Gerondal v Eurobodalla Shire Council

Autodesk Inc v Dyason (No.2) (1993) 176 CLR 300 Bankstown City Council v El Dana [2009] NSWLEC 68 Dillon, Kevin & Anor v Gosford City Council (No.2) [2010] NSWLEC 44 Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160 Gerondal v Eurobodalla Shire Council [2010] NSWLEC 52 CASES CITED: Metwally v University of Wollongong (No.2) (1985) 60 ALR 68 Mir Bros Unit Constructions Pty Ltd v Roads and Traffic Authority of New South Wales [2005] NSWLEC 419 Pittwater Council v Brown Brothers Waste Contractors Pty Ltd [2009] NSWLEC 50 Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No.2); Carelli v FS Architects Pty Ltd (No.2) [2008] NSWCA 205 Smith v NSW Bar Association (1992) 176 CLR 256 Teoh v Hunters Hill Council and Another [2008] NSWLEC 263

APPELLANT Mr P Gerondal, In person, assisted, with leave, by Mrs M Gerondal LEGAL REPRESENTATIVES: RESPONDENT Mr A Warren, Solicitor SOLICITORS Andrew Warren Associates

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

60002 of 2009 GERONDAL v EUROBODALLA SHIRE COUNCIL (No.3)

EXTEMPORE JUDGMENT Introduction 1 His Honour: This judgment concerns a Notice of Motion brought by the appellant in these class 6 proceedings, concerning a property at 7 Bayside Street, Broulee. 2 Some background must be given before I turn to the actual subject matter of today's proceeding because the dispute between the parties dates back, apparently, to 2006, and there are further proceedings now under way in the local court regarding it. 3 Mr Gerondal has appeared for himself at all stages of the matter, and was granted leave to be assisted by his wife. They reside permanently at Waramanga in the ACT. He is a retired senior public servant who has owned the holiday home property at Broulee since 1983. Both have spoken today about disputes with the Council regarding this and apparently one other property in the Shire. There are class 1 proceedings regarding Mrs Gerondal's property listed before a Commissioner of this court tomorrow, and Mrs Gerondal also told the court today about some possibly relevant tribunal proceedings in the Australian Capital Territory. 4 In these class 6 proceedings Mr Gerondal appealed to this court against a conviction, and orders made by Magistrate Bone in the Local Court at Bateman's Bay, in November 2008 and February 2009. Pain J heard the appeal on 1 September 2009. 5 The local court papers are available to me in this court's file on the appeal. 6 In her judgment of 25 September 2009 ([2009] NSWLEC 160), Pain J partially upheld the appeal, dismissed the charge under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, and varied the order made by the Magistrate pursuant to s 245 of the Protection of the Environment Operations Act 1997 ('POEO Act'). 7 In the result Mr Gerondal was ordered by this court (under Pain J's Order 3) to remove the following items from the relevant land within three months: "(i) toilet on the trailer (ii) building materials purchased for house extensions · four large concrete pipes · steel girders and beams · treated timber poles · metal sheeting · sheet and corrugated iron · unused bricks and masonry · water pipes · window frames · scaffolding · timber". The Notice of Motion 8 On 1 February 2010, the appellant filed the Notice of Motion now before the court, seeking (1) an extension of time for compliance with Pain J's clean up order, and (2) some refinement of the list of items to be removed pursuant to Order 3(ii) above. 9 The motion came before Biscoe J as List Judge on 12 February 2010, and His Honour extended the time for compliance until 1 June 2010. He directed the parties to meet on site on 22 February 2010 to try and agree upon any variation to the list of matters in Order 3(ii). The parties were to agree upon a report of that meeting and file it by 24 February 2010, and the matter was to come before the List Judge for directions on 26 February 2010. His Honour appears not to have published his reasons. 10 On 16 February 2010, on the application of the Council's solicitors, the orders made by Pain J on 25 September 2009 were formally entered. 11 No report as envisaged by Biscoe J was filed as directed, but Council's Ric Cumming swore an affidavit on 22 February 2010 regarding his attendance at the property on that day. That affidavit has been read in today's proceedings and was relied upon in submissions made by both sides. 12 On 26 February 2010 the matter appeared in the List Judge's list, but, when Mr Gerondal did not appear after several calls outside the court, I acceded to the request of Council's solicitor Mr Warren that the Notice of Motion be struck out with costs. Mr Warren had travelled to Sydney for the matter, and, quite properly, left the precincts as soon as I had made those orders. 13 The appellant and his wife subsequently arrived in my courtroom. I informed them what had happened in their absence, and, Mr Warren being no longer in the court precincts, I explained to them that there was nothing I could do at that time about the order I had made. 14 Later on 26 February 2010, the appellant filed in the registry a Notice of Motion seeking to set my orders aside. 15 That motion was dealt with by Biscoe J on 12 March 2010, and His Honour published a judgment ([2010] NSWLEC 52) in which he set aside my orders, and made orders:

