Gardiner and Anor v Hornsby Shire Council

MICHAEL GARDINER and MAG GARDINER PTY LTD Applicants v HORNSBY SHIRE COUNCIL Respondent

1. This is an application under s 181 of the Local Government Act 1993. It follows from orders which this Court made on 30 September 1999 in the following terms: The order of 15 July 1999 issued by Hornsby Shire Council to Mr Michael Gardiner pursuant to s 124(10) of the Local Government Act 1993 be substituted by the following order:

Remove any item from land in the immediate vicinity of a public place, if such item creates or is likely to create unsightly conditions when viewed from a public place.

To ensure unsightly conditions when viewed from a public place are not created or likely to be created.

The period for compliance with the above order is 28 days from the date of this order. 2. On 30 September 1999, the Court ordered that the applicant's claim under s 181 be stood over and it came on for hearing today. Section 181 provides as follows: 181 The Land and Environment Court, on the hearing of an appeal or otherwise, has a discretion to award compensation to a person on whom an order is served for any expense incurred by the person as a consequence of the order, including the cost of any investigative work or reinstatement carried out by the person as a consequence of the order, but only if the person satisfies the Court that the giving of the order was unsubstantiated or the terms of the order were unreasonable.

It is clear from an examination of s 181 that a number of matters are relevant. First, it is a discretionary power on the part of the Court. Secondly, it provides for compensation for any expense. Thirdly, that expense is to be incurred by the person on whom the order was served. Fourthly, the expense is to be incurred as a consequence of the order. Fifthly, the expenses include investigative work or reinstatement carried out by the person as a consequence of the order. But it arises only if the person satisfies the Court either that the giving of the order was unsubstantiated or the terms of the order were unreasonable.

I turn then to consider whether in this case the giving of the order was unsubstantiated or the terms of the order were unreasonable. I take the word "unsubstantiated" in s 181 to mean that the circumstances which triggered the giving of the order were unsubstantiated. Some argument and submissions about the meaning of "unsubstantiated" in s 181 and indeed the proper construction of the whole of s 181 was put to the Court by Mr Clay. But without having the benefit of full argument on the matter, since Mr Gardiner appeared for himself in these proceedings, I would say that the reference to the giving of the order being "unsubstantiated" in s 181(1) is a reference to the circumstances which are set out in the second column of the table to s 124.

In this case, the circumstances are: Land is in the immediate vicinity of a public place and is used for the storage of articles or matter so as to create or be likely to create unsightly conditions.

It seems to me that the question of "substantiation" goes to those circumstances because it is those circumstances which give rise to the giving of an order. I put aside as irrelevant in the application of s 181 any question of lawfulness. Lawfulness of the order is a question for the Court to determine in an application for a declaration that the order is invalid. No such application has been made in this case.

What happened in this case was that the person on whom the order was served, Mr Gardiner, brought an appeal against the order under s 180 and the Court acted under s 184 to substitute for that order another order that the council could have made. It is not therefore in my opinion a question of lawfulness although Mr Gardiner, in presenting his submissions, drew the Court's attention to a number of sections which he said were not followed by the council when it gave the order. One of those was s 131 which provides that if the council has adopted criteria in the local policy under pt 3 on which it is to give an order, the council is required to take the criteria into consideration before giving the order. Mr Gardiner submitted that the council had a rural study which it failed to take into account in giving the order, the basis of the rural study being that rural land ought to be used as rural land and, in Mr Gardiner's submission, the order went against that.

He also drew attention to s 137 which provides that the order must specify a reasonable period for compliance. The period specified was 28 days. Mr Gardiner's submission was that in the circumstances where the order, as he saw it, required the removal of almost all items on the land, the period of 28 days was substantially unreasonable.

However, I think that the proper approach to s 181 is to look at the circumstances which triggered the giving of the order and in this case, I think the evidence clearly establishes that the giving of the order was not unsubstantiated.

There was evidence in the affidavit of Mr G M Taylor, who is a council officer, about what he observed on the land. There were photographs of his observations which I think establish that land in the immediate vicinity of a public place was used for the storage of articles or matter in a way that created or was likely to create unsightly conditions. Indeed, Mr Gardiner admitted that some of the items were in a place which was in the vicinity of a public place, that is the road reserve and the road adjacent to the land I find that there were articles or matter on the land which created unsightly conditions.

However, this case, in my opinion, turns on the second of the criteria for the operation of s 181 and that is whether the terms of the order were unreasonable. I think the terms of the order were unreasonable and I say that for the following reasons. The order required Mr Gardiner to carry out two things:

(1) Remove all unregistered motor vehicles from the land. (2) Stock all other articles or matters so as it is not seen from a public place. 12. Under the heading of "Period For Compliance With This Order" , the order repeated the same or virtually the same wording by stating: The notice requires you to remove all un-registered vehicles from the land and stock all matter out of sight of a public place within twenty-eight (28) days of the date of this order.

