Kudrynski v Wollongong City Council

Court of Appeal (NSW)|2013-12-10|Before: Macfarlan JA, Barrett JA, Gleeson JA, Sheahan J, MacFarlan JA

Judgment 1MACFARLAN JA: The appellants, Mr and Mrs Kudrynski, are the owners and occupiers of an irregularly shaped block of land located at West Wollongong in the municipality for which the respondent Council is responsible. A house and other structures are situated on the land, as is a large quantity of motor-related equipment and other material. On 7 April 2011 the Council issued a notice under s 121B of the Environmental Planning and Assessment Act 1979 ("the EPA Act") requiring the Kudrynskis to "demolish or remove" allegedly unauthorised structures that were on the land. At the same time, it issued a notice under s 124 of the Local Government Act 1993 requiring the Kudrynskis to remove and dispose of rubbish and refuse being stored on the land. 2After the Kudrynskis allegedly failed to comply with the notices, the Council commenced proceedings in the Land and Environment Court under s 123 of the EPA seeking orders that the Kudrynskis comply with the notices. At a hearing before Sheahan J in October 2012, the Kudrynskis opposed the making of the orders. However, in a judgment of 29 January 2013, his Honour found in favour of the Council and made the orders that it sought ([2013] NSWLEC 4). 3The Kudrynskis appealed to this Court under s 58 of the Land and Environment Court Act 1979 ("the LEC Act") against that decision (and by implication, his Honour's subsequent decision concerning costs). For reasons given below, my view is that the Kudrynskis have not shown that the primary judge erred in any material respect. As a result, their appeal should be dismissed with costs.

THE KUDRYNSKIS' GROUNDS OF APPEAL 9I turn now to consider the Kudrynskis' grounds of appeal. For ease of reference, I have given them the numbers appearing below.

(1): "My main case against Wollongong City Council was that C. Thorne conspired to pervert the course of justice. This came in the proceedings when I held 91/711 approval of pool cover by Wollongong City Council 6/6/1991 and said C. Thorne had this approval of the pool cover in one hand but with the other hand filled out demolition order item 8 'pool cover to be demolished as it is not shown on any approvals held by Council'. 'This is a blatant lie and I want a ruling on this and I want the ruling now'. To this your Honour replied 'How else could we get you into court?'" 10The thrust of this ground of appeal is that Mr Christopher Thorn, a Council officer who gave evidence, ordered the demolition of a pool enclosure (or "cover") on the property on the basis that it was unauthorised when he knew that it had in fact been approved. The Council did not ultimately press for any order relating to the pool enclosure, with the result that at best for the Kudrynskis this point is relevant to Mr Thorn's credit. 11There is however in my view no substance in it. Mr Thorn gave evidence that he believed that the building approval relied upon was not "reflective of what is on the site" and that the structure was therefore not approved. Despite Mr Kudrynski's lengthy cross-examination of Mr Thorn, the primary judge found "nothing adverse to the credit" of Mr Thorn (Judgment [72]). The Kudrynskis have not demonstrated, as would be necessary for them to succeed on their challenge to this finding, that it was contrary to "incontrovertible facts or uncontested testimony" or was "glaringly improbable" or "contrary to compelling inferences" (Fox v Percy [2003] HCA 22; 214 CLR 118 at [28] - [29]).

(2): "With the G. Coward letter I made at least two mistakes: (i) I assumed the word "approval" meant "approval" (ii) I carried out the work he ordered me to do. The majority of this work now has to be demolished. Wollongong City Council was unable to produce these 'approvals held'" 12This ground refers to a letter dated 17 May 1994 from the Council's General Manager to the Kudrynskis. I agree with the primary judge's conclusion that this letter does not support the Kudrynskis' contention that any of the structures now in question received Council approval. More specific reference to this letter is made below in relation to Grounds 8, 9 and 10.

(3): "The original demolition order covered all structures visible from Google except (C). This structure was added at 4.00pm on 23/10/2012, i.e. after the case had finished" 13This ground of appeal relates to the "first floor loft", described by the primary judge as "Structure C". Council's order of 7 April 2011 required demolition of this structure. It referred to "the tiled roof shed structure and attached loft structure located upon on the southern property boundary" (emphasis added), with a photograph showing the loft attached. The Council's summons sought an order in similar terms and Mr Thorn was cross-examined about the structure. 14In these circumstances the Kudrynskis' suggestion that they were taken by surprise by the request for an order relating to the loft should be rejected.

