be stayed for 3 months. The Council reiterated that Ms Yongmei Ou can remedy the breaches by making and pursuing an application for development consent under the EPA Act to erect and use a dwelling house on the land or an application for development consent under the EPA Act and an application for approval under s 68 of the LG Act to install and use the caravan on the land for residential accommodation. The period of time in which the orders of the Court would be stayed would allow Ms Yongmei Ou to make these applications to the Council.

66. I find that it is appropriate to order Ms Yongmei Ou to cease using the land (including the caravan and the shed on the land) for residential accommodation and to demolish and remove the partly erected building, but to stay the operation of the orders for a period of time to allow Ms Yongmei Ou an opportunity to remedy the breaches of the planning laws. I consider that the period of 50 days might be too short but that the period of 3 months should be sufficient to allow Ms Yongmei Ou promptly to make proper and complete applications for development consent under the EPA Act and approval under the LG Act and to obtain such consents and approval. If, notwithstanding Ms Yongmei Ou’s best efforts to obtain the necessary consents and approval in time, further time is still needed, I will give the parties liberty to apply to the Court to extend the time period of the stay of the orders. The Court will have a discretion, on any such application, whether to give further time to Ms Yongmei Ou to remedy the breaches before the orders take effect. A critical factor that will be taken into account will be whether Ms Yongmei Ou has made proper, genuine and timely efforts to obtain the necessary development consents and approval.

67. The Council also sought an order that, if Ms Yongmei Ou does not comply with the Court order to demolish and remove the partly erected building, the Council can enter the land and perform the order instead. The Council noted that the Court made an order for substituted performance by a council in Lismore City Council v Vivian (2016) 218 LGERA 372; [2016] NSWLEC 108 at [17], [22]. The Court in that case noted that the power to make an order for substituted performance is in r 40.8 of the Uniform Civil Procedure Rules 2005 (‘UCPR’) and/or s 23 of the Land and Environment Court Act 1979. The Council submitted that the time period before substituted performance by the Council should be 6 months after the date of the Court orders.

68. I consider that an order for substituted performance is appropriate. Ms Yongmei Ou has been given opportunities by the Council, and, by the Court orders, will be given another opportunity to complete the dwelling house. However, if she fails to do so in the next 3 months, she will be ordered to demolish and remove the partly erected building. If she fails to comply with this order, it is appropriate that the Council carry out those works in her stead. The period of time of 6 months (which would be 3 months after the order to demolish and remove the partly erected building takes effect) allows ample time for Ms Yongmei Ou to comply with the order before the Council will be required to carry out the works.

69. The Council seeks an order that Ms Yongmei Ou pay the Council’s costs of the proceedings. The proceedings are in Class 4 of the Court’s jurisdiction. The usual rule for such proceedings is that costs follow the event: see s 98(1) of the Civil Procedure Act 2005 and r 42.1 of the UCPR, which rules apply to proceedings in Class 4 of the Court’s jurisdiction. The event is the outcome of the proceedings. Hence, the unsuccessful party should normally be ordered to pay the successful party’s costs. In this case, the Council has been successful in establishing that Ms Yongmei Ou has breached the planning laws in various ways and in obtaining Court orders declaring, remedying and restraining the breaches of the planning laws. The Council should be awarded its costs of the proceedings.

70. The amount of the costs can be assessed in the usual manner. The Council will prepare and provide to Ms Yongmei Ou a bill of costs, assessed on the ordinary basis (see r 42.2 of the UCPR). Ms Yongmei Ou will have an opportunity to negotiate and agree on the amount of the costs. If agreement is not able to be reached, the amount of costs will need to be taxed by an assessing officer.

Orders of the Court

75. The Court:

1. Declares that, in breach of s 4.2(1)(a) of the Environmental Planning and Assessment Act 1979, Ms Yongmei Ou is using Lot 3 of Section 21 in Deposited Plan 758668, known as 56 Farnell Street, Mendooran, New South Wales (‘the Land’), for residential accommodation, being development on the Land that may not be carried out except with development consent under Warrumbungle Local Environmental Plan 2013.

2. Declares that, in breach of s 4.2(1)(a) of the Environmental Planning and Assessment Act 1979, Ms Yongmei Ou carried out development on the Land by partly erecting a building intended to be used for a dwelling house, being development on the Land that may not be carried out except with development consent under the Warrumbungle Local Environmental Plan 2013.

3. Declares that, in breach of s 68 of the Local Government Act 1993, Ms Yongmei Ou installed a caravan, being a moveable dwelling, on the Land without prior approval under s 68 of the Local Government Act 1993.

4. Orders Ms Yongmei Ou to cease using the Land, and the caravan and the shed installed on the Land, for residential accommodation without obtaining development consent under the Environmental Planning and Assessment Act 1979 and approval under s 68 of the Local Government Act 1993.

5. Orders Ms Yongmei Ou to demolish and remove from the Land the partly erected building on the Land.

6. Directs that, if Ms Yongmei Ou does not comply with order (5) within 3 months of order (5) taking effect, Warrumbungle Shire Council may enter the Land and demolish and remove from the Land the partly erected building on the Land, without further order and without further notice being given to Ms Yongmei Ou.

7. Stays the operation and effect of orders (4) and (5) for 3 months from the date of these orders.

8. Gives the parties liberty to apply to the Court to extend the time of the stay in order (7) and the time in order (6).

9. Orders Ms Yongmei Ou to pay Warrumbungle Shire Council’s costs of the proceedings.

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Decision last updated: 04 May 2018