Blacktown City Council v Wilkie
[2002] NSWLEC 119
•07/17/2002
Land and Environment Court
of New South Wales
CITATION: Blacktown City Council v Wilkie and Ors [2002] NSWLEC 119 PARTIES: APPLICANT
RESPONDENTS
Blacktown City Council
Wilkie and OrsFILE NUMBER(S): 40025 of 2001 CORAM: Pearlman J KEY ISSUES: Practice and Procedure :- slip rule - omission of a time for compliance with orders - power of Court to vary order - current appeal to Court of Appeal - stay LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Rules 1996 pt 10 r 7, pt 15 r 6(1)CASES CITED: Akron Securities Ltd v Iliffe and Ors (No 3) (Mason P, NSWCA, 26 September 1997, unreported);
Australian Agriculture Co and Ors v Federation Engine-Drivers and Firemen's Assoc of Australasia (1913) 17 CLR 261;
Blacktown City Council v Wilkie and Ors [2001] NSWLEC 269;
Clifton Securities Ltd v Huntley and Ors (1948) 2 All ER 283;
DJL v The Central Authority (2000) 201 CLR 226;
Ervin Mahrer and Partners v Strathfield Council [2002] NSWLEC 97;
Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13;
Multistar Pty Ltd v Minister for Urban Affairs and Planning and Anor (2001) 114 LGERA 106;
Starray Pty Ltd v Sydney City Council (2001) 112 LGERA 438DATES OF HEARING: 03/07/2002, 12/07/2002 DATE OF JUDGMENT:
07/17/2002LEGAL REPRESENTATIVES:
APPLICANT
Mr D R Parry (Barrister)
SOLICITORS
Houston Dearn O'ConnorFIRST RESPONDENT
Ms L M Byrne (Barrister)
SOLICITORS
Roderick StorieSECOND RESPONDENT
no appearance
SOLICITORS
N/ATHIRD RESPONDENT
FOURTH RESPONDENT
no appearance
SOLICITORS
N/A
Mr J S Wheelhouse (Barrister)
SOLICITORS
Delaney Lawyers
JUDGMENT:
IN THE LAND AND 40025 of 2001
ENVIRONMENT COURT
Pearlman J
OF NEW SOUTH WALES 17 July 2002
- Applicant
- First Respondent
- Second Respondent
- Third Respondent
Fourth Respondent
Introduction
1. By notice of motion, the applicant, Blacktown City Council, sought a variation of order 6 made by this Court on 6 December 2001. The variation was sought because the order as made did not specify a time for compliance, contrary to pt 15 r 6(1) of the Land and Environment Court Rules 1996 (“the LEC Rules”).
2. As made, order 6 was in the following terms:
(6) The First Respondent remove from the site the existing soil, gravel, bricks, demolition material and other excavated or hard material and waste presently situated on the site and have it transferred to a licensed waste management facility. This order is contingent upon the second and third respondents failing fully to comply with order 5 of these orders within the time therein specified. Accordingly, this order is postponed until the expiration of that time, and, unless there has been full compliance by the second and third respondents with order 5 within that time, this order shall operate and be of full force and effect after that time.
3. On 12 July 2002, I made an order varying order 6 as follows:
The removal of the waste and its transfer to a licensed waste management facility in accordance with this order shall be completed within 35 days of the date of the insertion of this sentence into order 6.
Pursuant to pt 10 r 7 of the Land and Environment Court Rules 1996, I vary order 6 of the orders made by the Court on 6 December 2001 by inserting a fourth sentence as follows:
4. I made no order as to costs. Furthermore, I notified the parties that I would furnish my reasons for making the order at a later date, and I now do so.
5. The orders that were made on 6 December 2001 related to premises known as part lot 2 in DP 781151 on the corner of Grange Avenue and Richmond Road, Marsden Park (“the site”). The Court found that a large amount of waste material had been deposited upon the site in breach of the Environmental Planning and Assessment Act 1979 (see Blacktown City Council v Wilkie and Ors [2001] NSWLEC 269, unreported, to which I will refer as “the substantive judgment”). It is unnecessary to set out the full terms of all the orders that were made. Suffice it to say that the Court made declarations of breach by the first respondent, and by the second and third respondents, and made orders restraining all three respondents from using the site for the purpose of a tip or recycling yard or like use. In addition, I found that the primary responsibility for the breach was that of the second and third respondents, and that the first respondent had a secondary responsibility (see pars 72, 73 and 75 of the substantive judgment). The second and third respondents were ordered to remove the waste by the expiration of five weeks from the date of the order (order 5).