However, the wording is, to say the least, unclear. "Remove all un-registered motor vehicles from the land" seems to me, taking into account that the order has been broadly drafted by lay persons and not by lawyers, to indicate an order requiring that all unregistered motor vehicles be removed from the land whether or not they are in the immediate vicinity of a public place, whether or not the land is being used for the storage of articles or matter and more importantly, whether or not they create or are likely to create unsightly conditions.

Mr Clay submitted that the reference to "land" is the whole of the land which, in this case, is approximately 28 acres and therefore, so long as the land was being used for the storage of articles or matter, then it does not matter whether they were stored or placed in the immediate vicinity of a public place. The land itself was in the immediate vicinity of a public place as it was adjacent to the road reserve or the road.

Be that as it may, the fact is that, as to item (i) of the order, there is no doubt that the wording would have been and must have been and certainly evidence shows it to have been confusing and unclear to the recipient. Item (2) is in the same category. It states: "Stock all other articles or matter so as it is not seen from a public place" . Mr Gardiner said that he, being a farmer, understood the word "stock" , to refer to livestock. I do not accept that understanding. The word "stock" used in item (2) of the order is used as a verb and it enjoins the person to whom the order is served "to stock other articles and matter so as not to be seen from a public place" . Nonetheless, that wording is clearly confusing.

That confusion is borne out by the conversation to which Mr Taylor deposed in cl 9 of his affidavit sworn 22 September 1999 when he informed Mr Gardiner that "Council does not consider farm vehicles to be within the term unregistered vehicles in the order served on you on 15 July 1999" . According to Mr Taylor's evidence, Mr Gardiner said, "I consider that the tractor is an unregistered vehicle and you've asked me to remove all unregistered vehicles from the property and I'm therefore obliged to remove my tractor". According to Mr Taylor, he then said, "Council does not require you to remove your tractor. The order refers to unregistered motor vehicles that cannot be used on the land". The fact that such a conversation took place to me points out the confusion, awkwardness and ambiguity in the order and I am prepared to make a finding therefore that the terms of the order were unreasonable.

Accordingly, then, it is a matter for me to decide what compensation should be paid to Mr Gardiner. The onus is on Mr Gardiner to prove the expenses that he incurred as a consequence of the order. Mr Gardiner has attempted to do that in an affidavit dated 14 October 1999 which contains a number of statements of expenses and some invoices and receipts. Some of those expenses seem to have been incurred by a company called M A G Gardiner Pty Limited. I take it, because Mr Gardiner said so in giving oral evidence, that he controls that company, and in the circumstances of this case, I do not make a distinction about expenses incurred by Mr Gardiner personally or expenses incurred by the company that he controls.

However, Mr Clay submitted and I think he is right, that s 181 refers to expenses incurred as a consequence of the order and not costs of litigation. It is no doubt true to say that the litigation in this Court has been brought about as the consequence of the order because the litigation arises under s 180, which provides for an appeal against the order. But the costs of that litigation are costs of the litigation and not expenses incurred as a consequence of the order.

The order had two requirements: one was "to remove unregistered motor vehicles" and one was "to stock all other articles or matter so as it is not seen from a public place" . Read as fairly as possible in the confusing state of affairs, and taking into account the conversations between Mr Gardiner and Mr Taylor, it is clear that so far as removal is concerned the removal was related to unregistered motor vehicles. It did not relate to livestock, that is, the pigs which were on the property. It did not relate to farm machinery. It did not relate to building materials. It did not relate to scrap metal and it did not relate to hay. All those items fell into the requirement to "stock all other articles so as it is not seen from a public place" .

When I turn then to statement A attached to Mr Gardiner's affidavit and bearing in mind the matters that I have said, nearly all the items except two refer to the costs involved in meeting this litigation and I do not think for the reasons I have given that they are included in the words "Expense incurred as a consequence of the order" except for those two items which are item 4 and item 11. They are the fees paid to the Trading Post for advertisement of items which Mr Gardiner wished to have removed from the land.

When I look at those items I see that they refer to motor vehicles, parts of motor vehicles, motorbikes and spare parts and a quantity of motors themselves. I think that, taking a reasonable point of view, those two expenses; $83.30 for one advertisement on 15 July 1999 and $65.80 for another advertisement on 13 August 1999 ought to be allowed as compensation incurred by Mr Gardiner as a consequence of the order.

