Wingecarribee Shire Council v Boyce

[2013] NSWLEC 164

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wingecarribee Shire Council v Boyce [2013] NSWLEC 164
Hearing dates:	26 September 2013
Decision date:	26 September 2013
Jurisdiction:	Class 4
Before:	Sheahan J
Decision:	Declaration and orders made in accordance with paragraphs [39] - [40] of this judgment
Catchwords:	INJUNCTIONS AND DECLARATIONS: Persisting with a use prohibited by the local plan - no consent - need to remove stored materials from the respondent's land
Legislation Cited:	Environmental Planning & Assessment Act 1979 Wingecarribee Local Environmental Plan 2010
Cases Cited:	Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 R v Lowe (1954) 19 NSWLGR 348 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Category:	Principal judgment
Parties:	Wingecarribee Shire Council (Applicant) Peter James Boyce (Respondent)
Representation:	Mr M Wright, barrister (Applicant) N/A (Respondent) Marsdens Law Group (Applicant) Litigant in person (Respondent)
File Number(s):	40455 of 2013

EXTEMPORE Judgment

1. The Council has brought these class 4 proceedings against Mr Boyce over his use of land he owns, being Lots 1 to 5 in DP 1112381, at Penrose Road, Bundanoon, especially Lot 5, for the nominated purpose of "storing shipping containers". (See survey diagram "B" to Scotland's affidavit)

1. The land is a prominent triangular block fronting three public streets - Penrose Road, and Willis and Florence Streets. There are residences across each of those streets from the land, and there are no consents registered in Council's records in respect of it (Froome par 7).

1. Council seeks (1) a declaration that Mr Boyce in so using the land is carrying on development contrary to the provisions of the Environmental Planning & Assessment Act 1979, (2) an order for the removal of all shipping containers, (3) an order restraining any such use, and (4) an order in its favour for the costs of the proceedings.

1. Mr Boyce collects, dismantles, reassembles, and sometimes still uses, vintage or antique Packard motor vehicles, and "spare parts" for them. He has collected Packards since he was 15, and restored his first one at 19.

1. He formerly conducted a wedding hire car business - from the 1960s into the 1980s - and then moved his cars to an old picture theatre in Gunning. His registered Business Name "Packard Transport" is now "nonoperational".

1. He would now like to establish a proper museum for them.

1. There have been cars and parts on the subject land since he acquired it in 1988, and he also uses other land he owns in the shire, at Robertson, which he purchased in the mid 1990s after discussions with a then Council officer, Paul Curley, about the unsightly appearance of the Bundanoon land.

1. Some of the cars are roadworthy and operational, but they are not registered.

1. In his affidavit he describes himself as having no fixed address, and gives his occupation as "volunteer". He is clearly well-read, very articulate, and a devout Christian, very involved in charitable causes. He is a single man, without dependents, and his means are modest (Affidavit at "R").

1. He earns $575 per week from the lease of a taxi plate, of which he owns 30%, plus occasional payment for the use of a car for a film project. He has $50,000 on deposit at the bank, but he wishes to keep it to assist in establishment of his museum. The Robertson land is valued at $132,000, and the Bundanoon land at $171,000. There is a mortgage on the Bundanoon title, but he has disclosed no amount as still owing. He values his car collection at $600,000, and his taxi share at $120,000.

1. He has spent $27,000 obtaining and placing the containers.

1. There is no contest between the parties as to the key basic facts.

1. In particular, Mr Boyce admits that he owns the seven shipping containers, having used an inheritance he received in late 2011 to purchase them and transport them to the site, and that he placed them on Lot 5 of his five lots between 25 January 2012 and 3 May 2013, despite being aware of the continuing concern of Council.

1. Five of the seven are 40 ft (12 m) long and lie in North-South orientation immediately West of the pre-existing shed on the land, and the other two are 20 ft (6 m) long and lie in an East-West orientation on the southern side of the shed. (See Froome fols 151, 152, 156, & 159)

1. Mr Boyce thought he could put them on the land because they were "portable". There were two placed on site on 25 January 2012, a 3rd on 29 February 2012, the 4th on 2 April 2012, the 5th and 6th on 31 August 2012, and the 7th on 3 May 2013. (See calendar of events in subs at p6)

1. His Points of Defence take issue with only the Council's claims based on "use" and/or "development", and he seeks the exercise of the court's discretion in his favour.

1. He asserts (subs p20) that his purpose has been "to screen, not to store" - i.e. "to screen from public view the eyesores that my collection of rusty cars and parts constituted, in obedience to written instructions received from a former Council officer...". He states (subs p22) that his purpose is "to protect the environment from the visual intrusion of tonnes of old rubber tyres, car frames, rusty steel, engines, axles wheels, panels and offcuts of timber, and protect my rights as an individual to tidy up my property as requested by Council". The containers are thus asserted to be "ancillary to" the cars and parts on the land, and many of those items are now stored in them.

