Wollondilly Shire Council v 820 Cawdor Road Pty Ltd

[2012] NSWLEC 71

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wollondilly Shire Council v 820 Cawdor Road Pty Ltd [2012] NSWLEC 71

Hearing dates:

27/03/2012; 29/03/2012; 30/03/2012

Decision date:

05 April 2012

Jurisdiction:

Class 4

Before:

Lloyd AJ

Decision:

1.The Court notes an undertaking given to the Court by and on behalf of the first respondent, that the first respondent will not allow the use of the toilet in the building on the land, described as "the pink building", unless and until the applicant has granted an approval to operate a system of sewage management within the meaning of s 68A of the Local Government Act 1993.

2.The summons is otherwise dismissed.

3.The question of costs is reserved.

Catchwords:

INJUNCTIONS AND DECLARATIONS - unlawful use and occupation of land - discretionary considerations - no utility in making bare declarations
WORDS AND PHRASES - "dwelling"

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 124
Local Government Act 1993, s 68A
Residential Tenancies Act 2010, s 9, s 109(1), s 120
State Environmental Planning Policy No 4 - Development without Consent and Miscellaneous Exempt and Complying Development, cl 10(1)
Wollondilly Local Environmental Plan 2011

Cases Cited:

Burwood Municipal Council v Aboriginal Hostels Ltd (1979) 39 LGRA 150
Hornsby Shire Council v Monk [2001] NSWLEC 248
KJD York Management Services Pty Ltd v City of Sydney Council [2006] NSWLEC 218; 148 LGERA 117
Louinder v Stuckey (1984) 2 NSWLR 354
North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532
Stephen Bowers Architects Pty Ltd v Waverley Council [2003] NSWLEC 16; 125 LGERA 292
Townsend v Lake Macquarie City Council [2004] NSWLEC 38
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Wollongong City Council v Vic Vellar Nominees Pty Ltd [2010] NSWLEC 266; 178 LGERA 445

Category:

Principal judgment

Parties:

Wollondilly Shire Council (Applicant)
820 Cawdor Road Pty Ltd (First Respondent)
Richard Garton (Second Respondent)

Representation:

IJ Hemmings/ Anne Hemmings (Applicant)
P Rigg (Sol) (First Respondent)
A Pearman (Second Respondent)
Hones La Hood (Applicant)
Norton Rose Australia (First Respondent)
Meehans Solicitors (Second Respondent)

File Number(s):

40973 of 2011

Judgment

1. Mr Richard Garton is a 67 year-old recluse with a history of Manic Depressive Disorder. He is living in a dilapidated old building, on a property of 99.81 hectares at Cawdor, erected in about the 1890's. Apart from one period of about nine months, Mr Garton has lived there for the last 20 years. The building has no facilities that we normally find in a house - it has no kitchen, no bathroom, no toilet, no laundry, no water laid thereon, no electricity, no stove, no refrigerator, no heating and no cooling. Mr Garton cooks on a grate on an open fire or on a camping stove, and keeps his perishable food cool by storing it in a container topped with a wet cloth. He uses a toilet in an empty building on the property which appears to be connected to a septic tank, but which he has to flush with a bucket.

1. Mr Garton has had no income for some 20 years. He does not receive a pension or any form of government subsidy. He lives mainly on rolled oats, bread and fruit. He lives off his savings from a property settlement with his ex-wife, which was finalised in 1995. He has come to accept the failure of his marriage and the loss of contact with his son.

1. Mr Garton is happy to live a reclusive lifestyle. He does not venture beyond Camden, the nearest town, using a bicycle as his means of transport. Large crowds tend to make him anxious.

1. In his affidavit he states:

Although the building I occupy may seem very limited and quite basic, it is comfortable and I am used to living that way. I still have a means to collect water for everyday use. I live alone in the building and I believe that it is well suited to me, and I am well suited to it and the lifestyle it brings. If given the chance to upgrade the building, I would most likely decline this offer as it is comfortable and the change would ruin my familiarity with it.

1. There are two houses on the property both of which were approved by the Council; the main house and a rural worker's dwelling. One of the houses is occupied by a couple, of whom Mr Garton states:

Since Ulla and Bruce have moved in, they have become a sort of de facto family to me. As I do not have any real family or friends, Ulla and Bruce have become the only real people that I know and trust. They are very inviting towards me and look after me sometimes bringing me food. To lose them would be crushing.

