Land and Environment Court New South Wales Medium Neutral Citation: Ilardo v Liverpool City Council [2019] NSWLEC 1416 Hearing dates: 30 August 2019 Date of orders: 11 October 2019 Decision date: 06 September 2019 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is upheld. (2) The demolish works order issued by Liverpool City Council on Ms F C Ilardo on 18 July 2018 is, pursuant to s 8.18(4) of the Environmental Planning and Assessment Act 1979, substituted with the Demolish Works Order in Annexure A. (3) The exhibits are returned. Catchwords: ORDERS – Quantity and size of aviary structures – keeping of ducks – enforcement – application of discretion – directions for amended order Legislation Cited: Environmental Planning and Assessment Act 1979 Liverpool Local Environmental Plan 2008 State Environmental Planning Policy Exempt and Complying Development (Exempt and Complying Development Codes) 2008 Category: Principal judgment Parties: F C Ilardo (Applicant) Liverpool City Council (Respondent) Representation: Counsel: D Mockler (Solicitor) (Applicant) M Knight (Solicitor) (Respondent) Solicitors: Stewart Cuddy and Mockler (Applicant) Liverpool City Council (Respondent) File Number(s): 2018/252465 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against a Demolish Works Order (the order) issued by Liverpool City Council on Ms F C Ilardo of 6 Ovens Close, Horningsea Park. The order was issued on the 18 July 2018, pursuant to Division 9.3 s.9.34 of the Environmental Planning and Assessment Act 1979 (the EP&A Act). The order requires the following; "To do what: To demolish or remove a building/s – structures highlighted and marking in attached site image: - Above ground swimming pool (Marked A) - Shade sails located in the rear of the yard (marked B & C) - Awning over the duck pond which extends to the permanent aviary adjacent (marked D) - All moveable aviaries and cage structures within the garage and backyard. Property to be restored to its previous condition under Building Certificate BC-140/2012, which approved: '12 permanent aviaries (maximum 20 poultry excluding pea fowl and pigeon)' approved using plans by Les Turner Aviaries and Sheds." (Exhibit 1) 1. The reasons for the Order are stated as: "- A building requiring planning approval is erected without approval - The works are not considered Exempt under the State Environmental Planning Policy Exempt and Complying Development (Exempt and Complying Development Codes) 2008 - You are the owner of the property." 1. It is the agreed position of the parties that since the issue of the order in July 2018: the above ground swimming pool has been removed; the shade sails have been brought into compliance with State Environmental Planning Policy Exempt and Complying Development (Exempt and Complying Development Codes) 2008 (SEPP Exempt & Complying); and the awning over the duck pond has been certified by a structural engineer and is now considered satisfactory. The parties accept that the components of the order addressing these matters should be revoked. 2. The principal issue in contest between the parties is the moveable aviaries and cage structures on the property. The order issued by the Council does not direct itself to the number of birds kept on the premises and focuses only on the legality of the moveable aviaries and cage structures on the site. 3. In 2014, a Building Certificate (BC140/2012) was issued by Liverpool City Council that regularised 12 permanent aviaries on the site. These fixed aviaries are not the subject of the order or these proceedings. 4. In appealing the order, Ms Ilardo seeks the Court's discretion to allow her to retain the 16 moveable aviaries and cage structures on the premises. The Site and its context 1. The site, 6 Ovens Close Horningsea Park is located in residential area and is zoned R2 Low Density Residential under the provisions of Liverpool Local Environmental Plan 2008. 2. The site is surrounded by low density housing with detached dwelling houses on all adjoining allotments. Background to the proceedings 1. The Council, following the issue of Notice of Proposed Order, served the Demolish Works Order on 18 July 2018. A period of 28 days was provided for compliance with the Order. 2. There is no issue in the proceedings that the Order has not been properly made or served. 3. A chronology of the interaction between Ms Ilardo and Liverpool City Council since she purchased the property in 1998 was tendered as Exhibit C. It was acknowledged by Council that the impetus for the inspection of Ms Ilardo's property was the receipt of a complaint from neighbours and the number of ducks and aviaries observed by Council officers during their inspection in May 2018. The relevant legislation 1. At s 9.34(1) of the EP&A Act, it states that: (a) general orders in accordance with the table to Part 1 of Schedule 5, (b) fire safety orders in accordance with the table to Part 2 of Schedule 5, (c) brothel closure orders in accordance with the table to Part 3 of Schedule 5. 