Reported Decision : (2001) 115 LGERA 130 Land and Environment Court of New South Wales CITATION : Foster v Sutherland Shire Council [2001] NSWLEC 89 APPLICANT Foster PARTIES : RESPONDENT Sutherland Shire Council FILE NUMBER(S) : 10086 of 2001 CORAM: Cowdroy J KEY ISSUES: Question of Law :- order issued pursuant to s 121B of the EP&A Act requiring appellant to cease using such premises for short term accommodation - terms of order uncertain - order invalid LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 121B Land and Environment Court Act 1979 s 36(5) Australian Federation of Construction Contractors v Australian Building Construction Employees' and Builders Labourers' Federation (1984) 73 FLR 61; Miller-Mead v Minister of Housing and Local Government & Anor [1963] 2 QB 196 ; Munnich v Godstone Rural District Council [1996] 1 All ER 930 ; North Sydney Municipal Council v Sydney Serviced Apartments Pty Limited (1990-1991) 21 NSWLR 532; CASES CITED: Redland Bricks Limited v Morris [1970] AC 652; Stutchbury v Pittwater Council (1999) 105 LGERA 1 ; Trade Practices Commission v Glo Juice Pty Limited (1987) 73 ALR 407; Trade Practices Commission v Walplan Pty Limited (1985) 7 ATPR 47-174; Van Hasteren v South Sydney Council (2000) 109 LGERA 252; Vicbrow v Willoughby City Council (1997) 96 LGERA 288; DATES OF HEARING: 7/5/01 DATE OF JUDGMENT: 06/07/2001 APPLICANT Mr W Purdon (Solicitor) SOLICITORS William Purdon, Solicitor LEGAL REPRESENTATIVES: RESPONDENT Mr R Wilcher (Solicitor) SOLICITORS Baker & McKenzie JUDGMENT: IN THE LAND AND MATTER No. 10086 of 2001 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 7/06/01 Eric William Foster Applicant v Sutherland Shire Council Respondent JUDGMENT Facts 1. By application class one dated 7 February 2001 the applicant appeals against an order issued on 4 January 2001 ("the order") by Sutherland Shire Council ("the council") pursuant to s 121B of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). This appeal is currently being heard by Commissioner Brown of this Court. Pursuant to s 36(5) of the Land and Environment Court Act 1979 Commissioner Brown has referred the following question of law to the Court for determination:- Whether the instrument issued by the respondent pursuant to s 121B of the Environmental Planning and Assessment Act 1979 dated 4 January 2001 served on the appellant constituted a valid enforcement notice Particulars (a) The instrument did not tell the appellant fairly what he had done wrong and what he must do to remedy it (b) The instrument did not give adequate reasons as to why the use of the appellant's premises for short-term accommodation was prohibited by law as required by the Environmental Planning and Assessment Act 1979. 2. The order relates to Lot 11 SP 262 (Unit 201, No 4) Boorima Place Cronulla which compromises a strata titled home unit ("the home unit") which is jointly owned by the applicant and his wife. Mr Eric Foster ("the applicant") has instituted these proceedings as the order was issued solely in his name. The home unit is in a building erected on land zoned 2(c) Residential pursuant to the provisions of the Sutherland Shire Local Environmental Plan 2000 ("the LEP"). The objectives of such zone are stated to be 'high density residential development' in close proximity to shopping centres and railway stations with 'co-ordinated, efficient and economical development of residential flat buildings of high quality and design'. Non-residential uses are to provide necessary services 'without adversely affecting the residential amenity'. Development for the purposes of residential flats is a permissible use with council consent pursuant to the LEP. 3. A Notice of Intention to Give an Order ("the notice") was issued by the council on 21 March 2000 and required the applicant to:- Cease using the premises for short-term tourist accommodation 4. In contrast the order omits the word 'tourist' and requires the applicant to desist from engaging in the following activity:- What you must do: (terms of the Order) (1) Cease using the premises for short-term accommodation. The reasons for the order are expressed as follows:- (1) The use of the premises for short-term accommodation is a non-residential use, and is prohibited within the Residential 2(c) zone; and (2) The unlawful use of the premises is causing loss of amenity to the immediate adjoining neighbours. Short-term accommodation 5. The principal ground of this appeal concerns the alleged uncertainty of the order. The applicant submits that the terms of the order do not specify with particularity the use which is claimed by the council to be prohibited. Section 121B of the EP&A Act provides that an order may