Land and Environment Court New South Wales Medium Neutral Citation: Wollondilly Shire Council v Blacker [2011] NSWLEC 182 Hearing dates: 17 October 2011 Decision date: 17 October 2011 Jurisdiction: Class 4 Before: Biscoe J Decision: Consent orders varied Catchwords: CONSEQUENTIAL ORDERS:- whether consent orders should be varied on application of third party affected by them Legislation Cited: Environmental Planning and Assessment ss 118B, 118BA Act 1979 Uniform Civil Procedure Rules 2005 rr 6.24(1), 36.16(3) Category: Principal judgment Parties: Wollondilly Shire Council (Applicant) Robert Charles Blacker (First Respondent) Kenneth William Dixon (Second Respondent) Lesley Joan Dixon (Third Respondent) Lesley Niven Taylor (Fourth Respondent) Stephen Allan Taylor (Fifth Respondent) Keith Davis (Sixth Respondent) Shirley Davis (Seventh Respondent) Representation: COUNSEL: Ms B A Arste (Sixth Respondent) SOLICITORS: Hones La Hood Legal Aid NSW (Sixth & Seventh Respondents) File Number(s): 40048 of 2011 EX TEMPORE Judgment 1The applicant, Wollondilly Shire Council, brought these civil enforcement proceedings against the five owners of property known as 1360 Burragorang Road, Oakdale ( the Land ). On 15 April 2011 I made consent orders as follows: " 1. The Respondents and each of them, their servants and agents, are restrained from using the property known as 1360 Burragorang Road, Oakdale (the "Land") for the purposes of an equestrian centre pursuant to development consent DA D106-07 (including any modification of it) unless or until they have complied with each of the conditions of that consent. 2. The Respondents and each of them, their servants and agents, are restrained from using the Land for the purposes of a car parking facility and observation deck pursuant to development consent DA 10.2009.00000549.1 (including any modification of it) unless or until they have complied with the requirements of that consent. 3. The Respondents and each of them, remove (or procure the removal) of the following structures from the Land within 28 days from the date of making this order and not reinstate any of those structures unless or until they receive lawful authority to do so: (a) The 2 shipping containers depicted in the attached aerial photograph marked " WSC 1 " and located generally in the position marked " A "; (b) The 3 demountable toilet blocks depicted in the attached aerial photograph marked " WSC 1 " and located generally in the position marked " B "; and (c) The demountable storage building depicted in the attached aerial photograph marked " WSC 1 " and located generally in the position marked " C ". 4. The Respondents arrange for the relocation of the occupants, and vacation by those occupants, from the moveable dwelling and associated structure(s) as depicted in the attached aerial photograph marked " WSC 1 " located generally in the position marked " D " (collectively referred to as the "moveable dwelling") from the Land within 6 months from the date of these orders. 5. The Respondents remove the moveable dwelling from the Land within 21 days form the date of compliance with order (4) above or within 6 months and 21 days from the date of these orders, whichever is the earlier and not reinstate the moveable dwelling unless or until they receive lawful authority to do so. 6. The Respondents pay the Applicants costs as assessed or agreed. " 2I am now dealing with a notice of motion filed on 14 October 2011 by Mr Keith Davis who is a third party to the proceedings. He and his wife are the "occupants" referred to in orders 4 and 5 made on 15 April 2011. Mr Davis moves for: (a)an order that pursuant to the Uniform Civil Procedure Rules 2005 r 6.24(1) (UCPR) he and his wife be joined as parties to these proceedings; (b)an interim order that until further order the respondents be restrained from removing or causing to be removed the moveable dwelling and associated structure(s) situate on the property known as 1360 Burragorang Road, Oakdale and depicted in an aerial photograph marked "WSC 1" located generally in the position marked "D" attached to the notice of motion; and (c)final orders that pursuant to UCPR 36.16(3), order 4 of the consent orders made by me on 15 April 2011 be varied so as to extend the time for compliance with that order to 16 January 2012, and that order 5 of the consent orders be varied so as to extend the time for compliance with that order to 30 January 2012. 3The notice of motion was heard by me ex parte interim on Friday 14 October 2011 when I granted an interim injunction until today, Monday 17 October 2011, to the effect of the interim relief sought in the notice of motion, and made orders for service. 4Upon the motion coming before me today, Mr Davis and the Council were legally represented but the respondents did not appear. I am informed that the respondents have, however, been served. 5The only evidence before me is an affidavit of Mr Davis to the following effect. 