Baulkham Hills Shire Council v Stankovic & Anor
[2005] NSWLEC 110
•02/14/2005
Land and Environment Court
of New South Wales
CITATION: Baulkham Hills Shire Council v Stankovic & Anor [2005] NSWLEC 110
PARTIES: APPLICANT:
Baulkham Hills Shire CouncilFIRST RESPONDENT:
Milovan StankovicSECOND RESPONDENT:
Milka StankovicFILE NUMBER(S): 41243 of 2004
CORAM: Pain J
KEY ISSUES: Planning Instruments :- whether activities undertaken prohibited under the LEP
Words and Phrases:- meaning of junk yardLEGISLATION CITED: Baulkham Hills Shire Council Local Environment Plan 1991
Environmental Planning and Assessment Act 1979 s 76B
Environmental Planning and Assessment Model Provisions 1980
Local Government Act 1993 s 124CASES CITED: Warringah Council v Ulrich [1999] NSWLEC 227
DATES OF HEARING: 14/02/2005 EX TEMPORE JUDGMENT DATE: 02/14/2005
LEGAL REPRESENTATIVES: APPLICANT:
FIRST RESPONDENT:
Mr A Galasso (barrister)
SOLICITORS:
Coleman & Grieg
Mr M Stankovic (in person)
SECOND RESPONDENT:
submitting appearance save as to costs
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESPain J
14 March 2005
EX TEMPORE JUDGMENT41243 of 2004 Baulkham Hills Shire Council v Milovan Stankovic and Milka Stankovic
1 Her Honour: These are Class 4 proceedings seeking orders and declarations in relation to the First and Second Respondents’ use of Lot B in Deposited Plan 379959 at Lot B President Road, Kellyville (“the property”). The orders and declarations sought by the Baulkham Hills Shire Council (“the Council”) are set out in the amended Class 4 application as follows:
1. A Declaration that on land being Lot B in Deposited Plan 379959 at Lot B President Road, Kellyville (“the Property”) a use as intensive animal industries, or alternatively pig keeping establishments, is being carried out in breach of Section 76B of the Environmental Planning and Assessment Act 1979.
2. An Order restraining the first and second respondents by themselves, their servants, agents or contractors from carrying out or undertaking on the Property a use as intensive animal industries, or alternatively pig keeping establishments.
3. An Order that the respondents remove all pigs from the Property within 7 days of the date of this Order.
4. A Declaration that the Property is being used as a junk yard in breach of Section 76B of the Environmental Planning and Assessment Act 1979.
5. An Order restraining the first and second respondents by themselves, their servants, their agents or contractors from carrying out or undertaking on the Property the use of a junk yard.
6. An Order that the respondents, within 28 days of Order [sic], remove all second hand and unused items such as old cars, white goods, general rubbish and accumulated used building material from the Property.
7. Such further Order or other Orders as the Court deems appropriate in the circumstances.
8. An Order that the respondents pay the applicant’s costs of these proceedings.
2 At the hearing the Council’s barrister stated that prayers 1 and 3 in the amended Class 4 application are not pressed. Prayer 2, which is a prospective order, seeks to restrain the Respondents from pig keeping at the property and is pressed.
3 Prayers 4, 5 and 6 are pressed seeking declarations and orders in relation to the use of the property as a junk yard. The First Respondent represented himself at the hearing. Solicitors acting on behalf of the Second Respondent filed a submitting appearance only save as to costs and she was not represented at the hearing.
4 The property is zoned Residential 2(a) under the Baulkham Hills Shire Council Local Environment Plan 1991 (“the LEP”). Pig keeping and junk yards are prohibited under Sch 2 of the LEP. Neither phrase is defined in the dictionary to the LEP.
5 The Council relied on affidavits of Mr Bourke, Council officer, dated 11 October 2004 and 11 March 2005. His evidence showed that a number of notices and orders have been issued to the Respondents in relation to the storage of building material, second hand items and general rubbish, and the undertaking of pig keeping on the property.
