Mosman Municipal Council v David Kelly [2007] NSWLEC 90 (19 February 2007)

Last Updated: 26 February 2007

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION: Mosman Municipal Council v David Kelly [2007] NSWLEC 90

PARTIES:

APPLICANT

Mosman Municipal Council

RESPONDENT

David Kelly

FILE NUMBER(S): 40967 of 2006

CATCHWORDS: Civil Enforcement :- erection of garage that required consent without consent - demolition - no appearance by respondent - proceedings heard ex parte - breach - discretion - stay of orders

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 76A, s 124

Evidence Act 1995 s 53

Land and Environment Court Rules 1996 Pt 15 r 9

Mosman Local Environmental Plan 1998

CASES CITED:

CORAM: Jagot J

DATES OF HEARING: 19 February 2007

EX TEMPORE DATE: 19 February 2007

LEGAL REPRESENTATIVES

APPLICANT

Mr S Griffiths (solicitor)

SOLICITORS

Pike Pike & Fenwick

RESPONDENT

No appearance

SOLICITORS

N/A

JUDGMENT:

THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

Jagot J

19 February 2007

40967 of 2006

MOSMAN MUNICIPAL COUNCIL

Applicant

DAVID KELLY

Respondent

JUDGMENT

Jagot J:

1 These are Class 4 proceedings commenced by Mosman Municipal Council against the respondent, Mr David Kelly. In the proceedings the Council seeks a substantive order as follows:

1. An order that the respondent demolish the unauthorised building work consisting of a two storey garage structure located at the rear of premises known as 91 Ourimbah Road, Mosman within the area of the Council of Mosman within a period of two months from the date of the aforesaid order.

2 The basis of the order sought by the Council is s 76A(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act). That section 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.

3 When the matter was called this morning, there was no appearance by the respondent. The Court’s file shows that the respondent has never appeared in these proceedings.

4 On 10 November 2006, in response to an application by the Council, the Court made orders as follows:

1. A sealed copy of the Application and Points of Claim herein be served personally upon David Kelly together with a sealed copy of this Order by:

1.1 affixing copies of the Application and Points of Claim to the front door of his premises at 91 Ourimbah Road, Mosman; and

1.2 sliding copies of the Application and Points of Claim under the front door of those premises,

each in an envelope marked for the urgent attention of Mr David Kelly.

2. The said Application and Points of Claim shall be taken to have been served on the Respondent on the expiry of fourteen days after the later of the dates upon which the Orders 1.1 and 1.2 hereof are complied with.

3. The first return date of the said Application is amended to 15 December 2006.

5 In the context of that order, I note that Colin Samuel Robert McFadzean has sworn three affidavits that have been read into evidence in these proceedings. Mr McFadzean is the Council’s Manager Development Services. In his affidavit of 7 December 2006, Mr McFadzean deposes to the fact that, on 28 November 2006, he attended the premises at 91 Ourimbah Road, Mosman. He attempted to slide an envelope containing the Class 4 application, a copy of the orders of the Court and a letter, as well as the points of claim, under the front door of the premises, but was unable to do so as there was a fixture at the base of the door which prevented any item being placed underneath it. Accordingly, Mr McFadzean affixed one envelope containing these documents to the front door of the premises and placed the other envelope in the letterbox of the premises.

6 In his affidavit, Mr McFadzean provided photographs of the envelopes to which I have referred, both affixed to the front door and in the letterbox. He has also provided a photograph of the fixture to the front door of the premises which Mr McFadzean said prevented him from sliding an envelope under the door as required by the orders. In the same affidavit, Mr McFadzean deposes to the fact that on 5 December 2006 both envelopes appeared in his in-tray at the Council with their contents intact. Each envelope inscribed with the letters “RTS”, together with an arrow pointing to the Council’s mailing address. Where the words “To the urgent attention of Mr David Kelly” appeared, the words “David Kelly” on one envelope and “Mr David Kelly” on the other envelope had been whited-out. Apparently, these letters had been received through the Council’s records system on or about 30 November or 1 December.