1. The order in these proceedings is a 'general order' under Part 1 of Schedule 5. The specific general order is a 'Demolish Works Order: to demolish or remove a building'. The relevant circumstance for the order is 'A building: • requiring a planning approval is erected without approval'. 2. The EP&A Act at s 1.4 defines a "building" as follows: building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993. 1. SEPP Exempt & Complying at Part 2 provides a series of Codes that detail the parameters of exempt development, i.e. development for which consent is not required. Clause 2.8: Development standards in Subdivision 4 details the parameters for aviaries. It states: 2.8 Development standards (1) The standards specified for that development are that the development must: (a) be for residential uses only, and (b) not have a floor area of more than: (i) in a rural zone—30m2, or (ii) in any other zone—10m2, and (c) be not higher than: (i) in a rural zone—3m above ground level (existing), or (ii) in any other zone—2.4m above ground level (existing), and (d) be located: (i) in a rural zone—at least 20m from the road boundary and 5m from each other lot boundary, or (ii) in any other zone—in the rear yard and at least 900mm from each side and rear boundary, and (e) (Repealed) (f) have an impervious floor, and (g) be constructed or installed so that roofwater is disposed of without causing a nuisance to adjoining owners, and (g1) if it is located in a residential zone and to the extent it is comprised of metal components—be constructed of low reflective, factory pre-coloured materials, and (h) if it is located on bush fire prone land and is less than 5m from a dwelling—be constructed of non-combustible material. (2) There must not be more than 2 developments per lot. 1. Mr Knight refers to the Macquarie Dictionary definition of aviaries, which is: a large cage or enclosure in which birds are kept. Mr Knight submits that the moveable aviaries and cages met the definition of 'aviaries' and are subject to the standards at cl 2.8 in Subdivision 4 of SEPP Exempt and Complying. 2. Council argues that the moveable aviaries and cage structures are not exempt development on the following grounds: 1. The moveable aviaries and cage structures on the lot exceed 10m² (cl 2.8(1)(b)(ii) of SEPP Exempt & Complying); 2. Some are not located in the rear yard or with a setback of at least 900mm to the side or rear boundary of the property (cl 2.8(1)(d)(ii) of SEPP Exempt & Complying); and 3. There are more than two developments within the lot (cl 2.8(2) of SEPP Exempt & Complying). 1. In the alternative, Mr Mockler seeks the Court to revoke the order for the demolition of the moveable aviaries and cage structures on the site on the following grounds: 1. Not all of the cage structures are properly characterised as aviaries as they do not contain birds and are in fact used for storage. 2. By reference to Exhibit 5, the Council has incorrectly identified the number of cage structures by nominating a number individually, rather than collectively. Relying on their construction, Mr Mockler argues that numbers 7, 8 and 9 are a single cage, not three. He makes the same submission in relation to cages 10 and 11 and cages 2 and 3. 3. On the basis of (1) and (2), the extent of non-compliance is much less than that argued by the Respondent. 4. A number of the moveable aviaries and cage structures on the site are utilised specifically for separating ill birds or birds being prepared for show. These functions are not accommodated in the existing fixed aviaries on the site. 5. The Council has had ongoing interaction with Ms Iladro since 1998 and a number of inspection reports have noted the number of ducks exceeding the 20 birds limit noted in the Building Certificate. 1. Further, Mr Mockler argues the Court should give weight to the contents of the Affidavitt of Ms Sebastiana Iladro (the Applicant's sister) which details the importance of the ducks to her sister and the level of care provided to them. He further asks the Court to give weight to the annexed medical documentation. Consideration 1. The Court's powers in relation to orders is contained at s 8.18(4) of the EP&A Act as follows: On hearing an appeal, the Court may: (a) revoke the development control order, or (b) modify the development control order, or (c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or (d) find that the development control order is sufficiently complied with, or (e) make such order with respect to compliance with the development control order as the Court thinks fit, or (f) make such other order with respect to the development control order as the Court thinks fit. 1. Unfortunately the parties have not supplied the Court with a plan of the structures in dispute. As a result, an adjournment was provided during the proceedings to prepare a 'mud map' of the site and the location of the moveable aviaries and cage structures. I am satisfied on the basis of the oral evidence of Ms Ahmed and my own attendance at the subject site that this plan is sufficient to particularise my findings, but is insufficient to append to a modified order. 