be given to a person by a council to do, or refrain from doing, some act provided that the circumstances specified in the table attached to s 121B of the EP&A Act exist. Sub-section 1 of such table states that if premises are being used for a purpose that is prohibited an order may be given to a person requiring cessation of that purpose. In this instance the order directs the applicant to cease carrying out a particular activity, namely the use of the home unit for 'short-term accommodation'. If such use is a prohibited use under the terms of the LEP the order would satisfy the requirements of s 121B of the EP&A Act. 6. Clause 5 of the LEP defines 'Residential flat' to mean 'a dwelling within a building containing three or more dwellings but does not include a townhouse or villa house'. 'Dwelling' is defined to mean 'a room or suite of rooms occupied or used or so constructed or adopted as to be capable of being occupied or used as a separate permanent residence.' 7. The term 'short-term accommodation' is not defined in the LEP. The council submits that any use of the home unit which lacks an element of permanence could be regarded as 'short-term accommodation' and would be a prohibited use under the LEP. The council relies upon the decision of Mahoney JA in North Sydney Municipal Council v Sydney Serviced Apartments Pty Limited (1990-1991) 21 NSWLR 532 at 537 wherein His Honour determined that the term 'residential building' envisages 'a significant degree of permanency of habitation or occupancy'. Council submits that the concept of 'residence' incorporated in the definition of 'residential flat' has the effect of excluding 'short-term accommodation' because such use is not permanent. Requirements of an order 8. Courts orders are required to formulated in precise terms. In the case of restraining orders, the proscribed conduct must be clearly stated to avoid uncertainty and the potential for continual breaches (see Trade Practices Commission v Glo Juice Pty Limited (1987) 73 ALR 407 at 415 per Burchett J; and see also Australian Federation of Construction Contractors v Australian Building Construction Employees' and Builders Labourers' Federation (1984) 73 FLR 61 at 62; Redland Bricks Limited v Morris [1970] AC 652 at 666 per Lord Upjohn). A court order should not leave unresolved the central issue in the case (see Trade Practices Commission v Glo Juice Pty Limited at 415 and see also Trade Practices Commission v Walplan Pty Limited (1985) 7 ATPR 47-174 at 47-176 per Pincus J). 9. In King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184 the High Court of Australia held that a statutory power to fix a price by a regulation or order would not be properly exercised if the basis or rationale for fixing the price was left uncertain. Dixon J said at 197:- But it is another matter when the basis of the price, however clearly described, involves some matter which is not an ascertainable fact or figure but a matter of estimate, assessment, discretionary allocation, or apportionment, resulting in the attribution of an amount or figure as a matter of judgment. When that is done no objective standard is prescribed; it is not a calculation and the result is not a price fixed or a fixed price. That, I think, means that the power has not been pursued and is not well exercised. Similarly, Rich J in King Gee held at 190 that a formula for fixing the price which ' depends on uncertain matters of estimate and not of calculation' was uncertain and did ' not amount to the the statement of a 'principle standard, rule or guide' ( Vardon v The Commonwealth (1943) 67 CLR 434 at 448) which is necessary to support the exercise in due form of these powers' . The order was held invalid by Starke J and Williams J on similar grounds (see King Gee at 193 and 205 respectively). 10. The principle in King Gee was followed in Cann's Pty Ltd v The Commonwealth (1945) 71 CLR 210 in which Latham CJ noted at 217 as follows:- In the case of King Gee Clothing Co Pty Ltd v The Commonwealth it was held that where the Commissioner fixes prices by reference to a standard, the standard must not be such that any element therein can be ascertained only by the exercise of discretion in apportionment, allotment, allocation or otherwise. Uncertainty of order 11. The certainty required for the formulation of a court order or statutory order should apply to an order issued by council pursuant to s 121B of the EP&A Act. The order must be certain. The table to s 121B of the EP&A Act provides that an order may be issued if 'premises are being used for a purpose that is prohibited'. However the use sought to be restrained by the order is dependent upon the council's discretion concerning