(a) that the appellant's Notice of Motion filed on 1 February 2010 be fixed for hearing with an estimated hearing time of less than one day; (b) that the appellant file and serve submissions ten days before that hearing; and (c) that the Council file and serve submissions four days before that hearing. His Honour reserved the costs of 26 February 2010, and the Registrar relisted the Notice of Motion of 1 February 2010 for hearing today. 16 Formally before the court today, therefore, are:

1. The perfected orders made by Pain J.
2. The Notice of Motion dated 1 February 2010.
3. Mr Gerondal's submissions filed 14 April 2010.
4. Mr Warren's submissions filed 20 April 2010.
5. Mr Gerondal's submissions in reply filed today. The evidence 17 Mr Cumming's affidavit records (1) that no development application has been lodged by Mr Gerondal since 1994; (2) that he carried out a compliance inspection regarding Pain J's orders on 4 January 2010, after the three month period had expired, and took photographs; (3) that he had inspected the property on a number of previous occasions, especially on 31 July 2007; (4) that "there was no significant difference in the state of the property or the items located upon it" on 4 January 2010 as compared with 31 July 2007; and (5) that, pursuant to the order made by Biscoe J on 12 February, he again attended the property on 22 February 2010, when he photographed and mapped the materials on it. (The photographs are indexed at p4 of his affidavit against the various items in Pain J's list in her Order 3). 18 Mr Gerondal has filed no evidence on the Notice of Motion, but the court has observed the thrust of several affidavits filed by him dated 27 January, 26 February, and 3 March 2010. His two submissions documents appear to repeat much of what he deposed in those affidavits. He says that there are "two development applications in progress", and that the Council has been generally uncooperative and unfair in regard to development of his property, and in regard to the subject matter of these proceedings. He disputes Council's characterisation of the material on his land, and believes that Pain J had clear intentions in respect of what could stay and what is to be removed, but he says that the specifics of her orders do not match the classification of materials in her judgment. In particular, he refers to par [54], where Her Honour specified that items caught by Order 3 were not to include items covered by the expression "other items concerning his hobbies and other household pursuits can remain". He deposed that his hobbies are "art work, house maintenance, ongoing landscaping, materials and tools thereof", and claims that all such items should be excluded from the application, if not from the terms, of the order. Submissions 19 Mr Gerondal opened his oral submissions today by asking the court to settle the list of items he is ordered to remove, and to then give him further time to comply, yet in par 7(ii) of his reply submissions he says he has complied with Pain J's order as he submits it should be interpreted. 20 There are in the appellant's written submissions allegations of lying, perjury and the tort of "conversion", and arguments about the correct interpretation of statutory provisions regarding "waste", reviewed by Pain J. I do not need to address those matters today. 21 Mr Gerondal seemed under the impression many of these issues could be thoroughly revisited at the hearing of a Notice of Motion to vary orders. 22 In his written submissions of 14 April he published a table comparing Pain J's list with what is depicted in Mr Cumming's photographs and what he and his wife say the items so depicted actually are. In respect of one item, "water pipes" he suggests a duplication in the list. I include that table in this published judgment for completeness:

"Item Justice Pain's Description Photograph Conclusion number in Order number 3 number of appellant On Site

1 4 large concrete pipes 1-4 1 dog shelter, 2 shells for pod 2 Steel girder and beams 5-8 stringer for repairing staircase 3 Treated timber poles 5-8 mainly for dwelling elsewhere 4 Metal sheeting 9-10 dog barrier for gate 5 Sheet and corrugated iron 9-10 renovation, not an exhibit 6 Unused bricks and masonry 11-14 hobbies, small quantity 7 Water pipes 1-4 non-existent 8 Window frames 15, 16 flyscreen removed from house 9 Scaffolding 4, 17 art/hobby use, not as scaffolding 10 Timber 18-23 renovation, firewood" 23 He summarised his contentions as follows (in par 17): "(a) there is a clear line of demarcation between items derived from legal construction that Her Honour Justice Pain required removal and the items actually found as depicted in the photographs taken on 22 February 2010; (b) again there is a clear line of demarcation between the actual items present on the property and the alleged items described by the respondent as being there on 22 February 2010; (c) again, there is a clear line of demarcation between 'building materials purchased for house extensions' and the actual items depicted on the property; (d) again as aforementioned, the presence of items on the property is a dynamic situation and cannot be the same as those found on 31 July 2007 or any other day thereafter." 24 As Mr Warren notes in his submissions, what the appellant actually wants me to do on this motion is to exempt from removal some of the materials Pain J clearly listed in her order, and to allow, in particular, the treated poles to remain, because of the history of their placement, in the context of "some action of the respondent". 25 Mr Warren says that the poles issue as now framed should have been argued out before the local court magistrate, and/or before Pain J on appeal. In respect of other items listed, Mr Warren says (at par 7): "The ground that the Applicant seeks to agitate under 6(a) appears to be on the basis that the material described in the Order was not purchased for the purpose house extensions. It is submitted that Her Honour has clearly formed the view that the materials in question were purchased for house extensions, being extensions that the Applicant has never obtained development consent for in over 16 years, and which was a matter the subject of considerable evidence in the Local Court. It is submitted that the applicant now is simply seeking to re-agitate that issue which has already been determined by the Court". 26 Mr Warren refers quite appropriately to leading authorities on the power of the court to set aside or vary an order that has been made, but not entered (see his par 11 relying on Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No.2); Carelli v FS Architects Pty Ltd (No.2) [2008] NSWCA 205 and Autodesk Inc v Dyason (No.2) (1993) 176 CLR 300). Consideration 27 Essentially, for the appellant to succeed in achieving a variation of orders, the court must find that in making them in the first place the court proceeded according to some misapprehension of the facts or relevant law, not attributable solely to the neglect or default of the party seeking the variation. 28 The court does not make orders such as Pain J's Order 3 without careful consideration. A perusal of Her Honour's reserved judgment shows the depth of her consideration of all items about which evidence was given by both the appellant and the prosecuting Council, before both she and the Magistrate formulated their respective s 245 orders. Essentially, what Mr Cumming asserted was "waste" in statutory terms, is regarded by the appellant as useful material acquired by his wife and himself, at least some of it from Council's own recycling facility, for purposes such as construction, restoration, artwork, and general household purposes, and used, not only stored, for such purposes. 29 Her Honour observed (at [50]) that although there was "a lot of material" on this normal house block around the appellant's house, "and it would be considered unsightly by many, the material is largely of a domestic nature and could readily be found in lesser quantities around many homes throughout the State", and there were no suggestions of environmental harm, fire risk, or human health concerns. 30 Her Honour said (at [54]), relevant to her subsequently framing Order 3(ii): " I consider the Appellant should be required to remove … the specified building material said to be required for a house extension as there has been no progress in the applicant's pursuit of a development application for 14 years and no indication of when it might be pursued to finality. The other items concerning his hobbies and other household pursuits can remain ". 