Land and Environment Court New South Wales Medium Neutral Citation: Tweed Shire Council v Taylor [2019] NSWLEC 45 Hearing dates: 14 March 2019 Date of orders: 05 April 2019 Decision date: 05 April 2019 Jurisdiction: Class 4 Before: Preston CJ Decision: The Court: (1) Orders the respondents not to use the building identified in the Identification survey and photographs attached to the Development Control Order issued by Tweed Shire Council on 20 April 2018 to the respondents ("the Building") erected on a Crown road reserve and land in Lot 5 DP 631620, known as 656 Upper Crystal Creek Road, Upper Crystal Creek ("the Land") for the purpose of a serviced apartment. (2) Orders the respondents, within 3 months of the date of these orders, to demolish and remove the Building and leave the Land and Crown road reserve in a state free of residual building materials. (3) Grants liberty to the parties to apply to vary, replace or supplement Order 2 on sufficient cause being shown. (4) Orders the respondents to pay the applicant's costs of the proceedings. Catchwords: CIVIL ENFORCEMENT – unlawful erection and use of a building – appropriate order to remedy breach – whether demolition of building appropriate – demolition ordered Legislation Cited: Civil Procedure Act 2005 Crown Land Management Act 2018 Environmental Planning and Assessment Act 1979 Planning for Bush Fire Protection 2006 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Tweed Local Environmental Plan 2014 Uniform Civil Procedure Rules 2005 Cases Cited: Barton v Orange City Council [2008] NSWLEC 104 Canterbury City Council v Mihalopoulos [2010] NSWLEC 248 Congregational Christian Church Samoa Parish of Sydney v Georges River Council [2017] NSWLEC 71 Fairfield City Council v Ly [2008] NSWLEC 322; Georges River Council v Stojanovski [2018] NSWLEC 125 Glaser v Poole [2010] NSWLEC 143 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Nader v Sutherland Shire Council [2008] NSWCA 265 Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Woollahra Municipal Council v Sahade [2012] NSWLEC 76 Category: Principal judgment Parties: Tweed Shire Council (Applicant) Murray Arthur Taylor (First Respondent) Jerri Harrison Taylor (Second Respondent) Representation: Counsel: Mr N Eastman (Applicant) Murray Arthur Taylor (First Respondent) (Self-represented) Jerri Harrison Taylor (Second Respondent) (Self-represented) Solicitors: Sparke Helmore (Applicant) File Number(s): 2018/259482 Publication restriction: Nil Judgment A tree house is erected and used unlawfully 1. Mr Taylor built a tree house in forest near to Upper Crystal Creek in northern New South Wales in September 2016. The building is built in and around trees in the forest. 2. The building was constructed and adapted to provide self-contained accommodation to tourists or visitors. The building comprised a furnished, open plan living area and bedroom, together with a separate kitchen area. Doors fronting the living and bedroom area opened onto a balcony area. The balcony area was constructed around a number of existing trees. There was a separate bathroom building connected to the main building by a timber deck, stairs and path. The bathroom contained a bath and toilet. The bathroom was partially open in that one of the external walls was missing. The waste water piping for the building and bathroom was not connected to an effluent disposal system. 3. The tree house with its bathroom is built about 10 metres from Upper Crystal Creek. The building is constructed partly on land owned by Mr Taylor and his daughter (as tenants in common) and partly on a Crown road reserve. 4. Mr Taylor did not seek or obtain development consent under the Environmental Planning and Assessment Act 1979 ("EPA Act") to erect the building or to use it for any purpose. From October 2016 until at the latest 4 December 2018, Mr Taylor used the building for the purpose of a serviced apartment. Use of that purpose on land within the RU2 Rural Landscape Zone is prohibited under the applicable Tweed Local Environmental Plan 2014 ("LEP"). A "serviced apartment" is defined in the Dictionary to the LEP as: "a building (or part of a building) providing self-contained accommodation to tourists or visitors on a commercial basis and that is regularly serviced or cleaned by the owner or manager of the building or part of the building or the owner's or manager's agents." 1. Mr Taylor advertised the building for tourist and visitor accommodation, including on Airbnb, as "Woodstock", "Cougal Cabin" or "Crystal Creek Tree house". Mr Taylor let it for that purpose on a commercial basis. Mr Taylor serviced and cleaned the building before and after each stay by tourists or visitors. The building was, therefore, used for the purpose of a serviced apartment. 2. Tweed Shire Council ("the Council") gave Mr Taylor, first on 22 March 2018, a notice of intention to give a development control order and then, on 20 April 2018, a development control order under Part 9 Div 9.3 of the EPA Act to stop using the building for the purpose of a serviced apartment and to demolish and remove the building. Mr Taylor delayed complying with the development control order. He continued using the building for the purpose of the serviced apartment, as he had advanced bookings and he did not wish to disappoint those tourists or visitors. 3. On 23 August 2018, the Council commenced proceedings against Mr Taylor and his daughter in this Court to restrain the use of the building as a serviced apartment and for the demolition and removal of the building. 4. Eventually, Mr Taylor ceased using the building as a serviced apartment. He dismantled certain services and facilities in the building so that it could not readily be used as a serviced apartment. Mr Taylor said that the building had not been available to tourists and visitors since early August 2018. The Council officers who inspected the building on 4 December 2018 observed that certain services and facilities in the building had been dismantled. Mr Taylor now uses the building only for storage. 