Blacktown City Council v Wilkie and Ors

Land and Environment Court (NSW)|1998-09-11|Before: Pearlman J, Lloyd J, Mr J

CITATION : Blacktown City Council v Wilkie and Ors [2001] NSWLEC 269 APPLICANT Blacktown City Council PARTIES : RESPONDENTS Wilkie and Ors FILE NUMBER(S) : 40025 of 2001 CORAM: Pearlman J KEY ISSUES: Injunctions and Declarations :- development without consent - orders to remedy breach - orders conditional on performance - no order against owner Blacktown Local Environmental Plan 1988 Environmental Planning and Assessment Act 1979 s 76A(1), s 123, s 124 LEGISLATION CITED: Environmental Planning and Assessment Model Provisions 1980 Factories, Shops and Industries Act 1962 Protection of the Environment Operations Act 1997 sch 1 Albury City Council v Maxwell and Anor (Lloyd J, NSWLEC, 11 September 1998, unreported; F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGRA 306; Holroyd City Council v Murdoch (1994) 82 LGERA 197; CASES CITED: National Parks & Wildlife Service and Anor v Stables Perisher Pty Ltd (1990) 20 NSWLR 573; Parramatta City Council v Lutz (1988) 12 NSWLR 293; Penrith City Council v Solanowski and Ors [1999] NSWLEC 144; Pyrenees Shire Council v Day and Ors (1998) 192 CLR 330; Sahade v Mosman Municipal Council [2000] NSWCA 251 DATES OF HEARING: 10/07/2001, 30/07/2001, 28/09/2001, 08/10/2001, 09/10/2001, 10/10/2001, 31/10/2001, 01/11/2001 DATE OF JUDGMENT: 12/06/2001

APPLICANT Mr D R Parry (Barrister) SOLICITORS Houston Dearn O'Connor

10/07/2001 FIRST RESPONDENT in person SOLICITORS N/A

30/07/2001 - 01/11/2001 FIRST RESPONDENT Ms L M Byrne (Barrister) SOLICITORS Roderick Storie LEGAL REPRESENTATIVES: 10/07/2001 SECOND AND THIRD RESPONDENTS Mr R W Killalea (Barrister) SOLICITORS Low & Associates

30/07/2001 - 01/11/2001 SECOND AND THIRD RESPONDENTS no appearance SOLICITORS N/A

FOURTH RESPONDENT Mr J S Wheelhouse (Barrister) SOLICITORS Delaney Lawyers

IN THE LAND AND 40025 of 2001 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 6 December 2001

BLACKTOWN CITY COUNCIL Applicant v MISTY WILKIE First Respondent MARK REID trading as GRAVEYARD RECYCLING and also trading as THE GRAVEYARD RECYCLING Second Respondent GRAVEYARD RECYCLING PTY LTD Third Respondent MARIO CONSTANTINE Fourth Respondent

This case concerns a large amount of waste material deposited upon land at Marsden Park.

That land is described as part of lot 2 in DP 781151 ("the site") and it is situated at the corner of Grange Avenue and Richmond Road, Marsden Park. The whole of lot 2 is owned by Mr Mario Constantine. The site (that is, the relevant part of lot 2) was leased to Ms Misty Wilkie, who in turn sublet the site to Graveyard Recycling Pty Ltd, a company controlled by Mr Mark Reid (although the existence of both the head lease and the sublease has been challenged).

Blacktown City Council ("the council") commenced class 4 proceedings against Ms Wilkie, as first respondent, Mr Reid as second respondent and Graveyard Recycling Pty Ltd as third respondent. Subsequently, as I shall presently explain, Mr Constantine was joined as fourth respondent upon the application of Ms Wilkie.

The council seeks a declaration that the four respondents have each carried out or permitted or suffered to be carried out development for the purposes of a tip, waste management facility, garbage depot, recycling yard or like use contrary to the provisions of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). As against all four respondents the council seeks orders that they:

(i) Cease using or causing, permitting or allowing the use of the site for that specified purpose;

(ii) Be restrained from causing, permitting or allowing the bringing of any soil, sand, gravel, bricks, other excavated or hard material or demolition material or any other waste on to the site; and

(iii) Remove from the site the existing soil, gravel, bricks, demolition material and other excavated or hard material and waste presently situated on the site and have it transferred to a licensed waste management facility.

The course that the hearing ultimately took is important in this case, and it is necessary for an understanding of it to outline the history of the proceedings. The salient features are these:

(1) The class 4 application against the first, second and third respondents was filed on 21 February 2001.

(2) On 6 March 2001, Lloyd J dismissed the council's application for interlocutory relief (Blacktown City Council v Wilkie and Ors [2001] NSWLEC 91).

(3) The hearing of the proceedings ultimately commenced on 10 July 2001. Ms Wilkie did not appear when the hearing opened, but Mr Reid and Graveyard Recycling were represented by Mr Killalea of counsel.

The council, through its counsel, Mr Parry, opened its case against all three respondents and began to tender evidence and read affidavits. Included in the evidence adduced on behalf of the council were three affidavits sworn by Mr Constantine on 22 February 2001, 6 March 2001 and 28 May 2001 respectively.

After the morning tea adjournment, Ms Wilkie appeared unrepresented. She was present when most of the council's affidavits were read. At the conclusion of the council's case, she made two applications. She sought the joinder of Mr Constantine, and she sought an adjournment so as to obtain legal representation.

I dismissed Ms Wilkie's first application and declined to join Mr Constantine as a party having regard to the lateness of the application and the absence of a pressing reason for his joinder (see Blacktown City Council v Wilkie and Ors [2001] NSWLEC 161). I acceded to Ms Wilkie's request for an adjournment (see Blacktown City Council v Wilkie and Ors [2001] NSWLEC 160).

Before the Court rose on that occasion, the council renewed its application for interlocutory relief. Having regard principally to the matters which had changed since a similar application had been refused by Lloyd J, I granted interlocutory relief in the form of an order requiring the first, second and third respondents to cease using the site for the purpose of a tip or the like, and I restrained them from bringing soil, sand and other waste materials on to the site (see Blacktown City Council v Wilkie and Ors [2001] NSWLEC 162).

(4) The hearing resumed on 30 July 2001. At the start, the legal representatives for Mr Reid and Graveyard Recycling sought leave to withdraw from the proceedings as they had been unable to locate their clients, who were called outside the courtroom but failed to appear. Such leave was granted.

Ms Wilkie did, however, appear, represented by counsel, Ms Byrne. An application was immediately made again for the joinder of Mr Constantine, and the Court's attention on this occasion was drawn to the fuller facts and circumstances underpinning the application for joinder.

Mr Constantine was in the precincts of the Court when the application for joinder was renewed by Ms Byrne on behalf of Ms Wilkie. He was called into the courtroom, and I informed him of the nature of the application. I adjourned the hearing until 2 pm, in order for him to seek legal advice and representation. On resumption of the hearing, Mr Delaney appeared for Mr Constantine, and made submissions in opposition to the application. In an ex tempore judgment, I made an order joining Mr Constantine as fourth respondent.

