Papadopoulos v Blue Mountains City Council

Land and Environment Court (NSW)|2015-10-22|Before: Craig J

Solicitors: Self-represented (Appellant) Marsdens Law Group (Respondent) File Number(s): 10507 of 2015

EX TEMPORE Judgment

Savvas Papadopoulos is the owner of a property known as 7-9 Richmond Avenue, Medlow Bath (the property). By an order given to him by Blue Mountains City Council (the Council) on 13 October 2014 he was required to remove two shipping containers located within the rear yard of that property. That order was given to Mr Papadopoulos by the Council under the provisions of s 121B(1) of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act).
Mr Papadopoulos appealed against that order, as he was entitled to do, under s 121ZK of the EPA Act. His appeal was heard by Commissioner Morris on 5 May 2015. In a judgment delivered on 21 May 2015, the Commissioner ordered that the appeal be dismissed; confirmed the order made by the Council on 13 October 2014 and extended the time for compliance to a period of 28 days from the date of her orders (Papadopoulos v Blue Mountains City Council [2015] NSWLEC 1169).
Exercising his right under s 56A of the Land and Environment Court Act 1979 (NSW) (the Court Act), Mr Papadopoulos now appeals from the whole of the decision of the Commissioner. In arguing his appeal before me he was self-represented, as he was before Commissioner Morris.

Grounds of appeal

The summons commencing the present appeal was filed on 15 June 2015. That summons states the grounds of appeal in the following terms: "1. I made it known to Commissioner Morris that I had decide (sic) before attending court on the 5th of May 2015 to withdraw my action against the Blue Mountains City Council but she went ahead, regardlessly, and "reserved her decision" which she brought in on the 21st of May 2015. 2. During the hearing on the 5th of May 2015, I made it know (sic) to Commissioner Morris that she was acting without jurisdiction as I had never consented to the matter being dealt with summarily, i.e.; with my having the benefit of exercising my inalienable Right to Trial by Jury to have the facts and the laws judged. The court not having obtained the clear and unequivocal consent for summary disposal render the court without jurisdiction and any awards, doings and proceedings were, by Due Process, wholly of no consequence or example. 3. The substantive issues relating to my Right to Property were disregarded - which alone brought the Court into disrepute and the conduct of Commissioner Morris ought to be brought to the attention of the Judicial Commission of NSW."
At the commencement of the hearing before me today Mr Papadopoulos listed the matters that he proposed to address. When I enquired as to how the matters he listed related to the grounds of appeal, he candidly acknowledged that, on reflection, further grounds needed to be stated. To accommodate that position I allowed a half-hour adjournment with the indication to Mr Papadopoulos that he should write out the additional grounds that he wished to argue and provide them to the Council's counsel. I stated that once the grounds were so provided I would be in a position to hear submissions as to whether leave to argue the new grounds should be granted. I also indicated that any application for leave would require me to consider the approach of the Council to his application.
Upon resumption I was handed a document which stated one additional ground. In effect it raised non-compliance with a notice to produce that had been issued and served by Mr Papadopoulos after the decision of Commissioner Morris had been delivered. That notice sought to have the Council produce documents to establish that it was "a consenting authority" for the purpose of exercising its functions over the property of Mr Papadopoulos. No other ground was identified.
Upon the Council indicating that it opposed the grant of leave to add that ground I declined to grant the leave that Mr Papadopoulos sought. I did so for two reasons that I then sought to explain to him. First, I stated that the document did not appear to go to any matter that was agitated before Commissioner Morris, that is, it did not appear to give rise to a question of law that in turn arose from an order or decision of the Commissioner. Secondly, I indicated that it was inconsistent with the provisions of s 56 of the Civil Procedure Act 2005 (NSW) in that the status of the Council, as a consent authority, to take the step that it did could not seriously be identified as a real issue arising in the proceedings. Further, allowing that additional ground would not lead to the resolution of the proceedings in a manner that was just, quick and cheap.
The appeal was first fixed for hearing on 15 September 2015. That hearing date was vacated by the Registrar on 17 August 2015. At that time Mr Papadopoulos appeared before the Registrar. It was then that the date for today's hearing was fixed. At that time the Registrar also gave directions for the preparation of the appeal for hearing, including a direction that Mr Papadopoulos should file and serve his written submissions by 15 October 2015. No written submissions were served in accordance with that direction and none have been provided today.

