Blacktown City Council v Hambly [2020] NSWLEC 132

Land and Environment Court New South Wales

Medium Neutral Citation: Blacktown City Council v Hambly [2020] NSWLEC 132 Hearing dates: 26 August 2020 Date of orders: 26 August 2020 Decision date: 26 August 2020 Jurisdiction: Class 4 Before: Preston CJ Decision: The Court: (1) Declares that, in breach of s 4.3 of the Environmental Planning and Assessment Act 1979, Mr Derek Hambly has carried out development that is prohibited by erecting or authorising other persons to erect on the following land, being: Lots 1 and 2, Sec. O, DP 1653 Milton Street, Riverstone; Lots 19 and 20, Sec. O, DP 1653, Trafalgar Street, Riverstone; the adjacent unsealed road areas known as Argyle Lane, Milton Street and Trafalgar Street; and neighbouring land including: Lots 3 and 4, Sec. O, DP 1653, Milton Street, Riverstone and Lots 17 and 18, Sec. O, DP 1653, Trafalgar Street, Riverstone, the following unauthorised structures: (a) Three (3) caravans/camp trailers; (b) Three (3) canvas tents; (c) Two (2) camping cubicles; (d) A large structure comprised of multiple temporary shade structures with a tarpaulin roof, located on the southern side of the land; and (e) Other standalone temporary shade structures and various structures made from tarpaulin, poles and rope (the unauthorised structures). (2) Declares that, in breach of s 4.3 of the Environmental Planning and Assessment Act 1979, Mr Derek Hambly has carried out development that is prohibited by occupying and using or authorising other persons to occupy and use the unauthorised structures on the land described in Order 1 for human habitation. (3) Declares that, in breach of s 9.37 of the Environmental Planning and Assessment Act 1979, Mr Derek Hambly has failed to comply with the terms of a development control order dated 10 August 2018 given to him by Blacktown City Council pursuant to Division 9.3 of the Environmental Planning and Assessment Act 1979. (4) Orders Mr Derek Hambly, within 3 months of the date of the Court's orders, to: (a) cease using the unauthorised structures on the land described in Order 1 for the purpose of human habitation; (b) remove all the unauthorised structures from the land described in Order 1; and (c) reinstate the land described in Order 1 to the condition or state it was in immediately before the unauthorised structures were erected on the land described in Order 1. (5) Orders Mr Derek Hambly to pay the Council's costs of the proceedings. Catchwords: CIVIL ENFORCEMENT – erection and use of caravans, tents and other structures – development prohibited – development control order to cease use and remove unauthorised structures – failure to comply – breaches of Environmental Planning and Assessment Act 1979 – declaratory and injunctive relief Legislation Cited: Blacktown Local Environmental Plan 2015 Civil Procedure Act 2005 s 98 Environmental Planning and Assessment Act 1979 ss 1.4 4.2, 4.3, 9.37, 9.45, 9.46 Local Government Act 1993 s 68 Roads Act 1993 Uniform Civil Procedure Rules 2005 r 42 Cases Cited: Lismore City Council v Vivian [2016] NSWLEC 108 Category: Principal judgment Parties: Blacktown City Council (Applicant) Derek Hambly (Respondent) Representation: Counsel: Mr D Loether (solicitor) (Applicant) No appearance (Respondent)