Baulkham Hills Shire Council v Stankovic (No 4)

[2008] NSWLEC 273

Land and Environment Court

of New South Wales

CITATION:

Baulkham Hills Shire Council v Stankovic (No 4) [2008] NSWLEC 273

PARTIES:

APPLICANT
Baulkham Hills Shire Council
RESPONDENT
Milovan Stankovic

FILE NUMBER(S):

41243 of 2004

CORAM:

Pain J

KEY ISSUES:

Civil Enforcement :- form of final orders

CASES CITED:

Baulkham Hills Shire Council v Stankovic (No 3) [2008] NSWLEC 266

DATES OF HEARING:

18 September 2008

 
DATE OF JUDGMENT: 

24 September 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr G Newport
SOLICITORS
Baulkham Hills Shire Council

RESPONDENT
In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

24 September 2008

41243 of 2004 Baulkham Hills Shire Council v Stankovic (No 4)

JUDGMENT

1 Her Honour: I handed down a substantive judgment on whether various orders sought by the Council’s Amended Notice of Motion ought be made in Baulkham Hills Shire Council v Stankovic (No 3) [2008] NSWLEC 266 on 18 September 2008. Having dismissed the Respondent’s Notice of Motion filed 16 September 2008 which sought, inter alia, to adjourn the matter, I handed down judgment and provided draft orders to the parties for their comment. The finalisation of orders in this matter is complicated. As indicated in that judgment at [15], the Respondent had not provided a list of those items he considered he should be able to keep despite having the opportunity to do so since the hearing on the motion on 28, 29 July and 1 August 2008.

2 On 18 September 2008 the Respondent was also given a further opportunity to provide a list of items which he wished to keep. He did so on the same day, albeit very late in the course of these proceedings. I have marked the handwritten list and marked up copies of exhibits A and B provided by him on 18 September 2008 as exhibit 3. It is very difficult given the lateness of this material for the Council to respond to it and for me to incorporate it into the orders in such a way that these are enforceable as many of the items are not readily identifiable.

3 The additional items referred to by the Respondent which I can incorporate into orders include specific cars referred to by him being four vintage Volkswagen Beetles, one vintage Mazda RX4, one vintage Mazda RX7, one vintage Citroën, one vintage Mini 850 and one vintage Audi NSU (nine cars in total referred to in exhibit 3). The Respondent stated in his written list that he had spent considerable sums on these cars, albeit that list was not sworn evidence and there was no opportunity for the Council to test his statement from the bar table. Two trucks being one red truck (referred to in “DG2” which became exhibit C) and one white truck (referred to in photograph 70, exhibit B, as truck in background already circled by the Council officer) and two ride-on lawnmowers (one in photograph 30 and one in photograph 84 of exhibit A) were also on the handwritten list and can be included in orders.

4 The Respondent also specified three or four washing machines (one in photographs 45 and 57 and another in photograph 60 of exhibit A) and three or four refrigerators, and an industrial sewing machine. He has also specified all tools of trade which include items such as compressors, generators, slashers, drills and grinders and electrical and petrol engines. I am unable to determine the precise location of all these items on the property from his handwritten list and statements made from the bar table.

5 The Council’s officers prepared an inventory of items on the property and circled those items they consider were of value to the Respondent. These lists became exhibits A and B. The lists include some of the bricks and timber on the property. The Respondent has now also circled all the timber and brick items which appear in exhibits A and B. This includes a large amount of material which the Council officers considered to be rubbish as it was unusable in their view. The Respondent disputes that it is unusable.

6 Doing the best I can in difficult circumstances, and mindful of the need to make clear orders varying previous orders 4 and 5 made on 22 March 2005 that can be enforced, I will make orders which specify those items that can remain to the extent I am able. These will be all bricks and items referred to in the Council’s officers’ lists in exhibits A and B in relation to timber and other items. Additionally the red truck identified in DG2 (exhibit C), the cars specified by the Respondent and the two ride-on lawn mowers which can be identified will also be specified. It follows that the remainder of the cars on the property must be removed. I will otherwise order that all tools of trade located within a curtilage of 10 metres around the sheds and 20 metres around the house/garage (the latter also indicated on DG2/exhibit C) are excluded from the order. All items identified in the handwritten list in exhibit 3 which the Respondent wishes to keep namely the washing machines and refrigerators and the industrial sewing machine will have to be located in these areas. I cannot otherwise specify an effective order which can be enforced in relation to these.

7 In relation to timber, I stated in Stankovic No 3 that order 4 made in March 2005 requiring the stacking of timber in specified locations lacked utility at [26]. Having heard further submissions from the Council on the need to make enforceable orders I consider that order 4 has utility given the plethora of material on the Respondent’s property. I note the order continues to be in force but has not been complied with. I am varying the order below to require the stacking of timber other than the piles of timber already identified by the Council officers in exhibits A and B in the locations specified previously. These piles of timber can remain as is. This order enables the Respondent to stack any additional timber which he considers is usable in defined locations so that it is identifiable. Otherwise there is a large amount of timber strewn across the property which the Council officers consider to be rubbish and if not stacked by the Respondent and not identified in exhibits A and B will have to be removed.

8 As already indicated in Stankovic No 3 the Respondent must comply with these orders within 10 months.

Orders

9 The Court makes the following orders:

1. Order 4 made on 22 March 2005 is varied as follows:

An Order that the First Respondent neatly stack all timber he considers usable located on the property at Lot B President Road Kellyville (“the property”) as at the date of these Orders into stacks at the locations marked “X” identified on the plan at Annexure A to the Orders made on 22 March 2005, also annexure “C” to these orders, with the exception of the timber identified in exhibits A and B as circled by the Council officers, annexed as “A” and “B” to these orders, within 10 months of the date of this order;

2. Order 5 made on 22 March 2005 is varied to read:

An Order that the First Respondent remove from the property all second hand and unused items such as old cars, whitegoods, general rubbish and accumulated used building material with the exception of:

(a) bricks located on the property as at the date of these Orders;

(b) the material identified in Order 1 above;
(c) (i) items circled in the inventories attached to these orders as annexures “A” and “B” and as identified in the photographs and on the aerial photographs (annexures “B”) in the affidavits of Deborah Mitchell of 15 April 2008 and Daniel Giffney of 17 March 2008;
(ii) the red truck identified in “DG2” (exhibit C);
(iii) the car bodies specified in par 3 of the judgment dated 24 September 2008;
(iv) ride-on lawn mowers in photographs 30 and 84 in exhibit A.
(d) any refrigerators, washing machines, an industrial sewing machine and tools of trade located within 10 metres of any of the existing sheds and within 20 metres of the house/garage identified in “DG2” on the First Respondent’s property.

within 10 months of the date of this Order.

3. Costs are reserved.

4. Exhibits except for A, B, C and 3 are returned.