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[2013] NSWLEC 4
Land and Environment Court (NSW)
2013-01-29
Sheahan J
Original judgment source is linked above.
Introduction 1Council seeks orders from the court, consistent with statutory notices/orders which it issued against the respondents, Mr and Mrs Kudrynski, under the Environmental Planning and Assessment Act 1979 ('EPA Act') and the Local Government Act 1993 ('LG Act'). 2The proceedings concern (a) allegedly unauthorised "structures", and (b) accumulated materials which Council considers "rubbish", on land the Kudrynskis own within Council's area. 3The respondents' land ('the subject site') is located at 14-16 Highway Avenue, West Wollongong, and also known as Lot 2 DP 599479. It would appear from the title search that they acquired some of the land on 12 July 1968, and some on 23 April 1979. It is an unusually shaped block with the "F1" motorway behind it (Certificate of Title Vol 13801 Fol 144; see search report in Exhibit C6, and T23.10.12, p65, L12). 4The subdivision plan (at tab 2 of Exhibit C1) indicates that the subject land has a boundary with an unnamed creek, and some 90% of the land area is said by Mr Kudrynski to have been unusable until filled with a huge amount of road waste. 5Mr Kudrynski was a TAFE chemistry teacher, before retiring in January 1997. He has a Polish background, and arrived in Australia in 1950, as a refugee, from Tel Aviv. The respondents have been married for 45 years. Mrs Kudrynski gives her occupation as "house wife". They have four daughters and seven grandchildren. (See T23.10.12, p58, LL8-30). 6The land accommodates the respondents' huge accumulation of equipment (he told the ABC it included 36 mowers, 36 chainsaws, and 40 planers), and spare parts (he told the ABC he had 500 fan belts). In his sworn oral evidence, Mr Kudrynski moderated those numbers to, respectively, no more than 15, 12, 10, and 200. 7The respondents deny any commercial use of the subject land or materials, even though they accept reimbursement of the cost of collected items when it is offered (T23.10.12, p57, LL36-42). They say that the land and its improvements have been used solely to entertain family and friends, and to accommodate Mr Kudrynski's hobbies, such as welding and motor reconditioning (see T23.10.12, p65, LL14-31), and they appear to be highly resentful of neighbour complaints, and Council's interference in their affairs. Mr Kudrynski complains that Council should also deal with some neighbouring properties - "it's not as if it's a flashy area" (T23.10.12, p65, LL11-12). 8Prior to 1990, improvements built on land were governed by the Local Government Act 1919, e.g. s 311, and after 1990 by Wollongong Local Environmental Plan ('LEP') 1990, under which the land was zoned 2A "Residential A". The land is now zoned R2 "Low Density Residential" under the Wollongong LEP 2009, a zoning not materially different from the former 2A zoning. It would appear that the building of a modest residence on the land was approved in 1959. 9The respondents concede that some of the allegedly offending structures require approvals, but they claim there are such necessary approvals in place. Issues for the court, in considering the evidence, have been the ascertainment of exactly when allegedly unauthorised structures were constructed, and what approvals were necessary and obtained at those times. 10During the hearing, Council moderated the relief it sought in its statutory orders and the originating summons, as some of the evidence and argument clarified the correct historical situation regarding some of the subject structures, which the Council had not previously been able to investigate fully because of the respondents' failure to cooperate. I will define later the structures remaining of concern to Council ([45] below). 11At the conclusion of the two-day hearing, counsel for the Council (Mr R O'Gorman-Hughes) submitted final, revised short minutes of order dealing with the actual works in respect of which relief was sought, and made some preliminary submissions on the question of costs (T23.10.12, p68, LL42-48). 12Mr Kudrynski (who represented himself and his wife at the hearing) told the court that he understood the final form of the relief claimed (T23.10.12, p68, LL25-29), but he asked for the opportunity to make further submissions on costs, if Council were successful (Tp69, LL8-44). 13I reserved the court's decision, so that I could check the transcript on some matters of detail, and I indicated that I would invite written submissions on costs when I delivered judgment.