Nature of the appeal

The appeal initially brought by Mr Papadopoulos under s 121ZK fell within Class 1 of this Court's jurisdiction: s 17(d) of the Court Act. As a consequence, the further appeal right that Mr Papadopoulos has now exercised is circumscribed by the provisions of s 56A of the Court Act. That section relevantly provides: "56A Class 1, 2, 3 and 8 proceedings - appeals to the Court against decisions of Commissioners (1) A party to proceedings in Class 1, 2, 3 and 8 of the Court's jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners."
The constraints imposed by that subsection have been explained to Mr Papadopoulos.

The decision of the Commissioner

In her judgment, Commissioner Morris recorded that on 5 September 2014, the Council had given Mr Papadopoulos notice of its intention to issue an order requiring the removal of two shipping containers from his property. She noted that the stated reasons given for the proposed order was the "erection" of the shipping containers "without prior development consent of consent authority in a case where prior development consent is required" (at [3]). The notice of intention to issue the order was given to satisfy the requirement so to do by s 121H of the EPA Act.
Upon receiving that notice Mr Papadopoulos made representations in writing to the Council in respect of its proposed order. Those representations are recorded as having been considered by the Council. Nonetheless, the decision was made by the Council to issue the order that was given on 13 October 2014 (at [7]).
The Commissioner had earlier recorded that the order that was the subject of the appeal before her was given in accordance with order No 2 in the Table to s 121B(1). Order No 2 to that Table authorised the giving of an order to the owner of a building to remove that building where the building was erected without the prior development consent of a consent authority where prior development consent was required. Mr Papadopoulos was identified as the owner of the property in respect of which the order was given. The property was described as being "developed with a single storey brick dwelling house with attached double garage and older style, dilapidated shed building" (at [13]). The two containers that are the subject of the notice were located within the rear yard of the property (at [15]). The judgment records that the Commissioner had inspected the property (at [22]).
The statutory land use controls presently relevant to development of the property are those found in Blue Mountains Local Environmental Plan 2005 (the LEP). The property is identified as being within the Living - Bushland Conservation Zone under the LEP, with the land use table for land so zoned providing that "development ancillary to a dwelling house" was permissible only with development consent granted by the Council (at [17]).
Attention was then given by the Commissioner to the provisions of both the LEP and State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 in order to consider whether locating shipping containers on the property was "exempt development". By reference to nominated provisions of those instruments, she concluded that they did not constitute exempt development (at [19]). Her reasoning for so concluding is not the subject of challenge.
The Commissioner next made reference to the definition of "development ancillary to a dwelling house" in the Dictionary to the LEP, as well as the defined terms "building" and "temporary structure" in s 4 of the EPA Act. Understandably, reference to these definitions was made in order to found the conclusion, ultimately drawn at [33], that the containers were "buildings" that could only be installed on the property after development consent was first obtained for them as "development ancillary to a dwelling house". That finding, in turn, founded the conclusion expressed at [31]-[32] of her judgment that the order given by the Council to Mr Papadopoulos was "valid, remains in force and applies to the land".
The Commissioner recorded her understanding of the submissions made by Mr Papadopoulos at [26]-[27]. As there recorded, his contentions were: 1. the Council had no authority to issue the order as it infringes his rights as a property owner and is repugnant to the Constitution; 2. he has done nothing wrong and intends to use the containers as storage sheds and a workshop; 3. the containers could also serve as portable dwellings as wheels had been attached to them, although they did not contain any of the facilities of a "dwelling" as defined in the LEP; and 4. it would be inappropriate to construct a shed on the property to use as a workshop or for storage because of the large number of trees on the property, together with the strong winds and high rainfall that occurs in the area.
Having concluded that the containers were "buildings" and that the order given by the Council was appropriately given on the basis that I have earlier identified by reference to [31]-[33] of her judgment, the Commissioner said at [34]: "After consideration of Mr Papadopoulos's submissions, there are no reasons why the Order should not be confirmed. The placing of the two containers on the site is contrary to the objectives of the zone."

