Land and Environment Court of New South Wales CITATION : Warringah Council v Swain [2010] NSWLEC 68 APPLICANT Warringah Council PARTIES : RESPONDENT Jason Lesley Swain FILE NUMBER(S) : 40768 of 2009 CORAM: Craig J CIVIL ENFORCEMENT :- breach of s 76A Environmental Planning and Assessment Act 1979 - carrying out development without consent – storage of commercial fishing trawler upon residential premises constitutes development – not development ancillary to the use of the land for the purpose of a dwelling house- single incident of repair to the vessel does not constitute development KEY ISSUES: CIVIL ENFORCEMENT :- failure to comply with an order pursuant to s 124 of the Local Government Act 1993 – order requiring removal of the trawler from the front yard of residential premises due to its unsightly condition in the immediate vicinity of a public road – Order 10 in the Table to s 124 – mandatory injunction granted LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Local Government Act 1993 Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 CASES CITED: Botany Municipal Council v Stojanovic [1989] NSWLEC 107 Lizzio v Ryde Municipal Council (1983) 155 CLR 211 Tweed Shire Council v Litonia Pty Limited [1993] NSWLEC 144 DATES OF HEARING: 3 May 2010 EX TEMPORE JUDGMENT DATE : 3 May 2010 APPLICANT LEGAL REPRESENTATIVES: Mr C Gough, solicitor of Storey & Gough Lawyers RESPONDENT No appearance JUDGMENT: The land and environment court OF NEW SOUTH WALES Craig J 3 May 2010 09/40768 – warringah council v jason lesley swain EX TEMPORE JUDGMENT 1 HIS HONOUR: Warringah Council has brought proceedings in Class 4 of the court's jurisdiction seeking declaratory orders and injunctive relief directed to the manner in which premises owned by Jason Lesley Swain, the respondent, are being used. Those premises are located at 3 Wentworth Place, Belrose. 2 It seems that at some time between 30 September 2004 and 15 August 2007 Mr Swain was responsible for bringing onto his land a ten metre long marine vessel which has been described as an old fishing trawler. The design of that vessel and the observations made by local residents from time to time of the smell of fish in the front yard of Mr Swain's premises rather supports the inference that it was in fact a disused trawler. Indeed, there is some evidence in a letter that Mr Swain sent to an officer of the Council indicating that the vessel was one which had been in imminent danger of sinking and presumably as its master or owner, he was required to "ground" it. He indicates that it is a "licensed vessel" and the letter appears to be signed by identifying the fact that he holds a fishing licence, a commercial licence and an "ocean trap and line fishery" operation. 3 As I have said, the vessel that has been located in the front yard of the premises is one that is said to be about ten metres in length. It is so located that it stands approximately one metre from the front boundary of the property. Photographs which have been tendered in evidence indicate that there is no form of fence or screen between the front boundary and Wentworth Place, so that the sight of the vessel is clear to all who are within or live overlooking the street. The photographs further demonstrate that the vessel is in a very dilapidated condition. It appears to have planks which are rotting and it appears also to be propped so that it stands upright, those props being fixed or standing adjacent to the hull of the boat in locations which are said to be unsafe. They are said to be unsafe in that they are propped against rotting timbers of the hull so that as rotting continues the hull will no longer be supported. 4 The relief which the Council claims is founded upon two broad bases. First, it asserts that the storage and work upon the vessel is work carried out in contravention of the Environmental Planning and Assessment Act 1979, in that it constitutes development for which no development consent has been granted. Secondly, the claim for relief is founded upon the failure by Mr Swain to comply with a notice served upon him pursuant to s 124 of the Local Government Act 1993 on 20 July 2009, requiring that he remove from his premises the vessel described in the notice as a 10 metre fishing trawler located in the front yard of his premises. 5 The Council has tendered a copy of the local environmental plan, being the Warringah Local Environmental Plan 2000, which indicates the subject land to be located within locality B1, French's Forest East, as identified in Appendix B to that plan. By reference to the land use categories identified for that locality, development upon the land which involves either the storage of a vessel or the carrying out of repairs or reconstruction of a vessel would appear to be within category 2 of the land use categories that are there identified. Development for the purpose of category 2 development requires the grant of development consent by the Council. 6 Evidence has been led before me of the system which the Council maintains for the purpose of recording the grant of development consents. I am satisfied by reference to that evidence that at the time at which the relevant search was conducted of those records, that being in October 2009 and referable to the period from the year 2000, no development consent had been granted by the Council in respect of the subject land for any purpose, let alone the purpose of storing or repairing a vessel. 