Mr Clay ascertained during cross-examination of Mr Gardiner that the first advertisement in the Trading Post was ordered on 14 July 1999 which was the date one day before the issue of the order but a notice of intention to issue the order was given to Mr Gardiner on 3 June 1999. I accept his submission that he knew the order would be issued. The advertisement in the Trading Post I find was a consequence of the order which was to come.

I turn then to statement B. This is headed "Expenses incurred as a direct and foreseeable result of orders by M A G Gardiner Pty Limited running truck" . As I have said, I put aside the fact that it is the company rather than Mr Gardiner for whom the expenses were incurred but there are real difficulties with this statement. Items 1 to 11 purport to be a list of mileage incurred for which a rate of 74 cents per kilometre has been calculated. There is nothing in those items 1 to 11 to indicate when the journeys took place and there is nothing to indicate whether the 74 cents per kilometre is in fact an expense or is merely a mileage calculation to cover matters other than expenses such as wear and tear.

Only four of the items 1 to 11 relate to the removal of cars, unregistered motor vehicles. They are item one: removal of ten cars to scrap yard. Item 2: six vehicles to storage. Item 10: remove motorbikes to storage. Item 11: remove Jeep to storage. It seems to me that no compensation can be made in respect of these items because I cannot be satisfied that they are for expenses incurred by Mr Gardiner as a consequence of the order.

There are a number of other items. The first of those is to Country Improvements Pty Limited. An invoice for $450 from that company is attached to the affidavit. It is specified to cover five hours machine work to load cars. The invoice is undated but it seems to me on the face of it that it does relate to the removal of unregistered motor vehicles from the land. I think it is proper to make a finding that that is an expense incurred by Mr Gardiner as a consequence of the order.

The next item causes me considerable difficulty. This is an item for labour furnished to M A G Gardiner Pty Limited by Mr Justin Gardiner who, Mr Gardiner said, is his son. It is a charge for 96 hours of labour at $22.50 per hour yielding a total sum of $2,160. The difficulty with it is that it covers a lot of items that had nothing to do with the order, such as "Labour to assist with loading, driving and unloading truck, moving cars, timber, bikes, machinery, building materials and livestock" . There is no way the Court could apportion that total sum between the amounts that relates to removing unregistered motor vehicles from the land and the amount that relates to other items. Accordingly, I do not find that this is an expense incurred by the person as a consequence of the order.

The next item refers to the removal of pigs and agistment. I have explained why I think that that is not as a consequence of the order. The next two items deal with storage of material. The first is the efforts and work put into finding storage and second is storage at Marsden Park. This has the same defect as Mr Justin Gardiner's invoice because when I read items 1 to 11 of statement B, I see that item 2 is the storage of vehicles. Item 5 is storage for tractor and implements, item 8 is timber to storage, item 9 is farm machinery to storage, item 10 is motorbikes to storage and item 11 is Jeep to storage. It seems to me that some of these items relate to unregistered motor vehicles and some of them do not and I am unable to apportion it. Therefore, I cannot be satisfied that it is an expense incurred as a consequence of the order.

The last matter which is fully completed on the list deals with the preparation of the affidavit.

In all those circumstances my findings are, in summary, that the terms of the order were unreasonable, that s 181(1) therefore does apply but the amounts which Mr Gardiner has substantiated to the satisfaction of the Court and which the Court in its discretion considers ought to be awarded as compensation are two amounts for advertisements in the Trading Post of $83.30 and $65.80 respectively, and an amount paid to Country Improvements Pty Limited for loading cars of $450 coming to a total of $599.10. I am prepared to make that order.

Before I do so I should deal with the costs of the proceedings about which I have heard no submissions. Do you want to make some submissions about that Mr Clay?

32. There is a difficulty. These are class 2 proceedings and they arise out of the Local Government Act 1993. The Practice Direction does not apply. It reads, "Costs in class 1 and 2: The practice of the Court is that no order for costs is made in planning and building appeals unless the circumstances are exceptional". I do not think that these proceedings could be categorised as either. They are certainly not a planning appeal and I do not think a building appeal either. So the Court has no guidance but to look at the matter on general principles. Mr Gardiner was successful to some extent in his appeal under s 180. He was successful in obtaining an order from the Court which substituted another order for the order given by the Council. He has been partially successful in his claim for compensation although not fully successful because not all the items that he presented have been found to be expenses incurred as a consequence of the order. On the substantive issue of whether s 181 applies, he has been successful and he has proved some items as expenses incurred as a consequence of the order. I think in the circumstances that costs follow the event. I think it is appropriate to award costs in favour of Mr Gardiner.

(1) I award compensation under s 181 to the applicant in the amount of $599.10 for expenses incurred by him as a consequence of the order the subject of these proceedings. (2) I order the Council to pay the costs of the applicant as agreed or as assessed. (3) The exhibits may be returned.

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