Baulkham Hills Shire Council v Stankovic

Baulkham Hills Shire Council v Stankovic [2005] NSWLEC 110 Baulkham Hills Shire Council v Stankovic (No 2) [2007] NSWLEC 870 Coco v R (1994) 179 CLR 427 CASES CITED: F Hannan Pty Ltd v Electricity Commission of New South Wales [No 3] (1985) 66 LGRA 306 Hillpalm Pty Ltd v Heavens Door Pty Ltd (2004) 220 CLR 472 Ku-Ring-Gai v Labordus [2007] NSWLEC 834 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

TEXTS CITED: Pearce, Geddes, Statutory Interpretation in Australia, 6th ed (Sydney: LexisNexis Butterworths, 2006)

28 July 2008 DATES OF HEARING: 29 July 2008 1 August 2008

APPLICANT Mr G Newport SOLICITORS LEGAL REPRESENTATIVES: Baulkham Hills Shire Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

41243 of 2004 Baulkham Hills Shire Council v Stankovic (No 3)

JUDGMENT 1 Her Honour: These proceedings were originally commenced against Mr Milovan Stankovic as First Respondent and Ms Milka Stankovic as Second Respondent. As the orders sought by the Council from the outset of the proceedings only concern Mr Stankovic, he will hereafter be referred to as the Respondent. In my ex tempore judgment Baulkham Hills Shire Council v Stankovic [2005] NSWLEC 110 (Stankovic No 1) on 14 March 2005 I held that the Respondent was conducting a junk yard in a residential zone in breach of the relevant local environmental plan and hence the Environmental Planning and Assessment Act 1979 (the EP&A Act). I made a declaration to that effect and made orders for the removal of old cars, whitegoods, secondhand building material and rubbish from the Respondent's property within six months. Time for compliance with that order was extended on 6 February 2007 to 2 October 2007. Orders for the removal of bricks and timber sought by the Council in March 2005 were stood over for a certain period. Timber was required to be stacked in specified locations. The matter has been before me since on several occasions. Mr Stankovic represented himself in the original proceedings.

2 In a Notice of Motion dated 10 October 2007 the Council sought orders that the Respondent remove all secondhand and unused items such as old cars, whitegoods and general rubbish and an order for the removal of all timber and bricks and accumulated building material within a certain time. Orders were also sought that the Council enter the property and remove the material if not removed in that timeframe. I considered that motion, inter alia, in Baulkham Hills Shire Council v Stankovic (No 2) [2007] NSWLEC 870 (Stankovic No 2) at par [23] - [33]. At the hearing giving rise to Stankovic No 2 the Respondent was legally represented. His solicitor lodged a Notice of Ceasing to Act on 6 February 2008 and the Respondent has represented himself since that time. In that judgment no orders sought by the Council were made. I ordered an inventory to be prepared of what is on the Respondent's property so that orders could be made with greater specificity to enable those items of immediate personal use to the Respondent to be identified (par [30]). Under the terms of the Court order requiring the inventory to be prepared, the Council officers were not able to approach within 15m of numerous sheds located on the Respondent's property.

3 The inventory has now been prepared by Council officers and the matter restored to the list so that the further orders sought by the Council in its Notice of Motion can be considered. The Council has now filed an Amended Notice of Motion dated 6 June 2008 seeking the following:

1. Not pressed.
2. Not pressed.
3. An Order that the Applicant by its servants or agents enter the property and remove from the property all secondhand and unused items such as old cars, white goods, general rubbish and accumulated building material by 1 November 2008.
4. An Order that the First Respondent neatly stack all timber and bricks located on the property into stacks at the locations marked "X" identified on the plan at Annexure 'A' to this Motion by 1 September 2008.