Mr Delaney then sought an adjournment of the hearing. I vacated the hearing dates of 30 and 31 July 2001, and made directions for the filing of a further amended class 4 application, points of claim and defence and further evidence.

(5) On 28 September 2001, Mr Constantine filed a cross-claim against the council seeking declarations and orders estopping the council from claiming relief from or prosecuting him, and also seeking orders directing the council itself to remove the waste from the site.

On the same day, the proceedings were listed for mention before me. Mr Wheelhouse appeared for Mr Constantine. The matter of Mr Constantine having, on the one hand, given evidence in the council's case, and, on the other hand, being the fourth respondent against whom the council sought orders in that case, was raised and some discussion about it took place, but I made no directions about that aspect. (6) The hearing resumed on 8 October 2001. There was no appearance by the second and third respondents, but the council, Ms Wilkie and Mr Constantine appeared, represented by Mr Parry, Ms Byrne and Mr Wheelhouse respectively.

Mr Wheelhouse sought clarification about the basis upon which the proceedings were taken by the council against his client. In particular, he sought an assurance that no declaration of breach of the EP&A Act was sought against his client (although the further amended class 4 application so specified) and an assurance that consequential relief only was sought against his client. Mr Parry gave that assurance, although no formal application for amendment of the class 4 application was made.

During the first two days of the resumed hearing, although three witnesses (Ms Wilkie, Mr Stockbridge and Mr Borg) were examined in chief and cross examined, considerable debate was interspersed about the fair procedure to be adopted in relation to Mr Constantine, having regard to his evidence given in the council's case and his position as a respondent against whom orders were sought. By that time, five affidavits sworn by Mr Constantine had been read, being the three earlier affidavits I have referred to, a further affidavit dated 30 July 2001 in the council's case, and an affidavit dated 27 September 2001 in his own case as fourth respondent. As to the situation of Mr Constantine, the following positions were taken:

(a) Mr Parry initially announced that, in the council's case against Mr Constantine, he would not read the four affidavits sworn by Mr Constantine; (b) Mr Wheelhouse waivered in his response, but ultimately he opposed the course suggested by Mr Parry, and sought the reading of those four affidavits in the case against Mr Constantine, on the basis that the affidavits contained material favourable to Mr Constantine's case; (c) Mr Parry then adduced all the evidence in the council's case against Mr Constantine, including reading the four affidavits sworn by Mr Constantine; (d) However, after the proceedings had continued for some time, Mr Parry, on reflection and with further instructions, sought to withdraw the four affidavits from the case against Mr Constantine; (e) Thereupon Mr Wheelhouse made three applications. He first opposed the withdrawal of the four affidavits. Secondly, he sought an order splitting the case, upon the basis that the case against the first three respondents should be heard and determined before the case proceeded against the fourth respondent. Thirdly, he sought an order requiring the solicitor for the council, Mr O'Connor, to withdraw from the case, on the basis that Mr O'Connor had sworn an affidavit which conflicted in part with the evidence of Mr Constantine and at the same time had been the solicitor who took instructions and prepared the four affidavits which Mr Constantine had sworn; (f) In response, Mr Parry formally abandoned his application for the withdrawal of the four affidavits because no consent to their withdrawal had been furnished. He then announced that, without making any admission, Mr O'Connor sought to withdraw from the case and be replaced by his partner, Mr Houston. Mr Parry opposed the splitting of the case.

After some further argument, I ruled, first, that the case would not be split, but would proceed against all four respondents. Secondly, I ruled that, in the case against Mr Constantine, he could be examined-in-chief by Mr Parry on behalf of the council in relation to the four affidavits he had sworn, and he could be cross-examined by Ms Byrne on behalf of Ms Wilkie, and cross-examined by Mr Wheelhouse. Mr Constantine could then be examined-in-chief as to the affidavit he had sworn in his defence as fourth respondent by Mr Wheelhouse, and cross-examined in relation to that affidavit by Mr Parry on behalf of the council. When it came to his cross-examination of Mr Constantine, Mr Wheelhouse sought a ruling that his cross-examination of Mr Constantine be at large, but no direction to that effect was given, and, in the ultimate, no questions put to Mr Constantine by Mr Wheelhouse in cross-examination were disallowed.

The whole of lot 2 is zoned General Rural 1(a) under the Blacktown Local Environmental Plan 1988. Relevantly, in that zone, the only development which is permissible without consent is agriculture. A number of specified purposes are prohibited, including "industries (other than rural industries or extractive industries"), "junk yards" and "storage yards". Any other purpose requires development consent.

According to the evidence of Mr G Sheehy, an officer of the Environment Protection Authority who inspected the site on a number of occasions, the material that has been brought on to the site comprises waste consisting of construction and demolition waste, wood, metal, plastic, soil, bricks and concrete. It also contains sheeting, samples of which, on testing, were found to contain chrysotile asbestos. Mr Sheehy's observations of the material on the site were generally corroborated by the evidence of Mr B A Stockbridge and Mr G R Apps, both council officers, by Dr P J N Pells, a consulting civil engineer, and by a neighbour, Mr J J Baiada. Mr Sheehy observed, on his visits, that the waste material was being moved on the site from a waste delivery area into a stockpile. Mr Apps made the same observation on his inspection of the site on 16 May 2001. He also observed some soil material which, he stated, could be said to be recycled soil, but it was surrounded by piles of rubbish and access to it could not be obtained. Mr Stockbridge gave evidence that, on his inspection on 6 March 2001, he did not see any material removed from the site, nor did he see any stockpile of woodchips, sand, clean fill, topsoil, garden soil or any like material.

There is no completely reliable estimate of the size of the waste material presently on the site. On his inspection on 7 May 2001, Dr Pells estimated that it was about 7 metres in height. Mr Lee, who is an environmental scientist in the employ of the Environment Protection Authority ("EPA"), inspected the site on the same day and estimated the height as "6 metres above the wall". Mr Sheehy's estimate on 23 March 2001 was 7 to 9 metres in height. Mr Constantine's estimate was 12 to 15 metres. As to volume, Mr S A Borg estimated 5 to 10 tonnes of waste material were on the site when he inspected it on 8 December 2000, and he considered that the volume had increased "upwards of 100 tonnes" by early February 2001. I point out at this stage that Mr Borg is an environmental investigation officer in the employ of the Regional Illegal Dumping Squad ("RIDS"). That squad is a joint venture between the EPA, the Western Sydney Waste Board and a number of councils in the western region of Sydney, including Blacktown City Council. I shall return in some detail later as to the circumstances surrounding Mr Borg's investigation of the site.