6Since early 2009 Mr Davis and his wife have been the occupants of the moveable dwelling and associated structures referred to in order 4 made on 15 April 2011. In early 2009 the first respondent asked him and his wife to move onto the Land to watch over it as caretakers. The first respondent put an old caravan and annex onto the Land for Mr and Mrs Davis to live in; and told Mr Davis that that was where the Council said to place it, either there or in another spot, and that he had a DA for it. The first respondent told Mr Davis that was their (ie the Davis') block of land; they could do what they want with it; they could live there as long as they liked; and could remain there for life. The building was not then in a liveable state and required additional rooms. The first respondent agreed to their request to build additional rooms. In reliance on the first respondent's representations and with his encouragement, they spent $42,000 renovating the dwelling over a nine month period between February and November 2009. 7However, in 2010 the first respondent indicated that the Land was to be put up for sale, assured Mr Davis that they would be compensated; and proposed that they put their dwelling on the market and then leave. They advertised the dwelling for sale between February and July 2011 but it was not sold. According to Mr Davis' affidavit (although there appeared to be some attempt at qualification from the bar table) it was not until 1 September 2011 that he first became aware of these proceedings in this Court when the first respondent handed him an unsealed copy of the orders made on 15 April 2011. A few days later he contacted a council officer by telephone to ask for more time to vacate. He was told to put it in writing and that the officer would talk to his superiors. 8Soon afterwards he sent a letter to the Council explaining their circumstances and requesting more time to vacate the dwelling. On 14 September he sought assistance from a tenancy advice and advocacy service. 9On about 15 September he contacted the same council officer about the Council's response to his letter. The council officer said words to the effect "You will be quite OK to stay. Nothing will be done until 16 December 2011". 10On or about 16 September 2011 Mr Davis received a letter from the Council signed by the same council officer giving notice of intention to enter the property on Friday 16 December 2011 for the purpose of exercising Council's functions under ss 118B and 118BA of the Environmental Planning and Assessment Act 1979 to undertake an inspection and investigation with regard to structures featured in photographs attached to that notice. 11On 19 September 2011 Mr and Mrs Davis attended Legal Aid NSW's office. They are elderly, frail and suffering poor health. Mr Davis has a number of disabilities and is blind in one eye. Mrs Davis has an injury for which she requires an operation. She has been unable to attend to the operation because he depends on her as a full time carer. The age pension is their only source of income and they have little savings. The situation of their two daughters who live in other States is such that it appears unlikely that they can assist their parents with accommodation. They have no friends in the area that might accommodate them. As they were only made aware of the April 2011 orders on 1 September 2011 they have not had time to make any alternative arrangements. The respondents have not made any attempt to relocate them since the orders were made in April 2011. 12Certain structures identified in an aerial photograph attached to the April 2011 orders have been removed. 13On 12 October 2011 the first respondent told Mr Davis that he had ordered a crane to be there to shift the toilet block and that it had to be gone by 15 October 2011. Thereafter Mr Davis was informed by a solicitor in the employ of Legal Aid NSW that the first respondent had advised the solicitor that he had initially cancelled the crane after the conversation on 12 October and was now unsure whether to go ahead. 14It was in those circumstances that Mr Davis' notice of motion came before me urgently last Friday seeking as one of the alternative orders that Orders 4 and 5 made in April 2011 be extended so as to allow Mr and Mr Davis sufficient time to make alternative living arrangements and vacate the dwelling. 15Today Mr Davis and the Council (by their legal representatives) have reached agreement that it would be appropriate to extend the time for compliance with order 4 made in April 2011 to 16 December 2011 having regard in particular to the oral and written representations as to that date made by the Council to Mr Davis, and to otherwise vary orders 4 and 5 as set out below. I agree. 16By consent of Mr Davis and the Council, I make the following orders: 1.Order that Keith Davis and Shirley Davis be added as sixth and seventh respondents to the proceedings. 2.Order that orders 4 and 15 made on 15 April 2011 be varied as follows: 4. The first to fifth respondents arrange for the relocation of the occupants being the sixth and seventh respondents, and vacation by those occupants, from the moveable dwelling and associated structure(s) as depicted in the aerial photograph marked " WSC 1 " located generally in the position marked " D "(collectively referred to as the "moveable dwelling") attached to the consent orders of 15 April 2011 from the Land by 16 December 2011 provided that the occupants are not required to relocate and vacate before 16 December 2011. 5. The first to fifth respondents remove the moveable dwelling from the Land within 21 days from the date of compliance with order 4 above and not reinstate the moveable dwelling unless or until they receive lawful authority to do so. 3.The costs of Keith Davis' notice of motion filed on 14 October 2011 are reserved. 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. Decision last updated: 20 October 2011