Blue Mountains City Council v Dunn [2012] NSWLEC 140

Land and Environment Court New South Wales

Medium Neutral Citation: Blue Mountains City Council v Dunn [2012] NSWLEC 140 Hearing dates: 18 June 2012 Decision date: 18 June 2012 Jurisdiction: Class 4 Before: Sheahan J Decision: Declaration and Orders in pars [6] and [16] Catchwords: INJUNCTIONS AND DECLARATIONS: Illegal use of land causing environmental harm, consent orders agreed, clean-up required over agreed time period, costs, liberty to apply Legislation Cited: Environmental Planning & Assessment Act 1979 Local Environmental Plan 2005 Cases Cited: Baulkam Hills Shire Council v Stankovic [2005] NSWLEC 110 Category: Principal judgment Parties: Blue Mountains City Council (Applicant) Miles Cameron Maris Dunn (First Respondent) Richard Barry Dunn (Second Respondent) Representation: Mr Clifford Ireland, barrister (Applicant) Ms Kathryn Millist-Spendlove, barrister (First and Second Respondents) McPhee Kelshaw (Applicant) D M Roberts & Co (First and Second Respondents) File Number(s): 40850 of 2011

EXTEMPORE Judgment 1These class 4 proceedings were brought by Council to deal with the use by the respondents of the First Respondent's property at 36 Prince Street, Glenbrook (identified by certificate of title, map and aerial photography in Exhibit A2, tabs 1, 3, 4 and 5). 2The matter was set down for a three-day hearing commencing today, but the solicitor for the Council told the court on Friday that a settlement had been reached, subject to the court's preparedness to make a declaration and a series of orders upon which the parties had agreed. 3For that purpose, a shortened hearing has been conducted today, helpfully informed by a statement prepared by the Applicant's counsel and agreed upon by the Respondents' counsel, under cl 29 of the relevant Class 4 Practice Direction, and by the reading, in part, of several affidavits filed in the Council's case, and one affidavit by the First Respondent, dated and filed in court today. 4The use complained of has been the subject of neighbourhood complaint for at least twenty years, Council has expressed its own concerns for some time, and the use has increased over time. The parties are to be congratulated on reaching a settlement of their dispute. 5The Council contends that the present use of the First Respondent's land is as a "self-storage unit", a "junk yard", or a combination of the two. Both those uses are prohibited in the Living Bushland Conservation zone under cl 24 of Council's Local Environmental Plan 2005 ('LEP' - Exhibit A3) - "self storage units" expressly, and "junk yards" as innominate: see the various provision in cl 32 of the LEP. 6The parties have agreed to the making of a declaration in the following terms: A declaration that on the land owned by the First Respondent, being Lot 5 DP 1121156 (also known as 36 Prince Street, Glenbrook) ('land'), a use for the purpose of a self-storage unit, as defined in the Dictionary to the Applicant's Local Environmental Plan 2005 ('LEP 2005') and/or for the purpose of a junk yard, is presently being carried out or undertaken in breach of s76B of the Environmental Planning & Assessment Act 1979 (EP&A Act'), each of these uses being for a purpose which is prohibited in the Living Bushland Conservation zone under the applicant's Local Environmental Plan 2005 (LEP 2005). 7Having considered the Council's evidence, including affidavits and some photographs from residents living very close to the subject site, in streets clearly residential in character (although there is no house on the subject land), I am satisfied that there is the relevant degree of environmental harm and loss of neighbourhood amenity to make that agreed form of declaration appropriate, and give it the necessary utility, and I am prepared to make it. 8The court accepts, however, that some of the offending items may have subjective value to the respondents, as possible building materials, there being on the land an approved building which is not yet complete. See generally Baulkam Hills Shire Council v Stankovic [2005] NSWLEC 110, but especially [25]. 9On the other hand, the extant approvals for use or development of the land do not cover storage of materials such as are depicted by the first-hand observations of Council officer, Brian Crane, or neighbours Frank Wilkinson, Kathryn Weston, Rebecca Patterson, and Jeannine Ashbee, or in the photographs taken by Wilkinson (since 1991 - Exhibit A4), by Weston (in 1999 - Exhibit A5), and by Crane (in 2010-2011 - Exhibit A2, tabs 39 and 41). The observations of Wilkinson and Weston date from as far back as 1989, and those of Ashbee from1993. 10The First Respondent has entered into a contract to sell the subject land to J W and V L Kershaw (Exhibit R1), and that contract includes relevant special conditions (14 and 15). The purchasers expressed no wish to be heard or joined in these proceedings (Exhibit A1), but they agree with the orders. Their contract provides for a settlement date not later than 3 January 2013, but settlement could occur 42 days after receipt of a "clearance" letter from the Council. Penalties apply if the site is not properly cleared by the time of settlement. 11The consent orders submitted for the court's consideration include a specific order restraining the continued use of the land in breach of the law (now Order 1), and set out in detail a regime for the clearing of the land by 30 September 2012 (see now Orders 2, 3, and 4): Targets have been set for an orderly removal. The items to be removed are listed under 502 headings across seven "sectors" of the land, in a schedule, which has evolved over time, but is now agreed in the final form which will be attached to the draft orders. Counsel for the Respondents acknowledges that the orders provide them with adequate flexibility. 12Regular monthly review meetings are proposed among the parties (Order 5), and a final site clean-up is to occur during October 2012 (Order 6). 13Counsel for the respondents also assured the court that she had advised them of the possible impact on them of any finding of disobedience and contempt. 14Both parties will have liberty to restore the matter if necessary (Order 7), and the Respondents have agreed to pay the Applicant's costs, once the sale is concluded (Order 8). 15I am prepared to make the orders agreed upon, by consent, and substantially as worded in the submitted draft.