5. At the hearing of the proceedings, Mr Taylor and his daughter did not contest that the erection of the building and its subsequent use for the purpose of a serviced apartment were in breach of the EPA Act. They did contest, however, that they should be ordered to demolish and remove the building. The central issue in the proceedings, therefore, is not whether the breaches of the EPA Act have been committed but the order (if any) that should be made to remedy the breaches. Before dealing with the issue of remedy, I will briefly explain why Mr Taylor and Ms Taylor breached the EPA Act. The breaches of the EPA Act 1. The Council contended that Mr Taylor and Ms Taylor breached the EPA Act in two ways: 1. by failing to comply with the development control order issued by the Council on 20 April 2018 to stop using the building for the purpose of a serviced apartment and to demolish and remove the building; and 2. by erecting and using the building for the purpose of a serviced apartment, which is a prohibited development in the applicable RU2 Zone. The failure to comply with the development control order 1. The Council was an enforcement authority able to give a development control order to Mr Taylor and Ms Taylor (under ss 9.34 and 9.35 of the EPA Act). The development control order given by the Council on 20 April 2018 was a combined order including a number of general orders under Part 1 of Sch 5 of the EPA Act, being Order 1 Stop Use Order, Order 3 Demolish Works Order and Order 12 Repair or Remove Works Order (as permitted under cl 38 of Sch 5 of the EPA Act). The development control order required Mr Taylor and Ms Taylor to: "1. Within 14 days from the date of this order stop using the habitable structure, as depicted in the attached Identification Survey and accompanying photographs marked "A", which has been constructed on the Land and Crown road reserve (the Building) for the purposes of a serviced apartment as defined in the Tweed Local Environmental Plan 2014 (LEP). 2. Within 90 days from the date of this Order, demolish or remove the building and leave the Land and Crown road reserve in a state free of residual building materials." 1. The development control order was properly given to Mr Taylor and Ms Taylor as they were: 1. For Order 1 Stop Use Order, the owners or persons using the building; 2. For Order 3 Demolish Works Order, the owners of the building and 3. For Order 12 Repair or Remove Works Order, the owners or occupiers of the building. 1. Mr Taylor and Ms Taylor raised no issue with the validity of the development control order. At the hearing, Mr Eastman of counsel, appearing for the Council, noted that under s 9.35(3) of the EPA Act, a development control order cannot be given in respect of "vacant Crown land within the meaning of the Crown Lands Act 1989", without the written consent of the Minister administering the EPA Act. The building erected by Mr Taylor is constructed partly on a Crown road reserve. It was not established that the Crown road reserve is vacant Crown land within the meaning of the Crown Land Management Act 2018. It was, therefore, not established that the development control order was given by the Council in breach of s 9.35(3) of the EPA Act. Unless and until the development control order given by the Council is established to have been given in breach of s 9.35(3), it is taken to be valid and effective. 2. Mr Taylor and Ms Taylor did not comply with the development control order. They did not cease, within 14 days of the date of the order of 20 April 2018, using the building for the purpose of a serviced apartment. They did not cease this use until 4 December 2018, some 7 months later. They did not demolish and remove the building within 90 days of the date of the order by 20 April 2018 and still have not done so. 3. Mr Taylor's and Ms Taylor's failure to comply with the development control order was a breach of the EPA Act (see ss 9.44(b)(v) of the EPA Act). The Council could bring proceedings in the Court for an order to remedy or restrain the breach (s 9.45(1) of the EPA Act). Carrying out prohibited development 1. If an environmental planning instrument provides that specified development is prohibited on land to which the provision applies, or development cannot be carried out on land with or without development consent, a person must not carry out development on the land (s 4.3 of the EPA Act). 2. Here, the LEP provides that on land in the applicable RU2 Zone, any development not specified in item 2 or 3 of the land use table for the RU2 Zone is prohibited. Development for the purpose of a serviced apartment is not specified in item 2 or 3 of the land use table for the RU2 Zone and accordingly is prohibited. 3. Mr Taylor erected the building and subsequently used the building for the purpose of a serviced apartment. The building was constructed and adapted to provide self-contained accommodation to tourists or visitors. Mr Taylor and Ms Taylor's erection and use of the building for the purpose of a serviced apartment involved carrying out development that is prohibited, in contravention of s 4.3 of the EPA Act and hence in breach of the EPA Act. The Council could bring proceedings for an order to remedy or restrain this breach of the Act (s 9.45(1) of the EPA Act). The Council's argument for demolishing the tree house 1. The Council contended that the appropriate orders to remedy the breach are orders to restrain the further use of the building and to demolish and remove the building. The Council referred to a number of factors that support exercising the discretion to remedy the breach by ordering the demolition and removal of the building. 2. First, the orders sought are not the enforcement of a private right, but "enforcement of a public duty imposed by or under an Act of Parliament, by which Parliament has expressed itself on the public interest which exists in the orderly development and use of the environment". There is a need to uphold, in the normal case, "the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy. Damage may be done to the environment which it is the purpose of the orderly enforcement of environmental law to avoid": Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-340. 3. The Council submitted that Mr Taylor has won a private advantage for himself by constructing the building other than in accordance with a development consent. His actions have undermined the legislative purposes of the EPA Act. An order requiring the removal of the unauthorised building will remedy the breach of the EPA Act by putting Mr Taylor back in the position he would have been in had he complied with the EPA Act: Woollahra Municipal Council v Sahade [2012] NSWLEC 76 at [71]-[72]; Georges River Council v Stojanovski [2018] NSWLEC 125 at [30]. 