7 On the next return date of the matter before the Court on 15 December 2006, the respondent again did not appear. The Council sought and the Court made further orders as follows.

1. A sealed copy of the Application and Points of Claim be served personally upon David Kelly together with a sealed copy of this order by:

(a) Re-affixing copies of the Application and Points of Claim (not in an envelope) to the front door of the premises at 91 Ourimbah Road, Mosman; and

(b) Affixing formal notice of hearing (not in an envelope) to the front door of the premises at 91 Ourimbah Road, Mosman.

2. Application and Points of Claim will be taken to have been re-served on the Respondent 14 days from the re-affixing of copies in Order 1(a).

3. Notice of hearing will be taken to have been served on the Respondent 14 days from the re-affixing of notice in Order 1(b).

4. Set down for hearing, one day.

5. The Applicant approach the Registrar this morning for the purpose of obtaining a hearing date.

8 It is apparent from the Court’s file that the Council did approach the Registrar and obtained the hearing date, being today’s date.

9 Mr McFadzean, in his further affidavit of 17 January 2007, deposed to the fact that, on 28 December 2006, he again attended the premises at 91 Ourimbah Road, Mosman. He affixed to the front door of the premises the Class 4 application, the points of claim, the Court’s orders of 15 December 2006 and a letter dated 20 December 2006 from Pike Pike & Fenwick, the solicitors for the Council, to the respondent. That letter stated as follows:

We write to advise that this matter has been listed for hearing in the Land and Environment Court on 19 February 2007, commencing at 10am.

Council will be seeking orders requiring the demolition of the unauthorised works and, if necessary, seeking authority to enter the premises and undertake the works itself, with recovery of the costs from you.

Council will be seeking an order that you pay its legal costs in these proceedings.

Please contact us if you have any proposal for removing the unauthorised works.

10 In that affidavit, Mr McFadzean also provided a photograph of the documents affixed to the front door of the premises.

11 As noted, there was no appearance by the respondent when the matter was called on for hearing this morning. Mr Griffiths, the solicitor appearing for the Council, sought to proceed in the absence of the respondent. I was satisfied that I should proceed to hear and determine the Council’s application in the absence of the respondent as, first, orders for substituted service were made by the Court on two occasions. Secondly, the Council complied with all aspects of the first order that were physically possible. The non-compliance was a consequence of the fact that it was not physically possible to slide documents under the front door of the premises and, in any event, on the second occasion the Council complied with the orders for substituted service made by the Court.

12 Accordingly, I am satisfied that the respondent has been properly served with the Court process documents, that is, the Class 4 application and points of claim, and has also been served with the notice of the hearing today. In those circumstances, there is no reason that would make it appropriate to adjourn the hearing due to the respondent’s absence.

13 In addition to the evidence to which I have referred above, Mr McFadzean swore a further affidavit of 1 February 2007. According to an affidavit of Angelo Falato of 12 February 2007, Mr McFadzean’s further affidavit of 1 February 2007 was also served on the respondent by affixing a copy of that affidavit to the front door of the premises at 91 Ourimbah Road, Mosman. I will return to Mr McFadzean’s affidavit of 1 February 2007 shortly.

14 There is also in evidence a certificate of title showing the respondent as the owner of Lot 2 in Deposited Plan 211797 in the local government area of Mosman, as well as the zoning map as referred to in the Mosman Local Environmental Plan 1998, showing the zoning of the premises at 91 Ourimbah Road as 2(d) Residential. Also visible on the zoning map is a small lane, apparently known as Rosebery Lane, which runs along the rear of some of the properties fronting Ourimbah Road, including the subject premises, which then doglegs to Awaba Street.

15 I took a view of the premises from Rosebery Lane and also viewed Rosebery Lane itself under s 53 of the Evidence Act 1995. I had available, in addition to the affidavits to which I have referred, Mr McFadzean’s affidavit of 1 February 2007. In his 1 February 2007 affidavit Mr McFadzean observes that garages on Rosebery Lane are generally limited to one storey whereas the structure erected at the rear of the premises is two storeys. In the Residential 2(d) zone, this two storey structure would be permissible with development consent. The zoning table for the 2(d) zone provides that exempt development is development allowed without development consent and, relevantly, development allowed only with development consent includes dwelling houses, whereas all other development not included in items 2 or 3 of the zoning table is development which is prohibited from being carried out. It follows from the zoning table that, in order for the erection of the structure to have required development consent, it must not be exempt development as referred to in item 2 of the zoning table.