It is unnecessary to be precise about the height or volume of the waste material. It is clearly a large volume, and that is corroborated by the photographs tendered in evidence, which show a mountain of waste rising from ground level on the site.

It is the council's case that the bringing of waste material on to the site constituted the use of the site for the purpose of a tip, or a waste management facility, or a garbage depot or a recycling yard. The council claims that the activity so characterised is either prohibited under the LEP as being an industry, or a junk yard, or a storage yard, or alternatively is an activity for which no development consent has been obtained.

In order to determine if there has been a breach of the EP&A Act it is necessary to characterise the activity upon the site. The list of specified development which is prohibited in the 1(a) (General Rural) zone contains three possibilities - "industries", "junk yards" or "storage yards". The LEP adopts the Environmental Planning and Assessment Model Provisions 1980 (subject to some irrelevant exceptions), under which the following definitions are provided: 'industry' means:

(a) any manufacturing process within the meaning of the Factories, Shops and Industries Act 1962; or (b) the breaking up or dismantling of any goods or any article for trade or sale or gain or as ancillary to any business; but does not include extractive industry;

'junk yard' means land used for the collection, storage, abandonment or sale of scrap metals, waste paper, rags, bottles or other scrap materials or goods used for the collecting, dismantling, storage, salvaging or abandonment of automobiles of other vehicles or machinery or for the sale of parts thereof. 12. It is to be noted that the definition of "manufacturing process" under the Factories, Shops and Industries Act 1962 is in the following relevant terms: 'Manufacturing process' means any handicraft or process in or incidental to the making, assembling, altering, repairing, renovating, preparing, ornamenting, finishing, cleaning, washing, breaking up, or adapting of any goods or any articles or any part of an article for trade or sale or gain, or as ancillary to any business …

Finally, 'storage yard' is defined in the LEP to mean "… a building or place used for the storage of containers, equipment, machinery and the like but does not include a building or place elsewhere specifically defined in this plan".

Having regard to the observations of the use of the site made by the witnesses which I have earlier outlined, I conclude that the activity on the site cannot be properly characterised as falling within any of the specified prohibited uses as defined. The evidence establishes that the site was being used for the deposit of waste material, but there is no evidence to support a finding that it was being used to produce goods or articles. The use did not, therefore, fall within the definition of "industry" as it cannot be characterised as a "manufacturing process" nor as "the breaking up or dismantling of any goods … for trade or sale or gain or as ancillary to any business". Nor could the use be properly characterised as a "junk yard" because, read as a whole, the definition contemplates, in my opinion, scrap material which is not the kind of material described by Mr Sheehy and the other witnesses as being at the site. A similar conclusion must be drawn in relation to the definition of "storage yard", that is, the use is not properly so characterised.

In my opinion, the most precise characterisation of the activity on the site, having regard to the evidence I have outlined, is that of a "tip" or a "recycling yard". That use falls within the class of innominate uses under the zoning table in the LEP, and is accordingly permissible with development consent.

Mr Stockbridge's investigation of the council's records revealed the existence of only two development consents for the whole of lot 2. Only one is of relevance. It is dated 11 May 1988, and numbered 006798. It authorised the use of the land of which the site forms part for "dwelling and landscape supply business". Condition 15 of that consent provided that the development was to be carried out in accordance with a letter submitted with the development application. The relevant letter contained a statement that the materials to be taken to the site were to be "sand, soils, compost etc". Condition 17 provided, relevantly, that "[m]aterials stored on the site shall be limited to sands, soil, compost and other landscape supplies". The notice of determination of that consent contains a notation that it was amended, and the amendment appears in a letter to the then owners dated 15 February 1989. The development for which consent had been granted was altered to "dwelling and plant nursery", that latter term being defined to mean "… a building or place used for the growing or selling of plants, whether or not landscape supplies are also sold on the premises".

In the early part of the hearing, when he was appearing for the second and third respondents, Mr Killalea submitted that this development consent authorised the use to which the site was being put. However, that submission was not fully pursued or developed. Furthermore, it is at odds with Mr Reid's evidence. Although Mr Reid stated in his affidavits that he was responsible for bringing to the site raw materials consisting predominantly of soil, timber, bricks and concrete for the purpose of conducting a landscape supply business, he identified his business as "timber, soil and concrete/brick recycler".

I find that the use of the site for the deposit of the waste materials I have described does not fall within the description of the use authorised by the development consent. Accordingly, I find that the use of the site for the purpose of a tip or a recycling yard constitutes development permissible with consent but no development consent has been obtained. That use therefore constitutes a breach of s 76A(1) of the EP&A Act which provides as follows: 76A(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument.

There was really no dispute about this finding. As I have said, Mr Reid and Graveyard Recycling did not ultimately appear, Ms Wilkie, whilst not conceding the breach, brought no evidence to refute it, and Mr Constantine's case proceeded on the assumption that a breach had occurred.

In 1999, Mr Constantine purchased lots 1 and 2 in DP 781151. The contract for sale identified the purchase as including a house, a garage and storage bins. The site is included within lot 2, and Mr Constantine occupies the remainder of lot 2, on which he has carried on the business of a wholesale and retail nursery (although he has recently disposed of the retail part of his operations).

On 23 September 1999, a lease was purportedly entered into between Mr Constantine as lessor and Ms Wilkie as lessee. A copy of that lease was annexed to the affidavit of Mr Stockbridge sworn on 21 February 2001. It is signed and witnessed by both parties, but it does not appear to have been stamped or registered. It contains the following relevant provisions:

(a) The land the subject of the lease is the site, defined by reference to a hatched area on an attached plan; (b) It is for a term of three years;

(d) The rent is $36,400 per year, payable by monthly instalments of $3033.33, expressed to be "$700.00 a week equivalent";

(e) It contains a covenant against transfer or sub-letting without consent, and there is provision for forfeiture upon breach of essential terms of the lease, one of which is specified as the obligation of the tenant to comply with the permitted use.

Ms Wilkie disputes the validity of the lease. She claims that she agreed to enter into it at Mr Constantine's insistence, it being required by him for the purpose of obtaining finance. She said that the arrangement that she had with Mr Constantine was that she would be entitled to display pools and spas (the construction of those items being her current business) on that part of lot 2 occupied by the nursery. She asserted that she never had any interest in leasing, nor did she lease, the site.

There is then the matter of sub-leases. Ms Wilkie claims that in March 2000 she introduced a person called Andrew Ross to Mr Constantine. According to her evidence, Mr Ross brought material on to the site for the purpose of manufacturing and selling landscape material, and that arrangement was made directly with Mr Constantine. There is no written record of the arrangement with Mr Ross, but he went into occupation of the site and he paid rent to Ms Wilkie.