7 The question then remains as to whether or not that storage or the repair of the vessel itself constitutes development. In a detailed submission prepared on behalf of the Council by Mr Gough, who appeared for it at the hearing of these proceedings, he has identified at length the basis upon which it is argued that the placement of the vessel constitutes development. As the cases to which reference has been made make clear, often the determination of whether a particular activity constitutes development will be a matter of fact and degree. On its face, the length of time over which the subject vessel has stood in the yard of Mr Swain's premises, its apparent use as a commercial fishing trawler and its state of repair would indicate that the storage of it does constitute development - that is, it involves the use of land for a purpose, other than that for which any consent that may have granted was issued or granted by the Council. 8 The Council accepts that the dwelling house standing on the land was relevantly approved, either under the provisions of the planning legislation or under the provisions of the local government legislation that applied at the time of its erection. However, the use of the land for the storage of that vessel would still require consideration in the context of determining whether or not that which has been taking place in respect of it constitutes development ancillary to the use of the land for the purpose of a dwelling house. Having regard to the observations of both the High Court in Lizzio v Ryde Municipal Council (1983) 155 CLR 211 and the observations of Meagher JA in Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404, it seems to me that this use of the land by Mr Swain does not and cannot constitute the use of land ancillary to its permitted purpose, namely that of its use as a dwelling house. 9 The fact that the vessel needed to be brought and lowered onto the site by use of a crane, the length of time over which it has stood in its current location unaltered and the fact that it requires - if indeed anything can be done for it - very substantial work in the nature of rebuilding, are all matters that to my mind support the submission made on behalf of the Council that this was not development ancillary to the use of the land as a dwelling house. 10 Those very same matters militate against a determination that the storage and repair of this vessel is one which can properly constitute the pursuit by Mr Swain of a domestic hobby, in the sense discussed in the cases, including those referred to in Botany Municipal Council v Stojanovic [1989] NSWLEC 107 and Tweed Shire Council v Litonia Pty Limited [1993] NSWLEC 144. 11 I should add that the Council's case was supported by evidence that came from Mr Bailey who is a shipwright and marine surveyor. Mr Bailey inspected the vessel in the front yard of Mr Swain's premises on 19 March 2009. As a result of his inspection he prepared a report which has been tendered in evidence. His observations clearly demonstrate both the serious state of decay of the vessel and the extent to which work would be necessary in order to restore the vessel so that it was seaworthy. Indeed his ultimate opinion is that the vessel is virtually beyond repair and that any work upon it would effectively involve its rebuilding, an exercise that he opines would cost somewhere between $350,000 and $400,000. 12 The construction of a commercial fishing vessel in the front yard of residential premises cannot, on any understanding of the correct principles of law, constitute either a use ancillary to the use of a dwelling house or, to the extent that it matters, the pursuit of a hobby such that without any development consent it should be permitted to continue. 13 I am therefore satisfied that the storage of the vessel in the front yard of the premises is development for which no consent has been obtained and therefore is development being carried out in breach of s 76A of the Environmental Planning and Assessment Act. 14 A second aspect of the claim directed to breach of the planning law is the claim that works in the nature of repair of the boat had been carried out and that the repair of the vessel would itself constitute development for which no consent has been obtained. As to the latter proposition, the earlier observations that I have made bear out that no such consent exists. 15 In light of my determination that the storage of the vessel constitutes development for which no consent has been obtained, the further consideration of this aspect to the matter is probably unnecessary. However as the matter was the subject of some evidence and submissions, I should state briefly my conclusion upon it. 16 At the time at which the vessel was brought onto the site, it had both a superstructure in the form of what appears to be a cabin and, as well, some metal scaffolding or rigging which would seem to have constituted part of the construction of the vessel, aiding its use as a fishing trawler. At some time early in 2009 it appears that the superstructure, both cabin and rigging, were removed by Mr Swain or somebody acting on his behalf. That is the only work that has been carried out on the vessel following its placement on the site sometime prior to August 2007. 