16 Exempt development is regulated by cl 10A of the LEP. Subclause (1) provides that: - “Development of minimal environmental impact listed as exempt development in Mosman Development Control Plan - Exempt and Complying Development, as adopted by the Council on 31 August 1999 and amended on 12 February 2002 and 3 September 2002 is exempt development despite any other provisions of this plan”. The Mosman Development Control Plan - Exempt and Complying Development dated September 2002 is in evidence. According to cl 5(2) of the DCP, development listed in Sch 1 is exempt development provided it complies with the criteria nominated in subcl (a) to (j) of that clause. Schedule 1 lists classes of development which are exempt development, as well as the corresponding exemption requirements for each class. Review of Sch 1 discloses that the erection of a garage is not exempt development.

17 It follows that I am satisfied that, consistent with Mr McFadzean’s evidence, the erection of the two storey garage structure is ancillary to the existing semi-detached dwelling-house located on the premises and, accordingly, was development permissible only with development consent. Mr McFadzean, in his 1 February 2007 affidavit, also deposed to the fact that the Council has no record of having granted development consent for the two storey structure at the rear of the premises in circumstances where cl 7 of the LEP provides that the Council is the consent authority for the purposes of the plan. Mr McFadzean observed that the Council had granted development consent on 25 November 1999 for the demolition of a shed and the construction of a double garage on the premises subject to conditions. Mr McFadzean searched the Council’s records but could find no evidence of this 1999 consent having been taken up and no evidence of either the Council or any private certifying authority having issued a construction certificate with respect to that double garage. Mr McFadzean also observed in para 13 of his 1 February 2007 affidavit that the structure as constructed does not bear any physical resemblance to the garage which is the subject of the 1999 consent.

18 It follows from those matters that, on the evidence before me, the Council has established, on the balance of probabilities, that the erection of the two storey structure was development that could be carried out only with development consent in accordance with the provisions of the Mosman Local Environmental Plan 1998, but that no such development consent had been obtained. Of course, having regard to ss 123 and 124 of the EPA Act, it is also necessary that I be satisfied that the respondent was the person who caused the erection of the two storey structure without having obtained the necessary development consent.

19 In his affidavit of 1 February 2007, Mr McFadzean says that when he became aware of the existence of the structure in about June 2006 he drafted a notice of intention to give an order under s 121B of the EPA Act, which he then served on the respondent. The notice of intention set out terms of a proposed order requiring the respondent, relevantly, to demolish the two storey garage structure located at the rear of the property and fronting Rosebery Lane. The notice of intention was forwarded to Mr D Kelly at 91 Ourimbah Road, Mosman.

20 On 3 August 2006, the Council received a response dated 20 July 2006. That response was addressed to Mr McFadzean at the Council with respect to the notice of intention to serve the order on a letterhead stating “David Kelly, 91 Ourimbah Road, Mosman 2088”. The response was also signed and dated by one “David Kelly”. The response states the following:

1. Many attempts were made to satisfied (sic) council.

1.2 Water tank will be in stall to hold storm water.

1.3 All building over shadow.

1.4 Building block has north south aspect.

1.5 Private no problem.

1.6 If I don’t have view when building how would any lose a view.

2. The said building has been built to A/S Standard.

3. The building is below the 7.5 metre level.

4. The building is within the boundary marked by the surveyor.

5. The building has been built to my needs and not to your wants.

6. I am willing to meet with council rep in early October. At present.

7. I am on contract and cannot leave till the 29/09/2006.

21 I am satisfied, having regard to that response and the fact that Mr Kelly is the owner of the premises, that the respondent constructed or caused to be constructed the two storey structure at the rear of the premises; that is the respondent is the person who caused the breach of s 76A of the EPA Act. The consequence is that, in the context of these proceedings, the Court is vested with the broad powers in s 124 of the EPA Act with respect to the respondent. Section 124(1) provides that “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 fits to remedy or restrain the breach”.

