Land and Environment Court of New South Wales CITATION : Ku-Ring-Gai Council v Faigan [2007] NSWLEC 767 APPLICANT PARTIES : Ku-Ring-Gai Council RESPONDENT Mark Faigan FILE NUMBER(S) : 40383 of 2007 CORAM: Pain J Civil Enforcement :- whether local government order complied with - exercise of discretion to make order to remove items KEY ISSUES: Civil Enforcement:- whether independent use of front yard for storage and mechanical repairs which required consent under the Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Local Government Act 1993 s 124, s 678(10) CASES CITED: Baulkham Hills Shire Council v O'Donnell (1990) 69 LGERA 404 DATES OF HEARING: 19 November 2007 EX TEMPORE JUDGMENT DATE : 19 November 2007 APPLICANT Ms L Finn (solicitor) SOLICITOR LEGAL REPRESENTATIVES: Home Wilkinson Lowry RESPONDENT Mr W Purdon SOLICITOR William Purdon Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pain J 19 November 2007 40383 of 2007 Ku-Ring-Gai Council v Faigan EX TEMPORE JUDGMENT 1 Her Honour: The Council has commenced Class 4 proceedings seeking declarations and orders in relation to, firstly, the breach of an order under s 124 of the Local Government Act 1993 (the LG Act) in relation to 33 Ivey Street, Lindfield (the premises). Secondly the Council alleges that the Respondent is carrying on a use for which development consent is required in breach of the Environmental Planning and Assessment Act 1979 (the EPA Act) at the same premises. 2 The Council relied on the affidavit of Mr David Mitchell, Council officer, sworn 24 October 2007 which annexes the Council's file dating from 1991 concerning issues raised by neighbours about the state of the premises and inspections undertaken by him of the premises. These proceedings focus on the front yard of the premises. 3 Mr Konsti, Council officer, also swore an affidavit dated 24 October 2007. He also inspected the premises on 19 July 2007 and 23 August 2007 and took photographs which are attached to his affidavit. 4 The affidavit of Ms Finn, solicitor, dated 30 April 2007 was read. The affidavit annexes a title search confirming that the Respondent owns 33 Ivey Street, Lindfield and attached the letter in January 2007 sent by her advising that proceedings would be commenced if no undertaking to stop certain activity was not received within 14 days. The Council's solicitor's letter to the Respondent stated that he was using 33 Ivey Street, Lindfield for the storage of unregistered motor vehicles and associated parts, machinery, plant etc and for the purposes of welding, panel beating and spray painting without the Council's consent. The letter also stated that he has also failed to comply with the s 124 order issued under the LG Act. 5 Mr Faigan, the Respondent, swore an affidavit on 2 November 2007 in which he stated he is not aware of any derelict articles or motor vehicles on his property. He attached photographs taken of his front yard on 17 October 2007 which show that there is an old van and gantry. The van he has had since the 1970s and he starts the motor weekly. He intends to register it. In the course of his hobby of restoring old wares he uses the gantry because he has a bad back. This includes a 1942 collectable compressor pictured in photographs attached to his affidavit. 6 The Council relied on a chronology part of which is summarised as follows: Date Action 2005 Trailer being repaired – further complaint regarding use of premises including petition by local residents – annexure AA to affidavit Mr Mitchell 24 October 2007 30 November 2006 Notice of Inspection – order issued 23 March 2006 – 2 months to remove material – annexure FF to affidavit Mr Mitchell 24 October 2007 27 September 2006 Photographs – annexure GG to Mitchell affidavit 24 October 2007 – order not complied with 29 November 2006 Non-compliance with order – annexure HH to Mitchell affidavit 24 October 2007 8 December 2006 Material still stored on premises – annexure JJ to Mitchell affidavit 24 October 2007 23 January 2007 Prelitigation letter Abbott Tout to Respondent – affidavit Ms Finn 30 April 2007 12 April 2007 Material still on premises – exhibit DM-1 to Mitchell affidavit 24 October 2007 1 June 2007 Class 4 proceedings commenced 19 July 2007 Material still stored on premises and on street – affidavit Mr Konsti 24 October 2007 23 August 2007 Material still stored on premises – annexure HK-1 to affidavit Mr Konsti 24 October 2007 13 September 2007 Material still stored on premises and on street – annexure DM-2 to Mitchell affidavit 24 October 2007 10 October 2007 Material still stored on premises and on street – annexure DM-3 to Mitchell affidavit 24 October 2007 18 October 2007 Material still stored on premises and on street – annexure DM-4 to Mitchell affidavit 24 October 2007 Section 124 order under the Local Government Act 1993 7 The declaration sought is that the Respondent has failed to comply with an order issued by the Council under the LG Act on 23 March 2006. The original order sought the removal of derelict unregistered motor vehicles and associated parts, machinery, plant and equipment, timber and other disused material that are in view of Ivey Street, a public road, and maintain the land so as not to cause unsightly conditions. 8 Late in the hearing the Council also raised the possibility of seeking an order under s 678(10) of the LG Act that it enter the premises and do the work but this was in part a response to the evidence of the Respondent that he has a bad back. I do not understand the Council presses that order now. 9 The LG Act order is issued under s 124 item 10 which states the order can be issued to the owner or occupier in circumstances where the land is in the immediate vicinity of a public place and is used for the storage of articles or matter so as to create or be likely to create unsightly conditions requiring the removal of articles. It required compliance within two months, that is, on or about 23 May 2006. Photographs taken in September and December 2006 show that there was still extensive material in the front yard of the premises to which the order referred. The photographs show three or four trailers, some with metal pieces and other items on them, parked on the public road outside the premises and neighbouring properties. A trailer is in the front yard of the property in some photographs. 