The sources of evidence 14The Council relied upon affidavit evidence, and supporting bundles of documents, from: (a) its Senior Development Project Officer, Christopher Robert Thorn - three affidavits, sworn 23 February 2012, 28 August 2012, and 19 October 2012, and bundles "CT1", "CT2" (comprising only the Wollongong LEP 2009), "CT3", and "CT4", which became, respectively, Exhibits C1, C2, C4 and C5. (b) its City Wide Development Manager, John Clifford Wood - one affidavit, sworn 16 May 2012, and bundle "JCW1", which became Exhibit C3. 15All of this Council officer evidence was admitted, with no objection from the respondents. Mr Thorn was closely cross-examined by Mr Kudrynski for almost four hours over the two days of the hearing, until restricted by the court, and Mr Wood was cross-examined more briefly (at the court's direction) on the second day. 16Council also relied on a property search (Exhibit C6), and a DVD of an ABC interview featuring Mr Kudrynski (Exhibit C7), who objected to neither exhibit. He said the interview was conducted in 2012, but the ABC website indicates it was around November 2011. Despite the admissions contained in the DVD, Mr Kudrynski told the court that he too relied upon it (T22.10.12, p18, LL35-45). He affirmed that position when he entered the witness box (T23.10.12, p38, LL10-20). 17When called to give evidence, Mr Thorn produced, in chief, without objection, a marked-up copy of the aerial photograph, which had been annexed to his first affidavit (as Annexure 'A'). It became Exhibit C8, and played a key role at the hearing of the case. 18Having terminated his short term engagement of a lawyer and of an expert, Mr Kudrynski conducted the defence case on behalf of both respondents, and with the assistance of his wife. He did not present their evidence until after Council's oral evidence was complete, and Mr O'Gorman-Hughes (counsel for the Council) had submitted to the court a set of draft orders, which represented some concessions on Council's part. 19The respondents relied on: The ABC interview (Exhibit C7 - see [16] above); One affidavit sworn by each of the Kudrynskis on 27 July 2012; Mr Kudrynski's oral evidence and submissions;
Background to the proceedings 22The Council has been concerned for some years, and has received complaints, about a number of structures, extensions and fences erected on the Kudrynskis' land, apparently without consent or approval, and mostly after 1977, and also about a large amount of alleged rubbish and refuse, which has accumulated and been stored on the land. 23The evidence indicates a history of warnings by Council, and of an earlier s 124 notice (dated 1 March 1994 - Exhibit K1, fols 396ff). Council also successfully took proceedings against the respondents in the Local Court in late 1994, and I will return later to some events of that period. 24I turn, however, to focus now upon the more recent relevant history: 25On 14 February 2011, after receipt of the most recent notices of Council's intention to issue orders, Mr Kudrynski wrote seeking an extension of time, due to a back condition, and Council responded on 3 March requesting that he provide a "staged works" plan in respect of compliance with the notices. 26A letter from him, dated 28 March 2011, asserted that he had "complied with the order to clean up my front yard" (Exhibit C1, tab 12), and nominated that he was available for an inspection to take place on Monday 4 April 2011, between 10.30 and 11.00am, but that it would be video-recorded, and may be used against the Council in court, in a case of harassment, intimidation and invasion of privacy. 27The letter of 28 March 2011 was marked for the attention of Mr Thorn, and it created much discussion at the hearing. 28Under cross-examination, Thorn adhered resolutely to his evidence that he had seen the letter of 28 March, in time to arrange a visit to the subject land on 4 April, despite the fact that Mr Kudrynski received a letter dated 20 April (tab 20) from Thorn's manager, Lorraine Baum, indicating that the Kudrynski letter, "was not provided to the investigating officer prior to this date". Thorn explained to the court the way the TRIM system operates in the Council in respect of correspondence, and deposed to his invariable practice of searching it each day for letters which may not yet have been entered on that system, but required his attention in the meantime. 