22 It is now necessary to turn to the question of discretion recognising that these are ex parte proceedings, that is, proceedings taking place in the absence of the respondent, and that there has been no contradictor to any of the Council’s evidence in consequence.

23 In his 1 February 2007 affidavit, Mr McFadzean deposes to the fact that he holds a number of concerns about the two storey structure. In summary Mr McFadzean’s concerns are that:

(1) the structure is of excessive height, bulk and scale,

(2) the structure results in the absence of any material landscaping in the rear yard,

(3) the structure may involve a possible breach of the Council’s floor space ratio control in cl 15 of the LEP,

(4) the guttering appears to be unconnected and may cause a nuisance to neighbours,

(5) there is an absence of setback from the side boundary, particular to the east,

(6) the driveway grades from the structure to Rosebery Lane, which is a public road, are possibly inappropriate, and

(7) the Council has not had the opportunity to assess or consider the type of information generally available if an application for the erection of the structure had been lodged or indeed the type of information that would otherwise be generally available to the Council had it in any way been involved in an assessment process, to ensure the health and safety of persons using the structure and others. The matters Mr McFadzean identifies relate to termite risk management, inspections of footings and slabs, unreinforced masonry, waterproofing of masonry, timber framing, roof cladding, gutters, downpipes and general health and amenity.

24 Photographs of the structure are also in evidence. Given the circumstances of the ex parte hearing, it is sufficient for me to observe that, on the evidence before me in this hearing, there is no reason why I would not make the order generally as sought by the Council. As Mr Griffiths for the Council has submitted, the photographs show that the structure is fairly large, being a two storey structure fronting a public lane. In these circumstances, the breach of the EPA Act (s 76A) cannot be characterised as merely trivial or technical. On the evidence before me, the result that appropriately accords with the objects of the EPA Act and the general public interest in an even-handed enforcement of planning laws by the responsible authorities, of which the Council is one, is the making of orders generally as sought by the Council.

25 In the Class 4 application, the Council sought that the demolition be effected within a period of two months. From the evidence, it appears that the structure is, for all intents and purposes, complete. Mr Griffiths has also acknowledged there is no particular urgency arising from the circumstances and, as I have said, Mr McFadzean became aware of the structure in or about June 2006. It follows, in my view that, for this reason and because I am making orders in the absence of the respondent, there should be a stay of the substantive order which I propose to make requiring demolition of the premises. The purpose of the stay will be twofold. First, to ensure that the respondent has the opportunity to make any application to this Court the respondent might see fit with respect to orders made in the respondent’s absence, recognising that Pt 15 r 9 of the Land and Environment Court Rules 1996 provides that the Court may on terms set aside or vary an order in certain circumstances. This includes where an order has been made in the absence of a party. Secondly, to give the respondent a reasonable opportunity to prepare and lodge with the Council a building certificate and/or such other application as appropriate to attempt to regularise the continued existence of the structure, albeit recognising that this course of action is a matter solely in the respondent’s hands.

26 Given that the structure appears complete in the photographs and the fact that it has been in existence since at least June 2006, I think a longer period of stay than might otherwise be usual is appropriate. I propose that the substantive order I will make should be stayed for a period of sixty days from the date of service of the orders. It is also appropriate that, in framing the orders, consideration is given to the mode of service.

[Discussion with Council’s solicitor about the form of the orders]

27 I make the following orders:

(1) The respondent demolish the building consisting of a two-storey garage structure located at the rear of premises known as 91 Ourimbah Road, Mosman within a period of two months after the expiration of the stay of this Order in accordance with Order (2) below.

(2) Order (1) is stayed for 60 days from the date of service of the Order on the respondent in accordance with Order (3) below.

(3) The Order is to be served on the respondent by affixing a sealed copy of the order to the front door of the premises at 91 Ourimbah Road, Mosman.

(4) The respondent is to pay the applicant’s costs of the proceedings as agreed or assessed.

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