Kogarah Council v McNicol

Land and Environment Court (NSW)|2000-01-24|Before: Cowdroy J

The applicant bears the onus of establishing, on the balance of probabilities, that the orders in the application should be made (see s 140 Evidence Act 1995 (NSW)). Such orders are sought upon the basis that the respondent has not obtained the development consent required pursuant to clause 9(1) of the LEP which provides:- (1) Despite any other provision of this plan, a person may excavate or fill any land to which this plan applies, but only with the consent of the Council.
Mr McNicol has sworn that there is no fill on his land and that at no stage has he ever placed fill thereon, other than vegetation comprising lawn clippings from maintenance of the grounds of his land. Although Mr McNicol's credit was called in question, the Court is satisfied that his testimony is truthful and that there is no evidence that Mr McNicol has ever placed fill on the site as alleged or any debris for which a development application is required.

It is unfortunate that Mr McNicol was not interviewed by the council before any opinion was formulated that the failure of the wall was caused by fill on Mr McNicol's land. Had such steps been taken, these proceedings may not have been instituted. Mr McNicol has been required to defend these proceedings, as well as the proceedings instituted in the Sutherland Local Court when they were based upon a misconception that fill was causing the retaining wall to fail. The whole of the council's case has been based on assumptions which were activated from complaints by Mr Lombardi. The photographs upon which council placed reliance showed no more than domestic garden debris. Such debris appeared to include rocks, earth, some bricks. Even if such material could be said to constitute "fill" the Court considers that it is of a minor nature. Clause 9(3) of the LEP relevantly provides:- (3)(b) any excavation or filling of land which in the opinion of the Council is of a minor nature, including minor landscaping works, or

There is another matter for consideration. If fill was brought to the land, and used as backfilling of the retaining wall prior to Mr McNicol's ownership of the land, the council argues that it is 'fill' for which Mr McNicol is nevertheless responsible. Council refers to the decision of Holroyd City Council v Murdoch (1994) 82 LGERA 197, in which Stein J determined that the owner of land may be restrained from permitting his land to be available for illegal dumpers. However, such decision is irrelevant. The LEP was gazetted on the 29 October 1999, and the requirements of cl 9(1) of the LEP applies to land 'to which this plan applies'. In view of the finding on credit, it must follow that if any fill or backfill for the retaining was ever brought to the land, it was done so as at date which preceded the LEP. There is no evidence of any legal restriction upon the placement of fill prior to the commencement of the LEP.

In further support of his defence Mr McNicol placed much reliance upon a contour map provided to him by council which he submitted showed the similarity of levels at the front of the subject properties and a gradual slope to the rear thereof. Mr McNicol said that such plan supported his evidence that it was solely the excavation upon No 24 which has resulted in the elevation of his land. Council acknowledges that there has been excavation upon No 24 but there is no evidence concerning the extent thereof. The Court can draw little support from the plan except that it tended to support that there was, at some stage, little discrepancy between the levels of the two properties.

It is apparent that the retaining wall between the two properties may require attention for the continual support of Mr McNicol's land. It is not possible on the evidence to conclude that the embankment is causing the retaining wall to fail. No geotechnical or engineering evidence has been tendered in evidence to support such submissions. The Court accepts Mr McNicol's statement that the retaining wall was constructed to support his land to enable the previous owner of No 24 to excavate adjacent to the boundary between the two allotments.

The Court finds that there has been no breach of the LEP which would entitle the council to any orders as claimed in the amended application. Any failure of the old retaining wall and issues of support between neighbours in this instance are not matters in respect of which this Court has power to exercise jurisdiction.

Each party has applied for an order for costs. The only issue is whether Mr McNicol is entitled to such order. A principle has been clearly established that a litigant in person cannot recover costs for work done relating to the litigation, nor for loss of time. He can only recover out-of-pocket costs: see London Scottish Benefits Society v Chorley (1884) 13 QBD 872 at 875, 877; Guss v Veenhuizen (1976) 136 CLR 47 at 51; AF Saddington: Taxation of Costs Between Parties at 13 - 15; Cachia v Hanes (1991) 23 NSWLR 304 CA; 179 CLR 403.

The application be dismissed.
The exhibits be returned.
The council pay costs of the respondent comprising disbursements.

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.

CITATION : Kogarah Council v McNicol [2001] NSWLEC 11 APPLICANT Kogarah Council PARTIES : RESPONDENT McNicol FILE NUMBER(S) : 40107 of 2000 CORAM: Cowdroy J KEY ISSUES: Costs - Development :- council alleging unauthorised fill on land - order issued by council - non-compliance by respondent - no evidence of a breach of local environmental plan - application dismissed - costs - disbursements only awarded to successful litigant appearing in person LEGISLATION CITED: Environmental Planning and Assessment Act 1979 AF Saddington: Taxation of Costs Between Parties 13 ; Cachia v Hanes (1991) 23 NSWLR 304 CA ; CASES CITED: Guss v Veenhuizen (1976) 136 CLR 47; Holroyd City Council v Murdoch (1994) 82 LGERA 197; London Scottish Benefits Society v Chorley (1884) 13 QBD 872 DATES OF HEARING: 24/01/01, 8/02/01 EX TEMPORE JUDGMENT DATE : 02/08/2001

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