4a. In the event the Respondent fails to comply with Order 4, an Order that the Applicant by its servants or agents remove from the property all timber and bricks by 1 November 2008. 5. Not pressed. 6. An Order that the Applicant may sell materials removed pursuant to Orders 3 and 4a above by whatever means it deems appropriate or in the event that such materials cannot be sold within a reasonable time, dispose of such materials. 7. An Order that the First Respondent pay to the Applicant the costs and expenses of removal of materials as provided in Orders 3 and 4a, the disposal of such materials (if disposal takes place) pursuant to Order 6 less the proceeds of sale of materials referred to in Order 6, in such total amount as determined by this Court. 8. Liberty to apply to the Court for a determination of the amount referred to in Order 7 on 7 days prior notice. 9. Such further or other Orders as this Court deems appropriate in the circumstances. 10. Liberty to apply for further or other directions or Orders on 3 days prior notice. 11. Direct that the matter be adjourned to 12 December 2008 for mention before her Honour Justice Pain. 12. Costs reserved. Council's evidence and submissions 4 The Council relies on the affidavits of Mr Daniel Giffney, senior environmental health officer with the Council, (sworn 17 March 2008) and Ms Deborah Mitchell, environmental health officer with the Council, (sworn 15 April 2008). They annexe to their affidavits photographs of items and a list of items identified on the Respondent's property prepared by them when they undertook the inventory preparation on different parts of the Respondent's property. Aerial photographs showing the route they took when undertaking the inventory are attached to their affidavits. In addition to bricks and timber, items which the Council officers considered could be reused for building or fencing purposes and were therefore of value to the Respondent were identified in the inventory list attached to their respective affidavits. These annotated lists became exhibits A and B. 5 The Council officers stated in oral evidence that they considered the substantial amount of material located on the property was likely to be a harbourage for vermin and posed a potential fire hazard. They were also extensively cross-examined by the Respondent about what items they considered were rubbish and whether timber on the property could be used in building. 6 The Council officers stated that as all the timber was stored outside and exposed to the elements and appeared to have been so for a long period, it was either not able or was unlikely to be able to be used for form work in building. Ultimately a structural engineer would have to give evidence about whether it could be used satisfactorily in a building given that it had been stored outside. 7 The Council submitted the Respondent has failed to comply with the original order 5 made on 22 March 2005 to remove old cars, used whitegoods, secondhand building material and rubbish from his land. Consequently the Council seeks orders that it enter the Respondent's land, effect removal and recover the costs of doing so from him (orders 3, 6, 7). Order 4a seeks the removal of the bricks and timber on the property by the Council if the Respondent fails to stack these pursuant to order 2 within a specified timeframe. 8 The Court has broad powers and discretion under s 124 of the EP&A Act to make orders in relation to breaches of the Act, as identified in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; (1987) 63 LGRA 361 and F Hannan Pty Ltd v Electricity Commission of New South Wales [No 3] (1985) 66 LGRA 306 (as recognised in Hillpalm Pty Ltd v Heavens Door Pty Ltd (2004) 220 CLR 472 at 496. The power under s 124 of the EP&A Act must be considered in conjunction with the powers of the Court under the Land and Environment Court Act 1979 (the Court Act). Section 20(2)(a) empowers the Court to enforce any right, obligation or duty conferred or imposed by a planning and environmental law. Section 22 provides the Court with wide powers to remedy matters before the Court. Under s 23 it can make orders it considers appropriate. 9 The making of orders under s 678(10) of the Local Government Act 1993 (the LG Act) under which the Court can direct a council to enter upon a site and remove rubbish is relied on as providing a recognised and proper manner of enforcing a breach of a planning and environmental law. The terms of s 124(2)(a) and (b) do not preclude the making of the orders sought by the Council The Court's power is expressed to require the removal and is not limited to compelling a respondent to cause the removal. 10 The wide discretion conferred on the Court enables it to make orders allowing the Council to enforce the public duty of the orderly development and use of the environment. The extensive material on the Respondent's property is a harbourage for vermin and a likely fire hazard, according to the Council officers.