the duration required to constitute 'short-term accommodation'. Council wrote to the applicant on 19 January 2001 as follows:- I refer to the telephone conversation on 10 January 2001 concerning the Order No 1 issued pursuant to s 121B of the Environmental Planning and Assessment Act 1979 (NSW) dated 4 January 2001. I have discussed your question regarding the requisite degree of permanency required for you to lawfully use your unit in the 2(c) Residential zone with a senior planner. The minimum length of time for a person(s) to occupy the unit should be six (6) months. This time period should satisfy the degree of permanency for the use to be classified as residential. Accordingly, adopting council's contention, any use of residential accommodation for a period of less than six months duration would constitute a prohibited use in the residential zone. Interpreted literally the order would prohibit the applicant from using the home unit for his own accommodation for short periods as well as any ' short-term accommodation' by tourists. 12. Council's determination that use of residential premises for periods of less than six months does not constitute a residential use has no statutory basis. In North Sydney Municipal Council v Sydney Serviced Apartments Pty Limited the use of the premises was prohibited because the home units were occupied by third parties as serviced apartments analogous to a hotel use, or a commercial use. Such use is quite different to 'short-term accommodation' by an owner of his or her home unit. 13. The order has been issued without an objective standard against which the prohibited use sought to be restrained can be determined with certainty. As a consequence, the order does not 'tell him [the applicant] fairly what he has done wrong and what he must do to remedy it' (per Upjohn LJ in Miller-Mead v Minister of Housing and Local Government & Anor [1963] 2 QB 196 at 232). In that decision the Court of Appeal (UK) was concerned with a notice issued pursuant to a planning law requiring a landowner to cease an alleged illegal use. Such test was approved by the Court of Appeal (UK) in Munnich v Godstone Rural District Council [1996] 1 All ER 930 per Denning M.R. at 934. 14. If the order adopted the same terminology as the notice its requirements would have been certain. The applicant would have been required to cease using the home unit for 'short-term tourist accommodation'. If the evidence established that such use was being conducted as a commercial activity (see Vicbrow v Willoughby City Council (1997) 96 LGERA 288), it would prima facie constitute a prohibited use in the Residential 2(c) zone. To constitute a valid order made pursuant to s 121B of the EP&A Act it must be unequivocal and relate to a purpose that is prohibited. In this instance the order does not accord with such requirements and is accordingly invalid. Particulars of the order 15. Section 121L of the EP&A Act provides that reasons for orders must be given. The applicant submits that the reasons provided in the order are inadequate and relies upon the judgment of Sheahan J in Stutchbury v Pittwater Council (1999) 105 LGERA 1 and Bignold J in Van Hasteren v South Sydney Council (2000) 109 LGERA 252. In this instance the particulars provided do not state the objective criteria against which the applicant can establish that 'short-term accommodation' constitutes a prohibited use. In light of the above findings the Court upholds the submission that the mandatory requirements of s 121L of the EP&A Act have not been satisfied. Existing use 16. The applicant additionally submitted that existing use rights applied since the use of his premises for 'short-term accommodation' pursuant to the repealed Sutherland Local Environmental Plan 1993 was conducted prior to the gazettal of the LEP. However this issue is not relevant to the question of law referred to the Court for determination. Costs 17. The applicant has applied for costs of this hearing. The Practice Direction 1993 relevantly provides as follows:- 10. Costs in Classes 1 & 2 The Practice of the Court is that no order for costs is made in planning and building appeals unless the circumstances are exceptional. In the absence of any exceptional circumstances to justify a departure from such Direction the Court makes no order as to costs. Orders 18. The Court answers the question of law as follows:- 1. The order dated 4 January 2001 issued by the respondent pursuant to s 121B of the Environmental Planning and Assessment Act 1979 is not a valid order. 19. The Court orders that the proceedings be listed before the registrar for directions on 14 June 2001. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.