(4): "The orders of 7/4/2011 were not handed to my representative until 9/5/11 (thirty-two days afterwards). The LEC (Land and Environment Court) would not accept an appeal as it was more than twenty-eight days" 15Mr Thorn gave evidence that the orders of 7 April 2011 were sent by pre-paid post to the Kudrynskis on 8 April 2011. In the absence of evidence suggesting otherwise, they were taken to have been received on the fourth working day after posting (Interpretation Act 1987 s 76(1)(b); see also EPA Act s 153(2)). The Kudrynskis had 28 days thereafter to appeal (EPA Act s 121Z; see also LEC Act s 17(d). The assertion in this ground of appeal that the Kudrynskis did not receive the notices until 9 May 2011 does not appear to have been reflected in any evidence given by them before the primary judge. In any event, the absence of an appeal did not prevent them opposing the enforcement orders sought from the LEC (see Warringah Council v Sedevcic (1987) 10 NSWLR 335 at 339 as to the width of the Court's discretion in enforcement proceedings). 16This ground of appeal should accordingly be rejected as the Kudrynskis have not identified any unfairness they have suffered which may have affected the integrity of the proceedings in the LEC.

(5): "Photographs held by the LEC are the result of an illegal search warrant and photos taken over the fence from private property" 17On 27 September 2011 a warrant to search the Kudrynskis' premises was issued under s 118K of the EPA Act for the purpose of enabling the Council to collect evidence about the allegedly unauthorised structures on the land. Contrary to s 66(2) of the Law Enforcement (Powers and Responsibilities) Act 2002, the warrant did not specify the names of the Kudrynskis as occupiers of the subject premises. Further, contrary to Regulation 7(a) of the Law Enforcement (Powers and Responsibilities) Regulation 2005 and Form 18 thereunder, the notice required to be given to the occupier in relation to the search warrant did not specify the (reasonable) grounds for issue of the warrant or state the time of day on 27 September 2011 at which the search warrant was issued. 18Mr Thorn gave evidence that when he attended the property to execute the search warrant, Mr Kudrynski "proceeded to read [it] for approximately three (3) minutes", that shortly thereafter Mr Thorn "proceeded to read out from my copy of the search warrant" and that he said to Mr Kudrynski "this is Council's copy [of the search warrant] [from] which I just read the reasons for our attendance". This Court was informed that this evidence was not the subject of cross-examination, or conflicting evidence from Mr Kudrynski, save that Mr Kudrynski said in an affidavit that he was "not allowed to read WCC warrant during search 28/9/2011". 19It is unnecessary to determine whether the deficiencies in the warrant and occupier's notice affected the validity of the search warrant. I assume in what follows that they did and that the evidence, principally of photographs, obtained on the warrant's execution was illegally obtained evidence. 20Illegally obtained evidence is not per se inadmissible. Section 138(1) of the Evidence Act 1995 provides that it is not to be admitted "unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained". Section 138(3) provides that a number of matters are to be taken into account in determining whether this qualification applies. These include: "(a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless ... " 21The Kudrynskis did not object to the admission of the evidence. However, I do not consider that, if they had, it is at all likely that the evidence would have been rejected, at least not without the Court allowing the Council the opportunity to obtain evidence in substitution for it. Relevant in this context is that the evidence was of significant probative value as it depicted the state of the premises; the Kudrynskis did not dispute that the photographs taken during the search accurately depicted the state of the premises both at that time and over a lengthy period; and the Kudrynskis have not suggested that evidence to the same effect could not have been obtained by the Council on the issue of a further warrant if that of 27 September 2011 had been held invalid. Furthermore, by reason of a lengthy history of dealings with the Council concerning the state of the property and approval of its structures and in particular the issue of the Notices of 7 April 2011, the Kudrynskis were well aware of the reasons and bases for the Council seeking the issue of a search warrant. 22This ground of appeal also relates to photographs taken by the Council "from over the fence from private property". The Kudrynskis did not object at first instance to the tender of these photographs on this (or any other) basis. They have not indicated why an objection, if taken, would have led to rejection of the tender, at least when there was no evidence that the owners of the nearby "private property" did not authorise the Council to take the photographs from their land. 23For these reasons, this ground of appeal should be rejected.