Respondent's evidence and submissions 11 At the hearing the Respondent gave oral evidence and made submissions to the effect that all the items on his property were useable or had value to him because they were recyclable or could be sold or could be used by him in building houses when he develops his property. Metal items not able to used in building can be sold for scrap. He also relied on an affidavit dated 1 August 2008 filed in Court which was admitted subject to relevance. It attached photographs which show the current, primitive living conditions he experiences because he considers the Council has not allowed him to develop his property. He maintains that the Council has prevented him from developing his property for a number of years and therefore he has not been able to use the bricks and timber and other building material on his property. 12 He gave oral evidence that the timber to be collected is able to be used in the building of houses despite being stored outside. Exhibit 1 consists of pieces of timber he brought from his property which he stated could be appropriately cleaned up and used in building work. He has obtained a large number of bricks, with approximately 100,000 collected on the property, and has cleaned a large number of these so that they can be used for building. He strongly disputed the Council officers' evidence that the material they considered to be rubbish was rubbish. He strongly denied that there was any problem with vermin on his property and this could be addressed with appropriate trapping in any event. There was no fire hazard posed by the material on the property as he had access to water and had adequate hosing on the property. 13 He stated in oral evidence that some of the damaged timber on one boundary of his property was caused by someone else and he needed it to remain as evidence for a court case he was commencing against that person seeking damages. 14 In an affidavit dated 8 August 2008, filed without leave after the hearing, the Respondent raised a number of issues including, inter alia, that this matter should be stopped because he has Family Court proceedings on foot and it has jurisdiction over this Court, the statute of limitations has been ignored, his privacy has been infringed, everything on his property is of value to him and is not rubbish, the Council incorrectly required him to remove pigs and he suffered economic loss as a result, the Council's witnesses were not qualified to determine what was rubbish and were not quantity surveyors, he has been denied natural justice because I would not give him time to get evidence from a quantity surveyor and would not require the Council's solicitor or another Council officer other than those who swore affidavits to be cross-examined by him, and would not let him subpoena elected members of the Council so that he could cross-examine them. Most of that affidavit is not relevant to the issues I must determine in relation to the making of orders in this matter. Finding 15 Different considerations apply to the respective orders sought by the Council. It is clear from the lengthy timeframe that this matter has been before the Court on numerous occasions, having been first determined in March 2005, that there are issues with compliance with the Court's original order to remove items by the Respondent and in the matter proceeding expeditiously. At the hearing of this motion on 28 - 29 July and 1 August 2008 I provided the Respondent with the opportunity to identify items he considered were for his personal use, with the proviso that he could not include everything on his property. This was to have occurred by 12 August 2008 and then by 27 August 2008 and then by 3 September 2008. A Notice of Motion was filed by the Respondent on 16 September 2008 seeking an adjournment after I notified the parties that judgment was to be delivered today. As I have not been provided with any further material by the Respondent as to those items he considers are of immediate personal use and not rubbish, and consider that he has had ample opportunity to do so, I must proceed to determine the matter as best I can on the evidence available before me. 16 I am mindful that the Respondent, who is an elderly, invalid pensioner with a chronic medical condition, whose first language is not English and is hard of hearing (see Stankovic No 2 at [11] and [13]) is representing himself in stressful circumstances. I understand the personal circumstances that he attested to in his affidavit dated 4 December 2007, prepared when he had solicitors then acting for him, and referred to in Stankovic No 2 continues in large part. He is also the joint owner of a large level parcel of land of over two hectares in an area zoned to allow residential development. In his affidavit of 4 December 2007 he states the property was worth about $9 million and more if subdivided and sold. There is a very large amount of material required to be removed in the original order made in March 2005 spread across his property. 17 As identified in the Council's submission (par 7) the Court has wide discretion under s 124 of the EP&A Act to determine what are appropriate orders to make in relation to orders enforcing the EP&A Act. The broad nature of the discretion has been identified in Sedevcic and Hannan and amongst many subsequent cases.

