Approach to “junk yard” proceedings under the Planning, Development and Infrastructure Act 216 (PDI Act)

In the recent decision of The Corporation of the City of Unley v Brown [2022] SAERDC 9 the Environment, Resources and Development Court (Court) has affirmed that civil enforcement proceedings may be taken under the PDI Act, where it is alleged that an unlawful change of land use has occurred in the nature of a “junkyard” use, consistent with the Court’s approach to such matters under the now repealed Development Act 1993.

Facts

Ms Brown is the registered proprietor and sole occupier of residential land within the Council area.

The alleged excessive storage of items, articles and materials on the land had been an ongoing issue for the Council for a long period of time, in the order of ten years or so. The Council had issued a number of nuisance abatement notices, enforcement notices, and an expiation notice and had written to Ms Brown on various occasions over the years, requesting that action be taken to address the unsightly condition of the land by removing the excessive materials and items from the land. As is often the case in matters such as these, the owner ignored all correspondence issued to her in relation to the matter and never made any real effort to comply with the Council’s numerous requests.

In light of the continued lack of action by the owner, and the apparent increase in the amount of items, articles and materials being stored on the land over time, the Council (as a designated authority under the PDI Act) elected to take civil enforcement proceedings pursuant to section 214 of the PID Act against the land owner. The Council alleged that Ms Brown had breached section 101 of the PDI Act, an offence under section 215(1) of the PDI Act, by causing, suffering or permitting a change in land use by commencing an additional use of the land in the nature of a “junk yard” use, without obtaining the relevant consents and approval for such a use under the PDI Act

Findings

The matter proceeded to a hearing, following no resolution of the matter in a conference setting, and commenced with a view of the land. The Court observed from the site visit that a large quantity of materials, items and articles were situated haphazardly on the land, with a majority of the items in an advanced state of disrepair, confirming the Council’s position that the land was unsightly.

In reaching its decision, the Court considered that the nature and extent of the items and materials on the land were more than that which could be considered to be reasonably incidental to a residential land use. Further, the volume of items and materials were such so as not to be considered minor, trifling or insignificant under section 4(8) of the PDI Act.

The Court further held that the items and materials collected and stored on the land constituted what is commonly understood to be a “junk yard” land use as previously defined in the repealed Development Regulations 1993, albeit such a land use is not defined in the Planning and Design Code (P & D Code).

The Court ultimately ruled in favour of the Council, ordering Ms Brown to make good the breach of the PDI Act by removing the items and materials from the land within a timeframe of six months and thereafter that she cease and refrain from recommencing such a use. She was also ordered to pay the Council’s costs of and incidental to the proceedings to be agreed or taxed.

Take Home Message

The recent decision in Brown affirms that civil enforcement proceedings may be taken under the PDI Act where it is alleged that a change of land use has occurred, in the nature of a “junk yard” use. This is so, notwithstanding it is not a defined land use term under the P & D Code. The decision is also a reminder that even in circumstances where a matter has been ongoing for many years, that Councils will not be statute barred to take such proceedings given the nature of such a breach is one that is of an ongoing nature. Where Councils have issued statutory notices and correspondence which have not resulted in action being taken to address an alleged breach, the commencement of civil enforcement proceedings, resulting in orders being made by the Court, may elicit a more positive response from a landowner. A Council also continues to have the power to exercise step in rights and recover the costs of having to do so, should the requirements of an order of the Court issued under s214(12) of the PDI Act not be met.

For more specific information on any of the material contained in this article please contact Claire Ryan on +61 8 8210 1294 or cryan@normans.com.au.