4. Secondly, the breaches of the EPA Act by the erection and use of the building for the purposes of a serviced apartment are not able to be remedied by obtaining a development consent. Use of a building for the purpose of a serviced apartment is a prohibited use in the applicable RU2 Zone. Development consent cannot be granted for prohibited development. Whilst there are other uses for which the building could be used with development consent in the RU2 Zone, the prospects of obtaining development consent are slight. The building poses serious safety risks. 5. Mr Peter Thornton, a bush fire consultant engaged by the Council, concluded in his bush fire report that "the location and construction of the subject building in relation to the existing bush fire hazard does not comply with the Planning for Bush Fire Protection 2006 and poses an unacceptable risk to occupants and building ignition in a bush fire event". To a large extent, the unacceptable bush fire risk is created by the method and materials used in construction and the location of the building in and around trees in the forest. Solving the bush fire risk requires a different method and different materials of construction and clearance of the trees in and around the building. This would destroy the very features that make the building a tree house and gives it its appeal. 6. Mr Barry Stegeman, a building surveyor with the Council, identified reasons why he considered that the Council would be unlikely to issue a building information certificate under Part 6 Div 6.7 of the EPA Act to allow the building to remain in the forest: "7.1 The Building as constructed is capable of being used for the purposes of a dwelling or for tourist and visitor accommodation purposes. 7.2 The Land has been assessed in the Bushfire Report as having flame zone exposure and the existing construction does not comply with the Flame Zone or Bushfire Attack Level 40 (BAL 40) construction requirements specified in AS 3959-2009. An example of this is that the floor timbers are not bush fire resistant and are not protected. 7.3 The existing method of construction appears to incorporate timber framing, exposed elevated timber flooring, exposed glazing and the metal roof does not afford any degree of protection against the bush fire exposure likely around the Building. 7.4 The Bushfire Report indicates that the Building will be exposed to direct flames. Buildings in flame zone are generally not approved and if they are they require engineered performance based design solutions that involve non-combustible building elements, at considerable cost. A detailed construction review of the Building is likely to identify that the Building would not comply with the lowest BAL level 12.5. 7.5 Given the steep slope of the land it may also prove difficult to comply with the property access requirements of Chapter 4 of NSW Rural Fire Service's guide Planning for Bush Fire Protection 2006. 7.6 The Building appears structurally unsound since it has inadequate sub-floor support with a structure appearing to be supported by a number of small trees and chains suspended from trees. 7.7 The Council has already: (a) issued a Development Control Order requiring the demolition of the Building, and (b) commenced these proceedings seeking orders for demolition of the building, and therefore any issues of a Building Information Certificate would be contrary to sections 6.25(1)(a), 6.25(2) and 6.25(3) of the EPA Act. 7.8 The Building appears to be located about 10m from Upper Crystal Creek, which gives rise to a significant potential for pollution of the waterway given plumbing remains connected and on-site sewerage management has not been approved by Council for the Building. 7.9 There is no registered structural engineer's assessment and report which demonstrates that the building is structurally sound and that it does not pose a serious safety risk to those using it, or which outlines the remedial works which would be necessary to make the Building structurally sound, as required by the National Construction Code. 7.10 Part of the Building is located on Crown land, and an application for a Building Information Certificate requires the consent of the owner of the land (see section 6.22(a) of the EPA Act)." 1. Thirdly, no attempts have been made by Mr Taylor to remedy the breaches of the EPA Act, such as taking the actions contemplated in s 9.46(3) of the EPA Act, by applying for a development consent for the future use of the building for a lawful purpose or for a building information certificate to allow the building to remain. 2. Fourthly, there is no use of the building, as constructed and located, that would be exempt or complying development. 3. The carrying out of exempt development does not require development consent under Part 4 of the EPA Act (s 1.6(1)(a) of the EPA Act). Exempt development is development that is declared to be exempt development by an environmental planning instrument because of its minor impact (s 1.6(2) of the EPA Act). One environmental planning instrument that has so exempted development is State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ("Codes SEPP"). Clause 1.15(1) of the Codes SEPP provides that: "Development that is specified in an exempt development code that meets the standards specified for that development and that complies with the requirements of this Division for exempt development is exempt development for the purposes of this Policy." 1. Amongst the general requirements for exempt development in cl 1.16(1) are the requirements that the development: "(a) must meet the relevant deemed-to-satisfy provisions of the Building Code of Australia, or if there are no such relevant provisions, must be structurally adequate, and (b) must not, if it relates to an existing building, cause the building to contravene the Building Code of Australia…" 1. The Council submitted that there is no evidence that the building meets these general requirements for exempt development. 2. The only exempt development of potential relevance in the general exempt development code in Part 2 Div 1 of the Codes SEPP is in Subdivision 10 – Farm buildings. 