Order for removal of whitegoods, cars etc 18 Because of non-compliance with the Court order (Order 5) made in March 2005 the Court is presently engaged in the supervision of the order for the removal by the Respondent of all secondhand and unused items such as old cars, whitegoods, second hand building material and rubbish. I considered the extent of the Court's supervisory powers in Ku-Ring-Gai Council v Labordus [2007] NSWLEC 834 at par [30] - [33]. I consider I am able to exercise such powers in this matter to refine the order for removal of items already made by me in Stankovic No 1. 19 The inventory prepared by the Council officers I considered necessary in order to make more specific orders in light of the Respondent's submissions that all the material on the property is of value to him. The inventory was to be used to better identify items of immediate personal use or value to him so that these can be excluded from the order for removal already made in March 2005. At this stage however the Respondent has not provided any basis on which I can do so. 20 It is abundantly clear from the photographs attached to the affidavits of the two Council officers that there is a substantial amount of material including rubbish to which the March 2005 order for removal applies located on the Respondent's property in the open, exposed to the weather and spread over a wide area. His submission that everything on the property is of value to him because it can be sold for scrap or is otherwise recyclable does not prevent a large amount of material such as broken pots, metal pieces, broken engines, unused and broken whitegoods and broken furniture from being rubbish, given the state they are in lying all over his property. It is entirely open to the Respondent as it has been since the orders were made in March 2005 to sell as scrap or for recycling those items on his property which fall into these categories. The Respondent should now proceed to do just that promptly. I accept the Council officers' evidence that the matters they identified in the list in exhibits A and B, unless otherwise indicated as items of value, are rubbish or other items requiring removal under the original order 5 made in March 2005. 21 Because of the Respondent's personal and financial circumstances which makes it difficult for him to comply with the order I am also prepared to allow him additional time of some months to remove the items other than those to be specified in the order which I will amend to incorporate exhibits A and B. It is also appropriate that there be an exclusion from removal of personal items located within 10m of the numerous sheds on the Respondent's property. A modified order referring to the inventory in exhibits A and B has been prepared in draft form. I will finalise this after discussion with the parties. Order for removal of bricks/timber 22 In the original judgment (see Stankovic No 1 at [29]) delivered in March 2005 I stood over the order then sought by the Council for the removal of bricks from the property. I also required that timber be stacked in specified locations on his property but did not order him to remove that material. That was done because of the evidence of the Respondent at that time that he wished to use these materials to build a house and he was intending to file a development application to achieve that end in the foreseeable future. I stood over the making of those orders as a result. His intention to do so is also confirmed in his affidavit of 4 December 2007. It is now September 2008 and the Respondent's evidence is that he is still intending to develop his property and requires the bricks and timber for that purpose. He has not been able to do so for numerous reasons including the Family Court proceedings that have commenced and his contention that that the Council is preventing him developing his land. The Council seeks orders that the bricks and timber be stacked in specified locations and if this is not done that the Council enter and remove both the bricks and the timber (orders 4 and 4a).

23 In relation to the Family Court proceedings concerning the property (also referred to in his affidavit of 4 December 2007 at par 46) which are next before that court in September 2008, the Respondent stated that he expects that the property he owns is likely to be split between him and his wife as a result of these proceedings. This has hampered his efforts to pursue the subdivision proposal and the development application he is intending to make to the Council which would result in him using the bricks and timber located on his property for constructing one or more dwellings. I accept that he has Family Court proceedings on foot which are hampering his ability to develop his property. I am not able to draw any conclusion about the Council's behaviour in relation to his property, nor do I need to. 24 The Respondent's oral evidence is that he has a large number of bricks, approximately 100,000 collected on the property, and has cleaned a large number of these so that they can be used in building. The task of stacking those bricks is enormous given their current wide distribution in mounds around the property and the physical condition of the Respondent whereby he is unlikely to be able to undertake the work. 25 While the environmental health officers have expressed concern that the material on the Respondent's property may harbour vermin, that concern was generalised and made in relation to all the material on the property, and was not grounded in specific evidence of there actually being a vermin problem. Rather it was a statement of general opinion. The problem of harbourage of vermin does not appear to be so great that the bricks need to be stacked or removed. Additionally while the Council officers gave very brief evidence that in their opinion the material on the property was a fire hazard it appears from the photographs that the piles of timber are dispersed across the property. As I made an order (order 2) at the Council's request in March 2005 that the timber be stacked in specified locations in any event there does not appear to be such a risk of fire that complete removal of all the timber is justified on the evidence relied on by the Council.

