Warringah Council v Ulrich

DATE OF JUDGMENT DELIVERY: 09/24/1999

APPLICANT: Mr J Hannaford (Solicitor)

SOLICITORS: Wilshire Webb LEGAL REPRESENTATIVES: RESPONDENT: Mr W Marks (Barrister)

SOLICITORS: Walker, Hedges & Co

IN THE LAND AND Matter No. 40105 of 1998 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 24 September 1999

Warringah Council Applicant v Joachim Ulrich Respondent

The respondent is the owner of the property known as 17 Ballyshannon Road, Killarney Heights.

The land is within Zone No 2(a) (Residential "A") under Warringah Local Environmental Plan 1985 (the LEP).

Dwelling houses are permissible in the zone without development consent. Prohibited development is listed in the Table and includes junk yards.

Any purpose other than the purpose for which development may be carried out without development consent or a purpose for which development is prohibited is permissible only with development consent.

Clause 5(1) of the LEP defines a junk yard as follows:- "junk yard" means land used for the collection, storage, abandonment or sale of scrap metals, waste paper, rags, bottles or other scrap materials or goods used for the collecting, dismantling, storage, salvaging or abandonment of automobiles or other vehicles or machinery or for the sale of parts thereof

No development consent has been granted in respect of the land of the respondent.

The council alleges that the respondent is using the land for the purpose of a junk yard as defined in the LEP. Alternatively, it is alleged that if the use is not prohibited as a junk yard, the respondent is using the land for an innominate use in respect of which development consent has not been obtained.

The properties adjoining and within the immediate locality of the subject land in Ballyshannon Road have been fully developed by the erection of dwelling houses.

The Court has the benefit of a view, evidence from adjoining and nearby residents and a council officer together with a number of photographs.

The front, rear and side yards, including an area within a partly constructed car port, are used as a repository for paraphernalia belonging to the respondent. The paraphernalia consists of a wide range of articles including furniture, electrical equipment, household appliances and utensils, books, magazines and papers, tools, toys, ornaments, bedding and other miscellanea comprising odds and ends.

The respondent in his oral evidence claimed that he uses many of the items from time to time, including one of the television sets and reading material, as part of his outdoor relaxation. He admits that the appearance is untidy but contends that it is difficult to observe most of the material from outside the boundary of the property as the view is obscured by a wall about a metre high at the front, overgrowing shubbery and trees and the rear boundary fences.

Mr Ulrich also explained that he has an interest in "tinkering" .

Although not agreeing that any of the articles were displayed for sale from time to time, he did not deny that articles had been placed on the front fence so that he could peruse them before taking them somewhere else. However, he did agree that a small number of items, including electrical appliances which he had repaired or renovated, were occasionally sold to businesses such as Cash Converters. Because these goods were sold at considerable discount, he describes his activity in this respect as being in the nature of a charitable occupation. He estimates that the cash generated would be approximately at the rate of one dollar per hour for the time spent.

On 30 October 1990 a notice under s 510A of the Local Government Act 1919, as it then was, was issued by council to the respondent. The notice required the abatement of unsightly conditions on the land. Following non-compliance, council took action in the Local Court. These proceedings had been adjourned several times, while negotiations continued, when, on 10 May 1991, a notice under the Public Health Act to abate a nuisance within 60 days was issued by the council against the respondent.

On 28 October 1991 proceedings in relation to the non-compliance with the s 510A notice and the complaint under the Public Health Act were heard in the Manly Local Court. Orders were made by consent.

The effect of the orders was that all machinery, covers, goods and materials located in the front garden and along the sides of the dwelling were to be removed within 40 days and from the rear garden within 90 days. From 28 October 1991 the accumulation of any machinery, covers, goods and materials was ordered to be located within the partly constructed car port and two designated storage areas and not to exceed two metres in height.

A site inspection carried out by council officers on 8 January 1992 revealed that the consent orders had not been complied with.

A further inspection on 6 May 1992 revealed that the Court orders had not been complied with although some material had been removed from the land.

An inspection by a council officer prior to 22 May 1992 disclosed that the respondent had complied with the Public Health Order.

Finally by 10 July 1992 the respondent had complied with the consent orders made on 28 October 1991.

