Land and Environment Court New South Wales Medium Neutral Citation: Parramatta City Council v M E and B D Pty Limited [2012] NSWLEC 47 Hearing dates: 17 February 2012 Decision date: 17 February 2012 Jurisdiction: Class 4 Before: Preston CJ Decision: The proceedings are adjourned to 9.30am on 13 March 2012 before Preston CJ. Catchwords: CIVIL ENFORCEMENT - orders to remedy and restrain breaches of statute - awning erected without development consent - subsequent alteration, extension or rebuilding of awning without development consent - s 121B order for removal of awning - failure to comply - breaches of statute established - remedies for breaches - applicant sought order for removal of awning - appointment of receivers and managers to respondent company - receivers and managers not present at hearing - deferment of orders to remedy or restrain breaches until receivers and managers are given opportunity to be heard Legislation Cited: Environmental Planning and Assessment Act 1979 s 121B Environmental Planning and Assessment Regulation 1980 cl 52 Environmental Planning and Assessment Regulation 1994 cl 39-41 Environmental Planning and Assessment Regulation 2000 cl 43-44 Category: Principal judgment Parties: Parramatta City Council (Applicant) M E and B D Pty Limited (Respondent) Representation: Mr Ian Hemmings (Barrister) (Applicant) Mr John Dagher (Respondent in person) Storey & Gough (Applicant) File Number(s): 40582 of 2011 EX TEMPORE Judgment 1Parramatta City Council brings proceedings to remedy breaches of the Environmental Planning and Assessment Act 1979 ("EPA Act") by removal of an unauthorised awning. 2The awning has been erected on the western side of a workshop at 65 Kleins Road, Northmead. The workshop is used for the purpose of an autoelectrical mechanical repair business. The use of the workshop is an existing use, dating from the 1930s. However, the erection of the awning was not part of the existing use and required development consent at the time it was erected and continuing to date. 3The awning was originally erected between 1992 and 1995. At that time the land was zoned 2(a) under the Parramatta Local Environmental Plan 1990 (Toongabbie Ward). Use for the purpose of an auto-electrical mechanical repair business was prohibited. By reason of the existing use provisions, the use of the land for that purpose could continue, notwithstanding the prohibition in the local environmental plan. However, the alteration or extension of buildings and works used for an existing use required development consent (clause 52 of the Environmental Planning and Assessment Regulation 1980 and clauses 39-41 of the Environmental Planning and Assessment Regulation 1994). No development consent was sought or obtained between 1992 and 1995 for the alteration or extension of the buildings by the erection of the awning. 4Around 2002-2003, the awning was rebuilt, altered or extended. The awning there today is the awning that was then erected. At this time, Parramatta Local Environmental Plan 2001 applied. The land was still zoned residential 2(a). Development for the purpose of auto-electrical mechanical repair business was still prohibited. The existing use provisions still allowed the continuation of the existing use. However, the rebuilding, alteration or extension of buildings or works used for an existing use required development consent (clauses 43 and 44 of the Environmental Planning and Assessment Regulation 2000). No development consent was sought or obtained to rebuild, alter or extend the buildings prior to erecting the awning. 5In 2005, the company applied for development consent to rebuild, alter or extend the buildings used for the existing use. On 11 December 2006, the Council granted development consent for alterations and additions to the buildings used for the auto-electrical mechanical repair business. Condition 1 of the development consent provided that "no construction works (including excavation) shall be undertaken prior to the release of the construction certificate". Condition 4 of the development consent provided that "the construction certificate is not to be released unless a building certificate for the structures built without prior Council approval has been issued". The development consent was stated to operate from 22 December 2006 and to lapse on 22 December 2011 if the development were not to be commenced by that time. 6On 13 February 2006, the company lodged an application for a building certificate. The Council requested information concerning the structural safety of the awning. The company did not supply the required information. On 12 November 2008, the Council refused the building certificate. 7Accordingly, a construction certificate was not able to be issued by reason of condition 4 of the consent and in fact a construction certificate was not issued. The development was not able to be lawfully commenced without the construction certificate by reason of condition 1 of the consent. In fact, development was not commenced in accordance with the development consent. Accordingly, the development consent lapsed on 22 December 2011. 8On 16 April 2010, the Council issued a notice of intention to give an order No 2 under the EPA Act requiring the removal of the unauthorised awning and a car hoist. The company did not make any representations or lodge a submission with the Council in relation to the notice of intention to give an order. On 2 July 2010, the Council issued the company with an order No 2 under s 121B of the EPA Act requiring the removal of the unauthorised metal awning by 30 October 2010. Again, the company did not lodge an appeal in relation to the s 121B order. 9The company has not removed the awning to date. Accordingly, the company is in breach of the s 121B order that the awning be removed. 10The Council commenced proceedings for an order for the removal of the awning to remedy two breaches of the EPA Act: first, the non-compliance with the s 121B order and second, the erection and use of the awning without development consent. 11I am satisfied that the Council has established that the awning has been erected and is being used in breach of the EPA Act. The breach of the s 121B order is simple: the order required the removal of the awning by 30 October 2010. The company has not complied. The awning is still there at the premises. A failure to comply with a s 121B order is a breach of the EPA Act. 12The original erection of the awning between 1992 and 1995 and the rebuilding, alteration or extension of that awning in 2002-2003 were also in breach of the EPA Act. The applicable provisions of the Environmental Planning and Assessment Regulations at those times, and continuing to date, require development consent for alteration, extension and rebuilding of buildings and works used for an existing use. No development consent was obtained prior to the alteration, extension or rebuilding of the buildings or works by the erection of the awning. 13The development consent which was obtained in 2006, if implemented, would have made lawful the use of the awning. However, the company did not comply with the conditions of the consent and did not carry out the development approved in accordance with the consent. Hence, the consent did not commence and, by effluxion of time, it lapsed on 22 December 2011. 14The awning, therefore, continues to be erected and used in breach of the EPA Act. 15Having found that the erection and use of the awning is in breach of the EPA Act, the next question is what remedy should be granted. The Council seeks an order for removal of the awning. 16A difficulty has arisen in determining the appropriate relief because of the position of the company. Receivers and managers have apparently been appointed to the company. The receivers and managers have declined to appear at the hearing. A director of the company, Mr Dagher, did appear at the hearing. However, he said he has been locked out of the premises, had his bank accounts frozen and been prevented from exercising managerial authority in relation to the company or the business conducted at the premises. 17In these circumstances, I consider it appropriate to defer determining the orders that should be granted to remedy or restrain the breaches established until the receivers and managers are given an opportunity to be heard. Clearly if an order is made for the removal of the awning, this would severely affect the business and its assets at the premises. The equipment at the premises would be exposed to rain and the elements. 18Mr Dagher might also wish to obtain evidence of an engineer as to the structural adequacy of the awning. This would be relevant as to whether the awning should be ordered to be removed. 19I will therefore adjourn the proceedings for hearing as to relief until a date to be determined in the future. I direct that the Council give notice and a copy of these reasons for judgment to the receivers and managers and invite their participation at the continuation of the hearing. 20I will adjourn the proceedings to 9.30am on Tuesday 13 March 2012 before me for mention. At this time, the receivers and managers and Mr Dagher can advise the Court of the role they wish to play and the evidence they wish to file on the question of the relief that should be granted to remedy the breaches. A further hearing date can then be set. 21Accordingly, I order the proceedings be adjourned to 9.30am on 13 March 2012 before me. ********** 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: 22 March 2012