3. Clause 2.31 provides that: "The construction or installation of a farm building (other than a stock holding yard, grain silo or grain bunker) that is not used for habitable purposes is development specified for this code if it is: (a) constructed or installed on land in Zone RU1, RU2, RU3, RU4 or RU6, and (b) not constructed or installed on or in a heritage item or a draft heritage item or in an environmentally sensitive area, and (c) not constructed or installed on land shown on any relevant Procedures for Air Navigation Services—Aircraft Operations Map prepared by the operator of an aerodrome or airport operating within 2 kilometres of the proposed development and for which a PANS-OPS surface is identified that may compromise the effective and on-going operation of the relevant aerodrome or airport." 1. The building constructed by Mr Taylor is on land in Zone RU2 and since 4 December 2018 is not used for habitable purposes, but it is not a farm building. 2. A "farm building" is defined in the LEP to mean "a structure the use of which is ancillary to an agricultural use of the landholding on which it is situated and includes a hay shed, stock holding yard, machinery shed, shearing shed, silo, storage tank, outbuilding or the like, but does not include a dwelling." Mr Taylor submitted that the building could be classified as a farm building in the future, even though his current use of it for storage of household goods is not ancillary to any agricultural use of the building. As he put it, he can build a chicken shed before he has any chickens. The Council submitted that the current use of the building is not ancillary to any agricultural use of the land and there is no evidence that the building could or would ever be used in conjunction with any agricultural use of the land. Its construction and location speak against any use of the building being ancillary to any agricultural use of the land. 3. In any event, the Council submitted that the building fails to satisfy the development standards for farm buildings. The development standards specified in cl 2.32 for farm buildings include that: "(h) the development must be located at least 50m from a waterbody (natural), and (i) the development must be designed by, and constructed in accordance with the specifications of, a professional engineer…" 1. The building constructed by Mr Taylor is located about 10m from Upper Crystal Creek, thereby not satisfying the development standard in paragraph (h). There is no evidence that the building was designed by or constructed in accordance with the specifications of a professional engineer, thereby not satisfying the development standard in paragraph (i). 2. Accordingly, the building is not exempt development. 3. An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development (s 4.2(5) of the EPA Act). The Codes SEPP specifies certain developments or classes of development to be complying development. 4. A person may carry out complying development on land if: "(a) the person has been issued with a complying development certificate for the development, and (b) the development is carried out in accordance with: (i) the complying development certificate, and (ii) any provisions of an environmental planning instrument, development control plan or the regulations that applied to the carrying out of the complying development on that land at the time the complying development certificate was issued." (s 4.26(1) of the EPA Act). 1. Clause 1.17(f) of the Codes SEPP provides that: "Development that is specified in a complying development code that meets the standards specified for that development and that complies with the requirements of this Division for complying development is complying development for the purposes of this Policy." 1. Amongst the general requirements for complying development in cl 1.18(1) are the requirements that the development must: "(b) be permissible, with consent, under an environmental planning instrument applying to the land on which the development is carried out, and (c) meet the relevant provisions of the Building Code of Australia…" 1. As to the second requirement, the Council submitted that there is no evidence that the building meets the relevant provisions of the Building Code of Australia. 2. As to the first requirement, dwelling houses are permissible with consent in the RU2 Zone. The applicable complying development code is the Rural Housing Code in Part 3A of the Codes SEPP. This code applies to development that is specified in cll 3A.2-3A.5 on land in certain rural zones, including Zone RU2. The development specified in cl 3A.2 includes the erection of a new single story dwelling house on a lot in Zone RU2 that has an area of at least 4,000m2. The building constructed by Mr Taylor on the land would meet this requirement. 3. The development standards that apply to development specified for this code in Part 3A Div 3 include the development standards for bush fire prone land in cl 3A.37. Clause 3A.37(2) provides: "(2) The development may be carried out on the lot only if: (a) the development conforms to the specifications and requirements of the following that are relevant to the development: (i) Planning for Bush Fire Protection (ISBN 0 9751033 2 6) published by the NSW Rural Fire Service in December 2006, (ii) Addendum: Appendix 3 (ISBN 0 9751033 2 6, published by NSW Rural Fire Service in 2010) to Planning for Bush Fire Protection (ISBN 0 9751033 2 6), (iii) if another document is prescribed by the regulations for the purposes of section 4.14 of the Environmental Planning and Assessment Act 1979—that document, and (b) the part of the lot on which the development is to be carried out and any associated access way is not in bush fire attack level-40 (BAL-40) or the flame zone (BAL-FZ), and (c) the lot has direct access to a public road or a road vested in or maintained by the council, and (d) the development is located within 200m of that road, and (e) there is sufficient access designed in accordance with the acceptable solutions identified in clause 4.1.3 (2) of Planning for Bush Fire Protection (ISBN 0 9751033 2 6) published by the NSW Rural Fire Service in December 2006, and (f) a reticulated water supply is connected to the lot, or a water supply with a 65mm metal