Averine Beatrix Justelius v Pittwater Council [1998] Nswlec 239 (18 September 1998)

[1998] NSWLEC 239

Land and Environment Court

of New South Wales

CITATION:	AVERINE BEATRIX JUSTELIUS v. PITTWATER COUNCIL [1998] NSWLEC 239 (18 September 1998) [1998] NSWLEC 20
PARTIES:	AVERINE BEATRIX JUSTELIUS v. PITTWATER COUNCIL [1998] NSWLEC 239 (18 September 1998)
FILE NUMBER(S):	20001 of 1996
CORAM:	Cowdroy J
KEY ISSUES:	:-
LEGISLATION CITED:	Local Government Act 1993
CASES CITED:
DATES OF HEARING:	18 September 1998
EX TEMPORE JUDGMENT DATE :	09/18/1998
LEGAL REPRESENTATIVES:	Mrs A Justelius Ms S Duggan

JUDGMENT:

HIS HONOUR: As I have already indicated before the Court today, there are two motions, one filed by the Council and one filed by Mrs Justelius.

I have already stated the relief that is sought by Mrs Justelius and the orders which are sought by the Council. Mrs Justelius has informed the Court that she has not been able, because of the inclement weather, to remove goods from the vehicles which are currently on the site. However, she said that in respect of one vehicle, that is the Hino there is only a small item to be removed, otherwise that vehicle has been cleared. In respect of a truck that is one of the vehicles, there is a canopy which she wishes to remove and she can remove that by next Monday. In respect of the Toyota bus, there are ladders and tools in respect of which she estimates requires one day to remove those goods.

Mrs Justelius has explained that she works and is the subject of a roster. Accordingly it has not been possible for her to remove the goods prior to today in view of the inclement weather. However, she has told the Court that she will be able to remove all of the goods prior to next Wednesday 23 September and she has no objection to the Council calling on that day to remove the three vehicles from the premises.

This matter has had a long history and since 24 July 1998 Mrs Justelius has been aware of the critical urgency of clearing the site. She has attempted to clear goods from the Hino vehicle, but her attempts have been thwarted by the inclement weather. That is now all ancient history because in view of the matters which Mrs Justelius has informed the Court, and with her co-operation, which she has offered, there is no difficulty now in the Council entering upon the land next Wednesday.

Mrs Justelius has also indicated that she is perfectly content to have the twenty-four hour notice to be given by the Council under the orders given now, that is at this very minute, so that she does not require any further notification. Council may enter upon the land as from next Wednesday. The Council has indicated that it will not seek to enter upon the land prior to next Wednesday.

In the circumstances, I consider that in view of the statements that Mrs Justelius has made, there is now no need to deal with the motion which she filed seeking to extend the time until next month. I should add, for the record, that when this matter was first before the Court today and when Mr Justelius was representing Mrs Justelius, before she arrived in court, it was agreed that both matters would be heard together and following the arrival of Mrs Justelius in court, there was no application made to adjourn her motion to another day, that is until 25 September 1998. Mrs Justelius saw no point in doing that in view of the fact that she was before the Court and the matter could be resolved today.

In those circumstances the Court was prepared to proceed and to hear both matters today and to deal with them finally. I should add that in the event that there is any difficulty by any party between now and next Wednesday, the Court registry will be requested to refer any application to me and I shall ensure that the matter is brought before the Court promptly.

In respect of the the motion of Mrs Justelius, that is proceedings number 20001A of 1996, I make no orders in respect of that motion and it is dismissed.

In respect of the Council's motion filed on 14 September 1998, in view of the orders I have made in respect of Mrs Justelius's motion, that motion will also be dismissed, but I note that the relief sought has effectively become unnecessary in view of the orders which I have made.

The only remaining issue is one of a question of costs and I shall now proceed to deal with that matter.

COUNSEL ADDRESSED ON COSTS

As to the question of costs, there is no doubt that Council has a public duty to enforce its statutes and regulations, or I should say, the duties imposed upon it by statute and regulations, and to enforce the Court's orders. Accordingly the Council was justified in proceeding with its notice of motion and in filing that notice of motion before the Court today.

There has however been a great deal achieved by today's proceedings. There has been consensus reached between the parties as to a workable arrangement to remove the vehicles which have been the subject of irritation. There has also been achieved a practical resolution to a problem that has been vexatious to the Council and to Mrs Justelius over many many months.

Mrs Justelius has informed the Court that she did not receive the notice of motion issued by Council in these proceedings. It was, according to the evidence, affixed to the door of her residence at approximately one o'clock last Monday 14 September. She has told the Court that she did not become aware of the proceedings until yesterday, that is Thursday 17, when a copy of the document reached her by post. The Court is not required to examine whether in fact service was effected by the rules in view of the co-operation that was afforded by Mrs Justelius in agreeing to have the Council's matter determined today. I consider that her assistance has led to a very workable and practical result and had it not been for that assistance, the likelihood would have been that the matter would have to be adjourned until Friday 25 September, which would have incurred only further costs and expense.

For these reasons, although the Council's motion has been heard, I do not consider it appropriate to make any order for costs against Mrs Justelius and accordingly there will be no orders to costs at all. The results that have been obtained will be beneficial ultimately to both parties. Mrs Justelius has co-operated by agreeing to accept notice now in view of the twenty-four hour notice which was required by the existing court orders. Further, she has agreed that Council may enter upon the land on Wednesday next 23 September to remove the vehicles. She has acknowledged that the time from today, up until and including Tuesday 22 September will be adequate for her to remove her possessions and those of Mr Justelius from the vehicles.

Accordingly, no order for costs to be made and no orders will be made in respect of either motion. That leaves the orders made by the Court on 24 July 1998, which were made by consent, still in force and the Council now has the assistance of Mrs Justelius in knowing that she will not oppose the Council going upon her land next Wednesday. It is far better for this certainty to be reached, rather than leave the matter in a state of uncertainty where the parties are left in constant conflict.

Mrs Justelius should be congratulated on her co-operation with the Court and with the Council and at the same time, I hope Mrs Justelius recognises that the Council, in bringing these proceedings, has done so in fulfilment of the duty which is imposed upon it by the law.

Accordingly there is no need for the Court to make any orders, except to note that each motion is dismissed and there is no orders to costs.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 4 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE ACTING JUSTICE DENNIS A COWDROY OAM

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