Shellharbour City Council v Cooper [2010] NSWLEC 122

Land and Environment Court of New South Wales

CITATION : Shellharbour City Council v Cooper [2010] NSWLEC 122

APPLICANT Shellharbour City Council

PARTIES : FIRST RESPONDENT Paul Cooper

SECOND RESPONDENT Antonia Cooper

FILE NUMBER(S) : 40321 of 2010

CORAM: Pepper J

KEY ISSUES: INJUNCTIONS AND DECLARATIONS :- development without consent - storage of a shipping container - failure to comply with an order given by council for removal - consent orders made

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 ss 76A(1), 121B and 125 Shellharbour Local Environmental Plan 2000

CASES CITED: Shoalhaven City Council v FB & FA McMahon Pty Ltd [2009] NSWLEC 122

DATES OF HEARING: 9 July 2010

EX TEMPORE JUDGMENT DATE : 9 July 2010

APPLICANT Mr M Cottom SOLICITORS Kells The Lawyers LEGAL REPRESENTATIVES: RESPONDENTS Mr P Cooper (in person) SOLICITORS N/A

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PEPPER J

9 July 2010

40321 of 2010 Shellharbour City Council -v- Paul Cooper & Antonia Cooper

EX TEMPORE JUDGMENT

Introduction 1 HER HONOUR: Shellharbour City Council ("the council") originally sought by way of summons filed 29 April 2010, declaratory relief against the respondents, Mr Paul Cooper and Ms Antonia Cooper, for carrying out development on land (described as Lot 2051 DP 871363 and otherwise known as 38 Brindabella Drive, Shell Cove) ("the property") for the purpose of storage of a shipping container. This was development that was carried out without development consent and therefore was in breach of s 76A(1) of the Environmental Planning and Assessment Act 1979 ("EPAA"). 2 The council also sought declaratory relief against the respondents for failing to comply with an order served on them by the council under s 121B of the EPAA on 3 February 2010, to cease the carrying out of the unlawful development. The council also sought an order that the respondents remove the shipping container within 28 days. 3 The parties have now reached agreement as to the orders they seek the Court to make. The orders are the declarations sought originally in the summons filed by the council. Because the Court should not make declaratory orders without being satisfied that those orders are appropriate, the parties have put before the Court a statement in support of the proposed orders as evidence sufficient for the Court to attain the requisite level of satisfaction (see Shoalhaven City Council v FB & FA McMahon Pty Ltd [2009] NSWLEC 122 at [2]). Evidence in Support of Consent Declaratory Relief 4 The statement in support of the proposed consent order reveals the following facts. The respondents are the registered proprietors (as joint tenants) of the property. On 12 March 2009, the council received a report regarding a shipping container stored on the front yard of the property. Since at least that date the shipping container has been present on the front yard. A surveyor employed by the council has determined that the container encroaches onto the Brindabella Drive road reserve by approximately 350 mm. 5 On 5 June 2009, the council gave the respondents notice of its intention to issue an order under s 121B of the EPAA. That order would require the respondents to remove the shipping container within 28 days. It afforded the respondents the opportunity to make representations to the council as to why the order should not be made or as to some alternate period of compliance with the order. 6 Photographs were taken of the shipping container by an officer of the council on 24 August 2009. The photographs clearly show the size of the shipping container and its location at the front of the respondents' property. 7 On 3 February 2010, the council served on the respondents the order that it had foreshadowed by the notice of intention served on 5 June 2009. The order sought that the shipping container be removed. The order gave five reasons for the removal, namely, because the container: a. with a floor area exceeding 10m 2 , is installed on your property without prior development consent, contrary to Section 3.15.7 of the Shell Cove Development Control Plan .