1. Mr Garton wants to remain living where he is. He states:

I like it here and I feel comfortable with the house. I have held the same basic lifestyle for the past 20 years and if I were to move, there would be no other place that would allow me to continue this accustomed lifestyle.

1. A psychologist, Gerard Glancey, has undertaken an assessment of Mr Garton, and concludes that he has learned to manage mental disturbance by withdrawing from mainstream society and maintaining a simplistic existence. His current home is a haven from a world of complexities with which he is unable to cope. It represents a sanctuary which allows him to function without mental disturbance. The isolation of the property appears to have a therapeutic influence on his functioning. Eviction from his current home will stress him and likely reinforce depression. Forced removal from the property, his haven of twenty years, will likely prove catastrophic to his mental state. Mr Glancey concludes:

I doubt that, at the age of sixty-seven years, he can ever successfully return to a life in mainstream society.

1. The Council wants Mr Garton out. It says that his use of the building as a dwelling contravenes the Wollondilly Local Environmental Plan 2011, since there are two lawfully erected dwellings on the land, and more than two is prohibited. It also has concerns about the structural stability of the building which Mr Garton occupies.

1. The Court is not going to order Mr Garton out. Not this Judge anyway. Whether Mr Garton's occupation of the building is lawful or unlawful, his environmental footprint is minimal. His presence is harming or disturbing nobody. There is no evidence of any other environmental harm. On the other hand, to order Mr Garton out when he has nowhere else to go, where he is clearly unsuited to commercial or community living, and when to do so would remove him from a largely stress-free existence to a situation which would be both stressful and possibly catastrophic to his mental state would be a wrongful exercise of discretion.

1. The present owner of the property (the first respondent) does not want him out. The present owner purchased the property in 2005 knowing he was there. Mr Garton is regarded as something of a caretaker of the land, performing a watchman role and doing odd jobs on the property, without pay.

1. Notwithstanding the fact that a use or occupation of land may, in a particular case, be unlawful, the Court retains a wide discretion which is unfettered: s 124 Environmental Planning and Assessment Act 1979, Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335. In exercising the discretion I am mindful of the considerations identified by Kirby P in Sedevcic (at 340), and in particular the legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law. Kirby P also said, however, that courts "will be alert to insensitive, unthinking administration in this as in other fields of law".

1. This is not a normal case. In the special circumstances of this case I adopt what was said by Mahoney JA in Sedevcic at 346 - 347, and whose comments are particularly relevant to the present case:

In my opinion, the injunction should not be granted. If there be a breach, it has continued for a long time. It is causing, in fact, little damage or inconvenience. There is no significant protest from those in the vicinity. The land is located, not at the centre, but near the edge of the relevant residential zone. And the injunction would cause significant damage to the defendant. In all the circumstances, the discretion should be exercised in the defendant's favour.

1. I also adopt what was said by Clarke JA in the same case, at 347:

Nonetheless the length of time during which the premises have been used in the particular manner; the location of the premises on the edge of the residential area; the absence of any proven planning detriment or prejudice to people living in the area if the use is maintained and the significant harm which would be caused to the respondent if an injunction is granted persuade me that Cripps CJ correctly exercised his discretion.

1. So, too, in the present case, to restrain the use of the building by Mr Garton as sought by the Council would cause him significant harm, whereas to allow him to remain would cause little or no environmental harm or inconvenience to anyone.

1. The only reservation I have in exercising the Court's discretion in this way is the physical condition of the building - not so much its lack of facilities, but its structural stability. In this respect I refer to the evidence of Mr LD Appleyard, a consulting civil and structural engineer who gave evidence for the Council.

1. Mr Appleyard conceded that the building, as with most buildings of its age, was originally over-designed. I understand this to mean that it was built to a higher standard of structural stability than would nowadays be required. The structure of the building has, however, deteriorated. Without going into the details, Mr Appleyard is of the opinion - which is not disputed - that the structure is now manifestly unsound and unsafe and, in particular, it is at a clear and obvious risk of collapse due to wind action. In cross-examination, however, Mr Appleyard conceded that the structure could have a lifespan of up to a further ten years in the absence of any abnormal wind events. In his opinion, the integrity of the building is beyond salvation and cannot be readily rectified except by virtually complete demolition and reconstruction. He conceded, however, that a staged removal and reconstruction would not affect the structural stability of the building.

