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

1 These 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.

2 The 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.

3 The 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.

4 The 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.

5 Mr 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.

6 The 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.

7 Another 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.

8 Mr 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.

Mr French's evidence

9 Mr French's affidavit dated 26 August 2103 attests to his purchase of the land and living on the land for 18 years, raising his family there. He moved to Victoria three years ago and presently resides there. He is an inventor and built and used various buildings on the land to test and develop his significant invention Magnetic Gearing and Couplings. This work was conducted on the land over 18 years. Mr French believes the buildings will one day be viewed as significant as the place this technology was invented. He is presently under financial strain with the recent global financial crisis and cannot easily afford to put in a DA with the assistance of a town planner. Ms Bolitho is presently running the farm and generates a small income from horse riding and a few campers. Mr French states that he has not rented out the cabins since 2010. He needs more time to put in a DA to authorise use of the land different to the 1994 consent.

10 Mr French was cross-examined and confirmed that he owns the website Bulga Creek Bush Camp and pays the land administrator. He is able to quickly have the website altered or removed.

11 Ms Bolitho's affidavit dated 26 August 2013 attests that she lived at the bush camp in 2009. She left and returned in December 2012. A guest book started in Easter 2013 was attached to her affidavit. She provides horse riding and related camping for horseriders on the land at present. She takes telephone bookings for the land along with other people. The cabins are not let out. There is some informal use of the cabins.

Council's submissions

12 The evidence establishes that the land has been used unlawfully since at least November 2007 for purposes other than an educational bush camp for school children as authorised by the 1994 consent. Mr French has used or allowed the land to be used for temporary accommodation for backpackers and tourists, for holding concerts, functions, festivals and commercial parties. The ongoing use for camping by any member of the public is confirmed by Ms Bolitho's affidavit which refers to people camping during 2013.

13 The evidence establishes that there are unlawful buildings on the land. Numerous unlawful structures built without consent are identified in the summons, POC and I Mr Pevitt's affidavit in a plan and photographs. The Council has been attempting to have the circumstances addressed since 2010. The evidence establishes that on or about 26 October 1998, the Respondent submitted a "Preliminary Interim Application" to the Council for a proposed development described as "Rural, Backpackers, Function, Reception & Outdoor Entertainment Centre".

14 On 9 November 1998, the Council responded to the said preliminary application indicating that a formal development application (DA) would be required to construct and operate a tourist facility on the land and noting that any such application would have to address the likely impacts of the proposed tourist facility on the State Environmental Planning Policy No 14 - Coastal Wetlands (SEPP 14) which exist at the rear of the land.

15 By way of letter dated 15 November 2007, the Council notified the Respondent of the Council's contention that the land was being used unlawfully for the purposes of a bush camp and party resort other than as an educational bush camp for children as per the 1994 consent and directed the Respondent to cease that use and comply with the 1994 consent.

16 On or about 27 July 2010, the Respondent submitted to the Council an application to modify the 1994 consent so as to permit the land to be used as an "educational bush camp for 50-60 backpackers 3 nights per week, 30 weeks per year".

17 On or about 11 August 2010, the Council, in response to the modification application referred to in the preceding paragraph, notified the Respondent that the then current advertising of the development on the land on the internet indicated a substantially different use to that permitted by the 1994 consent and that buildings were present on the land which had not been approved by the Council and that the existing use of the land was substantially different to that approved by the 1994 consent such that the application to modify the consent could not properly be considered.

18 After a meeting between the parties on the land on 7 December 2010, the Council wrote to the Respondent on 30 December 2010, enclosing a copy of the 1994 consent and related correspondence; indicating that the then current use of the land and construction of various buildings on it were contrary to the 1994 consent; outlining the options available to the Respondent and demanding the cessation of the then current use of the land contrary to that approved by the Council.

19 After a further meeting on the land on 11 February 2011, the Council wrote to the Respondent in relation to the Respondent's proposed engagement of a suitably qualified consultant to act for the Respondent in respect of submitting a DA for possibly a "tourist development" and/or "museum" on the land and again demanding the cessation of the unlawful use of the land.

20 By way of letter dated 5 September 2011, the Council gave written notice to the Respondent of the Council's intention to issue to the Respondent an order under s 121B of the EPA Act requiring the Respondent to cease the (ongoing) illegal use of the land and to demolish unauthorised buildings on the land.