29No works programme was submitted, and Thorn testified that he was not able to access the land on 4 April. (The Kudrynskis depose that no inspectors "turned up" between 10.15 and 11am). Inspection by Thorn, "from public land" nearby, indicated that the work specified in the notices had not been completed, but that works to the "front façade" had commenced. In those circumstances, two formal orders were issued to the respondents (Letter 7 April 2011, Exhibit C1, tab 13): (1)an order (Order No 21) under s 124 of the LG Act requiring the respondents to remove and dispose of rubbish from the property. (2)an order (Order No 2) under s 121B of the EPA Act, requiring the respondents to "demolish or remove" the unauthorised work; 30The LG Act order required the respondents to "remove and lawfully dispose of the accumulation of rubbish and refuse including but not limited to steel, metal, timber and associated materials from the premises, unauthorised shed structures and upon the roof of the dwelling house currently stored in an unsafe manner and in an inadequate manner providing a likely harbourage for vermin" (tab 14 of Exhibit C1). The reason stated for the order was that the property was not in a safe or healthy condition. 31The EPA Act order required the demolition/removal of 10 listed structures, including fencing. It was alleged that all had been built without prior development consent or a construction certificate, that they were not "exempt", that they were not the subject of diagrams, plans or approvals held by Council, nor were they shown on documents provided to the Council in the form of representations. The Council had not been given the opportunity to consider amenity impacts and safety factors. 32No appeals were lodged against these statutory Council orders; but, from as early as Mr Kudrynski's letter of 15 April 2011 to the Council, the respondents have stated, or invited the inference, that the structures nominated were "council approved". He also claimed on 15 April that he had undertaken a clean-up of the land. 33On 6 May 2011, Council was contacted by Mr Brian Bradley of BCS Inspections of Unanderra, who apparently was, at that time, acting on behalf of the respondents in respect of the orders (Exhibit C1, tab 17). He said he had seen a number of "plans, engineer certificates, DA Approvals and letters from Council" which the respondents claimed indicated Council had been aware of the existence of some of the structures now listed to be demolished. Council informed him on 9 May that the orders had been returned to Council "presumably by Mr and Mrs Kudrynski", and Council then provided them to Mr Bradley. 34Council confirmed to Bradley also that no development consents, buildings approvals, construction certificates or building certificates could be located to legitimise the works that Council had considered unauthorised at the time of issuing the notice. He was invited to provide any evidence that the respondents had, illustrating any such approvals for structures that Council considered unauthorised so that their representations could be considered. He was further informed that any structure not proven to have been previously approved, and not demolished, must comply with the definitions and requirements of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, or of Council's previous Development Control Plan 99/2 (Exempt Development). 35The Council's letter continued: "if such structures do not have approval or cannot be considered Exempt Development, appropriate applications should be submitted to Council in an attempt to seek retrospective acknowledgement for such structures". The contact person at the Council was nominated as Thorn. 36Bradley acknowledged to Thorn his receipt of the material forwarded to him, and indicated that he would get the respondents' instructions, and "arrange to bring their documentation to Council on Monday 23/5/11". 37On 26 May 2011, Bradley emailed Thorn indicating that, after several discussions with Kudrynski, they were unable to agree on a response to the Council's letter, and Bradley had decided that he would no longer act in the matter. 38Council wrote on 22 June 2011 to gain entry to the property to inspect the improvements. When entry was refused, a search warrant was obtained and an inspection carried out on 28 September 2011 (tab 24). It was apparent to the Council officers that the orders had not been complied with. Many photographs were taken. 39Council's solicitor wrote to the respondents on 12 December 2011 (tab 32 of Exhibit C1), attaching an aerial photograph (Exhibit K2) showing development on the property in respect of which development consent had not been obtained. As already noted (in [19] above), the shaded areas on Exhibit K2 were the subject of some dispute at the hearing in respect of what actually comprised the alleged offending "structure C". (See now [45] below).