Some time later, in about August 2000 (although this date is not certain), Ms Wilkie placed a newspaper advertisement seeking a sub-lessee for the site. She claims that she took that action on behalf of Mr Constantine. Mr Reid came forward in response to that advertisement, and Ms Wilkie admitted in cross-examination that she then instructed her solicitors to prepare a formal sub-lease. A copy of a written sub-lease was annexed to Ms Wilkie's affidavit of 27 February 2001. The following relevant matters may be noted from that document:

(a) It is neither dated nor stamped nor registered;

(b) It purports to lease the "rear section" (presumably the site) to Graveyard Recycling;

(d) It is for a term of three years commencing from 23 October 2000;

(e) The rent is specified as $31,200 per annum, payable at the rate of $2,600 per month;

(f) The permitted use is restricted to that of a "sand and soil yard";

(g) Although there are missing parts of the written document, it is expressed, in cl 49, to be "conditional upon the head lease …".

Ms Wilkie also disputes the validity of this sub-lease. She claims that she arranged for its preparation simply because she was noted as lessee in the head lease, but she asserts that the occupation of the site by Graveyard Recycling was arranged directly between Mr Reid and Mr Constantine. She stated that whatever connection she had with Mr Reid's occupation, such as placing the advertisement, was done by her on behalf of Mr Constantine.

Ms Wilkie's assertion that Mr Reid dealt directly with Mr Constantine is supported by Mr Reid's affidavit evidence. But Mr Reid did not participate in the hearing - in particular, he was not cross-examined, and, having regard to Mr Constantine's denial of Ms Wilkie's assertion, I place no weight upon Mr Reid's evidence as corroboration of her version.

As I have noted, Mr Constantine denies Ms Wilkie's evidence about the head lease and sublease. He denies that he required a lease for the whole of lot 2 for financial purposes, that Ms Wilkie was acting as his agent in relation to Mr Ross or Mr Reid, or that he arranged the subleases directly with Mr Ross or Graveyard Recycling.

Two sets of financial records were in evidence. One was a document on Mr Constantine's business letterhead, and another was a document apparently prepared by Ms Wilkie. These records are impossible to reconcile in any accurate or precise way. The payments which they record do not correspond precisely with the payment obligations under either the head lease or either of the subleases, nor do they precisely correspond with each other. They do, however, support an inference that payments of rent, at least in partial satisfaction of the head lease and sublease obligations, were made. For the period from about March 2000 until about March 2001, Ms Wilkie made payments to Mr Constantine, and from time to time during that period Ms Wilkie received payments from Mr Ross and then from Graveyard Recycling. The entries also support an inference that, in respect of some periods, Ms Wilkie received more money from the sub-lessees than she paid by way of rent to Mr Constantine. The entries also show that, for part of the relevant period, Ms Wilkie paid rent to Mr Constantine without having received any payments from Graveyard Recycling. There is nothing in either of the sets of financial records which establishes that Ms Wilkie simply collected rent for and on behalf of Mr Constantine.

In this matter I generally accept Mr Constantine's version of the lease arrangements. It accords with the contents of the written documents and the general way in which money in the form of rent was paid. I find that the written leases were never completed but that there was a head lease by parol between Mr Constantine as lessor and Ms Wilkie as lessee, and that there were two sub-leases by parol by Ms Wilkie, the first to Mr Ross, and the second to Graveyard Recycling, a company in respect of which Mr Reid stated that he was the sole director. I find that the terms of the head lease and of the sublease to Graveyard Recycling are those which are reflected in the copies of the partially completed written documents.

The responsibility of the second and third respondents

In his affidavit sworn on 6 March 2001, Mr Reid deposed to the fact that the business he established and operated, called "The Graveyard Recycling" was that of a "timber, soil and concrete/brick recycler". In his subsequent affidavit, sworn on 10 July 2001, Mr Reid stated that he was introduced by Ms Wilkie to Mr Constantine, and, in the course of a conversation between all three, Mr Reid told Mr Constantine that he would "… recycle material down the back and do sand and soil at the front".

In his affidavit sworn on 16 March 2001, Mr Sheehy deposed to a conversation which he had with Mr Reid on the site on 13 February 2001. In the course of that conversation, according to Mr Sheehy, Mr Reid stated that he was "sorting waste for recycling" and that the business was operated by Graveyard Recycling.

The activities on the site were observed by Mr Borg. On 8 December 2000, he attended at the site and saw waste material being sorted. There was a vehicle on the site displaying the name "Graveyard Recyclers" and a person (whom Mr Borg subsequently found was Mr Reid) wearing a T-shirt embroidered with the name "Graveyard Recyclers". In a report which Mr Borg delivered to the council on behalf of RIDS, he noted that "[i]t has also been established that a business known as "Graveyard recycling" also operates onsite".

In giving oral evidence about his visit to the site on 8 December 2000, Mr Borg said that he observed a person, now known to him as Mr Reid, driving an excavator which was loading the vehicle displaying the name of "Graveyard Recyclers". Mr Reid ceased working with excavator and a conversation took place, after which Mr Reid went back to working with the excavator.

A similar observation of a person known ultimately to be Mr Reid operating an excavator on the site was made by Mr Apps. He made that observation on a visit to the site on 16 May 2001, when he saw the excavator "relocating rubbish tipped at the premises by trucks and placing it higher up on the pile of rubbish".

Also relevant is the evidence of Ms Wilkie that, at the time when Mr Reid and Graveyard Recycling entered into occupation of the site, there was already an amount of waste material deposited on the site. Mr Borg, however, stated that he had observed at least a ten-fold increase in the amount of waste material on the site between the beginning of his investigation in December 2000 and the time of delivery of his report to the council in February 2001.

From the whole of this evidence, I make the finding that the bulk of the material deposited upon the site was actually so deposited by, or at the direction of, Mr Reid and/or Graveyard Recycling in the operation of a business upon the site which Mr Reid called a "recycling" business. That finding is consistent with the position of the second and third respondents put to the Court by Mr Killalea, when he appeared on their behalf on the first day of the hearing. Mr Killalea submitted that the second and third respondents did not deny the depositing of waste upon the site in the course of their business, but, as I have earlier observed, they raised, at least initially, a defence that the activity I have described was authorised by development consent number 006798. I have earlier found that the development consent upon which they relied did not authorise the activity.

I conclude, therefore, that the second and third respondents have carried out development upon the site for the purposes of a tip or recycling yard contrary to the EP&A Act, and the council is entitled to a declaration to this effect. I put aside for later consideration whether the Court should, in the exercise of its discretion, make consequential orders against the second and third respondents for the removal of the waste material.

Ms Wilkie was the lessee of the site, and granted subleases first to Mr Ross and then to Graveyard Recycling. For the reasons I have earlier outlined, I do not accept her claim that, in connection with the head lease and the subleases to Mr Ross and to Graveyard Recycling, she was simply acting as the agent of Mr Constantine, and that he made the leasing arrangements directly with the sublessees. I am satisfied on the balance of probabilities that Ms Wilkie was the lessee of the site, and that she was in control of the site in the sense that she entered into and made the arrangements which constituted the subleases to Mr Ross and to Graveyard Recycling. I find that, by reason of the subleases, and in particular the permitted use specified under the sublease to Graveyard Recycling, that Ms Wilkie had the capacity to terminate the sublease to Graveyard Recycling and thereby to stop an unauthorised use of the site.