Nevertheless further complaints followed and on 9 December 1993 the council wrote to the respondent seeking his "immediate cooperation in removing any accumulation of materials from the front, side and rear yards which is not located within the partly constructed carport and storage area in Area 1 and within the storage area of Area 2 …" .

Complaints continued until ultimately the council served a Notice of Intention to issue an Order pursuant to s 124 of the Local Government Act 1993 (the LG Act) on the respondent on 24 June 1994. A s 124 Order was issued on 12 August 1994. This order was withdrawn and alternative procedures were undertaken by the council. These procedures resulted in the issue of an Order No. 10 and an Order No. 22 under s 124 of the LG Act on 1 February 1995.

On 2 August 1995, council entered the land and effected the removal of material. The respondent's failure to reimburse the council for the cost of the removal resulted in a judgment being entered in the Manly Local Court for the cost of the clean up.

On 9 October 1997, further Orders No. 10 and No. 22 were served on the respondent. These were revoked on 22 January 1998. On that same day, a further notice of a proposed Order No. 10 together with a direction to discontinue the alleged illegal use of the land as a junk yard within 28 days was forwarded to the respondent.

Correspondence between the council and solicitors acting for the respondent failed to resolve the matter so that on 1 June 1998 these proceedings were commenced.

For all relevant purposes, there has been no change in the state of the land since the proceedings commenced. Mr Ulrich has explained that he has deferred any further action until the legal position is clarified after the hearing.

Evidence from six local residents confirms that the respondent has been collecting materials on the land for over 20 years, probably for nearly 30 years. They variously complain about the unsightly conditions and the perceived potential health risks.

The council's case relies upon the alleged collection, storage and limited sale of scrap metals, waste paper, rags, bottles and other scrap materials to satisfy the Court that the respondent is using the premises for the purposes of a junk yard within the meaning of the statutory definition.

Mr Hannaford, the council's solicitor, submits that the use of the word "scrap" in the definition should be according to its ordinary meaning. He did not elaborate on what the ordinary meaning is. However, he does say that Mr Ulrich's opinion that the material is not scrap within the meaning of the definition is irrelevant.

Alternatively the council says that if the premises are not being used as a junk yard, then the use is some other use besides a dwelling. That use requires development consent. The argument is that the scope and extent of the collection, accumulation and storage of articles goes far beyond a use which may be regarded as ancillary to that of a dwelling house. It is to be properly seen as a separate use. Even if the Court regards the use as subordinate, Mr Hannaford submits that the scope of the goods stored on the premises is outside the range normally stored in connection with a dwelling house and is, therefore, an independent use ( Foodbarn Pty Ltd and Ors v Solicitor-General (1975) 32 LGRA 157 and Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404).

Mr Marks, appearing on behalf of the respondent, concedes that his client "keeps" second hand materials on the land. It is disputed that the use is for the purpose of a junk yard. A close study of the prohibited uses in the Table to the LEP discloses a commercial component in almost every other case. Mr Marks says that the activities of the respondent cannot be regarded as a commercial venture in the accepted sense. He relies on the definition of "scrap" in the Concise Oxford Dictionary as follows:- Small detached piece of something, fragment, remnant, … odds & ends, … useless remains

He also refers to the definition of "odds & ends" as "remnants or stray articles" .

Even if the Court is convinced otherwise, Mr Marks contends that having regard to the history of the way in which the council has dealt with this matter it is inappropriate for this Court to make orders, particularly where the proposed orders are inconsistent with the existing consent orders made in the Manly Local Court.

Finally, Mr Marks suggests that the evidence of the local residents does not establish any environmental harm as their concerns are mainly related to the aesthetic effect and the repute of the area which generally consists of neat and tidy homes with well kept gardens. According to Mr Marks, there is no direct evidence of the presence of vermin or other health effects. The complaints of the local residents in that latter respect are based on conjecture.

Whether the use of the land is for the purpose of a junk yard

The Court is satisfied that the range and extent of goods stored around the respondent's dwelling goes far beyond the normal expectations for a dwelling house. The photographs produced by the council and the Court's own inspection of the site are demonstrative of this. Although the area comprised within the curtilage of a dwelling is often used for the storage of household and other items, it is not generally to an extent which excludes any other use by impeding the physical occupation and enjoyment of the land surrounding the house. That is the case here.