The pleadings 40The Council issued its summons commencing these proceedings on 21 February 2012, and filed very detailed Points of Claim ('POC'), on 18 May 2012. The then alleged offending structures, apart from fencing, were described by the letters "A" to "H". 41On 29 June 2012, Mr Kudrynski filed Points of Defence ('POD'), which responded to each of the 82 POC with either "No" (62), or "I don't agree" (20), and nothing more, thus putting Council to strict proof of every element of its case (including Council's status, the respondents' ownership of the land, etc), and greatly exacerbating the potential cost of the litigation. 42He told the court (T22.10.12 p4, LL27-43) that he did not "realise the impact of" the POD, and even suggested that Pepper J had told him not to admit any POC (see T22.10.12 pp5-6), but he said he really contested "only two things", and was prepared to withdraw "everything" else. He then agreed that he did not seriously want the court to deal with every detail of the more formal POC in "that piecemeal way" (T22.10.12, p6, LL33-47).
Council's case 43Subsequent to the filing of POC, and then again during the hearing, Council withdrew its claims for relief in respect of several of the structures identified in various documents. 44In the result, the court has considered the orders as finally requested by Council (see short minutes entitled "Applicant's Proposed Orders 23.10.12", and its attachment "A"), in accordance with the marked-up photograph in Exhibit C8. 45Structure-by-structure (as they were finally defined by Council), adding in, for completeness, some of Mr Kudrynski's evidence, the matters before the court for decision concern:
The Respondents' position 48The respondents resist any grant of relief against them. 49They contend that they have "approvals", and that neither the relevant structures covered by the EPA Act order, nor the subject land itself, are unsafe, or untidy, as envisaged by the LG Act order. 50They did not appeal against the Council's orders, nor did they make any informative/constructive representations to Council in response to them (see, e.g., T22.10.12 p61, LL11-20); they made no application for any building certificate(s); and they steadfastly refused to co-operate with Council on matters such as granting access for the purposes of inspection by, and, perhaps, negotiation with, Council. 51There was some acceptance of fault by Mr Kudrynski, during the ABC interview, and some other conversations, the sworn accounts of which the respondents have not challenged. They do not specifically challenge the central argument of Council that, whenever constructed, all the offending structures required either building approval or development consent, and do not have it, constituting breaches of s 124 of the EPA Act. 52Much of Mr Kudrynski's questioning of Thorn wastefully explored, at length, totally irrelevant aspects of events on and between 28 March and 4 April 2011, but Mr Kudrynski insisted that he was testing the witness's credit. The continuation of the Thorn cross-examination on the second day merely added more irrelevant trivia to the complexity of the situation on the subject land (e.g. whether some materials on a roof were actually a hot water unit or not). Mr Kudrynski mixed submissions with questions, and re-visited most of the evidence given by Thorn on Day 1. (See T23.10.12, p14, LL10-11). 53The cross-examination of Wood served only to establish that the loft (structure C) was not covered by the Council's approval of the structure below it. 54Having not obeyed the direction to put on his evidence, especially on questions of approval and conformity, in advance of the hearing, Mr Kudrynski sought, by oral evidence and by reference to his and Mr Wood's bundles, to establish such matters (see T23.10.12, pp39ff). 55He could point to nothing going beyond Council representatives' noting the presence of certain structures on the land, and placed particular reliance on the facts (1) that "Garry Meusburger knew all the way along what was going on, came out and ... would warn myself and my wife to clean up the property ... over the last whatever, 10, 15 years"; (2) that George Coward also "came out with Garry Meusburger, measured the place accurately from street to rear"; and (3) that Coward then wrote a letter, on 17 May 1994, stating, Mr Kudrynski says, "that everything on the property was okay" (T23.12.10, p40, L49 - p41, L11). 56For completeness, I should deal specifically with the evidence of some events and negotiations during 1994-95 between Mr Kudrynski and Council officers Meusburger and Coward (See T22.10.12, pp52-60), resulting in two key items of correspondence, upon which Mr Kudrynski relies to argue that Council is now seeking to demolish "buildings that have been passed by" those two men (Tp57, LL32-5). In fairness to Mr Kudrynski's argument I will now set out the two letters in full. 57On 17 May 1994, the Council's General Manager wrote (Exhibit K1 fols 474, 482 and 486 - emphasis mine; see the first answer quoted in [59] below): LOT 2 DEP 599479 HIGHWAY AVENUE WEST WOLLONGONG Further to Council's letter of 1 March 1994 and the inspection of your premises by the Manager of Health and Building Division Mr George Coward and Council's Environmental Health Office Mr Garry Meusburger, I wish to advise that an examination of relevant Council files has occurred. This examination has revealed that approvals have been granted for the following buildings having the approximate floor area indicated: Dwelling 296 m² Workshop 48 m² Carport 104 m² Pool Enclosure 290 m² Rear Enclosure 164m² - - - - - 902 m²