There is no evidence to establish that Ms Wilkie herself actually brought any waste material on to the site, nor that she had any direct involvement in the activity carried out on the site by either Mr Ross or Mr Reid and Graveyard Recycling. But there is evidence which, when taken as a whole, establishes on the balance of probabilities that she permitted, and did not endeavour to prevent, that activity taking place. That evidence is as follows:

(1) Mr Borg gave evidence that he was furnished with Ms Wilkie's telephone number by Mr Constantine, and he telephoned Ms Wilkie in December 2000. In the course of that conversation, according to Mr Borg, Ms Wilkie said, in relation to the site: "I own and operate the property". Ms Wilkie denies that she made that statement, but Mr Borg was clear in his recollection of it, was unshaken in cross-examination, and I accept him as a witness of truth;

(2) When Mr Borg went to the site on 8 December 2000, he was told by Mr Reid, in answer to his inquiry about the activity taking place on the site, to "[s]peak to Misty Wilkie";

(3) Mr Borg stated that, during the conversation between himself, an accompanying RIDS officer, Mr Reid and Ms Wilkie, which took place on the site on 8 December 2000, a truck full of waste material arrived at the site. The accompanying officer spoke to the driver, and the truck turned around and drove away. Thereupon, according to Mr Borg, Ms Wilkie said: "I will sue you for turning away stock. I was going to pay him $1,000.00 to dump the material. The material is stock for my landscaping business";

(4) Mr Constantine gave evidence, in his affidavit of 22 February 2001, that he had asked Ms Wilkie to stop Mr Ross bringing waste on to the site, and in response, according to Mr Constantine, Ms Wilkie said: "I need 30,000 tonnes to recycle";

(5) Ms Wilkie was aware that there was an issue about rubbish on the site. The solicitors acting for Graveyard Recycling in relation to the sublease sought the insertion of a clause in the lease absolving the sublessee from any responsibility for the "considerable amount of rubbish, debris and other fill" on the site. Ms Wilkie's solicitors, whom she confirmed in cross-examination were acting on her instructions, refused to insert such a clause;

(6) Although the financial statements are difficult to reconcile, they do establish that the amounts which Ms Wilkie paid to Mr Constantine by way of rent were less than the amounts she received from either Mr Ross or Graveyard Recycling. The inference is that she derived some monetary benefit from the subleases to both Mr Ross and Graveyard Recycling, although she denied in cross-examination that she had made any profit, stating that, if all the amounts were added up, she had actually lost money.

(7) Ms Wilkie's evidence was that she visited the site on about the 23rd of each month during the period of her occupation to either collect rent from the sublessees or to pay rent to Mr Constantine. It was also established that she visited the site, at the request of Mr Borg, on 8 December 2000, when the conversation I have previously referred to took place. Ms Wilkie could not have been unaware of the build up of waste materials on the site, nor that waste materials were being deposited on the site by first Mr Ross and then by Mr Reid and Graveyard Recycling. Her response to cross-examination about this was evasive. When asked whether the waste material was obvious, she stated: "Like I said I didn't pay much attention to it". Yet the mountain of waste material was so extensive it must have been impossible not to notice it. Her answers in cross-examination on this subject were also evasive. For example, the transcript reveals the following exchange: PARRY: Q. Miss Wilkie, the fact is that it would have been obvious to anybody and it was certainly obvious to you that the mountain of rubbish was growing certainly between the period December 2000 and February, March 2001, isn't that right? A. Like I said, I don't know.

Q. You accepted rent during that period on the sublease? A. What date?

Q. In February and March 2001 you accepted rent on the sublease? A. Yes, yes.

Q. And you knew full well that the activities being undertaken at that stage by Mr Reid were not in accordance with the sublease between you and him? A. At all times he told me that he was making landscape products.

Q. Miss Wilkie, it was obvious to you that he wasn't using the land as a sand and soil yard? A. No, he told me he was making recycle products and he showed me the product he made. It was like a soil that went underneath lawns and so forth and he showed me recepts that he was selling it to councils and also RTA and also other departments - other places selling it for, like landscape products. That's what he was doing and he showed me the processed product.

I find, therefore, that Ms Wilkie permitted or suffered the carrying out of development upon the site for the purpose of a tip or recycling yard contrary to the EP&A Act and that the council is entitled to a declaration to this effect. I put aside for later consideration whether the Court should in the exercise of its discretion make a consequential order against the first respondent for the removal of the waste material.

As I have found, Mr Constantine is the owner of the whole of lot 2 of which the site forms part, and he was at all relevant times in occupation of that part of lot 2 adjoining the site. He granted a lease to Ms Wilkie in respect of the site, and he did not directly enter into leasing arrangements with either Mr Ross or Graveyard Recycling.

The council concedes that Mr Constantine has not directly committed a breach of the EP&A Act in using the site for a purpose contrary to that Act. However, the council's case is that Mr Constantine permitted or suffered the illegal use of the site, and that consequential orders should be made against him.

Mr Constantine denies that he permitted or suffered the site to be used for a purpose contrary to the EP&A Act, or that he acquiesced in that use. He asserts that he took whatever steps were reasonably available to him to endeavour to stop the deposit of waste material on the site.

(1) He was introduced to Mr Ross by Ms Wilkie, but he objected to a sublease being granted by Ms Wilkie to Mr Ross. Nonetheless, Mr Ross went into occupation in March 2000, and, after of couple of months, Mr Constantine asked Ms Wilkie to stop Mr Ross from bringing waste material on to the site;

(2) Mr Ross left the site, and subsequently Mr Constantine was introduced to Mr Reid by Ms Wilkie. Again, he objected to a sublease, but was concerned about the waste material deposited on the site, and he was assured by Ms Wilkie that Mr Reid would remove that material;

(3) By the end of November 2000, Mr Constantine was concerned that the waste material remained on the site, and that more was being deposited. He contacted the council about that, and was referred by the council to Mr Borg;

(4) He contacted Mr Borg early in December 2000. He complained about the deposit of the waste material and asked Mr Borg what could be done about it. He understood that Mr Borg would investigate the problem;

(5) From December 2000 onwards, Mr Constantine telephoned Mr Borg approximately every two weeks, expressing his concern about the deposit of waste material on the site;

(6) Ultimately, on 25 January 2001 Mr Constantine contacted Ms S C Chitty, who works as a conveyancer with Truman Hoyle Lawyers, and who customarily dealt with Mr Constantine's property matters. Mr Constantine asked Ms Chitty to contact Mr Borg directly and also to advise him, Mr Constantine, about terminating the lease to Ms Wilkie;

(7) Ms Chitty reported back. She said she had spoken both to Mr Borg and to Mr Borg's supervisor, Mr Illy. Ms Chitty expressed concern about Mr Constantine's safety because of what she had been told about the "stand-over tactics" that Ms Wilkie or her father might adopt;

(8) Mr Constantine provided information to the council's solicitor, Mr O'Connor, to enable the latter to prepare evidence in the form of affidavits to be sworn by Mr Constantine in the council's case;

(9) Ms Chitty reported to Mr Constantine that she had spoken to Mr O'Connor and had been advised that it was not necessary for Mr Constantine to take any independent action but to allow the council to take proceedings.