21 By letter of 26 September 2011, the Respondent made submissions to the Council in response to the Notice of Intention to Give Orders dated 5 September 2011, in which the Respondent, inter alia, admitted that some aspects of the works he had carried out on the land had not received approval of the Council and requesting that the proposed order not be served to give the Respondent further time to fully consider the issues and to provide the Council with a schedule of works to satisfy the concerns raised.

22 On or about 24 October 2011, the Council issued an order to the Respondent under s 121B of the Act requiring the Respondent to cease the use of the land contrary to the 1994 consent; cease the use of the amenities building for habitable purposes and cease the habitable use of buildings that had been constructed without development consent.

23 In the period from about New Year's Eve (31 December 2011) to 3 January 2012, the Respondent caused and permitted the land to be used for a music festival during which approximately 200 to 250 people camped in tents, caravans and shelters on the land, food was sold and live bands performed and persons present were dancing to loud amplified music at various locations.

24 The Respondent was present on the land on 3 January 2012 while the said music festival was being held.

25 On 2 and 3 January 2012, in response to noise complaints from nearby residents, officers of the Council attended the land and identified that it was being used for the purposes of a music festival/party and temporary accommodation for the partygoers.

26 On 14 August 2012, the Council issued an order under s 121B of the EPA Act, requiring the Respondent to demolish buildings present on the land allegedly erected without development consent, as identified in par 6 of the summons filed in these proceedings.

27 On 20 December 2012, solicitors instructed by the Council sent a letter of demand to the Respondent, being a letter in which it was demanded that the Respondent comply with the Orders referred to above and indicating that failure to comply with these requirements would lead to the Council commencing Class 4 proceedings in this Court. The Respondent did not comply with the demands in the letter of demand dated 20 December 2012 sent by the Council's solicitors.

28 Mr Andrews' evidence is that on 27 July 2010, the Council received from the Respondent an application to modify the 1994 consent so as to change the use from "Educational Bush Camp for school children" to an "Educational Bush Camp for Backpackers", following which, in preliminary assessment of the application, the Council ascertained that the land was being promoted as a party venue and tourist facility.

Mr French's submissions

29 Mr French submitted that a rural use of the land is permitted and buildings used for that purpose should be able to remain. The buildings on the land have potential historic and personal interest as an important invention was made by Mr French in these buildings. Most of the cabins were built by people working on the invention. Most of the buildings the subject of the demolition order have been there for many years. Mr French is keen to keep the land being used for bush camping purposes. Currently there is horse riding and some camping as part of that activity. The land is not generating a profit, with camping fees just covering waste removal and other basic services. Mr French has tried to regularise matters with the council unsuccessfully over the years.

30 To the extent that schoolchildren are camping at the land in the bush camp setting with their parents, that is complying with the 1994 consent. About 90 per cent of the people camping are families.

Consideration

31 Where a breach of the EPA Act is established the Court has wide discretion to make orders under s 124 of the EPA Act. This Court has broad discretion in determining whether the relief sought ought be granted and in what form where a breach of the EPA Act is established. The wide discretion of the Court has been recognised in cases such as F Hannan Pty Ltd v Electricity Commission (NSW) (No 3) (1985) 66 LGRA 306 at 313. In Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Kirby P (as he then was) identified a number of principles to take into account at 339 - 341. The principles emphasise, inter alia, the wide nature of the discretion and the importance of upholding public laws as follows:

Because s 123 of the Act permits any person (and not just the Attorney-General or a person with a sufficient interest), to bring proceedings in the Court for an order to remedy or restrain a breach of the Act, there is indicated a legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured.

32 In ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 Kirby P at 82D stated that discretion permits the refusal of relief if granting it would work an injustice disproportionate to securing enforcement of the legislation.

33 In Sedevcic Kirby P at 340F set out several guidelines for the exercise of discretion to the effect that discretion can be more readily exercised where the breach is more easily remedied than for, say, a static structure that requires demolition. Ultimately Kirby P recognised as relevant to the judicial perception of the need to balance the public interest in compliance with the law with the degree of irremediability arising from a breach (340F).