6 The Council received a complaint in relation to the storage of used building materials and other goods on the property on 3 August 2001. Following an inspection of the property, the Council issued a Notice of Council’s Intention to Issue an Order (“the first notice”) under s 124 of the Local Government Act 1993 on 26 October 2001 to remove all building material, white goods, old cars, general rubbish and other second hand items on the Respondents’ property within six months from the service of the order. On 6 February 2002, a reminder was sent to the Respondents in relation to the first notice.
7 On 11 April 2002, an order (“the first order”) was served on the Respondents requiring the work mentioned in the first notice to be completed by 11 October 2002. On 17 October 2002, a letter was sent to the First Respondent advising him that the requirements of the first order had not been complied with and that he was required to complete the works within 30 days or show cause why he should not be prosecuted for failing to comply with the first order.
8 On 18 October 2002, Council received a complaint that a number of pigs were being kept on the Respondents’ property. On 6 December 2002, the Council received a second complaint in relation to the storage of used building materials and other goods on the Respondents’ property.
9 Following a second inspection of the property on 3 January 2003 a $330 fine was issued on 7 January 2003 to the First Respondent for non-compliance with the first order. A second Notice of Council’s Intention to Issue an Order (“the second notice”) was issued to the First Respondent on 8 January 2003. On 18 February 2003, the Council issued a second order (“the second order”) requiring the works to be completed by the First Respondent within 12 months.
10 The Council received further complaints in relation to the keeping of pigs at the Respondents’ property on 14 July 2003 and 17 July 2003. Following these complaints, the Council wrote to the Respondents requiring that significant and discernible cleanup works be undertaken within 30 days, otherwise the second order would be revoked in favour of a new order requiring all works to be carried out within 30 days.
11 A Notice of Council’s Intention to Issue an Order (“the third notice”) to remove all pigs from the Respondents’ property was issued on 31 July 2003. Following a third inspection of the Respondents’ property on 28 August 2003 an order (“the third order”) requiring the First Respondent to remove all pigs from the property within 14 days was issued.
12 On 4 September 2003, a Notice of Council’s Intention to Issue an Order (“the fourth notice”) to remove all accumulated building material, second hand items and general rubbish was issued for works to be completed within 30 days. On 5 September 2003, the Council carried out a fourth inspection observing no change to the property.
13 On 25 September 2003, the Council carried out a fifth inspection and noted the majority of the pigs had been removed, but building materials, second hand items and general rubbish still had not been removed. After considering submissions why the First Respondent had not undertaken any work on the property the Council issued an order (“the fourth order”) unaltered from the fourth notice.
14 Further complaints were received in relation to the Respondents’ property on 16 January 2004. On 5 March 2004, the Council inspected the property for a sixth time, however, the Council was unable to obtain access to the property.
15 On 20 May 2004, the Council inspected the Respondents’ property for a seventh time, observing 39 pigs on site and noting that the general condition of the property had not changed. The property was further inspected on 1 June 2004. Photos of the site on this date were taken by Mr Burke which showed a large amount of bricks, piles of timber, scrap metal, general rubbish, used cars, two used trucks, old whitegoods, empty bottles and pigs. Council inspected the property again on 11 October 2004 and noted again that the general condition of the property had not changed.
16 The most recent inspection by Council officers was carried out on 10 March 2005. The property was found to be in much the same condition however no pigs were seen on this occasion.
17 The Council relied on the definitions of “junk” and “junkyard” contained in the Macquarie Dictionary (revised 3rd edition).
“Junk” is defined as:
Any old or discarded material, as metal, paper, rags, etc.
… (other definitions included)
“Junkyard” is defined as:
An open-air place where junk is stored
18 The Council submitted that the definition of “pig keeping” was self explanatory and should be given its ordinary meaning, being the keeping of pigs.
19 The First Respondent gave oral evidence and made submissions. The First Respondent argued that as all the material on his property had a use and he was intending to so use the material it was not junk. This applied particularly to the building material consisting of approximately 100,000 bricks and an unspecified amount of timber brought by the First Respondent from Eastwood in 1995 to be used to build a house on the property.
20 The First Respondent submitted further that he was told he was allowed to store building material on the property by a Council worker in 1995. I note that the Council has no record of that advice. He further stated that material was still located at the property because he had been unable to obtain permission from the Council to build a house. The First Respondent gave evidence that he last approached the Council about building a house in 1999. It appears that he has had conversations in relation to the issue at the Council’s front desk, however, his evidence is that he has not lodged any documentation with the Council in relation to gaining development consent.
