Great Lakes Council v French [2013] NSWLEC 141

Land and Environment Court New South Wales

Medium Neutral Citation: Great Lakes Council v French [2013] NSWLEC 141 Hearing dates: 26 August 2013 Decision date: 27 August 2013 Jurisdiction: Class 4 Before: Pain J Decision: See paragraph 43 Catchwords: CIVIL ENFORCEMENT - section 121B order served by the Council requiring work to be done not complied with - construction of numerous buildings without development consent - use of land not in accordance with development consent for educational bush camp for school children - exercise of discretion to make orders restraining breach Legislation Cited: Environmental Planning and Assessment Act 1979 s 76A, s 121B, s 124 Great Lakes Local Environmental Plan 1996 State Environmental Planning Policy No 14 - Coastal Wetlands Cases Cited: ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 F Hannan Pty Ltd v Electricity Commission (NSW) (No 3) (1985) 66 LGRA 306 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Category: Principal judgment Parties: Great Lakes Council (Applicant) Andrew French (Respondent) Representation: Mr T Howard (Applicant) Mr French (in person) (Respondent) Local Government Legal (Applicant) File Number(s): 40393 of 2013

Judgment 1These are civil enforcement proceedings pursuant to s 124 of the Environmental Planning and Assessment Act 1979 (EPA Act) by Great Lakes Council (the Council) in relation to land at lots 30 and 31, DP873562 known as 252 Gooreengi Road North Arm Cove near Karuah (the land). The Council issued a s 121B order which has not been complied with. The Respondent Mr French is the owner of the land. Orders are sought restraining the use of the land for a camping ground, tourist facility, holding of concerts, functions, festivals or commercially organised parties until development consent is obtained. Orders preventing promotion of the land for unauthorised uses on a website Bulga Creek Bush Camp are also sought and demolition of a number of buildings. Mr French represented himself in the hearing. 2The Points of Claim (POC) identify that the land is zoned Rural 1(a) under the Great Lakes Local Environmental Plan 1996 (the LEP). Development such as camping ground and tourist facility is permissible with consent, in the Rural 1(a) zone. The POC identify the unlawful buildings described at par 21-72 as including office/reception building, eight cabins, shade cloth enclosed building, pergola, wooden post and beam structure, working storage structure, elevated covered platform, partly enclosed covered structure, workshop and common area extension. All are alleged to be erected without development consent under s 76A(1)(a) of the EPA Act. 3The Council tendered the LEP. This defines camping ground and tourist facility as: Camping ground or caravan park means a site used for the purpose of: (a) placing moveable dwellings (as defined in the Local Government Act 1993) for permanent accommodation or for temporary accommodation by tourists, or (b) the erection, assembly or placement of cabins for temporary accommodation by tourists. Tourist facility means an establishment providing for holiday accommodation or recreation, and includes a boatshed, boat landing facilities, camping ground, caravan park, holiday cabins, a hotel, house boat, marina, motel, playground, restaurant or water sports facilities or for a club used in conjunction with any such establishment, but does not include bed and breakfast establishments. 4The Council read an affidavit of Mr Pevitt, Council's Investigations and Prosecution Coordinator, dated 26 April 2013 setting out the history of his attendance at the land on a few occasions up to 2010 and then once or twice a year since. He identifies that parties have occurred on occasion on the land generating noise complaints as a result of which Council officers attended the land on 2 and 3 January 2012. Mr Pevitt attended the land on 17 August 2012 and served the order under s 121B on the manager of the land. On 15 November 2012 Council's Regulatory Officer inspected the land and observed that the order had not been complied with. On 14 February 2013 Mr Pevitt inspected the land and observed that the order had not been complied with. Mr Pevitt annexed photographs he took during this inspection to his affidavit. 5Mr Pevitt gave oral evidence of what he saw on the land on 3 June 2013 being a large number of people, lots of vehicles, musical equipment and large cooking implements. He provided a printout of several pages of text from the website Bulga Creek Bush Camp dated 26 August 2013 (exhibit C). Mr Pevitt also downloaded pages from the website on 15 February 2013, printouts of which were annexed to his affidavit. A comparison of the two printouts shows that since February the page referring to the hire of cabins has been removed. The website continues to promote the camp for horse riding, canoeing, fishing, beach sand boarding, beach tours, whale watching, dolphin watching, bush walking, the Millennium dome as an international DJ and party venue, table tennis, observing farm animals, oystering, mountain bike riding, educational bush camp, "real bush camping" and notes a Dallas Frasca concert was held there, anticipating a repeat in the following year. 6The affidavit of Mr Andrews dated 25 June 2013, Council's Assessment Planner, was read and identifies the planning history. One development consent was granted for the land in 1994 for use as a bush camp for school children as an educational facility. The plans attached to that consent were exhibited to his affidavit and show that permission was given for 15 tent sites on concrete slabs, an amenities building, a hexagonal shelter and barbeque shed. 7Another development consent was also given for a swimming pool which has been built. No issue arises in relation to that consent in these proceedings. No other consents are in force in relation to the land. 8Mr Andrews gave oral evidence that he attended the land on 3 August 2011 and took photographs of various buildings which the Council wishes demolished (exhibit D) and stated he had health and safety concerns about the buildings.