Storz outlet with a gate or ball valve is provided for fire fighting purposes on the lot (the gate or ball valve, pipes and tank penetrations are to be designed to allow for a full 50mm inner diameter water flow through the Storz fitting and must be of a metal construction), and (fa) the size of the non-reticulated water supply mentioned in paragraph (f) is: (i) for a lot with an area no greater than 10,000m2—10,000L, and (ii) for a lot with an area greater than 10,000m2—20,000L, and (g) reticulated or bottled gas on the lot is installed and maintained in accordance with AS/NZS 1596:2008, The storage and handling of LP Gas and the requirements of relevant authorities (metal piping must be used), and (g) all fixed gas cylinders on the lot are located at least 10m from flammable materials and are enclosed on the hazard side of the installation, and (h) any gas cylinders on the lot that are within 10m of a dwelling house: (i) have the release valves directed away from the dwelling house, and (ii) have metal connections to and from the cylinders, and (i) there are no polymer sheathed flexible gas supply lines to gas meters adjacent to the dwelling." 1. The Council submitted that there is no evidence that the building constructed by Mr Taylor meets these standards. 2. Accordingly, the building is not complying development. 3. Fifthly, the erection and use of the unlawful building and the continued maintenance of the building have the potential to cause environmental impacts, including bush fire risks and pollution of the nearby creek. 4. Sixthly, the building is not constructed wholly on Mr and Ms Taylor's land, but is partly constructed on a Crown road reserve. No approval or consent was sought from the Crown before constructing the building on the Crown road reserve or subsequently. Mr Taylor has belatedly applied in September 2018 for closure and purchase of the Crown road. The NSW Department of Industry acknowledged receipt of Mr Taylor's application for closure of the road but advised that there would be a considerable delay in processing the application. As of the date of the hearing of these proceedings, the application has not yet been processed. 5. Seventhly, as the application for enforcement of the EPA Act is made by the Council, not a private citizen such as a neighbour, the Court would be less likely to deny the injunctive relief sought that it would be in litigation between private citizens: Warringah Shire Council v Sedevcic at 340. 6. Eighthly, although the relief sought is against a "static" development (being the unlawful erection of a building), there is no "hard and fast exception to the discretion" to grant or refuse relief in relation to static development: Warringah Shire Council v Sedevcic at 340. There are many instances of the Court ordering demolition of unlawful buildings, structures or works as an appropriate remedy to a breach of the EPA Act. The Council cited Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469 upheld on appeal in Nader v Sutherland Shire Council [2008] NSWCA 265; Fairfield City Council v Ly [2008] NSWLEC 322; Glaser v Poole [2010] NSWLEC 143; Canterbury City Council v Mihalopoulos [2010] NSWLEC 248; Woollahra Municipal Council v Sahade; and Georges River Council v Stojanovski. I would add Barton v Orange City Council [2008] NSWLEC 104 where Biscoe J ordered the demolition of an illegally erected dwelling house. The Council submitted that the demolition and removal of the building is appropriate in the circumstances of this case. 7. Ninthly, Mr Taylor has not demonstrated that demolition and removal of the building could only be undertaken "at great cost or inconvenience" (Warringah Shire Council v Sedevcic at 340). Mr Taylor, who is a builder by trade, erected the building himself, by carrying the building materials across the creek and into the forest and erecting the building on site. He can just as easily reverse the process. The demolition and removal of the building is not shown to be any more inconvenient or cause any more hardship than the erection of the building in the first place. 8. Finally, the Council submitted that any inconvenience or hardship can be mitigated by allowing a sufficient period of time for Mr Taylor to undertake the demolition and removal of the building. The Council suggested a period of three months from the date of the Court's order, with liberty being granted to Mr Taylor to apply to extend the time period if sufficient reason is shown. Mr Taylor's argument for keeping the tree house 1. Mr Taylor and Ms Taylor submitted that the Court should exercise its discretion not to order the demolition and removal of the building. 2. First, Mr Taylor submitted that now that he has stopped using the building for the purpose of a serviced apartment, he is gaining no private advantage from the building. He no longer earns any income from letting the building to tourists or visitors for short term accommodation. Mr Taylor noted that his decommissioning of the building "as a habitable dwelling has now caused considerable financial loss to myself and my family". The building is now only used for the storage of his and his family's personal goods. Mr Taylor said that "no private advantage is now being gained from what is now a farm shed". 3. Hence, ordering demolition of the building will not bring to an end any private advantage currently being enjoyed by Mr Taylor. Conversely, however, demolition and removal of the building will cause him private disadvantage, in the form of the inconvenience and cost of demolishing and removing the building. 4. Secondly, Mr Taylor submitted that the continued existence of the building is not causing any environmental impact. He said the building is barely noticeable from the public road due to it being located across the other side of the creek and in forest. He said that the bathroom had a very efficient composting toilet whilst the building was being used for tourist or visitor accommodation and did not cause pollution of the creek. However, now that the building is no longer being used for that purpose and the bathroom has been decommissioned, there is no current risk of pollution of the creek. 