34 There is little disagreement about the events outlined in the Council's evidence and submissions in terms of who did what when. Mr French stated that he had not received all the correspondence from the Council as he was living in Victoria for several years and other people were collecting his mail. He was on site on 2 and 3 January 2012 when Mr Pevitt and other Council officers attended. Mr French sent a letter dated 26 September 2011 in response to the Council's letter dated 5 September 2011 sending him a Notice of Intention to Issue an Order under s 121B. He engaged a town planner and was attempting to prepare a DA to be lodged over several months. No DA was lodged with the Council. I consider Mr French was aware at all relevant times since at least 2007 when the Council responded to a noise complaint, of the Council's concerns about the use of the land.

35 The evidence of both Mr Pevitt and Mr Andrews confirms that the land was and is being used for purposes not authorised by the 1994 consent. Considering camping, I do not agree with Mr French that the fact that families with school age children camp on the land is a use complying with the 1994 consent. That requires that the bush camp be run as an educational facility and the amenities were designed for that purpose. Camping by children with their parents at the land alone does not satisfy that purpose. The evidence shows that currently camping on the land can be undertaken by any member of the public. That is not an authorised use as a camping ground.

36 It appears from photographs that the cabins were built on concrete slabs approved in the 1994 consent for tent structures. It is unknown when all the cabins were built but I infer some are many years old. Cabin C3 and the cabin next to the creek were built more recently given the photographs referred to by Mr Andrews taken during the land visit on 3 August 2011 showing building works in relation to these structures. The cabins were also rented out until, it appears, sometime this year according to the evidence of Ms Bolitho who has been on the land since December 2012. The web page promoting the use of the cabins at the Bulga Creek Bush Camp was present in February 2013 according to the download by Mr Pevitt but removed in the download of 26 August 2013. The most recent photographs of the cabins taken in August 2011 show some being used for sleeping. The use of the cabins is unauthorised by any development consent for a tourist facility.

37 The use of the land for parties and music concerts has occurred intermittently over several years since at least 2007 when the Council first received a noise complaint about such an event. Mr Pevitt's evidence attests to other events particularly a large New Year's Eve party running three days in 2011/2012. Ms Bolitho's evidence is that about three smaller parties for friends such as a 21st birthday party have been held this year. Such parties are not the target of the orders sought but parties held for commercial gain. The website continues to promote the use of the land for that purpose albeit describing these more recently as gatherings according to the 26 August 2013 download. This use is not permitted and requires development consent.

38 The website for the Bulga Creek Bush Camp shows the promotion of the land for a number of uses not just school camping, the only authorised use. The Council has proved that the present use is as a camping ground and possibly a tourist facility, as defined in the LEP, which uses do not have development consent. Breaches of the EPA Act are established by the Council and these have occurred over many years, certainly since 2007. The restraining order 1 in the summons should be made with a suspension of that order for 12 months to allow the current low level camping use largely in conjunction with the horse riding business to continue. Order 2 should be made.

39 Order 3 restrains use for festivals, concerts and parties. The evidence is that such events have occurred in the past. The possibility of such events occurring again suggests a restraining order ought be made.

40 Orders 4 and 5 deal with the operation of the Bulga Creek Bush Camp website and should be made in light of the evidence of Mr Pevitt about the website's content. The only part of the website which presently promotes for a lawful use is school camping.

41 Demolition of a large number of structures (17 in total) of varying degrees of permanence is sought in the summons. Some of the buildings support the unauthorised use of tourist facility, the cabins in particular. There is no evidence that any of the buildings for which demolition orders are sought have development consent or are exempt development. It may be that buildings that are being used for farming purposes such as the lockable workshop used to store machinery can be categorised as exempt development but I am unable to further rule on that matter on the basis of what is before me. I am mindful that many of the structures were constructed over many years and used for purposes other than a camping ground and tourist facility, being utilised by Mr French for his inventing activities. The opportunity to obtain a building certificate for these buildings should be given to Mr French.

42 Cabin use must not continue in the meantime except to the extent that Ms Bolitho needs a home and one cabin is available to Mr French and his family when they visit. More effort may need to be made to ensure the balance of the cabins are not inhabited. Mr French has the opportunity to regularise the use and existing structures in the twelve month period of suspension. It is up to him whether he does so and acts expeditiously. Steps taken could include lodging a DA regularising the use of the land for camping by any member of the public. The Council can advise as to how soon any applications ought be made in order for the timely consideration of these. Should Mr French wish to undertake more ambitious uses of the land in due course he can lodge a further development application at any time.

43 Draft orders are provided to the parties for comment before these are finalised.

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Decision last updated: 29 August 2013