2. I am not persuaded by Mr Mockler's submission that the numbering of the aviary structures as either in groups or individually is relevant to the consideration of whether they are compliant with the standards at cl 2.8 of SEPP Exempt & Complying. 3. I accept the submission of Mr Knight that the moveable aviaries and cage structures on the site are appropriately characterised as 'aviaries' within the definition of SEPP Exempt & Complying. On this basis, I am satisfied that the circumstance of 'A building: requiring a planning approval is erected without approval' is met for these structures: s 9.34(1) of the EP&A Act. 4. I find an exception to this characterisation of the structures as aviaries is the two fixed structures, located within the properties garage, shown in Attachment B of Exhibit 2. I am satisfied these are utilised for the purpose of storage, not for the housing of birds. 5. Further I am satisfied, on the submissions of Mr Mockler, it is appropriate for a limited number of moveable aviaries to be retained within the site on the following basis: 1. there is no evidence before the Court that particularises the size of the individual aviaries. Further, there is no evidence of which aviaries would be able to be retained whilst the property remains compliant with the provisions of SEPP Exempt & Complying, detailed at [15] and specifically the 10m² standard; and 2. I am satisfied that it is appropriate to allow Ms Iladro to separate sick birds from the fixed aviary cages and that the provisions of SEPP Exempt & Complying may provide her the capacity to do so. 1. On merit, pursuant to s 8.18(4)(b) of the EP& Act, I am satisfied it is appropriate to modify the order to: 1. improve the specificity of what structures the Demolish Works Order applies; 2. to allow the retention of aviaries (whilst ensuring the property remains compliant with the provisions of SEPP Exempt & Complying, detailed at [15]) for the separation and treatment of sick birds; 3. to ensure those retained aviaries are located in the rear yard, in accordance with the provisions of cl 2.8(b)(ii), and to nominate the locations for these structures within the subject site; 4. to allow the fixed cages located within the existing garage of the property to be properly identified and nominated for use as storage. 1. I note it was agreed between the parties that a period for compliance with the order of 56 days was appropriate. I accept this is a reasonable time period for compliance with the proposed order. Directions 1. In order to effect these findings, the Respondent is directed to: 1. draft an amended Demolish Works Order pursuant to s 9.34(1) of the EP&A Act reflecting the findings in this judgment including removal of any reference to the items already addressed by the applicant; and 2. in consultation with the Applicant delineate the location of the retained aviaries to be located in the rear yard of the property; 3. prepare an annexure to the amended Demolish Works Order that delineates the nominated location of the retained aviaries within the subject site and the storage cage structures within the existing garage; 4. file the amended Demolish Works Order and the annexure at (3) with the Court within 28 days of this decision. 1. Final orders in this matter will be made following receipt of the above material. Addendum made on 11 October 2019 1. In accordance with the terms of directions in [28] of my judgment of 6 September 2019, the Respondent has provided me with an amended Demolish Works Order (amended order) pursuant to s 9.34(1) of the EP&A Act. I am satisfied the amended order reflects my findings. Annexed to the amended order is a site plan consistent with my directions at [28(2)]. 2. I consider it appropriate to exercise the Court's powers pursuant to s 8.18(4)(b) of the EP&A Act to substitute the order with the amended order at Annexure A. 3. Accordingly, the Court orders that: 1. The appeal is upheld. 2. The demolish works order issued by Liverpool City Council on Ms F C Ilardo on 18 July 2018 is, pursuant to s 8.18(4) of the Environmental Planning and Assessment Act 1979, substituted with the Demolish Works Order in Annexure A. 3. The exhibits are returned. ………………… D M Dickson Commissioner of the Court Annexure A (550 KB, pdf) Amendments 11 October 2019 - See Addendum (with final orders) at [30]-[32]. 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: 11 October 2019