5. Thirdly, Mr Taylor disputed that the building poses an unacceptable safety risk. 6. Dealing first with the construction of the building, Mr Taylor asserted that he is an experienced builder albeit semi-retired. He renovated old Queenslander houses as a licenced builder for more than 10 years. He said that he tends "to over engineer it well within the Building Code of Australia (BCA)". He said that the building is attached at three places "by a 19000lb, that's 9 ton breaking strain log clamps. It is attached to 3 living trees, a Eucalyptus australis, a Quandong fig [and] a Box gum, all with base girths of over 2 metres each. The chains are fixed to the tree each with 12mm x 300mm anodised bolts x 3 in each tree. The chains allow the tree to move in the wind whilst the building remains perfectly stable". 7. Referring to Mr Stegeman's concerns about the building having "inadequate sub-floor support with the structure appearing to be supported by a number of small trees and chains suspended from trees", Mr Taylor submitted that "the span of joists on bearers are within the BCA and supports the building independently. Any extra trees are inconsequential to the structure and remain in place as extra security in the case of extreme wind events." 8. Dealing with the bush fire exposure of the building, Mr Taylor disputed that the building materials are all timber and flammable. He disputed Mr Thornton's observation that the external cladding of the building was "predominantly timber." Mr Taylor said that the external cladding is "fibro cement look alike weather boards that have that timber look". Mr Taylor said that Mr Thornton's reference to a timber floor is "actually a 10mm fibro cement base with an attached timber flooring, 190mm x 35mm, in treated pine…so its exposure to flame externally is not timber. 9. In response to the bush fire danger, Mr Taylor submitted "in reality it is a building amongst its natural surroundings which can burn. It is however in a location next to an abundantly flowing permanent creek…in a rainforest type environment, staghorns, moss and generally quite damp. We have not had a bush fire through here in living memory. I still have a high pressure hose attached to the building." 10. Mr Taylor also submitted that Mr Thornton's bush fire report, on which Mr Stegeman relied, was based on the building being used for the purposes of tourist and visitor accommodation. That use has now ceased. The building is now used for storage purposes. The bush fire regulation for habitable dwellings no longer is applicable. Mr Taylor submitted that "for all purposes it is now a rural shed and therefore we can maintain the pristine rainforest and conform to regulation". 11. Fourthly, Mr Taylor disputed that a reason for demolishing and removing the building is that, if it were to remain, it would be capable of being used for the purpose of a serviced apartment. Mr Taylor said that he has not only ceased using the building for the purpose of a serviced apartment, he has decommissioned the building. Mr Taylor said that: "All sinks, basins, toilet, cistern, gas hot water, gas lines, gas bottles, gas cooker, shower, bath, tapware and fridge have been removed along with their accompanying downpipes, waste and sewerage lines. Only some internal copper pipe remains due to its inaccessibility. Gutter downpipes and stormwater drainage remain in place to maintain the integrity of the building." 12. Mr Taylor accepted that, just as he has decommissioned the building by removing services and facilities, he could theoretically re-install them to fit out the building for the purpose of a serviced apartment. But he said in reality this will not happen. He accepted that "refurbishing and relisting on any holiday platform in the public arena would be just asking for trouble and it would be assumed that if the matter came before the courts again, the fate of this building could not be guaranteed." Mr Taylor concluded: "So in summary, capable of being used yes. Likelihood of that happening, nil." 13. Fifthly, Mr Taylor submitted that the demolition and removal of the building would cause him "great cost or inconvenience". He said: "Its location is such that every piece of this building had to be carried by hand down a steep creek bank and across a slippery running creek, then 40 metres up a creek embankment and slope. To demolish it would take a reversing of the process. There is no machine or vehicular access. It would probably take me 3 months to complete. I think the pain of having to demolish a perfectly good building that I have poured so much time and care into creating would definitely represent an enormous amount of hardship. Costs in monetary terms would represent a loss of approx. $70,000 in trade labour and materials." 1. Sixthly, Mr Taylor submitted that he did not know that there was a Crown road reserve and he did not knowingly construct the tree house partly on it. He said that he did not know he "had a paper road until it was pointed out to me by Council". He said that he has made an application to purchase the Crown road. Through no fault of his, the process of purchasing the Crown road is delayed. He said that on his most recent enquiry, he was informed that this process can take a couple of years. 2. Seventhly, Mr Taylor submitted that there is still the potential in the future for the building to be able to be used for a lawful purpose. Whilst he has not yet applied for development consent to use the building for a lawful purpose or applied for a building information certificate, there is still potential for him to do so in the future. The difficulties identified by Mr Stegeman might be able to be overcome. The regulatory requirements might change. Mr Taylor submitted that it would be a waste of a perfectly good building to order its demolition when it has the potential to be lawfully used in the future. 3. Finally, Mr Taylor submitted that his breaches of the EPA Act can most appropriately be remedied by ordering him not to use the building for the unlawful purpose of a serviced apartment, not by ordering him to demolish and remove the building. He drew the analogy that if he had been using an unroadworthy vehicle for an Uber taxi service, the appropriate order would be that he remove the vehicle from the road until such time as it is made roadworthy and legally compliant, not to order the destruction of the vehicle. The tree house should be demolished and removed 1. Although I have carefully considered Mr Taylor's arguments as to why the building should not be demolished ad removed, I consider that this is the appropriate order in order to remedy the breaches of the EPA Act he has committed. I accept and adopt the Council's submissions, summarised above, as to why the demolition and removal of the building is appropriate. In particular, I find the following factors to be persuasive. 