(6): "Had your Honour accepted the evidence of L. Kitchener that would have confirmed statements by four people that C. Thorne did not/could not have come out when he said he did. The fact that he swore that V. King came out with him shows he lies with impunity" 24This ground is concerned with an issue that can at best for the Kudynskis relate only to the credit of Mr Thorn. Mr Thorn said in evidence that he attended the property on 4 April 2011 in response to an invitation contained in a letter dated 28 March 2011 from Mr Kudrynski to the Council. Mr Thorn said that the Kudrynskis were not home at the appointed time. Mr Kudrynski denied that Mr Thorn in fact attended and, in support of an assertion that Mr Thorn could not have known of the invitation to do so, relied on a subsequent note in Council's records from Ms Leonie Kitchener to Mr Thorn indicating that Mr Kudrynski's letter was not seen by Mr Thorn until after the appointed date because Ms Kitchener had not by then had the chance to update the Council files. Mr Thorn however gave evidence that, notwithstanding that Mr Kudrynski's letter was not brought to his attention through the usual channels, he became aware of it prior to the appointed date because, in accordance with his usual practice, he made a personal check of the receipt of letters by Council. 25As noted earlier, despite lengthy cross-examination, the primary judge made no finding adverse to Mr Thorn's credit. As on appeal the Kudrynskis were not able to identify any good reason for rejecting Mr Thorn's explanation on this point, this ground of appeal should be rejected.

(7): "My bundle of over 500 sheets (para 69 of judgment) were NOT my documents but documents produced by Council when ordered to do so by L.E.C. Even though WCC held relevant documents in Oct 2010 they maintained they held no such documentation even when they issued the warrant for LEC in Feb 2012. Only a kangaroo court would accept ABSENCE OF PROOF as PROOF OF ABSENCE" 26Paragraph [69] of the judgment is in the following terms: "69 While [Mr Kudrynski] publicly claimed (in Exhibit K3) that Council had lost, or removed from its files, key documents which would support his case on the structures, he produced more than 500 documents from his own papers which he said validated his contentions. Among those, he relied on some in particular, but, clearly, the 1994-95 letters do not validate Mr Kudrynski's claims of even 'tacit', or implied/inferred approvals. As Thorn commented (T22.10.12, p60, L1), they acknowledge only the existence of structures on the land, including a fence which might mitigate the offending appearance of the site." 27The primary judge's reference to Mr Kudrynski producing "more than 500 documents from his own papers" was not well expressed. Mr Kudrynski may have produced copies from his papers but, as his Honour was well aware, the documents originated from the Council's files. However, the inaccurate impression created by the reference is of no consequence. 28Mr Kudrynski was not able to identify any record that proved that the Council had approved the construction of any of the structures the subject of the primary judge's orders. The records did evidence the approval of a carport but there is no basis for rejecting his Honour's conclusion that the carport structure (Structure A) referred to in his orders is different in shape and size from what was approved. The carport is referred to further under Ground 8. 29Mr Kudrynski referred on appeal to 1990 and 1991 plans approved by Council. However, the approvals clearly only related to the "proposed additions" described on those plans. These included a "proposed swimming pool cover". Contrary to the Kudrynskis submission these approvals could not reasonably be taken as applying to various structures described on the plans as "existing".