26 Further, in light of all the circumstances facing the Respondent and his desire to use the bricks and timber to build on his property I consider he should be able to keep the bricks and timber for that purpose. I would therefore decline to make order 4a sought by the Council in any event (in addition to my finding below that I lack power to do so). I note that the Respondent has failed to stack the timber as he was required to do by the previous order 4 dated 22 March 2005. Whether there is utility in requiring the Respondent to again comply with that order given that I do not consider he can physically undertake that work is debatable in my view. I will not make order 4 in the amended Notice of Motion in relation to the bricks. Orders enabling Council officers to enter onto land and remove property 27 The Council in its amended Notice of Motion seeks order 3 that the Council enter the property and remove various items the subject of an earlier order and order 4a, an order for removal of bricks and timber by the Council if the Respondent does not comply with order 4 and consequential orders in this event in orders 6 and 7. As I noted in Stankovic No 2 at [29] the Council sought at that stage to have such orders made on the basis of s 678(10) of the LG Act but that is not the basis of my finding in Stankovic No 1 which made a declaration of a breach of the EP&A Act and consequential orders under that Act. I stated in Stankovic No 2 at [29] that the Council needed to clarify under what power it considered the Court can make such orders. 28 The Council has argued on this motion that the broad powers of the Court under s 124(1) of the EP&A Act and s 20, s 22 and s 23 of the Court Act enable me to make orders enabling a third party (here the Council) to enter residential property and remove material when other orders of the Court have not been complied with. No authority where such an order has been made in these circumstances has been cited. Rather the Council relied on cases where the broad discretion of the Court to make orders has been recognised in Sedevcic and Hannan.

29 Powers enabling third parties to enter residential (or any other) property should never be assumed unless there is specific statutory authority provided, in my view. I do not consider it is sufficient to rely on the Court's broad discretion to craft orders under s 124 of the EP&A Act or the Court's wide powers to determine matters in which it has jurisdiction under the Court Act to found such an order. This accords with general principles of statutory interpretation that there is a presumption against the invasion of common law rights such as excluding others from entry onto premises: Coco v R (1994) 179 CLR 427 as cited in Pearce, Geddes, Statutory Interpretation in Australia, 6th ed (Sydney: LexisNexis Butterworths, 2006), 190.

30 Had these proceedings been the enforcement of an order issued under s 124 of the LG Act, then s 678(10) of that Act does provide for specific orders to be made for the entry of council officers onto land for the removal of goods and also provides for the sale of items removed. Similarly, for s 121B orders issued under the EP&A Act there is provision in s 121ZJ for orders to be made whereby premises can be entered by council officers to carry out necessary work. In the event such orders are made, the LG Act and the EP&A Act provide a regime for the disposal of property, inter alia. These are similar to orders 6 and 7 sought by the Council in this matter. These proceedings are not, however, enforcing such orders. 31 I decline to make the orders sought by the Council enabling its officers to go onto the Respondent's property and remove items as I do not have the power to make such orders in the absence of express statutory powers for entry, removal and sale given the statutory basis for the declarations and orders made in March 2005. If I am wrong I would not exercise my discretion to make the orders sought. There are specific orders and powers provided elsewhere in the EP&A Act and under the LG Act by which the Council can seek the orders for access and removal sought here. That is the appropriate vehicle for the making of those orders. I note that in Stankovic No 1 the Council relied in its evidence on the issuing of orders under the LG Act to press its case. I will not make orders 3, 4a, 6 and 7. 32 I should note for completeness the Respondent has made several allegations of corruption against the Council alleging that they are preventing him developing his property. I consider these allegations are irrelevant to these proceedings brought by the Council. These proceedings seek to address the existing state of the property owned by the Respondent. This case is unrelated to any development potential the land may have for residential subdivision, which continues to be a matter for the Respondent to pursue as he sees fit recognising, as I have done, that he is having difficulty doing so at present. Costs 33 The Council seeks an order that costs be reserved (order 12). 34 I will issue final orders shortly when the draft orders have been clarified with the parties.

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