2. Mr Taylor is unlikely to be able to remedy the breaches of the EPA Act by regularising the unlawful erection and use of the building. 3. First, the building has been erected partly on a Crown road reserve. The Crown, as the current owner of the Crown road reserve, did not consent to the erection of the building on the Crown road reserve and has not indicated that it would consent to any future application either for a building information certificate to allow the building to remain or for development consent to use the building for any lawful purpose. The outcome of Mr Taylor's application to purchase the Crown road has been delayed and is uncertain; there is no indication that the application will be successful. 4. Secondly, the building has not been shown to comply with relevant building regulations. Mr Stegeman's evidence is that the building is unlikely to comply with the relevant building regulations, including the National Construction Code, incorporating the Building Code of Australia. Mr Taylor did not adduce evidence establishing that the building does comply with the National Construction Code, including the Building Code of Australia. Mr Taylor said, in his evidence and in his submissions, that he tends to "over-engineer" a building to comply with the BCA and that he made appropriate allowance for the structural stability of the building when he built the tree house, but Mr Taylor's evidence falls short of certifying that the building meets all of the relevant building regulations. There needed to be, but there was not, a registered structural engineer's assessment and report demonstrating that the building is structurally sound and does not pose a serious safety risk to people using it and certifying that the building meets all relevant building regulations. 5. The building is unconventional, in both construction and location, and needs particular scrutiny. For example, the attachment of the building by clamps and chains to trees needs special attention. At issue may not be the strength and weight bearing capacity of the clamps and chains, but the manner of attachment by bolts in the trees. The trees, notwithstanding their size, may or may not be sound currently or remain sound in the future. The bolts driven into the trees might damage the health of the trees, affecting their capacity to continue to support the building. Mr Taylor sought no advice from qualified arborists about the health of the trees used to support the house, currently or in the future. 6. On the evidence of the Council, it is unlikely that a building information certificate would be issued to allow the building to remain as constructed by Mr Taylor. 7. Thirdly, the building cannot be used lawfully for the purpose of a serviced apartment for which it was constructed. Serviced apartments are prohibited in the applicable RU2 Zone. 8. Fourthly, there is no evidence that the building could be used for a purpose permissible with development consent in the applicable RU2 Zone. Whilst there are some purposes for which the building could potentially be used with development consent, whether consent would be granted to use the building for any of those purposes would depend on the appropriateness of the design and construction of the building, and the location of the building, for that purpose. Mr Thornton's evidence established that the building could not be used as a habitable dwelling (which would be required for most of the purposes permissible with development consent) because the construction and location of the building does not comply with the NSW Rural Fire Service's guide Planning for Bush Fire Protection 2006 and poses an unacceptable risk to occupants and building ignition in a bush fire event. Mr Stegeman's evidence was that the building would need to be rebuilt, including with non-combustible building materials, at considerable cost, in order to achieve compliance with bush fire regulatory requirements. Mr Taylor's anecdotal evidence about the infrequency of bush fires observed in the area and his belief that the moist rainforest and nearby creek would prevent or allow suppression of bush fires do not rebut this expert evidence of the bush fire risk to the building and its occupants. 9. Hence, development consent is unlikely to be granted to use the building for a permissible purpose without the building being upgraded to meet bush fire exposure requirements, at considerable cost. 10. Fifthly, there is no evidence establishing that the building, or any use of the building, is or would be exempt development or complying development. 11. In these circumstances, there is little advantage to be gained by retaining the building so as to preserve the potential in the future for the building to be used for a permissible purpose. On the evidence to date, that potential is slight and highly uncertain. 12. I accept that Mr Taylor will suffer inconvenience and some cost in demolishing the building he unlawfully erected, but I do not consider this will be excessive or disproportionate to the benefit of remedying the breaches of the EPA Act that Mr Taylor committed. Simplistically, the inconvenience and cost associated with demolishing and removing the building has not been shown to be any greater than the inconvenience and cost associated with erecting the building in the first place. As Mr Taylor said, either to erect or to demolish the building, he needs to carry each piece of the building down the creek embankment on one side, across the creek and up the creek embankment on the other side. That inconvenience remains the same for both the erection and demolition of the building. Furthermore, extending what Mr Taylor said that, as a builder, "whatever is undone can be redone", it can equally be said that "whatever is done can be undone". Mr Taylor was able to erect the building piece by piece, and he can demolish the building piece by piece. 