Shoalhaven City Council v Igor Lepan [2018] NSWLEC 57

Land and Environment Court New South Wales

Medium Neutral Citation: Shoalhaven City Council v Igor Lepan [2018] NSWLEC 57 Hearing dates: 20 April 2018 Date of orders: 20 April 2018 Decision date: 20 April 2018 Jurisdiction: Class 4 Before: Molesworth AJ Decision: See orders at [25] Catchwords: CIVIL ENFORCEMENT – unlawfully constructed dwelling and structure – consent orders appropriate – orders that the respondent demolish and/or remove dwelling and structure from the land Legislation Cited: Environmental Planning and Assessment Act 1979 s 4.2 Shoalhaven Local Environmental Plan 1985 Shoalhaven Local Environmental Plan (Jerberra Estate) 2014 Cases Cited: Barton v Orange City Council [2008] NSWLEC 104 Shoalhaven City Council v Bonner [2010] NSWLEC 251 Shoalhaven City Council v Ellis [2012] NSWLEC 225 Shoalhaven City Council v Reid [2011] NSWLEC 193 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Category: Principal judgment Parties: Shoalhaven City Council (Applicant) Igor Lepan (Respondent) Representation: Counsel: Mr Jason Lazarus (Applicant) Mr Christopher Ters (solicitor) (Respondent)

Solicitors: Maddocks Lawyers (Applicant) Hones Lawyers (Respondent) File Number(s): 2017/19086 Publication restriction: None

Judgment

Background 1. The Parties in this matter, Shoalhaven City Council (the Applicant) and Mr Igor Lepan (the Respondent) agreed on a number of facts, which were put to the Court by way of a Statement of Agreed Facts, filed on 12 April 2018, stating: The Parties The Applicant is a council constituted for the local government area of Shoalhaven. It is a body politic of the State with perpetual succession and the legal capacity and powers of an individual. The Respondent is the registered proprietor of land comprising lot 75 in DP 11629, known as Lot 75 Invermay Avenue, Tomerong (the 'Land'). The Land and planning instruments applying to the Land The Land is in the local government area of Shoalhaven. The Land is land to which the Shoalhaven Local Environmental Plan (Jerberra Estate) 2014 (the "SLEP") applies. The Land is zoned E4 - Environmental Living under the SLEP. Under the SLEP dwelling houses are permitted subject to development consent. The Land is located on the southern side of Invermay Avenue and comprises a single rectangular shaped allotment. The Land has a 30.48m wide frontage to Invermay Avenue, has a depth of 60.96m and an area of 1,858m2. Vehicular access to the site is via Invermay Avenue at the north-eastern corner of the Land. Works were carried out without consent contrary to the Environmental Planning and Assessment Act 1979 Breach of the Environmental Planning and Assessment Act 1979 In or around 2013, the Respondent caused or permitted the following structures tobe erected, installed, and or used upon the Land: (a) A single storey timber clad dwelling marked "A" on the annexed plan; and (b) A colorbond and shade structure located to the east of the Dwelling marked "B" on the annexed plan (collectively referred to as the "Structures"). The Structures required development consent prior to their erection, installation and or use. No development consent was granted for the erection, installation, and or use of the Structures upon the Land. The Proceedings The proceedings are civil enforcement proceedings concerning the carrying out of the works without development consent. 14. On 23 January 2018, the parties signed Agreed Orders. The terms of these orders are as follows: 1. The Respondent is to demolish and/or remove from the Land the following item identified on the annexed plan within six months of the date of these orders: (a) The Dwelling marked 'A'; (b) The shade structure located to east of the Dwelling marked 'B'; and all demolished materials and debris is to be removed from the Land within six months of the date of these orders. 2. Compliance with Order 1 shall be to the full satisfaction of the Applicant. 3. The Respondent is to pay the Applicant's costs of these proceedings, as agreed or assessed. 1. On 17 April 2018, the Applicant filed written submissions with the Court, as set out below. For the purposes of the consent orders hearing before me, I adopt those submissions, modified where I have considered it appropriate to do so.