1. I have noted, however, the wishes of Mr Garton at [4] above: "If given the chance to upgrade the building, I would most likely decline this offer as it is comfortable and the change would ruin my familiarity with it." He can stay there. If the building becomes an imminent danger, then there is, I understand, a disused caravan on the property which Mr Garton might be able to use whilst essential repairs are carried out, but this will be a matter for both Mr Garton and the owners of the property to sort out.

1. Is Mr Garton's use and occupation of the building unlawful in any event? The respondents say it is not. They say that Mr Garton is merely using the building as a place of shelter - that is, as I understand it, he is merely camping in the building. They say that the building itself is not a "dwelling" as defined in the Wollondilly Local Environmental Plan since it does not have the things that define a building as a dwelling, having no kitchen, no toilet, no bathroom, no laundry, no water, no electricity, no stove, no refrigerator and no heating or cooling system. Accordingly, it is submitted that Mr Garton's use and occupation of the building does not infringe the prohibition in the relevant zone (Zone RU1 Primary Production) against multi dwelling housing, relevantly defined as three or more dwellings in one lot of land.

1. The respondent's submission focuses on the definition of "dwelling" in the local environmental plan:

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.

It is self-evident that there are two limbs to the definition -

[1] a room or suite of rooms occupied or used as a separate domicile, or

[2] a room or suite of rooms so constructed or adapted as to be capable of being occupied or used as a separate domicile: (Stephen Bowers Architects Pty Ltd v Waverley Council [2003] NSWLEC 16; 125 LGERA 292 at [24]).

The focus is on the first limb of the definition, since the building is not so constructed or adapted as to be capable of being used or occupied as a separate domicile.

1. The submissions of Mr PR Rigg, appearing for the owner of the property, may be briefly summarised. The submissions rely upon the absence from the building of the usual facilities noted above. Mr Appleyard, the civil and construction engineer who gave evidence for the Council, said that a kitchen and a fixed bath or shower are essential parts of a residential dwelling. In Louinder v Stuckey (1984) 2 NSWLR 354, Glass JA observed (at 357):

In my opinion the current usage of the term [dwelling house] denotes premises (unassisted by definition) which contain not only accommodation for sleeping but also kitchen, bathroom and lavatory facilities. It is of the essence of the term that all these facilities are separately contained within it ...

1. In Hornsby Shire Council v Monk [2001] NSWLEC 248, Bignold J held that a building without a kitchen providing a stove was not a separate dwelling. In Townsend v Lake Macquarie City Council [2004] NSWLEC 38, I held at [16] that the absence of kitchen, bathroom and laundry facilities necessarily takes a building outside the ambit of a definition of "dwelling", similar to that in the present case. In Wollongong City Council v Vic Vellar Nominees Pty Ltd [2010] NSWLEC 266; 178 LGERA 445, Biscoe J held that in his view a "dwelling" and a "dwelling house" similarly defined also requires those facilities.

1. It follows, according to the submissions, that one must look at the facilities to see whether a building satisfied the definition of "dwelling". Moreover, Mr Rigg submits that the intention of the user or occupier of the building is irrelevant.

1. I find myself unable to agree with these submissions. The attributes referred to by both Mr Rigg and Mr IJ Hemmings (appearing with Ms A Hemmings for the Council) all relate to the second limb of the definition of "dwelling". Thus, in Townsend I observed the building will not be "so constructed or adapted as to be capable of being occupied as a separate domicile" by virtue of the absence of kitchen, bathroom and laundry facilities. The question of whether the building in that case would or would not be "occupied or used ... as a separate domicile" did not arise.

1. In considering the first limb of the definition the focus must be on the word "domicile". In Vic Vellar Nominees Pty Ltd Biscoe J held, at [32], that in this context "domicile" embodies the idea of a permanent home or a significant degree of permanency or occupation. Biscoe J cited a large number of authorities in support of this statement, including Burwood Municipal Council v Aboriginal Hostels Ltd (1979) 39 LGRA 150 at 153, North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532 at 537 - 538, and KJD York Management Services Pty Ltd v City of Sydney Council [2006] NSWLEC 218; 148 LGERA 117 at [8] - [18], inter alia. I accept this as the concept of the word "domicile".