17 That one action on the part of Mr Swain would seem to me not to constitute the use of the land for the purpose of repairing the vessel. Had there been evidence of other works carried out at different times then my opinion may have been different. In so saying, I acknowledge what has been said inferentially, both by the single piece of correspondence received from Mr Swain himself and from a letter sent by his solicitors to the Council in August of 2009, that there was an unfulfilled intention to carry out works. That intention, expressed in the context in which it has been so expressed, does not enable me to reach the conclusion that the land has been used for the purpose of repairing the vehicle. However, as I have said, that matters little in the context of a finding that the continued storage of the vessel does constitute development which in the circumstances I have outlined involves a breach of the Environmental Planning and Assessment Act. 18 The second broad basis upon which the Council seeks relief in its application to the court is a breach of the Local Government Act, in that the respondent has failed to comply with the order served upon him pursuant to s 124 of the Local Government Act. That order required the removal of the vessel from the front yard of the subject premises and was an order founded upon what was said to be the unsightly condition of the vessel being so located. 19 The numerous photographs which have been tendered in evidence abundantly demonstrate that, objectively viewed, the vessel standing in the front yard of the premises and propped in the manner in which it is propped and covered in part by tarpaulins, is a most unsightly structure and element in the residential streetscape of Wentworth Place. 20 The determination therefore to issue the notice founded upon the unsightly condition of the vessel seems to me to be well founded. It was an order authorised by the terms of paragraph 10 of the Table to s 124 of the Local Government Act. The unsightly vessel was located proximate to Wentworth Place, a "public place" within the meaning of the section. 21 I am satisfied that the order that is dated 20 July 2009 was served upon Mr Swain. I would not have been so satisfied if confined to the evidence that is contained in the affidavit of Mr Ives, the Council officer responsible for the matter. He simply deposed to the fact that the notice was "served on the respondent by post". Evidence in those terms did not have proper regard to the requirements for service as contained in s 710(2)(c) of the Local Government Act, which specifies the requirements for service of notices. However, any defect of the evidence in that regard is, so it seems to me, cured by the letter to the Council dated 19 August 2009, from Mr Swain's solicitors, acknowledging receipt of that order and making representations in respect of it. That demonstrates to me that the order was in fact received by Mr Swain. 22 No representations were made by Mr Swain in response to that order, apart from the letter from his solicitors to which I have just referred and no further communication has since been received by the Council from him. Importantly, an inspection of the premises on 23 February 2010 revealed that the boat remains in the position it has been for at least three years and no further work has been undertaken which would demonstrate an endeavour to comply with the terms of the order. 23 I have considered the provisions of the Local Government Act dealing with orders issued in accordance with s 124 and generally the provisions of the Act dealing with the requirements for the issuing of such an order. I am satisfied that those requirements have been met. 24 In accordance with s 672 of the Local Government Act, a breach of the Act is constituted by the failure to comply with an order served under Part 2 of Chapter 7, which is the Part of the Act pursuant to which the relevant order was issued and served upon Mr Swain. I am therefore satisfied that a breach of the Local Government Act has occurred. 25 Accordingly the orders that I make are as follows: 1. Declare that the defendant is carrying out development on Lot 4, DP31708, being premises known as 3 Wentworth Place, Belrose ( the premises ), by storing on that land a 10 metre marine vessel or boat, formerly used as a fishing trawler, without having obtained development consent so to do; 2. Declare that the defendant has failed to comply with an order in accordance with the requirements of order numbered 10, in the Table to s 124 of the Local Government Act 1993, being an order given by the plaintiff to the defendant on 20 July 2009 and requiring the removal of the 10 metre fishing trawler located in the front of the premises; 3. Order that on or before 31 May 2010 the defendant remove from the premises at 3 Wentworth Place, Belrose the 10 metre marine vessel, formerly used as a fishing trawler and presently located in the front yard of those premises; 4 Order that the defendant pay the plaintiff's costs; and 5. 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