(8): "Carport (A) should not be altered to BA 87/1448 with floor area of 48m² as subsequent approvals allow for a floor area of 104m² (judgment p16)" 30The primary judge's orders required that the carport (Structure A) be removed or demolished to the extent necessary to confine it to the carport of 48m² in area approved in 1987. 31The Kudrynskis relied upon the letter to them of 17 May 1994 from the Council's General Manager (see [12] above) in their challenge to this order. After indicating that "an examination of relevant Council files has occurred", the letter said: "This examination has revealed that approvals have been granted for the following buildings having the approximate floor area indicated: Dwelling 296 m²

32Amongst the large quantity of Council documentation that was in evidence, this was the only indication that approval may have been granted for a carport larger than 48m² (excluding the eaves). There was in evidence a 1987 approval of a carport of 48m² and there were references in subsequent Council documents to unauthorised additions to that which had been approved. Mr Kudrynski and his wife were the owners and occupiers of the property throughout the relevant period, but did not give evidence of any further approval. 33Bearing in mind the Council's concern about the structural adequacy of the carport, understandable in light of the appearance of it in photographs in evidence, I consider that this Court should be slow to depart from the primary judge's conclusion that the reference in the letter of 17 May 1994 to a 104m² sized carport was insufficient to establish that approval had been given to the present structure. The probabilities are that the reference in that letter to approval of a carport of 104m² was an error of some description, perhaps of transposition or transcription. In my view, the Kudrynskis have not established that the primary judge erred in making the order that he did in relation to the carport.

(9) "Loft (C) is a part of Council's approvals for which plans have been lost (judgment p16 and 17 para 3)" 34This ground of appeal refers to issue 3 listed in the letter of 17 May 1994 which is quoted on pages 16 and 17 ([57]) of the judgment. In that letter the Council's General Manager stated that "[d]uring the inspection with you a number of issues were noted that needed resolution". Issue 3 was described as "COMPLETION OF DWELLING ROOF" about which it was said that "[t]he current extended ridge line of the dwelling is unsightly and requires completion in a good and workmanlike manner". This is where the loft structure (C) is situated. 35I do not consider that his Honour erred in finding that this reference to the loft in the letter of 17 May 1994 did not constitute building approval of it. It simply identified it as an issue that needed to be addressed. Again the Council's concerns about structural inadequacy appear well justified by the appearance of the structure in the photographs in evidence.

(10) "'Screening was ordered to be up by WCC (p17 1(a))'" 36This is again a reference to the list of issues in the letter of 17 May 1994. Issue 1 stated in that letter (quoted on page 17 (at [57] of the judgment) refers to the absence of "suitable screening on elevations of the buildings". Contrary to the Kudrynskis' assertion, this did not amount to an order for such screening to be erected, nor to approval for that to occur. Further, it is not clear that the reference to screening is in any event a reference to fencing which is the only possibly relevant structure to which this ground of appeal might relate.

(11): " Building[s] G F D do not require any approvals" 37According to Mr Kudrynski's evidence, Structures D, F and G were erected in the period from 1990 to 2000. Unless they constituted exempt developments, development consent for them was accordingly required under the Wollongong Local Environment Plan 1990. The Kudrynskis did not identify any arguable basis for concluding that the primary judge erred in finding that these structures were not exempt and therefore required development consent.

(12): "WCC has provided no evidence the property is unsafe or harbour[s] vermin over the many years" 38As indicated earlier (see [8]), the primary judge found that the evidence raised serious concerns about "fire risk, risks to human health and/or safety, and risk of invasion by and breeding of pests, vermin, etc". The photographs in evidence provide strong support for that conclusion. The Kudrynskis did not identify any arguable basis for concluding that his Honour erred in making the finding.

(13): " WCC orders of 7/4/2011 are unsigned" 39There was no evidence that the orders of 7 April 2011 were signed but the Kudrynskis did not point to any statutory or other requirement that they be signed.

(14): "Commonwealth of Australia Constitution (fee simple)" 40The Kudrynskis did not identify the point that they sought to make by this ground. In the absence of any explanation of it, the ground should be rejected.

CONCLUSION 41In addition to their submissions concerned directly with the grounds of appeal referred to above, the Kudrynskis made various other criticisms of the Council and its officers. In my view, none of these criticisms raised any arguable basis for concluding that the primary judge erred in making the orders the subject of this appeal. 42As the Kudrynskis have not established that any of their grounds of appeal have merit, their appeal should be dismissed with costs. 43BARRETT JA: I agree with Macfarlan JA. 44GLEESON JA: I agree with Macfarlan JA.

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. Decision last updated: 20 December 2013

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