21 When asked about the large number of cars and whitegoods on the site the First Respondent indicated that he would be able to dispose of most of these, being some six cars and 10 items of whitegoods but wanted to keep a couple for personal use.
22 The First Respondent maintained that the rest of the material including electrical wire and metal could be used for building a house.
23 The First Respondent argued that he had kept up to 100 pigs at the property for his own enjoyment and was not conducting any business in relation to them. In support of this, the First Respondent referred to the LEP definition of “intensive animal industry” (a use prohibited by the LEP), which does not include the keeping of livestock for the personal consumption or enjoyment of an owner.
24 In his oral evidence, the First Respondent said that he had disposed of all the pigs at auction and did not intend to keep any more pigs at the property.
Finding
Junk yard
25 Use of land for a junk yard is prohibited by the LEP in the Residential 2(a) Zone. I accept the Council’s definition of “junk” and “junk yard” and agree that whether the material stored on the property is junk must be an objective test, not a subjective test. The intention of the First Respondent to use the items located on his property does not mean that the material cannot be classified as junk. It is clear from the photographs relied on by the Council that there are large amounts of material on the property which can be considered junk.
26 I should note that there have been several decisions in this Court which have considered whether material stored on a property was use of the property as a junk yard (see for example Warringah Council v Ulrich [1999] NSWLEC 227). However, such decisions have generally dealt with the definition under the Environmental Planning and Assessment Model Provisions 1980 (“the Model Provisions”) which states that:
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.
That definition does not apply in these circumstances as the definition of junk yard in the Model Provisions has not been incorporated by the LEP.
27 Another argument which the First Respondent may have advanced is that all of the activities in Sch 2 of the LEP suggest that prohibited activities are potentially income generating. In my view however there is no requirement that a junk yard be an income generating activity to be prohibited under Sch 2 of the LEP.
28 The Council has been taking action since 2001 to have building material, second hand items and general rubbish on the property removed. It has issued a number of notices and orders none of which have been complied with by the First Respondent. In relation to the junk yard matter I intend to make the declaration sought in prayer 4, the order sought in prayer 5 and the order for removal in prayer 6 but with some variation to that sought by the Council.
29 I have asked the parties to draw a map of the property showing the location of the bricks and timber brought from Eastwood. I will allow these to remain for 18 months to enable the First Respondent time to make an application to the Council for development consent for the building of a house. The parties are to return to the Court in 18 months to see how the matter has progressed, at which point I will decide whether or not to make an order for removal of these materials. The piles of timber are to be stacked neatly into four piles within two months in order to reduce the visual impact of the site on neighbouring properties.
30 All other second hand and unused items such as old cars and trucks, white goods and general rubbish are to be removed from the property within six months. I have allowed such a lengthy period because of the First Respondent’s numerous medical difficulties as evidenced by the medical report dated 28 October 2004 tendered by the First Respondent. While this report is now some months old I will give the First Respondent the benefit of the doubt and take this into account in allowing such a generous period.
31 While these orders and declarations are sought against the Second Respondent and she is one of the registered proprietors of the land, there is no evidence that she has played any active role in relation to the property and I am not minded to make any orders or declarations in relation to her.
Pig keeping
32 The last issue to resolve is whether I should make the prospective order sought in prayer 2 in relation to the keeping of pigs. I find that the First Respondent was clearly keeping pigs, an activity prohibited under Sch 2 of the LEP. No other provision of the LEP allows him to keep pigs for personal enjoyment. I consider that given the lengthy history of this matter and the state of the property such an order ought be made. Accordingly I will make the order sought in prayer 2.
33 For completeness I note that the First Respondent has sent a letter to the Chief Judge dated 9 March 2005 in relation to which I have provided the opportunity for both parties to make submissions. There is no particular matter in the letter that I consider needs to be taken into account in this judgment.
34 The Parties are to report back to the Court in relation to a plan identifying where the timber is to be stacked and the Council is to provide a final version of orders which will be made by the Court once they are received.
9