10 The Council's solicitor stated that work had been undertaken to remove items from the front yard by the Respondent since the proceedings were commenced. The recent photographs taken by Mr Mitchell of the front yard show that a number of items have been removed. Remaining is the white van, gantry and a few piles of covered items along the front fence. 11 The Respondent's solicitor stated that the photographs taken on October 17 2007 attached to the Respondent's affidavit show that the front yard of the Respondent's premises were not unsightly and he submitted that the Respondent always kept the premises neat. The Respondent was pursuing a hobby which he was entitled to do. He had not breached the order issued under the LG Act. Finding on order issued under the LG Act 12 The affidavit of the Council officer, Mr Mitchell, demonstrates from the Council's files that there is a long, but not continuous, history of neighbourhood complaints about the state of the front yard and of the premises. This is set out in the chronology drawn from the Council's affidavit evidence set out above. I am concerned with the period leading up to the issuing of the order in March 2006. The material relating to the early 1990s is less relevant compared to the immediate circumstances leading to the issuing of the order in March 2006. The affidavit of Mr Mitchell makes clear that there was a substantial problem with the location and condition of numerous items on the Respondent's property at the time the order was issued. The condition of the property was clearly unsightly at the time the order was issued. It is also clear from the Council's evidence that the order was not complied with as at 23 May 2006 and has continued not to be complied with during 2006. I consider that the declaration sought by the Council ought be made. 13 The issue then arises of whether I should make the order sought by the Council in prayer 3 in the amended Class 4 application. In relation to the broadly worded order sought by the Council, while some clearing up work has been undertaken in the front yard since the court proceedings were commenced, the Council presses for an order that the rest of the items in the front yard be removed including the white van and the gantry. I have discretion as to whether I should make an order and, if I do, the scope of any order to be made following the making of the declaration. 14 In light of the Respondent's evidence concerning the white van and the compressor on the property I consider those items can remain. I consider it is also reasonable that the Respondent be able to keep one trailer only on his property at any time. The other items in the front yard including the gantry must be removed. The Respondent has said this can be done within two months and the Council has accepted that is a reasonable period and I will make an order in light of these findings. Breach of Environmental Planning and Assessment Act 1979 15 The Ku-Ring-Gai Planning Scheme Ordinance (the Ku-Ring-Gai PSO) and zoning map were tendered by the Council. The property is zoned Residential A. The use alleged in the Class 4 application to be a breach of the EPA Act is the storage of motor vehicles and associated parts, machinery plant and equipment, timber and other material and related to this the carrying out of mechanical repairs, including welding and panel beating involving car chassis and car parts without the consent of the Council under the EPA Act in the front yard of the premises. 16 The planning table in the Ku-Ring-Gai PSO specifies uses in this zone for which no development consent is required in Column 2 and prohibited uses in Column 4 of the table. The Council does not rely on Column 2 or 4. It argues that the use identified in the Class 4 application is an innominate use referred to in Column 3 as "any other development" which is permissible with development consent. The Respondent does not have consent for the specified use in the front yard of the premises. 17 The Council's solicitor relies on Meagher J in Baulkham Hills Shire Council v O'Donnell (1990) 69 LGERA 404 at 409 to argue that the use of the land for the storage of specified items and mechanical repairs including welding and panel beating by the Respondent was so substantial that as a matter of fact and degree it was and continues to be an independent use of the land and not ancillary to its residential use. 18 The Respondent's solicitor stated that his client did not understand what use of the property required development consent. Further the Council had never told his client what use of the property required development consent. He was simply undertaking a hobby as is clear from his affidavit. That did not involve storage of motor vehicles, there being only one such vehicle, the white van on the property. Nor was he undertaking mechanical repairs. Further the Council's evidence does not contain any substantive evidence in proper form which proves that there was a use of the land for undertaking mechanical repairs. Finding 19 The Council bears the onus of proving that a declaration of unauthorised use is warranted. The Council's solicitor advised that the Council was seeking a declaration concerning use of the front yard of the premises in the period 1991 to the present. While the contents of the Council's file attached to Mr Mitchell's affidavit dates from 1991 until recently, there is nothing annexed to the affidavit for the period 1998 to 2005. There is no evidence of what has occurred on the Respondent's land in that period. I do not therefore consider it is reasonable that a declaration for such a long period including the period 1998 to 2000 should be sought. If the earlier evidence is to be relied on for the period before 1998 I consider there is a substantial delay in bringing those matters before the Court. I consider I should have regard to the evidence from 2005 only. 20 In relation to