1. The question then becomes whether Mr Garton is occupying a room or suite of rooms as a separate domicile. The answer is obviously yes. He has lived in the building, apart from one break of about nine months, for the last 20 years. He does not live anywhere else, and has not done so for many years. There is nowhere else that he could call his domicile. He calls it his home. The place that a person uses as his domicile does not necessarily have to contain the facilities that one would normally find in a house. A person might have as his or her domicile a caravan, or even a tent, as long as it has a sufficient degree of permanency of habitation or occupancy. Accordingly, even if it could be said that Mr Garton is, and has been, doing no more than camping in a building which has no facilities, the degree of permanency of his habitation or occupancy makes it his domicile. Importantly, there is nowhere else which could be described as his domicile.

1. It follows that Mr Garton is occupying or using the building as a separate domicile. The building is thus a "dwelling" for the purposes of the relevant definition. The subject dwelling, together with the two approved dwellings on the land, means that there are three dwellings on the land within the meaning of "multi dwelling housing", which is prohibited within the relevant zone.

1. Mr Rigg also relies upon the Residential Tenancies Act 2010. Section 9 of that Act deems any agreement or arrangement under which a person is given the right to occupy premises for the purpose of residence in return for carrying out work in connection with the premise to be a residential tenancy agreement. Section 120 provides for a penalty if a person enters residential premises for the purpose of taking possession unless the person is acting in accordance with a warrant arising out of an order for possession of the Consumer, Trader and Tenancy Tribunal, or warrant arising out of a judgment or order of a court, or the tenant has abandoned the premises or given vacant possession of the premises.

1. Section 109(1), however, states that if residential premises become wholly or partially uninhabitable or cease to be lawfully used as a residence, the landlord (or the tenant) may give the other party a termination notice.

1. Mr Rigg next relies upon cl 10(1) of State Environmental Planning Policy No 4 - Development without Consent and Miscellaneous Exempt and Complying Development. This provision ceased to apply in the Shire of Wollondilly from 26 March 1999, but Mr Garton had moved in well before that date when the provision was in force. That clause relevantly states:

(1) This clause applies to development on land for a purpose that is ancillary or incidental to a purpose for which the land may be used, being development:

(a) for the purpose of parking, loading facilities, drainage, workers' amenities, pollution control, security or for other similar purposes, or ...

1. Mr Rigg submits that, since Mr Garton was performing a caretaker/ security role, the provision of a worker's amenity in the form of shelter did not and does not require development consent, being ancillary and incidental to the lawful use of the property for agriculture.

1. The submission would succeed if all that the building was used for was the provision of a worker's amenity in the form of shelter and for security functions within Mr Garton's role as a caretaker. But since, as I have found, the building performs more than that limited function for Mr Garton and is properly denoted as a "dwelling" and is Mr Garton's domicile, then his use and occupation of it is not protected by cl 10(1) of the Policy.

1. Finally, the Council complains that Mr Garton's use of the toilet in the nearby building (described in the evidence as "the pink building") is unlawful in the absence of an approval to operate a system of sewage management within the meaning of s 68A of the Local Government Act 1993. In this respect Mr Rigg gave an undertaking to the Court on behalf of the owners of the property that the toilet in question will not be used unless and until an approval to operate it is granted by the Council.

1. The Council by its summons seeks declaratory and injunctive relief. For the reasons outlined in paragraphs [1] - [17] above the relief sought is declined. There is no point in making the bare declarations that the Council seeks in the absence of any consequential relief. Moreover, the making of the declarations sought as to the unlawfulness of the use of the building by Mr Garton might be used by either the Council, or by others, to remove Mr Garton from the building, notwithstanding that the Court has declined to grant the injunctions sought.

Orders

1. The Court notes an undertaking given to the Court by and on behalf of the first respondent, that the first respondent will not allow the use of the toilet in the building on the land, described as "the pink building", unless and until the applicant has granted an approval to operate a system of sewage management within the meaning of s 68A of the Local Government Act 1993.

2.   The summons is otherwise dismissed.

3.   The question of costs is reserved.

4.   The exhibits may be returned.

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Decision last updated: 05 April 2012