Ground of appeal 1: withdrawal of proceedings before the Commissioner

The question of law raised by this ground of appeal is not clearly understood. The entitlement of Mr Papadopoulos to have discontinued his appeal brought under s 121ZK is undoubted. The process by which proceedings are to be discontinued is governed by r 12.1 of the Uniform Civil Procedure Rules 2005 (the UCPR). That rule relevantly provides: "12.1 Discontinuance of proceedings (1) The plaintiff in any proceedings may, by filing a notice of discontinuance, discontinue the proceedings, either as to all claims for relief or as to all claims for relief so far as they concern a particular defendant: (a) with the consent of each active party in the proceedings, or (b) with the leave of the court."
The transcript of the proceedings before the Commissioner was tendered by agreement, for the purpose of this appeal (cf r 50.14(1) of the UCPR). It became Exhibit A. The transcript reveals that at the commencement of the hearing, recognising that Mr Papadopoulos was self-represented, the Commissioner explained the procedure to be followed at the hearing, including the opportunity for Mr Papadopoulos to give evidence. The Commissioner then invited the solicitor for the Council to open the case and tender relevant documents (a procedure commonly followed in hearing Class 1 appeals). Those documents included the representations that Mr Papadopoulos had made to the Council following receipt of the Council's notice of intention to issue the order that was ultimately given to him. When the Council's documentary case was concluded the following exchange took place (Tcpt 9:43-10:23): "APPLICANT: Commissioner, may I make you aware, I had made an offer to withdraw with the solicitor. COMMISSIONER: To withdraw or to enter into consent orders? How can you withdraw? APPLICANT: Withdraw the application. And I served a judgment [sic] with David Baird but, unfortunately, we're not having a very good agreement with that either, because it appears that Mr Baird's client sees the validity of the order and their insistence in proceeding to continue with the matter. COMMISSIONER: You haven't filed a notice of discontinuance, so the matter is currently before me? APPLICANT: I haven't filed it. I was requesting that Mr Baird would approach his client and have it approved by them. COMMISSIONER: Clearly - APPLICANT: That's not the case. COMMISSIONER: -- the notice of discontinuance needs to be filed with consent. What do you say to your case? APPLICANT: First of all, I can say it's very impressive. I'm surprised he stopped just there. I was waiting for more. Unfortunately, that's not the exact reason why I've challenged the matter. As I've stated in one of the letters, I've mentioned that I believe the order should not have been issued because, first of all, the authority of the council is in doubt. Personally, that's the main reason that I've stated in the letter, that the orders have been issued unlawfully."
Although r 12.1 of the UCPR was not referred to, in terms, by the Commissioner, the exchange just quoted makes apparent that the need for a notice of discontinuance to be filed was drawn to the attention of Mr Papadopoulos. While it may have been prudent for the Commissioner to have told Mr Papadopoulos that in the absence of consent from the Council the leave of the Court to discontinue his appeal could be sought by him, the failure to make that additional observation does not seem to me to constitute legal error on the part of the Commissioner. Moreover, the manner in which the matter then proceeded, whereby Mr Papadopoulos argued his case, strongly suggests that he wished to pursue his appeal. At no time following the quoted exchange was any further reference made by Mr Papadopoulos to the withdrawal or discontinuance of his appeal.
I find no basis upon which to discern any legal error by the Commissioner in proceeding to hear and determine the appeal as she did.

