Georgouras & Anor v Warringah Council [2010] NSWLEC 1246

Land and Environment Court of New South Wales

CITATION : Georgouras & Anor v Warringah Council [2010] NSWLEC 1246

APPLICANTS Nicholas Georgouras PARTIES : Janet Georgouras

RESPONDENT Warringah Council

FILE NUMBER(S) : 10453 of 2010

CORAM: Pearson C

KEY ISSUES: SECTION 121B ORDER :-

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Land and Environment Court Acct 1979 Civil Procedure Act 2005 Warringah Local Environmental Plan 2000

CASES CITED: Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404

DATES OF HEARING: 12 August 2010

EX TEMPORE JUDGMENT DATE : 12 August 2010

APPLICANTS Mrs Janet Georgouras (agent) LEGAL REPRESENTATIVES: RESPONDENT Mr Tony Pickup, solicitor Storey & Gough Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Commissioner Pearson

12 August 2010

10453 of 2010 Nicholas Georgouras and Janet Georgouras v Warringah Council

This determination was given extemporaneously and has been edited prior to publication

JUDGMENT 1 Commissioner: This is an appeal under s121ZK of the Environmental Planning and Assessment Act 1979 (the Act) against an Order made by Warringah Council (the Council) under s 121B of the Act on 3 June 2010. The Order was given to Mr Nicholas Georgouras and Mrs Janet Georgouras (the applicants) and relates to premises at Unit 10, 27 Dale Street Brookvale, Lot 10 SP33756 (the premises). The Order directed the recipients to cease use of the office area of the premises "as a child care and education facility" (order 1(c)), and to comply with Development Consent Approval 86/414 dated 9 October 1986 (order 15). The Order contained the reasons for the issue of the order. 2 The powers of the Court under s 121ZK of the Act include the power to revoke or modify the order, to substitute an order, to find that the order is sufficiently complied with or to make such order with respect to compliance as the Court thinks fit or to make any other order with respect to the order as the Court thinks fit. 3 The order was addressed to Mr Nicholas Georgouras and Mrs Janet Georgouras. The appeal to the Court was commenced in the name of Mrs Janet Georgouras. By consent, an order was made under s 64 of the Civil Procedure Act 2005 to join Mr Nicholas Georgouras as applicant, and he has been represented in these proceedings by Ms Janet Georgouras as agent. 4 The proceedings commenced with a conciliation conference under s 34 of the Land and Environment Court Act 1979 (the Court Act) on 28 July 2010 which commenced with a site view. The parties were unable to reach agreement under s 34(3) of the Court Act and the conciliation conference was terminated. The parties consented to my disposing of the proceedings under s 34(4)(b) of the Court Act, and a hearing was held on 12 August 2010. 5 The premises that are the subject of the order are leased by the applicants from Bombadier Investments Pty Limited. I note that the Council has separately issued an order to the owner of the premises under s 121B of the Act in relation to building works which the Council asserts are unauthorised. That order is not the subject of this appeal, which concerns only the use to which the premises are being put. 6 The applicants' position is that their use of the office area to mind their children and supervise their education is ancillary to the office use. The Council does not dispute that the applicant carries out office activities associated with the business of the artist's studio. The issue is whether the minding of children and the supervision of their education which takes place in the office area is a use which requires development consent. Evidence 7 The conciliation conference commenced with a site view, and the Council's bundle of documents included photographs of the premises. The premises are divided on two levels. The lower level is used as an artist's studio and includes a kitchen area and an area with a washing machine. The upper level is used as an office and there is a staircase connecting the two. The office area includes desks and three computers, a television, book shelves, lounges and a separate area with a cot, and a bathroom. 8 The applicants provided a written Statement of Facts, which records that they have three children, aged 3, 13 and 16. The 13 year old child is registered with the Board of Studies for home schooling and the 16 year old is enrolled with TAFE New South Wales for distance study for the Higher School Certificate. The applicants state that they have 24 hours a day, seven days a week, access to the premises, and spend most of their time there. They state that the office area is used for the professional and administrative activities of the artist's studio. In terms of the children's activities, the applicants state that the two older children study for approximately four to five hours during the week days, and that they spend approximately one to two hours a day working in the studio. The applicants state that generally meals are eaten by the applicants and their children on the premises. The evidence as to the nature and extent of activities in the premises was not contradicted. The applicants provided documentary evidence of Board of Studies registration and TAFE enrolment of their two older children. Council's case