Land and Environment Court of New South Wales CITATION : Shoalhaven City Council v FB & FA McMahon Pty Ltd and Another [2009] NSWLEC 122 APPLICANT Shoalhaven City Council PARTIES : FIRST RESPONDENT FB & FA McMahon Pty Ltd (ACN 000 472 784) SECOND RESPONDENT Kel Campbell Pty Ltd (ACN 002 783 342) FILE NUMBER(S) : 40046 of 2009 CORAM: Preston CJ KEY ISSUES: CIVIL ENFORCEMENT - INJUNCTIONS AND DECLARATIONS :- development without consent - development consisting of works and use - orders to restrain use suspended pending consideration of development application by Council LEGISLATION CITED: Environmental Planning and Assessment Act 1979 ss 4, 76A DATES OF HEARING: 20 July 2009 EX TEMPORE JUDGMENT DATE : 20 July 2009 APPLICANT Mr P R Clay SOLICITORS LEGAL REPRESENTATIVES: Sparke Helmore Lawyers FIRST AND SECOND RESPONDENTS Ms H P Irish SOLICITORS Verekers Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES PRESTON CJ 20 JULY 2009 40046 OF 2009 SHOALHAVEN CITY COUNCIL v FB & FA McMAHON PTY LTD (ACN 000 472 784) AND KEL CAMPBELL PTY LTD (ACN 002 783 342) JUDGMENT 1 HIS HONOUR: Shoalhaven City Council seeks declaratory and injunctive relief in relation to the carrying out of development by the first and second respondents on land described in Lot 1 deposited plan 208320, at 246 Princes Highway, Bomaderry, in breach of the Environmental Planning and Assessment Act 1979. 2 The parties have reached agreement as to the declaratory and injunctive orders they seek for the Court to make. Because the Court should not make declaratory orders without being satisfied that those orders are appropriate, the parties have tendered sufficient evidence for the Court to be so satisfied. Having considered this evidence, I am satisfied that the proposed declaratory and injunctive orders are appropriate to be made. I will shortly state my reasons. 3 The land is currently used for the purposes of a Caltex service station. The development in question involves the construction of a concrete driveway, between 3 to 3.5 metres in width and about 82.5 metres in length, starting near the southern entrance to the land, running along the southern side of the land and then bending northwards and running parallel with the eastern boundary until it meets an existing concrete slab for the diesel and kerosene bowsers. The design and specification for the concrete driveway are shown in a plan prepared by Watkinson Apperley Pty Limited, surveyors, engineers and town planners, engaged by the first and second respondent. 4 Mr A Riepsamen, an engineer and surveyor employer by Watkinson Apperley, says in an affidavit read in the proceedings that in June 2007 the driveway was completed in accordance with the plan. The plan shows, apart from the chainage length and width to which I have referred, in a cross section detail, the concrete slab to be 0.170 millimetres thick sitting on a sub-base of 0.125 millimetres. The sub-base extends 300 millimetres beyond the concrete. 5 The notes to the plan refer to excavation. Mr Bonner, a development planner employed by the Council, also says in an affidavit read in the proceedings that excavation would have been required to construct the driveway as the concrete on the driveway is level with the existing surface of the land. 6 The driveway, once constructed, has been used by trucks to access the fuel bowsers on the site. The trucks enter the site at the southern entrance and travel along the new concrete driveway to join the existing concreted area and the fuel bowsers. 7 The nature, extent and other features of the concrete driveway, and the works undertaken to construct it, satisfy the definition of "development" in s 4(1) of the Environmental Planning and Assessment Act 1979, either paras (c) or (d) or both in relation to the construction. The use of the driveway satisfies para (a) of the definition of "development". 8 The land is subject to Shoalhaven Local Environmental Plan 1985 which zones the land part 7(d2) Environment Protection and part 2(d) Residential. Service stations are prohibited in each zone. 9 Various development consents have been granted in relation to the land. Mr Bonner deposes to having searched the register of development consents maintained by the Council. He lists numerous building applications (which can be deemed to be development consents) and development consents granted since 1976 onwards. None of the building applications or development consents granted in relation to the land authorise the construction of this particular concrete driveway or the subsequent use of the concrete driveway. 10 Accordingly, the carrying out of the development is in breach of s 76A of the Environmental Planning and Assessment Act 1979. 