Penrith City Council v Solanowski & Ors

Penrith City Council v Solanowski & Ors - [1999] NSWLEC 144 - NSWLEC 1999 case summary — Zoe

[60]

· Mr Solanowski was aware of the dumping of material on the affected lands prior to 8 November 1996. He admits to organising the dumping of some material, but not necessarily that which was eventually placed there, and to doing so without seeking consent. · Mr Solanowski admits that more material was dumped while he was away from the area between June 1997 and February 1998. He may not have consented to, nor organised, the dumping of that material, but the arrangements he made for care and supervision of his land while he was away leave a lot to be desired. · Any dumping after February 1998 was with the actual knowledge of Mr Solanowski. · Even though he may not have wilfully arranged for the dumping of offending material, he participated in, and controlled, dumping activity during 1996 and 1998. · None of the dumping of fill was authorised by development consent. · Mr Solanowski arranged for the removal of some of the offending material, again without seeking consent, but only on a swap basis, under which other material would be dumped, without consent, and the offending material removed. He also controlled the grading on the site of the remaining waste material. · Some of these unauthorised activities occurred after Mr Solanowski had been informed by Council on many occasions, both personally and in writing, that such works could not be undertaken without consent. Some also occurred after the interlocutory relief had been granted and had been communicated to him, and while he was having a series of meetings with Council. · The nature and extent of this dumping was not for " agricultural " purposes within the meaning of the term in the DCP. · The material has been placed on the property in such a manner and to such an extent that it gives rise to the likelihood of increasing flooding to adjoining properties and no sediment control measures have been introduced to prevent erosion of the material into the natural watercourse known as Rickaby's Creek. · On the balance of probabilities the material can be held to have caused some damage to native vegetation. In addition, significant undergrowth and possibly some trees have been cleared.

[88]

I declare that the First Respondent by himself, his servants or agents has carried out development or caused, permitted, or suffered the carrying out of development upon the property being lot 23 deposited plan 25981 and known as 20-28 Macpherson Road, Londonderry (" the property ") for the purposes of clearing the property, placing or tipping of fill thereon or the disposal upon the property of waste material including felled trees, tree wastes, tree stumps, soil, tyres and building and demolition wastes including broken concrete, masonry and masonry wastes (" the unauthorised development ") without the consent of the applicant, contrary to the Environmental Planning and Assessment Act 1979. 3. The First Respondent by himself, his servants or agents is hereby restrained from carrying out unauthorised development or causing, permitting or suffering the carrying out of unauthorised development upon the property without the consent of the applicant. 4. The First Respondent by himself, his servants or agents is restrained from raising the height of that part of the access track on the property that is represented in yellow on attached plan number 11589T2. 5. The First Respondent, at his cost and within 30 days of the date of this order, is ordered to spread the stockpiles of material represented in green on the plan numbered 11589T2 over access tracks on the property, other than that part of the access track represented on the plan numbered 11589T2 and referred to in order numbered 3 above. 6. Subject to order 9, I order that the First Respondent, at his cost and within 30 days of the date of this order, carry out the following drainage works to ensure that water ponding behind the access track in the area represented in orange on the plan numbered 11589T3v3 does not extend beyond the Property boundary as marked on that plan: (a) the construction or extension beyond deposited material of two additional pipes of 225 millimetres in diameter at 10.96m AHD under the existing access track at the location marked with the dotted lines on the plan numbered 11589T3v3; and (b) reshaping of the overflow channel from the existing pond in the area shaded orange on the plan numbered 11589T3v3 so that run-off from the pond is directed to pipes under the existing access track. 7. The First Respondent, at his cost, is ordered to obtain, within 21 days of the date of this order, a site characterisation report in relation to the material represented in red and blue on the plans numbered 11589T3v3 and 11589T4v2. Such report is to be prepared by a person who is accredited as a site auditor under the Contaminated Land Management Act 1997, and is to be prepared in accordance with the EPA guidelines entitled " Contaminated Sites - Sampling Design Guidelines " dated September 1995. 8. I order that, if the report obtained in accordance with order No.7 above states that the material represented in red and blue on the plans numbered 11589T3v3 and 11589T4v2 can be considered to be uncontaminated, the First Respondent, at his cost and within fourteen days of the date of obtaining the report, must remove all of the material represented in red on the plans numbered 11589T3v3 and 11589T4v2 from that area and spread that material over the area represented in yellow on the plan numbered 11589T3v3. Appropriate erosion/sediment controls (straw bales or sediment fence or a combination of both) shall be installed around the perimeter of all areas to be disturbed prior to commencement of work. All sediment control devices shall be maintained until revegetation of the disturbed area has been established. 9. Leave is granted to the parties to approach the Court for further orders on seven days' notice if: (a) the First Respondent is able to propose alternative drainage works to those specified in order 6 where such proposed alternative works are acceptable to the applicant; or (b) the report prepared in accordance with order 7 does not state that the material represented in red and blue on the plans numbered 11589T3v3 and 11589T4v2 can be considered to be uncontaminated. 10. The Second and Third Respondents are ordered to permit the First Respondent or his servants or agents to access the property known as 136 Reynolds Road, Londonderry and to carry out such works as are necessary on the said property to enable the First Respondent to comply with the above orders. 11. The First Respondent is ordered to pay the Council's costs in these proceedings, such costs to be as agreed or assessed, on a party-and-party basis, but I make no other order as to costs. 12. Exhibit P8 containing the plans referred to in these orders is to be retained in the Court file to assist in the interpretation and enforcement of these orders. 13. Exhibits P6 and S6 are also to be retained in the Court file, but Exhibits other than P6 , P8 and S6 are to be returned to the parties.

At a glance

Court

Decision date

Before

Source

Judgment (89 paragraphs)

Parties

Cases Cited (4)

Cited By (1)