While the figures are approximate they represent a very large floor area for a residential zone and as you are aware, an additional 57 m² unauthorised extension occurred to the enclosure at the rear of the property. During the inspection with you a number of issues were noted that need resolution. These issues have been reinforced from discussions with representatives of other properties in your vicinity. ISSUES TO BE RESOLVED 1. APPEARANCE OF EXISTING BUILDINGS The present appearance of the carport and rear enclosure is not of a satisfactory nature for a number of reasons: a. Building not completed in a good and workmanlike manner. b. No provision of suitable screening on elevations of the buildings. c. Large quantity of steel, machinery and other residential material stored inside structure. 2. STORAGE OF MATERIAL ON PROPERTY A significant section of the property is being used for the storage of steel, disused vehicles, equipment. This material is unsightly from adjoining properties and roads and is a potential harbourage for vermin. 3. COMPLETION OF DWELLING ROOF The current extended ridge line of the dwelling is unsightly and requires completion in a good and workmanlike manner. 4 UNAUTHORISED REAR ENCLOSURE While a 57m² unauthorised addition has occurred the design and use of this area needs to be rationalized. Council has not received satisfactory justification as to why an order would not be served to have this works (sic) demolished. What is proposed is that further discussions occur with you concerning the above issues to determine agreed to programs of works that will enable the issues raised above to be resolved to the satisfaction of yourself and the community. Your use of colorbond on the pool enclosure and completion of this structure has indicated that you can provide an aesthetic solution to the satisfaction of all parties. Please contact the Manager Health and Building Mr George Coward to enable further discussions to occur on the issues raised above. 58On 20 February 1995, Meusburger wrote to a strata management business (Exhibit K1 fol 354): Nº 14-16 HIGHWAY AVENUE WEST WOLLONGONG - REMOVAL OF SECOND HAND MATERIALS Council recently took action to order the removal of all the second hand materials from the site. A recent inspection revealed that some clearing had taken place and that a dividing fence has been erected which effectively screens the property. Unfortunately, because of the owners' actions, Council cannot proceed to take action against the owners to remove any remaining material under the specific terms of the Local Government Act 1993 Order Nº 10. Please note that Council is still proceeding with legal action for the illegal building on the property. Please also note that if you have concerns regarding the condition of the dividing fence or its construction, you will need to discuss your queries with a Chamber Magistrate of the Local Court who administers the Dividing Fences Act. For further enquires contact Mr G Meusburger of Council's Wollongong office, telephone 27 7336 between 9.00am and 10.00am Monday to Friday. 59When asked by the court to point out where the May 1994 letter said "everything ... was okay", Mr Kudrynski replied (p41, L14 - p42, L3 - as recorded, but with emphasis added): A. "This examination has revealed that the approvals have been granted for the following buildings with approximate floor area indicated" and the only problem that occurred on the building was an additional 55, 57 square metres of unauthorised extension occurred at the closure at the rear of the property. That was the only problem that occurred on the property at that particular stage. There was exceptions and the exception was during the inspection with a number of issues were noted that needed resolution. We all got together and they gave us a list. I worked my way through that particular list and the only thing that was left unresolved from that was a 57 square metres. The point that I note there most strongly is as strongly as I could your Honour is that the completion of the dwelling roof, the dwelling roof is in fact the loft that was untidy and Meusburger and Coward made me tidy that - that was the only problem with the loft was that the extent of the ridge line is unsightly and requires completion and it was completed in whenever May 94. There were a number of other buildings that needed, that needed correction but they were