Mr Constantine's evidence was corroborated to some extent by the evidence of Mr Borg, and also to some extent by the evidence of both Mr O'Connor and Ms Chitty.

Mr Borg's evidence was that he was telephoned by Mr Constantine at some time during the first week of December 2000, he thought between 4 and 6 December. Mr Constantine said that was concerned with illegal dumping on the site (which he identified for Mr Borg) and he wanted it stopped. Mr Constantine told Mr Borg that Ms Wilkie was the lessee and he furnished Mr Borg with Ms Wilkie's telephone number. Mr Borg told Mr Constantine that he would investigate the matter and following that investigation he would give a report to the council.

Mr Borg said that, after that first conversation, Mr Constantine telephoned him approximately every two weeks, and expressed his concern at what was happening on the site.

After the first telephone contact with Mr Constantine, Mr Borg commenced a surveillance of the site. He formed the opinion that illegal dumping was taking place on the site, and that it was the beginning of a "serious activity". He also telephoned Ms Wilkie and had a conversation with her which I have earlier outlined. On 8 December 2000, Mr Borg attended the site with another officer from RIDS when he made the observations I have also earlier outlined, and when he had a conversation with a person he now knows to be Mr Reid and, when she arrived, with Ms Wilkie.

From 8 December 2000 until 11 January 2001, Mr Borg prepared his report. He made no further specific investigation of the site, except to check the registration of the vehicle he had observed on the site, and to note the significant increase in the amount of waste material when he passed the site on a regular basis, about three times each week. On 11 January 2001, Mr Borg gave the report to Mr Illy for checking, and then, on or about 2 February 2001, Mr Borg delivered the report (which was in a draft form) to an officer of the council.

Mr Borg said that he had received a telephone call from Ms Chitty on 27 January 2001, and that he was contacted on 16 February 2001 by Mr O'Connor asking him to furnish an affidavit in the proceedings.

Mr O'Connor received instructions from the council in relation to the matter on 15 February 2001. He had a conversation with Mr Borg on 16 February 2001, and Mr Borg furnished him with Ms Chitty's telephone number. Mr O'Connor had a telephone conversation with Ms Chitty on the same day. Although there are discrepancies between the version of that conversation deposed to by Mr O'Connor and that deposed to by Ms Chitty, for present purposes I find that Ms Chitty provided information to Mr O'Connor about the site, about the lease to Ms Wilkie and about her client's offer to assist in order to have the waste material removed. Ms Chitty approved Mr O'Connor approaching her client directly for the purpose of obtaining an affidavit. Mr O'Connor made a preliminary telephone call to Mr Constantine on 16 February 2001 and, on 18 February 2001, he obtained instructions from Mr Constantine for the preparation of an affidavit, which Mr O'Connor subsequently prepared and arranged to be sworn.

Mr O'Connor agreed, in cross-examination, that in all his dealings with Mr Constantine, the latter had indicated that he wanted the depositing of the waste material to stop and the site cleaned up, that he had not consented to that activity, and that he wanted the council to obtain an order to stop it. Mr O'Connor expressed the opinion that Mr Constantine has assisted in the preparation of the council's case by furnishing information and by providing affidavit material.

Ms Chitty's evidence also to an extent corroborates that of Mr Constantine. She confirmed that Mr Constantine telephoned her on 25 January 2001, complained of the deposit of waste material on the site, instructed her to ring Mr Borg and furnish him with any documentation he requested, and also to advise him, Mr Constantine, as to what steps could be taken to terminate the lease to Ms Wilkie. Ms Chitty telephoned Mr Borg, who asked her to contact Mr Illy. She telephoned Mr Illy on 29 January 2001. According to her version of that telephone conversation, Mr Illy recommended that Mr Constantine desist from taking any independent action of his own, that the council and the EPA would handle the matter, and that it could be "quite dangerous" if he brought his own proceedings against Ms Wilkie and her father. Ms Chitty's evidence is that, in the light of this conversation, she advised Mr Constantine to let the EPA handle the matter and that he should not take any separate action. (Ms Chitty's reference to the EPA was based on her mistaken belief that Mr Borg and Mr Illy were EPA officers).

The main issue of discrepancy between the evidence of Mr O'Connor and the evidence of Ms Chitty is that the latter's version of the telephone conversation which she had with the former on 16 February 2001 records Mr O'Connor as saying that "… [i]t is not necessary for Mario to take his own action". Mr O'Connor strenuously denied in cross-examination that he had made that comment, and his own file note of the conversation does not record it. So far as it is necessary for me to reconcile the two versions of the conversation, I prefer the evidence of Mr O'Connor. He is an experienced solicitor in environmental and planning law, and I accept his evidence that he is well aware of the width of the Court's discretion in making orders in matters of this nature. He is not likely to have held the view that ejectment proceedings brought by Mr Constantine would prejudice the chance of the council's success in these class 4 proceedings, and accordingly it is more likely than not that he did not recommend that Mr Constantine desist from taking separate proceedings.

I make the following findings of fact in relation to the responsibility of Mr Constantine:

(1) He did not consent to either of the subleases to Mr Ross or to Graveyard Recycling;

(2) He became concerned about the deposit of waste material upon the site by Mr Ross, and his concern increased when he observed the depositing of waste material on the site by Mr Reid and Graveyard Recycling;

(3) He took action, in that he contacted the council, and at its suggestion, he contacted Mr Borg;

(5) He furnished information to Mr O'Connor and provided affidavit evidence in the council's case;

(6) He did not institute ejectment proceedings against Ms Wilkie in the Supreme Court until 9 July 2001, but I find that his delay in taking independent action was based on several factors - the fact that he knew that RIDS was investigating, the fact that he was assisting Mr O'Connor in the preparation of the council's case, the fact that he was concerned about being left to remove the waste material on his own, and his concerns about his personal safety.

(7) He relied on information and advice provided by Ms Chitty whom Mr Constantine believed was a solicitor although she was not so qualified.

My ultimate finding is that Mr Constantine did not himself use the site for the deposit of waste material, and he did not permit or suffer the site to be used for that purpose, nor did he acquiesce in that use. For this reason, it is not necessary nor appropriate for me to make any consequential orders against him.