mechanical repairs, the evidence on the Council's file since 29 August 2005 when the Notice of Intention to Issue an Order under the LG Act was issued states that a neighbour complained about mechanical repairs to trailers in the front yard of the premises in December 2005 and photographs taken by him show a trailer hoisted on the gantry. A petition from numerous residents dated 19 December 2005 raised concerns about repairs to trailers on the premises which involved grinding and welding inter alia. This petition also referred to the presence of trailers parked on the street and this is seen in photographs attached to Mr Mitchell's affidavit. The Council undertook an inspection on 31 January 2006 which identified a number of matters (annexure CC of Mr Mitchell's affidavit). The LG Act order was issued on 23 March 2006. Further photographs taken by a neighbour in December 2006 show a large amount of machinery and other material in the front yard. One photograph shows a trailer lifted up by the gantry (annexure JJ). The photographs in annexures DM1, DM2 and DM 4 attached to Mr Mitchell's affidavit were taken in April, September and October 2007. These do not provide any direct evidence of mechanical repairs taking place on the Respondent's land. While there are photographs showing several of the Respondent's trailers parked in Ivey Street outside the his land and neighbouring properties, the Council accepts that these do not play any direct part in this application and their presence is not affected by any declarations or orders that I might make. The other matter relied on is the presence of the gantry in the front yard but there are no photographs or other evidence about mechanical repairs in particular since December 2006. 21 There is no evidence of the extent to which mechanical repairs have been carried out on the land since December 2006. As submitted by the Respondent's solicitor there is no direct evidence from the neighbours as to particular repair activities and dates. I am not satisfied that I should make the declaration sought in prayer 2 of the amended Class 4 application as I am not satisfied on the evidence of a sufficient level of use for mechanical repairs consistently over a long period to suggest that this amounts to an independent use of the land as identified in O'Donnell which requires consent form the Council. 22 In relation to storage, there is some practical overlap between the LG Act orders sought and the EPA orders as I have ordered the removal of various items in conformity with the LG Act order which also concern the unauthorised storage use alleged by the Council. The use of the front yard of the premises for storage of items since 2005 has fluctuated with photographs attached to the affidavit of Mr Mitchell showing more and less items of various descriptions in the Respondent's front yard. Some photographs include the white van referred to in the Respondent's affidavit and a trailer in the front yard. The gantry appears in most photographs of the front yard. The recent evidence does not establish that there is such a substantial storage use in the front yard of the premises that this constitutes an independent use of the land. The Council has not discharged the onus of proof it bears in relation to satisfying the Court that it should make the declaration sought under the EPA Act. 23 I therefore decline to make the declaration sought in prayer 2 of the amended Class 4 application and will not make the order sought in prayer 4. Costs 24 The Council seeks its costs of the proceedings. The usual award of costs in Class 4 proceedings is that costs "follow the event". The Council argued that it was necessary to commence the proceedings to enforce the LG Act order. The Respondent only made an effort to clean up the land after proceedings had been commenced. The Council is the successful party and there is no disentitling conduct suggesting it should not get its costs. The Respondent's solicitor argued that the Respondent should not have to pay any costs. In a letter dated 14 August 2007 the Council offered not to seek costs if the offer in the letter were accepted. While there was no response to that letter the Respondent used his best endeavours to clean up the front yard. Further the Respondent's solicitor submitted the Council acted unfairly in setting the hearing date when the Council's witness was unavailable. I do not understand why this is relevant as that Council witness was not required for cross-examination by the Respondent. I also note the Council's solicitor returned the matter to the list in order to clarify whether the hearing date needed to be vacated for this reason. The Respondent's solicitor also argued that the innominate use argument under the Ku-Ring-Gai PSO was an argument of last resort, also a submission I do not understand in the context of this costs application. Finally it was submitted that there was some unfairness in commencing these proceedings rather than prosecuting the Respondent in the Local Court, a submission I do not understand the relevance of in the context of this costs submission. 25 Taking into account all the matters before me I consider the Respondent should pay half the Council's costs. Declarations and Orders 26 The Court makes the following declaration and orders. 1. A declaration that the Respondent by himself, his servants and agents has failed to comply with an order issued by the Applicant on 23 March 2006 in breach of the Local Government Act 1993. 2. An order that the Respondent by himself his servants and agents remove or cause to be removed all car chassis, car body parts and associated machinery plant and equipment, timber and other disused material from the front yard at 33 Ivey Street, Lindfield within eight (8) weeks of today's date other than the unregistered white van and the 1942 compressor referred to in the affidavit of Mr Faigan dated 2 November 2007. No more than one trailer may be located on 33 Ivey Street at any time. 3. The Respondent is to pay half the Applicant's costs as agreed or assessed. 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.