all corrected and I again emphasise that as at 17 May 94 that everything on the property and there was no question as to fencing at that stage. Coward did not bring up the fencing was there. There was no, there was no, it was not an issue. The fencing was not an issue and the only issue at that particular stage was the 57 metres and therefore any structures that had been built only after that date could be I presume could only be presented because before that approvals had been granted. We got together. We worked everything out. We do whatever was required off council at that particular time and nothing has happened since as far as I can remember. My memory is very poor and the only thing I can really count held accountable for is what is on documentation. I'm only reading on what's on the documentation. That would be my main submission to the Court that if any of those structures and council has already demonstrated that they wanted to demolish the workshop. They've already it's actually structure C is what they wanted to demolish. They don't realise that that's what they want to demolish but it is an approved structure so my main evidence would be on what this was an arrangement that we had. We had meetings beforehand. Notes were taken during these meetings. When I didn't turn up there I haven't got time to go through the documentation but I was informed that you haven't turned up or whatever, if I did something wrong. There was a close tab kept on me at that particular stage to make sure that this thing was completed properly. 60Mr Kudrynski then referred the court (Tp42) to Council's letter of 14 January 1994 (Exhibit K1, fols 3-4), being a notice of intention to give Mr Kudrynski an order under s 124 of the LG Act, referring particularly to Building Approval 711/91 (fols 101-2), some of its conditions, "eight amended plans to it" (Tp43, LL41-2), and a "non approved addition to the pool cover extension". He relied on the 20 February 1995 letter ([58]), and sought credit for the action he took "to screen the property", an action "accepted by Council right up to the present" (T23.10.12, p42, LL26-31). "... The fencing was never an issue until very recently" (Tp43, L46). 61He then noted that his recent problems with Council commenced with a complaint to Council from the strata managers of the neighbouring property, 10-12 Highway Avenue (fols 332-3) on 21 September 2010. Any inspection at that time, Mr Kudrynski says, would have indicated "that the dead trees and the falling fences and the falling branches were all on the neighbour's side of the property and not on our side ..." (Tp42, LL33-7), and he could have shown "that all of their rainwater ... flows through our place" and is drained by pits "we constructed ... and we didn't charge them a cent for it" (LL46-8). 62At that point in his evidence he tendered the public notice in the Mercury (Exhibit K3), and drew attention to his statements in the ABC interview about Council's rejection of his building applications for pool fencing and tennis court marking. 63He was closely cross-examined by Mr O'Gorman-Hughes (Tp44, L45 - p57, L44). 64During that evidence he was asked about a conversation between himself and Mr Meusburger on 19 September 1996 (Exhibit K1, fol 34). The following exchange occurred (T23.10.12, p52, LL24-35): Q. Do you recall him saying to you, "we will have to enter to substantiate what has been done since last count and the new complaints"? And the records say that you responded "what complaints, they couldn't see what I'm doing, so it's none of their business and because they can't see it's none of your business what I do on my property". Do you recall saying that to him? A. No, no. Q. Do you accept that you might have said that? A. It's a possibility. 65He was then taken to his letter to Council dated 9 August 1995 (fol 390) in which he indicated his proposal to "lift" his forklift structure when he needed "to work on vehicles under it", referred to complaints from his neighbour to the south, Annette Allen (see also filenote of 21 November 1994 at fol 411, and a letter from her, dated 8 March 1994, at fol 419), and threatened to work on vehicles in the street. He admitted that he was doing a lot of work on the land in the period 1993-94 (see Tpp52-4). 66In the context of his ABC interview, the following exchange occurred (Tp56, LL14-23): Q. And amongst other things you said the council have told you or told your wife that you wouldn't be doing any building work for the next 20 years and you responded "well I like a challenge like that". What did you mean when you said "well I like a challenge like that"? A. I remember the 20 years, I remember my wife telling me about the 20 years. Well I'm not, - they're challenging me not to do any, that I won't be doing any work in the next 20 years but that doesn't mean to say I didn't put in hundreds of plans and documentation and approvals and that bundle there, that bundle is only a small amount of the stuff that has been exchanged between us.