1. There is no farming, mining, or other business conducted on the land. It was owned from 1966 to 1983 by a stonemason named Condon, who erected a fairly large shed on it to store his tools (Froome fol 4 p133 and Boyce subs p31). By anomaly or mistake, the land continued to be rated as a business, and it would appear that, at times, some council information showed it as zoned for "business".

1. However, the evidence before me clearly establishes that the land is zoned "R2 Low Density Residential" under the Wingecarribee Local Environmental Plan 2010. The major objective of the zone is satisfaction of residential housing needs, and the enabling of uses that serve the needs of residents.

1. The only uses permitted without consent in the R2 zone are environmental protection works, home-based child care, and home occupations. The list of uses permitted with consent includes dwelling houses, home businesses, home industries, health consulting rooms, places of public worship, and recreation and environmental facilities. "Storage facilities" are not listed as permissible, with or without consent.

1. All unspecified uses, including "storage" (for any purpose), are prohibited. (Froome, fol 25). Accordingly, storage of cars, parts and shipping containers is prohibited, as none of it is a permitted use. Nor is it within or ancillary to any permissible use, there being no permissible use being currently made of the land.

1. His current use is thus an "innominate prohibited use", and nothing in the authorities upon which he relies (subs pp 24-27) - R v Lowe (1954) 19 NSWLGR 348, Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302, Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 - can assist him.

1. The court notes that Mr Boyce has an accurate s 149 certificate which makes these planning restrictions quite clear, yet he has chosen to resist the Council's case.

1. The presence of the containers on the land has resulted in a number of resident complaints and a petition (annexures M, Q & S to Froome's affidavit), regarding their intrusive visual impact and the now "industrial" character of the site, which is not in keeping with the locality. Conscious of neighbours' concerns, Mr Boyce asserts (subs p28) that he should be able to use his "privately owned land" as he chooses, and has chosen to "improve" its presentation by the "screening" he has achieved.

1. Council has had lengthy correspondence with Mr Boyce about the issue, including enforcement, and the seventh container was added to the site after Council made threats of action against him.

1. During their exchange of correspondence, and in his affidavit, Points of Defence, and written submissions, the respondent refutes the Council's allegation that he has carried out any "development", and/or was using the land at all, let alone "for the purpose of storing shipping containers".

1. On 30 January 2012, he admitted that he "may have done something very naughty" in putting the first 2 containers on the land, but he said then that he was "planning on putting more", pending obtaining approval for a car museum in Robertson.

1. On 27 March 2012, Council's development coordinator responded, recommending he sell both his sites as residential blocks, and purchase a new site more suitable for his museum. Before he saw that email, but on that same day, Boyce had a meeting with Council officers, at which the residential zoning was stressed, and Council indicated he could not build a "supplementary shed" on the Bundanoon land.

1. On 1 April 2012, he wrote a lengthy submission to Council ("D" to his affidavit) confirming his preparedness (1) to give Council his "entire collection as well as the Robertson property, all of which are unencumbered", and (2) to consider also the gifting to Council of the Bundanoon property. Next day Council informed him that the zoning of the Robertson land would not allow for a museum. Council has repeatedly rejected such offers, and did so again today.

1. After the withdrawal, in June 2012, of Council orders and Mr Boyce's appeals against them, he emailed Council on 21 August 2012 ("F" to his affidavit) after he had been approached by neighbours about the containers. Council confirmed to him on 23rd ("G") that its file was still current, and documents were being prepared. Two more containers arrived on 31 August 2012.

1. On 29 November 2012, Council's solicitors wrote to him formally (Froome "N"), demanding removal of the containers. Boyce replied on 21 December (Froome "O") foreshadowing the submissions he has made today.

1. The Council's summons was filed on 14 June 2013.

1. The court is conscious of Mr Boyce's good intentions, including using his cars for emergencies, and also conscious of his limited means.

1. However, the Council and the court have a duty to enforce the relevant planning regime in the overall public interest.

1. The court is satisfied that the presence of the cars, parts, and shipping containers is not permitted, nor ancillary to anything which is, and that the Council is prima facie entitled to the orders that it seeks.

1. The materials he has accumulated on the land over recent "decades" (subs p41) are already clearly unsightly - see his own photographs at pp 31, 32, 33, and especially 40 of his submissions - and the containers are equally unsightly (see Froome's photos [14] above). They "screen" the car parts by "storing" them in other "eyesores".

1. Contrary to what he submits (at p37), this is not "proper management, development and conservation", and does not promote "a better environment", as the statutory regime mandates.

1. He continued his breach of the planning regime when on notice of Council's intention to seek an end to it, and he made out no grounds for the exercise in his favour of the court's discretion (beyond allowing him more time than Council proposes).

1. I make the declaration sought in par 1 of the summons, and also make Orders 3 and 5 in the summons (as to restraint and costs).

1. I also make Order 2, but I will allow the respondent until 25 December 2013 to effect the total removal of all the containers and their contents.

1. I will make formal orders accordingly, and will publish these reasons tomorrow.

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Decision last updated: 27 September 2013