11 The first and second respondents have lodged, on 30 June 2009, a development application with the Council seeking to regularise the concrete driveway and its use. If that development application is approved, the future use of the driveway will be authorised, on whatever conditions might be imposed. However, if the development application is not approved, then the development would remain unauthorised and ought to be restrained. 12 The proposed consent orders of the parties envisage the making of final orders by the Court restraining the use of the concrete driveway, but a suspension of those final orders pending the consideration and determination of the development application by the Council. The proposed consent orders put forward terms on which the interim use of the concrete driveway should be carried out, notably a restriction on the use of the driveway to daytime. 13 The proposed orders, being the final orders, the suspension of the final orders and the interim orders, are appropriate in the circumstances. 14 The parties seek to reserve at this stage the question of the costs of the proceedings pending further negotiations between the parties. If agreement cannot be reached as to costs, it will be necessary for the Court to determine the question of costs. The matter is proposed to be mentioned at a later date to advise as to whether an argument in relation to costs will be necessary. 15 For these reasons, I propose to make orders in terms of the short minutes of order that have been signed by counsel for the applicant and for the respondents and are dated 20 July 2009. I will initial each page and date it with today's date. 16 The orders are as follows: The Court, by consent: 1. Declares that the First Respondent by itself, its servants and agents, has carried out, or caused to be carried out, on Lot 1 DP 208320, 246 Princes Highway, Bomaderry ("the Land"), the construction of a concrete driveway which is located along the southern boundary of the Land and extends in a northerly direction behind existing buildings located on the Land ("the Circulation Driveway") without development consent in breach of s76A of the Environmental Planning and Assessment Act 1979 ("the Act"). 2. Declares that the Second Respondent by itself, its servants and agents, has carried out, or caused to be carried out, the development, being the use of the Circulation Driveway by trucks for the purpose of accessing the service station located on the Land, without development consent in breach of s76A of the Act. 3. Orders that the Respondents: a. forthwith prevent access to the Circulation Driveway from its southernmost point by the installation of a permanent barrier at location A on the plan annexed hereto for the width of the Circulation Driveway; b. forthwith install bollards across the Circulation Driveway at location B so as to prevent access along the Circulation Driveway at that point; c. forthwith install a sign at location C which is readily readable stating: "No access to Princess Highway – Go back!"; d. forthwith ensure that the existing lockable gate at location D is locked and kept locked between 7pm and 7am each day; e. shall not provide keys to the lockable gates to any person so as to enable access by those gates after 7pm on any night. 4. Suspends Order 3 until the later of: a. the date of notification under s81 of the Act of the Applicant's determination of development application no. 1837/09, or b. if an application under s82A of the Act, for review of the Applicant's determination of development application no. 1837/09, is lodged within 21 days of the date referred to in paragraph (a) above, the date of notification under s82A(7) of the Act of the result of the Applicant's review, or c. if an appeal against any refusal or imposition of a condition of consent in respect of development application no. 1837/09 is lodged within 21 days of the date of notification of that refusal or imposition of a condition of consent, the 29th day after the date of the final decision of the Land and Environment Court following any appeal from the Land and Environment Court which is lodged within time, and during the term of this suspension: i. The Respondents, their servants, agents and invitees may use and permit use of the Circulation Driveway, including by vehicles, for the purpose of a driveway between the hours of 7am and 7pm each day; and ii. During the hours of 7pm and 7am each day access to the Circulation Driveway for the purpose of use by vehicles must be prevented by the Respondents by means of lockable gates installed across the Circulation Driveway at location A and location D marked on the annexed plan, which gates shall be locked from 7pm to 7am. 5. Reserves costs. 6. Adjourns the question of costs for mention on 7 August 2009 at 9.30am before Preston CJ. 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.