Appeal ground 2: trial by jury

If Mr Papadopoulos had a right for the trial of his appeal under s 121ZK to be conducted before a jury and such a trial had been denied to him, a question of law for determination by me would have arisen under s 56A of the Court Act. The difficulty confronting Mr Papadopoulos on this ground is that he has not identified the legal basis upon which he was entitled to have his appeal so tried.
I am not aware of any law, either State or Commonwealth, that requires any proceedings in this Court to be tried before a jury. There is no such provision in the Court Act. Moreover, the only Commonwealth provision of which I am aware, directed to the requirement for trial by jury, is s 80 of the Constitution. However, that provision applies only to the trial of a person charged with an indictable offence against any law of the Commonwealth, a different juristic entity from the State. Section 80 is therefore irrelevant to the present proceedings (Byrnes v The Queen [1999] HCA 38; 199 CLR 1 at [70]; Baker v Attorney General for New South Wales [2013] NSWCA 329 at [9]).
This ground of appeal is misconceived. The jurisdiction of the Court was properly and regularly invoked by Mr Papadopoulos under s 121ZK of the EPA Act and s 17 of the Court Act. Neither by reference to those Acts nor any other legislative requirement was there any basis upon which to claim a right to a hearing before a jury.
The appeal instituted by Mr Papadopoulos was an appeal against an administrative decision where both the exercise of that right and determination of the appeal depended entirely upon the terms of the statute. The determination of the appeal by the Commissioner did not involve the "summary disposal" of that appeal (Rafailidis v Roads and Maritime Services [2015] NSWCA 143 at [14]).

Ground 3: disregard of property rights

As I understand the submissions of Mr Papadopoulos, he contends that he has the legal entitlement to "self-determine" what is done on his property. He contends that to the extent that the EPA Act interferes with that right, it has no force because it conflicts with the Constitution. The provision with which conflict is said to arise was not identified by him. The only other reference that he gave in that context was to contend that the interference with his property rights conflicted with "legal maxims", the terms of which were not stated.
Further, Mr Papadopoulos contended that the order given to him under s 121B has no force because it was given by the Council. As "local government" is not recognised by the Constitution as a tier of government and as the Council is a local government body, it lacks any lawful authority to have given the order that is the subject of this appeal. To the extent to which the provisions of the EPA Act are relied upon as authority for the Council to give the order, for the reasons previously contended, that Act has no force.
There is no substance in this ground of appeal. The provisions of the EPA Act have not been shown to be inconsistent with any law of the Commonwealth such as to engage the provisions of s 109 of the Constitution.
Moreover, the order given by the Council to Mr Papadopoulos does no more than regulate the use of his land. Contrary to the claim implicit in his contention, the order does not seek to appropriate property.
Further, the absence of reference in the Constitution to "local government" as a tier of government has no present relevance. The State of New South Wales has the constitutional capacity to legislate to establish local councils, as it has done by enactment of the Local Government Act 1993 (NSW). The State may also legislate to provide council's so constituted with regulatory powers of the kind exercised by the Council in the present case.

Disposal of the appeal

As none of the three grounds of appeal have been made good, the appeal must be dismissed.
The Council seeks an order that Mr Papadopoulos pay its costs of the appeal. Mr Papadopoulos opposes the making of such an order.
The question of costs is governed by s 98 of the CPA and r 42.1 of the UCPR. The latter rule, to which the operation of s 98(1) is expressed to be subject, requires that costs "follow the event" unless the Court is persuaded that "some other order should be made". The "event" is the determination of the present appeal adversely to Mr Papadopoulos. He has not identified any matter that would require consideration to be given to "some other order". His assertion that the making of such an order would be unfair and unjust is founded upon his disagreement with the power of the Council to give the order that it did.
The fact that Mr Papadopoulos claims to be impecunious, while regrettable, is not a basis upon which to decline to make an order for costs where otherwise such an order is appropriate to be made. It needs to be understood that the making of an order for costs is not intended to be punitive, but rather is compensatory for some of the costs incurred by the successful party.
As I have indicated, the appeal is without substance and as a consequence it seems to me appropriate that an order for costs should be made.
For the reasons I have given I make the following orders: 1. Appeal dismissed 2. The appellant must pay the respondent's costs of the appeal.

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: 27 October 2015

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