31 Her Honour then formulated the list (which appeared in [56]), and ordered, in clear terms, that Mr Gerondal had to remove "building materials purchased for house extensions". They were certainly not exempted from the order, and Mr Gerondal's submissions concede that some items of concern to him (timber and pipes) are not, or even could not be, "for house extensions" (as distinct for some other building project, including on Mrs Gerondal's land). 32 Mr Gerondal says that he was not adequately heard on all these materials when the matter was before the local court. However, Pain J surveyed all the appellant's evidence at length (especially in pars [10]-[16]) and entertained his submissions. Her Honour then examined the Magistrate's order which was far wider in impact than that made by her on the appeal. Mrs Gerondal conceded before me that she and the appellant were invited by Her Honour to make a list of what they wanted to keep. 33 The matters put to me today should certainly have been put to Her Honour on 1 September 2009. 34 Applications such as that before me now are essentially applications to reopen completed proceedings. Mr Gerondal says that that is not so, and that, as a result, the authorities relied upon by Mr Warren are irrelevant, and do not apply to this matter. 35 In Dillon, Kevin & Anor v Gosford City Council (No.2) [2010] NSWLEC 44 and Teoh v Hunters Hill Council and Another ("Teoh") [2008] NSWLEC 263 I had to review and apply the relevant authorities, albeit in both cases the orders had been entered before the application was made. See, especially, Teoh at [43]-[57]. 36 The orders made by Pain J in determining the appeal in this case are "final" in form and effect, even if not formally entered before the Notice of Motion was filed. They have none of the attributes of orders that are properly seen to be "interlocutory, conditional, or procedural". See Pittwater Council v Brown Brothers Waste Contractors Pty Ltd [2009] NSWLEC 50. Her Honour did not, for example, ask the parties to bring in short minutes to reflect her reasoning. 37 They are not now open to be "interpreted", unless the appellant succeeds in meeting the correct principles for the court to apply. 38 No grounds have been advanced for the court to now intervene - in accordance with the High Court's formulation of the relevant principles in Smith v NSW Bar Association (1992) 176 CLR 256, at 265-267 - other than the appellant's personal dissatisfaction with the outcome of the s 245 element of his appeal. See also Mir Bros Unit Constructions Pty Ltd v Roads and Traffic Authority of New South Wales [2005] NSWLEC 419. 39 As the High Court said in Metwally v University of Wollongong (No.2) (1985) 60 ALR 68, at [71]: " It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so." (See also the authorities surveyed by Biscoe J in Bankstown City Council v El Dana [2009] NSWLEC 68). Conclusion 40 The Notice of Motion must be dismissed. 41 That leaves the issues of costs and timetable. 42 Pain J ordered each party to pay its own costs of the appeal. No order was made by Biscoe J on 12 February 2010. I made a costs order on 26 February 2010, but Biscoe J set that aside on 12 March 2010, and reserved the costs of 26 February 2010. His Honour made no order in respect of the hearing of 12 March 2010. 43 I believe the most appropriate and just order is that each party pay its own costs up to and including 18 April 2010, but that the appellant should pay the Council's costs of and incidental to today's hearing. 44 On the question of timetable, there are approximately six weeks left before we reach the date set by Biscoe J, 1 June 2010. That should, after all this time, be sufficient. However, having some concern about the personal circumstances of the appellant and his wife, I have decided to further extend the time for compliance to 30 June 2010. Orders 45 The orders of the court on the appellant's Notice of Motion of 1 February 2010 will be as follows:

1. In respect of Prayer 1, the time for the appellant's compliance with Order 3 of the court's orders of 25 September 2009 in this appeal is extended to 30 June 2010. 2. Prayer 2 regarding the items listed in par (ii) of Order 3 is dismissed. 3. Each party is to pay its own costs up to and including 18 April 2010, but the appellant is ordered to pay the Council's costs of and incidental to today's hearing. 46 I will publish these reasons later today.

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.