The plethora of goods comprising television sets, cooking utensils, lounge room furniture, a number of lawn mowers, ornaments, bedding, books and magazines, dolls and teddy bears, baby strollers, electrical appliances, including heaters and amplifiers, together with a host of other articles too numerous to mention, is grossly outside the range of items the Court would expect to find in the average domestic yard, to the extent that the collection cannot be regarded as ancillary to the use of the premises as a dwelling house. It is clearly a distinct and separate use.

The council has not proved that the goods cannot be used for their original design purpose. Although some may be in need of repair or modification as Mr Ulrich readily admits. There is no specific evidence which would justify a finding that the material stored on the land can be categorised as rubbish or useless. The claim by Mr Ulrich that the items generally have utility has not been refuted.

Although some of the stored items comprise metal, that does not directly lead to the conclusion they are scrap metal unless they can be no longer used for their original purpose or the prospect of restoring them has been abandoned.

Waste paper denotes a lack of utility for reading or any other purpose for which the paper was originally designed or used.

In the context of the definition of a "junk yard" the reference to rags and bottles connotes that they are respectively worn out or empty.

The council concedes that there are no parts of automobiles, vehicles or other machinery or the parts thereof on the premises.

Accordingly there is no evidence of the collection or storage of scrap materials in the sense that they have been discarded as useless, unwanted or worn out. They have not been discarded and there is no disclosed significant intention to rework or recycle them.

In the circumstances, the Court cannot be satisfied that the articles stored or collected on the land fall within the description of the materials referred to in the definition of "junk yard" .

Whether the use comprises an innominate separate use

I have already explained that the collection of goods goes well beyond the expectation of what might be found within the area or land immediately surrounding a dwelling house.

The Court is satisfied therefore that the use of the area surrounding the house for the collection and storage of the items belonging to Mr Ulrich is a distinct and separate use to that of a dwelling house.

It is open for the Court to conclude that the whole of the premises is used for two purposes, neither of which subserves the other.

The use for the purpose of a dwelling house is permissible under the LEP without development consent.

The use for the storage, collection and display of the range of goods kept by Mr Ulrich in the garden of the house is relevantly independent to the use for the purpose of a dwelling house.

In other words, two independent and separate activities are being carried on at the same time on the premises, neither of which is ancillary to the other.

They are dual purposes which are inconsistent with each other. This is so notwithstanding that both uses are carried on within the same parcel of land.

Even if the use of the garden by Mr Ulrich could be regarded as ancillary to his use of the dwelling house, the former by reason of its nature and extent is clearly capable of being categorised as an independent use and accordingly must be dealt with as such for the purpose of the LEP.

However the use of the land surrounding the dwelling house by Mr Ulrich is to be identified, it is not a use for the purposes of a dwelling house.

I am not satisfied that it falls within the definition of a junk yard. It has not been argued by the council that the use falls within any of the other specified prohibited purposes.

The Court is satisfied that the use of land by the respondent, Mr Ulrich for storage and display purposes is an innominate use and therefore requires development consent pursuant to the LEP.

It follows from the above findings of fact that Mr Ulrich can only continue to use the land for the purpose of keeping his goods and chattels if he has the benefit of a development consent.

The present use to which the land surrounding the dwelling house is being put is illegal. 57. The council is entitled to a declaration and orders which restrain Mr Ulrich from using the land for the storage of goods outside the dwelling house without the requisite development consent.

58. It is not appropriate in my opinion to resolve the issues in this case by reference back to the scheme of the consent orders made in the Manly Local Court. There is no question of res judicata as the earlier proceedings relied on different statutory provisions. In any event, the factual basis has changed.

59. Mr Ulrich has demonstrated that he is not capable of understanding what is required of him in order to comply with the law. Thus, drastic and strict measures are called for.

60. Nevertheless, a reasonable time for compliance must be allowed.

61. I direct that the applicant council bring in the form of orders to reflect the above determination within seven days.

62. After a further period of seven days, either party has liberty to restore for the purpose of settling the form of final orders on two days notice. If no application is made within 21 days from today, final orders will be made without further reference to the parties.

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.