It is therefore unnecessary to deal with the fourth respondent's defence of estoppel, and I refrain from doing so.

The fourth respondent claims that the council should also be ordered to remove the waste material. The basis upon which that claim is put is as follows:

(a) The council is the responsible authority for ensuring that the site is not used contrary to the EP&A Act and it had power to enforce compliance with the law;

(b) It was put on notice by the fourth respondent of the illegal use, and it knew, through its membership of the RIDS joint venture and through the expertise of the members of RIDS, that there was a risk of damage to the site, neighbouring properties and the local environment through illegal dumping;

(c) Nevertheless, it took no action between early December 2000 and 15 February 2001 (when it gave instructions to Mr O'Connor), although the fourth respondent had continually complained to Mr Borg;

(d) It owed a duty of care to the fourth respondent to exercise its powers in such a way as would reasonably protect the site from damage but it acted negligently and in breach of its duty of care to the fourth respondent in responding to the information provided to it by him and in responding to the numerous requests for help made to it by the fourth respondent;

(e) In particular, it acted negligently in having no system properly in place to enable it to respond to and deal with serious complaints in relation to illegal dumping;

(f) It failed to act as would a reasonable and prudent authority in response to the fourth respondent's complaint about the illegal use of the site.

Mr Wheelhouse formulated the fourth respondent's cross-claim in terms of negligence and he cited Parramatta City Council v Lutz (1988) 12 NSWLR 293 for the proposition that the council had a positive duty to act as it was empowered to do so by law. He conceded, as he must (see National Parks & Wildlife Service and Anor v Stables Perisher Pty Ltd (1990) 20 NSWLR 573) that this Court has no jurisdiction to entertain a claim for damages in tort. But he submitted that the facts which would provide a foundation for a claim in negligence would also be sufficient to persuade this Court, in the exercise of its wide discretion under s 124 of the EP&A Act, to make an order requiring the council to remove the waste material.

It is not appropriate, in my opinion, for this Court to make findings as to whether or not the council was negligent and in breach of a duty of care to the fourth respondent. (For this reason, it is unnecessary to consider whether the basis for any tortious liability is as stipulated in Parramatta v Lutz, or whether there might be another basis - see Pyrenees Shire Council v Day and Ors (1998) 192 CLR 330). It is more appropriate to consider the overall conduct of the council in relation to the site and its occupants in order to determine whether an order against the council should be made.

The facts are these. The council became aware of the illegal use when Mr Constantine telephoned it, late in November 2000. The response to his complaint was to refer him to RIDS. That was entirely appropriate, having regard to the fact that RIDS was formed as a joint venture to investigate and report on illegal dumping, and the council was one of the joint venturers. There was a delay between Mr Borg's first inspection on 8 December 2000 and the furnishing of his report to the council on or about 2 February 2001. In that period, the major part of the waste material was deposited. However, that delay was not attributable to any conduct of the council. It took Mr Borg until approximately 11 January 2001 to prepare his draft report, and thereafter the draft report lay on the desk of his supervisor, Mr Illy, for about two weeks before it was signed off. It was then delivered, still in draft form but containing relevant information, to the council on or about 2 February 2001. On 15 February 2001, the council instructed Mr O'Connor, who took immediate steps to gather evidence, including preparation of affidavit material from Mr Constantine. The council commenced these class 4 proceedings on 21 February 2001.

The fourth respondent's cross-claim depends to some extent on treating Mr Borg as an officer of, or at least speaking for, the council. But that is not the case. Mr Borg was an officer of RIDS. The council had delegated to him the authority to enter land and make inspections, but he did so as a RIDS investigator, not as a council officer. Neither Mr Constantine nor Ms Chitty believed Mr Borg was a council officer. Mr Constantine knew the council did not employ him, because Mr Borg made that clear to him. Ms Chitty believed the EPA employed him. Hence Mr Constantine's fortnightly calls to Mr Borg cannot be regarded as fortnightly complaints direct to the council, and, similarly, the delay in furnishing the report to the council is not attributable to the council.

Having regard to these facts, I decline to order the council to remove the waste and it is appropriate to dismiss the cross claim of the fourth respondent.

The question which now arises is what orders the Court should make in the exercise of its discretion under s 124 of the EP&A Act.

The first matter to note is that there are significant environmental consequences arising from the depositing of the waste upon the site. Dr Pell swore an affidavit deposing to matters arising from his inspection of the site on 7 May 2001. His conclusion, in summary, was that there is a high risk of failure of the waste pile, likely to take the form of a toppling failure of portions of the block walls surrounding the waste material, and the sloughing of the waste into the stream and road adjacent to the site. He stated that he based that evidence on the inadequate factor of safety of the retaining walls, the visual evidence of the walls tilting, the size of the waste dump and the angle of repose of the waste dump. Dr Pell gave oral evidence to the effect that he had inspected the site again on 17 August 2001 at the request of the EPA and for the purpose of assessing what works could be done to reduce the risk of failure until such time as permanent measures were instituted. He said that he had observed that there was more waste material on the site than he had observed on his inspection on 7 May 2001, but the conclusions he formed then as to the potential consequences of the material did not change.

The evidence of Mr Lee supports Dr Pell's evidence. Mr Lee's opinion was that a collapse of the waste pile would potentially damage aquatic life in the adjacent stream and there was also the possibility of damage to nearby properties by reason of the damming effect a waste pile collapse would have on the adjacent stream.

The second matter to consider is the submission made by Ms Byrne that no order requiring the removal of the waste material should be made because, firstly, the jurisdiction to regulate that removal rests solely in the EPA and not the council, and, secondly, that, since the council is not in a position to enforce such an order, that would lead to uncertainty in the order itself. As I understood this submission, it proceeded on the following basis. The deposit of the waste material on the site constitutes a scheduled activity under par (1)(d) of the definition of "waste facilities" in sch 1 of the Protection of the Environment Operations Act 1997 ("the POEO Act"). Accordingly, a licence was required to deposit the waste material and, pursuant to s 6(1) of the POEO Act, the EPA is the appropriate regulatory authority. That regime was recognised by the EPA in the clean up notice dated 9 May 2001 which it served upon the second and third respondents. Ms Byrne submitted that, therefore, it is for the EPA to regulate the removal of the waste material, and the council lacks any power to do so. Furthermore, the removal of the waste material on the site requires its transfer, in respect of which, once again, the EPA is the regulatory authority. Therefore, an order of the Court requiring the removal of the waste material would be inherently uncertain, since the EPA's involvement is required, and an order casting an obligation on a party to proceedings which is uncertain in its terms is to be avoided, having regard to the serious consequences of any failure to comply with such an order.