Consideration 67All of the structures still being challenged at the very end of the hearing required formal approval - the only one not requiring development consent is 'A', the carport which had a building approval granted before 1990, but is very different in shape and size from what was approved. In respect of all the others, including 'C', the granny flat "loft" component of what Mr Kudrynski said was approved as a sunroom, there is simply no consent in place for them in the form in which they now exist and are used. None of structures D, F and G qualify as "exempt", and Mr Kudrynski knew that development consent was required for such works at the time they were built. 68For all the weaknesses in the respondents' case and its presentation, Mr Kudrynski is to be commended for not conducting it on the basis indicated by his entirely negative POD (see [41] above). In essence, he simply argued, consistent with the burden of proof in matters of this type, that Council had approved the structures it now seeks to have demolished, and that his hobbies as a "collector" (see Warringah Council v Ulrich [2012] NSWLEC 234 ('Ulrich')) did not offend or interfere with the amenity of his neighbourhood. 69While he 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. 70The Council's case was not weakened at all by Mr Kudrynski's cross-examination of its officers, Wood and Thorn, but, as I have noted, some concessions on Council's part followed his exploration, with the witnesses, of the scope of some historic approvals. 71Exceedence of fence heights, and of the dimensions specified in some approvals, was made clear (e.g., the carport, at T22.10.12, p30), but Mr Kudrynski's assertions that other structures on the land enjoy some sort of "tacit" or inferred approval - by virtue of Council's mere knowledge of their existence, or their inspection or measurement by Council officers, without any issue being raised at the time, or their depiction on various plans and drawings known to Council, or even a handwritten "OK" endorsed on a document - were not made good. Nor do I accept that Council should be denied relief on the grounds of what Kudrynski called its "hideous error" in delineating the offending aspect of 'C' (on Exhibit K2), or on the basis that it resiled to some extent from a position which originally "threw the net over ... everything that was visible" (T23.10.12, p66, LL19-20), or on the basis that Mr Kudrynski may hold engineering certificates in respect of structures. 72In the end, I could find nothing adverse to the credit of those two Council officers, nor their evidence in this respect. The issue for the court is whether the necessary building or planning approvals were obtained. The respondents bear the onus of establishing that, and they have failed. They produced no approvals relevant to the structures, or parts of structures, which are the subject of the orders finally sought. On the other hand, I am satisfied that Council has established the absence of any legal approvals for any of them (See T22.10.12, p58, L47-p59, L27). 73The respondents made no coherent argument in favour of any exercise of the court's discretion in their favour, and Council adduced some evidence from Mr Kudrynski which would work against such an exercise of discretion, in any event. Council's delay in taking action worked to the respondents' advantage over many years. (See on the relevant principles, generally, Warringah Shire Council v Sedevic (1987) 10 NSWLR 335, per Kirby P, at 339-340). 74In fairness to the respondents, Mr O'Gorman-Hughes not only made appropriate concessions in favour of the respondents, but made good the legal arguments in favour of granting relief, which, in final form, varied somewhat from that sought in the statutory order regarding the structures, or in the relevant prayers in the summons. He also refrained from making any submissions against Mr Kudrynski on the question of his credit, Mr Kudrynski having attacked Thorn's credit, before contradicting on oath some of his own comments to the ABC ([6]). 