13. Mr Taylor's concern about losing about $70,000 in trade labour and materials is not justified. First, these costs were partially recuperated by the commercial use of the building as a serviced apartment. Mr Taylor accepted that the likely revenue that he received through Airbnb while it was used as a serviced apartment was at least $40,000. The loss is therefore not more than $30,000. 14. Secondly, the gross amount of $70,000 spent or the net amount of $30,000 are sunk costs. Whether the building remains unused on the land or is demolished, Mr Taylor has incurred and cannot recoup that cost. 15. Thirdly, he cannot take advantage of that expenditure if the building is permitted to remain. As I have explained, it is unlikely that Mr Taylor will be able to obtain development consent to use the building as constructed for any permissible purpose. 16. Fourthly and conversely, if the building is demolished and removed, there is the potential for the building materials to be reused in another building erected elsewhere on his land with development consent. Mr Taylor could apply for development consent to erect another building, using materials from the demolished building, on another part of his land and use that building for a purpose permissible with consent. That building could be of a construction and in a location that will meet the relevant building and bush fire regulatory requirements. In this way, Mr Taylor can take advantage of the cost of materials he has already incurred. There is, therefore, an opportunity cost for Mr Taylor in retaining an economically unproductive building – it prevents Mr Taylor from being able to rebuild and reuse the building elsewhere on his land, with development consent, for an economically productive use. 17. In all the circumstances, the breaches of the EPA Act committed by Mr Taylor should be remedied by ordering the demolition and removal of the unlawful building. Costs of the proceedings 1. The Council seeks an order that Mr Taylor pay its costs of the proceedings. The proceedings are in Class 4 of the Court's jurisdiction. The general rule in Class 4 proceedings is that costs follow the event, that is to say, the unsuccessful party is normally ordered to pay the costs of the successful party: see s 98(1) of the Civil Procedure Act 2005 and r 42.1 of the Uniform Civil Procedure Rules 2005. Here, the Council is the successful party: it has established that Mr Taylor and Ms Taylor have breached the EPA Act and that orders should be made to remedy those breaches. 2. Mr Taylor opposed an order for costs. He said he was not in a financial position to pay for his own legal costs or experts; that is why he and his daughter appeared in person without legal representation and did not adduce expert evidence. Mr Taylor said equally he was not in a financial position to pay for the Council's costs. 3. Mr Taylor submitted that he had acted reasonably in defence of the proceedings. He and his daughter did not contest that they had breached the EPA Act or orders that he cease using the building for the purpose of a serviced apartment. They only contested the appropriateness of making an order for the demolition and removal of the building. 4. I consider Mr Taylor has not shown sufficient reason to justify the Council, as the successful party, being deprived of a costs order in its favour. Ordinarily, a successful party has a reasonable expectation of obtaining an order for costs and the discretion to refuse to award costs should not be exercised against the successful party except for a reason connected with the case: Latoudis v Casey (1990) 170 CLR 534 at 557, 566, 568; [1990] HCA 59. 5. One reason connected to the case can be that the successful party failed on substantial issues in the proceedings. Here, the Council succeeded on all substantial issues in the proceedings. 6. Another reason connected to the case might be disentitling conduct of the successful party leading up to, bringing or conducting the proceedings. Here, the Council did not act unreasonably leading up to, bringing or conducting the proceedings, including in conducting the hearing. Indeed, Mr Taylor had ample opportunity to respond to the Council's case, as he had been issued beforehand with a notice of intention to give a development control order and a development control order to cease the unlawful use of the building and to demolish and remove the building, the very same relief sought by the Council in the proceedings. The Council did not cause Mr Taylor to incur unnecessary costs in the conduct of the proceedings. 7. The fact that Mr Taylor may have financial difficulties in paying the Council's costs is not necessarily a reason not to award costs. An award of costs is to compensate the successful party not to punish the unsuccessful party: Latoudis v Casey at 543, 563, 567. As Pain J pithily observed in Congregational Christian Church Samoa Parish of Sydney v Georges River Council [2017] NSWLEC 71, "given that costs are compensatory not punitive, a limited ability to pay costs, if it exists, is not a reason not to award costs". 8. If an order for costs is made in its favour, the Council can choose whether to enforce it so as to recover in whole or in part its costs. Orders of the Court 1. The Court: 1. Orders the respondents not to use the building identified in the Identification survey and photographs attached to the Development Control Order issued by Tweed Shire Council on 20 April 2018 to the respondents ("the Building") erected on a Crown road reserve and land in Lot 5 DP 631620, known as 656 Upper Crystal Creek Road, Upper Crystal Creek ("the Land") for the purpose of a serviced apartment. 2. Orders the respondents, within 3 months of the date of these orders, to demolish and remove the Building and leave the Land and Crown road reserve in a state free of residual building materials. 3. Grants liberty to the parties to apply to vary, replace or supplement Order 2 on sufficient cause being shown. 4. Orders the respondents to pay the applicant's costs of the proceedings. ********** Amendments 10 April 2019 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, Order (1) of the Court, is amended to correct the typographical error in reference to the lot title. 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: 10 April 2019