I reject this submission. In my opinion, it is misconceived. These proceedings are brought by the council under s 123 of the EP&A Act, which confers upon any person an entitlement to bring proceedings for an order to remedy or restrain a breach of that Act. The breach which I have found to be established is a breach of s 76A(1) of the EP&A Act (that is, carrying out development without having obtained the requisite development consent). The POEO Act deals with another regime altogether, in that it provides for the control and regulation of certain scheduled activities. It does not operate to control or regulate the requirements under the EP&A Act for the proper management and development of land. The two regimes are complementary. So much is recognised by s 50(2) of the POEO Act which provides that a licence in respect of development that cannot be carried out without development consent must not be granted unless development consent has been obtained.

Under s 124 of the EP&A Act, the Court has a wide discretion, where it is satisfied that a breach of the EP&A Act has been committed, to make such order as it thinks fit to remedy or restrain the breach. The discretion enables the Court to frame orders in the light of all the factors falling within the purview of the dispute (F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGRA 306 at 313). Accordingly, the Court is empowered in its discretion to make an order requiring the remedying of the breach by the removal of the waste material.

Nor is there anything inherently uncertain in such an order. The order which the council seeks requires the removal of the waste material to a licensed waste facility. Compliance with such an order will not constitute a breach of s 143 of the POEO Act, nor does it require a licence under the POEO Act. Such an order is clear in its terms, and would not leave the parties obliged by it in any doubt as to what was required to comply with it.

I turn now to consider the appropriateness of orders requiring the removal of the waste material in relation to each of the parties to the proceedings.

I have found that the second and third respondents brought the bulk of the waste material on to the site, and that they carried out development upon the site for the purpose of a tip or recycling yard or like use, in breach of the EP&A Act. They together have the primary and direct responsibility for the illegal use of the site, and they together bear the primary and direct responsibility for the potential consequences of that illegal use. It is appropriate therefore that they be ordered to remove the waste material from the site.

I have found that the first respondent, Ms Wilkie, did not bring the waste material on to the site, but she permitted or suffered the site to be used for the illegal purpose. She was the sublessor, and in control, through the subleases, of the use to which the site was being put. She took no action to stop that use. Her position, in my opinion, is analogous to that of an owner of land who permits an illegal use of the land and does not try to stop that use. In Holroyd City Council v Murdoch (1994) 82 LGERA 197, Stein J (as he then was) held that an owner of land may be required to remove fill unlawfully dumped on his land without his authority so long as he knows or is made aware of the situation and takes no steps to prevent its recurrence. That decision has been followed in this Court (Penrith City Council v Solanowski and Ors [1999] NSWLEC 144) although its correctness has on one occasion been doubted (Albury City Council v Maxwell and Anor, Lloyd J, NSWLEC, 11 September 1998, unreported). Nevertheless, the principle has been affirmed in the recent decision of the Court of Appeal (Sahade v Mosman Municipal Council [2000] NSWCA 251) where, in delivering the judgment with which the other members of the Court agreed, Stein JA said at pars 5 to 7: The Court's power to grant a remedy in civil enforcement proceedings is dependent on proof that the breach has been committed or, unless restrained, will be committed. It is not dependent on proof that the respondent to the proceedings committed the breach. Nonetheless, in determining whether to make an order to remedy or restrain a breach, and the ambit of any order, the Court will need to be satisfied that the person to be bound by the order is in a position to remedy or restrain the breach.

In this case the appellant was the applicant for and recipient of the development consent and building approval. He is the owner of the subject land and premises … There was ample evidence … on which (the Land and Environment Court) could be satisfied that the appellant … was … permitting or suffering the use of the subject premises in breach of conditions of the development consent and the building approval.

In my opinion, there is no relevant difference between the position of an owner of land who permits and suffers a breach of the EP&A Act and a person in the position of Ms Wilkie, who controlled the site as sublessor and permitted or suffered the site to be used in breach of the EP&A Act.

I am conscious, however, that Ms Wilkie's position is secondary to that of Mr Reid and Graveyard Recycling. As I have said, the latter bear the primary responsibility for the illegal use and its consequences. Whilst I am of the view that Ms Wilkie bears a responsibility, and should therefore be ordered to remove the waste material, I think it is fair to provide that her obligation will be contingent on any failure of the second and third respondents to remove the waste material within a specified time. I make it clear that the order requiring the second and third respondents to remove the waste material will remain on foot whether or not a similar order against Ms Wilkie has come into operation.

There is one further matter. Mr Constantine has now taken ejectment proceedings in the Supreme Court in relation to the head lease to Ms Wilkie. He has, however, given sworn evidence to the effect that he will give unrestricted access to the site to the first, second and third respondents for the purpose of complying with any order of the Court requiring the removal of the waste material from the site.

In accordance with the foregoing, I make the following formal orders:

(1) I declare that the first respondent has permitted or suffered the carrying out of development on the land known as part lot 2 in deposited plan 781151 on the corner of Grange Avenue and Richmond Road, Marsden Park ("the site") for the purpose of a tip or recycling yard or like use contrary to the Environmental Planning and Assessment Act 1979.

(2) I declare that the second and third respondents their servants or agents have carried out development, or caused, permitted or suffered the carrying out of development on the site for the purposes of a tip or recycling yard or like use contrary to the Environmental Planning and Assessment Act 1979.

(3) I order the first respondent, the second respondent and the third respondent forthwith to cease using or causing, permitting or allowing the use of the site for the purposes of a tip or recycling yard or like use.

(4) I order the first respondent, the second respondent and the third respondent to be restrained forthwith from causing, permitting or allowing the bringing of any soil, sand, gravel, bricks, other excavated or hard material or demolition material or any other waste on to the site.

(5) I order the second respondent and the third respondent to remove from the site the existing soil, gravel, bricks, demolition material and other excavated or hard material and waste presently situated on the site and have it transferred to a licensed waste management facility. The removal of such waste shall commence within seven days of the date of this order and shall be completed within five weeks of the date of this order.

This order shall remain on foot and with full force and effect whether or not order 6 has come into operation.

(6) I order the first respondent to remove from the site the existing soil, gravel, bricks, demolition material and other excavated or hard material and waste presently situated on the site and have it transferred to a licensed waste management facility.

This order is contingent upon the second and third respondents failing fully to comply with order 5 of these orders within the time therein specified. Accordingly, this order is postponed until the expiration of that time, and, unless there has been full compliance by the second and third respondents with order 5 within that time, this order shall operate and be of full force and effect after that time.

(7) I dismiss the cross-claim of the fourth respondent. (8) I order the first respondent, the second respondent and the third respondent to pay the applicant's costs of the proceedings against each of them respectively, such costs to be as agreed or as assessed.

(9) I order the applicant to pay the costs of the fourth respondent in respect of the proceedings against the fourth respondent, such costs to be as agreed or as assessed.

(10) I order the fourth respondent to pay the costs of the applicant in respect of the cross-claim, such costs to be as agreed or as assessed.

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.

At a glance

Court

Decision date

Before

Source

Judgment (161 paragraphs)

Parties

Cases Cited (10)

Cited By (4)