75Mr O'Gorman-Hughes questioned Mr Kudrynski about structures B, E and H, in order to present a complete picture of works on the site (T23.10.12, pp45-51). All were built in the period 1991-94. Council, however, chose to seek no relief and make no submissions in respect of them. I am satisfied that Council is under no obligation to pursue or press for orders covering every single item in the statutory order. Had Mr Kudrynski entered into negotiations about them in response to the order, agreement may well have been reached before they became subjects of the summons. Claims in respect of them can be legally severed from the balance of the Council's order and summons, pursuant to application of s 32 of the Interpretation Act 1987, in respect of "instruments", as defined in s 3 of that Act, and construed by Cole J in Sloane v McDonald Industries (Sales) Pty Ltd (1989) 17 NSWLR 86, at 101, Talbot J in Wechsler v Auburn Council (1997) 130 LGERA 134, and Lloyd J in MLC Properties v Camden Council [1997] NSWLEC 130; 96 LGERA 52. 76I turn then to the question of whether Council is entitled to have a LG Act clean-up order made by the court to enforce that which was made by the Council. 77A s 124.21 order is sought by a Council against an owner "to ensure that land is, or premises are, placed or kept in a safe or healthy condition". 78Every photograph among the evidence, and the video footage taken by the ABC, clearly indicate to the court that the respondents' property as a whole is kept in an unsightly condition, raising serious concerns for the Council and the court about fire risk, risks to human health and/or safety, and risk of invasion by and breeding of pests, vermin, etc. 79Consistent with the old saying that "one man's trash is another man's treasure", minds differ on the status of individual items or classes of items, and on what may be required for normal "household pursuits", or for genuine hobby activities, and these dilemmas come before this court and Local Courts frequently. Often, as in this case, it has not been feasible for the regulator to gain access sufficient to enable a comprehensive inventory of items on the subject property to be prepared, and classification to occur, and some level of judicial notice is called for in such matters. 80Council issued its order on 7 April 2011, and the respondents say that they cleaned up the property by a date only eight days later (see [32] above), yet they failed to engage at all with Council on the substance of Council's concerns. No argument, beyond the assertions of tidiness, hobbies, etc. recorded above ([7] and [49]), has been made before the court as to why the enforcement order should not be made, and no negotiations have been conducted about specifics, c.f. Ulrich at [10]. (See, on such matters generally, the various decisions of this court in cases called Gerondal v Eurobodalla Shire Council ('Gerondal'), such as mine in judgment No 3 in that series ([2010] NSWLEC 60). 81 Photographs taken after 15 April 2011 indicate that any clean-up undertaken was completely inadequate, so I conclude that the order was not obeyed, and that the court should enforce it. Its terms (Exhibit C1, tab 14, and Annexure 'B' to the short minutes), required the respondents to: Remove and lawfully dispose of the accumulation of rubbish and refuse including but not limited to steel, metal, timber and associated materials from the premises, unauthorised shed structures and upon the roof of the dwelling house currently stored in an unsafe manner and in an adequate manner providing a likely harbourage for vermin. 82As the court anticipates that, as in Ulrich and Gerondal, a dispute will probably arise about the execution of the orders I have decided to make, and/or as to the ambit of the term "rubbish and refuse", Council should be granted liberty to apply.
Conclusion and Orders 83The Council has established its entitlement to orders in accordance with the short minutes filed in court at 4pm on 23 October 2012, save for the costs order (no 5 of the short minutes), upon which question I will make the order I indicated at the conclusion of the hearing. 84Accordingly, the court makes the following orders:
Wollongong City Council
Kudrynski & Anor
[1997] NSWLEC 130
(1989) 17 NSWLR 86
(1987) 10 NSWLR 335
(1997) 130 LGERA 134