Wollongong City Council v Leslie Kilpatrick & Margaret Kilpatrick

Introduction 1By summons filed 15 December 2010 Wollongong City Council ("the Council"), claims declaratory and injunctive relief against Leslie and Margaret Kilpatrick ("the Kilpatricks"), in respect of their use of land for the purpose of a waste management facility contrary to the Environment Planning and Assessment Act 1979 ("the EPAA"). The Council also seeks an order that the Kilpatricks remove the material constituting the use of the land as a waste management facility and lawfully dispose of it within 30 days. 2The Council and the Kilpatricks have, since the summons was filed, resolved the dispute between them and now seek the making of consent orders by the Court. At the hearing, additional time to comply with the proposed orders was sought by the Kilpatricks to that originally agreed to. After discussion with the Council, the amendments were agreed to.

Evidence of John Sharp 3In support of the summons, the Council relied on two affidavits of Mr John Sharp sworn 17 February 2011 and 6 April 2011. Mr Sharp is the Development Project Officer (Compliance) employed by the Council. Exhibited or annexed to the affidavits were: (a) photos taken by Mr Sharp on his inspections of the waste he observed on the land; and (b) correspondence passing between the parties, including various formal clean up notices issued by the Council. 4In his affidavits Mr Sharp deposed to the following facts: (a) that the land in question is Lot 9 DP 1126042, otherwise known as 24 Waynote Place, Unanderra ("the land"). It is owned by the Kilpatricks. Mr Sharp attended the land on numerous occasions for the purpose of inspection including on 8 and 22 September and 27 October 2009, 22 February, 7 and 22 October 2010, and 4 January, 16 February and 15 March 2011; (b) Initially, Mr Sharp attended the land on 8 September 2009 because the Council had received complaints regarding the use of the land as a waste facility; (c) as a consequence, Mr Sharp inspected the land on 22 September 2009 and on 24 September 2009, he had a conversation with Mr Leslie Kilpatrick, who readily admitted that the shipping containers, cement blocks, machinery, scrap metal trailers, steel and an assortment of other materials had been placed on the land by him. Mr Kilpatrick accepted that he did not have consent from the Council to undertake any business activities on the land that could constitute a waste facility; (d) as a consequence, on 20 October 2009, Mr Sharp caused an order under s 121B of the EPAA to be issued to the Kilpatricks; (e) on 27 October 2009, Mr Sharp again attended the land and observed that it was being used to store machinery, building materials and waste. He also observed a number of cars and trucks parked on the land; (f) on 5 November 2009, he caused a Clean Up Notice under s 91 of the Protection of the Environment Operations Act 1997 to be issued; (g) between 20 November 2009 and 12 October 2010, correspondence passed between the Council and the Kilpatricks and further inspections of the land took place. On each inspection, Mr Sharp observed piles of scrap metal and building waste, including building material. This resulted on 12 October 2010, in Mr Sharp issuing a further Direction to Take Clean Up Action to the Kilpatricks; (h) on 20 October 2010, Mr Sharp had a conversation with Mr Leslie Kilpatrick in which Mr Kilpatrick acknowledged that he had received the Clean Up Notice and that he was taking some steps to "clean up the place". Mr Kilpatrick conceded that the land was not a lawful waste facility for receiving, transferring or storing waste. He also conceded that he owned Steel City Metals, which was in the business of demolition work and which operated from the land; (i) on 21 October 2010, Mr Sharp inspected the land with Mr Craig Nolan, a Council officer. Mr Sharp noticed a number of skip bins and trucks were placed around the property and that piles of waste and other rubbish were visible; (j) This prompted a further letter on 1 November 2010 to the Kilpatricks concerning the unauthorised use of the land as a waste facility and the failures of the Kilpatricks to respond to the Clean Up Notice dated 22 February 2010, together with the additional notice requiring the production of information and records issued on the same date; (k) on 3 December 2010, the Council's lawyers wrote to the Kilpatricks advising them that unless the various orders served on them by the Council were complied with, legal proceedings would be instituted. No response was received to that letter prior to the commencement of proceedings in this Court; (l) on 4 January 2011, Mr Sharp attended the property and had a further conversation with Mr Kilpatrick. The conversation was in the form of a record of interview and Mr Kilpatrick was informed that the conversation would be recorded and could be used in Court. During the course of the interview, Mr Kilpatrick stated that he was the owner of the land and that there was no current approval to use the land as a waste storage, management and/or transfer facility. Mr Kilpatrick told Mr Sharp that a substantial amount of what appeared to be waste from demolition work observable on the site came from a Coles department store and had been placed on the land with his consent. The waste was present because the tip was closed and it had to be removed from the site from which it had been picked up. Thus the waste was temporarily deposited on the land for sorting and recycling. Mr Kilpatrick indicated that the land was not being used for the business activities of Steel City Metals but that his son, Paul, had a demolition business (Jericho Demolition) and that there was demolition waste on the land that had come from Paul's business activities; and (m) finally, that on 15 March 2011 Mr Sharp inspected the land again and observed that demolition waste and other waste continued to be stockpiled on the land. The waste he observed included bricks, timber, concrete, pvc piping, soil, vinyl, steel and metal wastes, tyres, plastic bottles and containers, broken glass, paper, rock, foam, air-conditioning piping, wire, fibro waste and panels and skip bins containing scrap steel and metal waste material. He also observed, approximately 2.5 metres from the southern curb and gutter of the land, four black containers marked Valvolin Diesel, CAT Engine Oil and CAT Lubricant or Oil. The containers were either full or partly full of liquid. There also appeared to be discoloration on the ground near the containers, consistent with the containers having leaked in that area. In addition, Mr Sharp observed within the gutter and curb adjacent to the land soil, metal and steel waste, timber, foam, vinyl and plastics. 5It was Mr Sharp's evidence that Wollongong Local Environmental Plan 2009 ("the LEP"), which was tendered at the hearing, applied to the land and that under the LEP the land was zoned IN3 - Heavy Industrial and E3 Environmental Management. The effect of the zoning under the LEP was that the operation of a waste facility on the land was not a permissible use absent consent. 6Mr Sharp indicated that he had searched the Council's file system and located a development application (DA 2010/771), which was lodged in respect of the land on 24 June 2010 ("the DA"). The DA sought consent for the construction of a metal transfer facility. The DA was rejected by the Council on 29 June 2010. On 18 August 2010, a further development application in respect of the land was lodged with the Council seeking consent for the same use as the first DA (DA 2010/1057). This subsequent development application had also been rejected by the Council on 20 August 2010. 7Mr Sharp stated that he could not find any development consent that authorised any commercial or industrial use of the land.