6. The first respondent, Ms Wilkie, has appealed to the Court of Appeal from my decision so far as concerns the first respondent and the fourth respondent. The appeal was expedited and is set down for hearing on 14 August 2002. Although no sealed copy of the order of the Court of Appeal was furnished, all counsel appearing in the matter assured me that the Court of Appeal by consent stayed order 6 and order 8 (which was a costs order in favour of the council) by an order in the following terms:
That the Orders 6 & 8 of the Land and Environment Court made by Pearlman J on 06 December 2001 be stayed until 14 August 2002.
7. In its notice of motion, the council sought a variation of order 6 in alternative forms. The first alternative was in the following terms:
The First Respondent shall complete the removal of the waste from the site and its transfer to a licensed waste management facility as required by order 6 made by the Court on 6 December 2001 within 35 days of the discontinuance of or the date of judgment of the Court of Appeal in appeal proceedings no. 41026 of 2001.
8. The second alternative sought two orders in the following terms:
1. Order 6 made by the Court on 6 December 2001 be varied by the insertion of the following fourth sentence:
The removal of the waste and its transfer to a licensed waste management facility in accordance with this order shall commence within 7 days of the date of the insertion of this sentence into order 6 and shall be completed within 35 days of the date of the insertion of this sentence into order 6.
2. The preceding order be stayed until the discontinuance of or the determination by the Court of Appeal of appeal proceedings no. 41026 of 2001.
A variation now?
9. The first question that arises is whether or not the Court should entertain an application for variation of order 6 in circumstances where there is pending in the Court of Appeal an appeal against that order and where there is a stay on foot.
10. Mr Parry, appearing for the council, submitted that, quite clearly on its face, the order for a stay made by the Court of Appeal is an order staying the execution of orders 6 and 8, and is not an order for a stay of the whole proceedings. By reference to Clifton Securities Ltd v Huntley and Ors (1948) 2 All ER 283 at 284, Mr Parry submitted that a stay of execution only prevents the enforcement by law of the orders – it does not prevent the council exercising any other right which it may have. His submissions in this respect were supported by Mr Wheelhouse, appearing for the fourth respondent, Mr Constantine.
11. I think Mr Parry is correct. It is appropriate that order 6 be varied before the Court of Appeal reviews the decision. The grounds of appeal to the Court of Appeal do not rest on the form of the order, or on its lack of a time for compliance. However, it is clear that order 6 as presently framed is unenforceable by reason of its lack of a time for compliance, and I so held in dismissing the council’s notice of motion seeking that the first respondent be found guilty of contempt (see Blacktown City Council v Wilkie and Ors, 24 June 2002, unreported). It is appropriate, in my opinion, that the Court of Appeal should review an enforceable order, and that, as Mr Wheelhouse submitted, there be finality of the issues between the council and the first and fourth respondents in this Court.
The power to vary
12. Mr Parry submitted that there are alternative bases for the Court to exercise a power to vary order 6. He submitted that the power to make the first alternative sought was to be found, firstly, in pt 15 r 6(3) of the LEC Rules, and, secondly, in the incidental or implied powers of this Court. As to the second alternative sought, he submitted that the power was to be found in three sources – first, the “slip rule”, pt 10 r 7 of the LEC Rules, secondly, pt 15 r 9(e) of the LEC Rules, and, thirdly, in the incidental implied powers of the Court.
13. It is only necessary for the Court to find one source of power for varying order 6. I think that the “slip rule” is the appropriate source of power. It appears in pt 10 of the LEC Rules and is relevantly in the following terms:
7(1) If there is a clerical mistake, or an accidental error or omission, in a judgment or order, or in a certificate, the Court, on the application of any party or without any such application, may, at any time, correct the mistake or error.
14. I am prepared to find that there was an accidental error or omission in order 6. As I have pointed out in par 5, I found that the first respondent had a secondary responsibility for the breach of the law. It is clear that I intended that she be amenable to an order consequential upon that breach. In par 75 of the substantive judgment, I made the following statement:
75 I am conscious, however, that Ms Wilkie’s position is secondary to that of Mr Reid and Graveyard Recycling. As I have said, the latter bear the primary responsibility for the illegal use and its consequences. Whilst I am of the view that Ms Wilkie bears a responsibility, and should therefore be ordered to remove the waste material , I think it is fair to provide that her obligation will be contingent on any failure of the second and third respondents to remove the waste material within a specified time. I make it clear that the order requiring the second and third respondents to remove the waste material will remain on foot whether or not a similar order against Ms Wilkie has come into operation (emphasis added) .
15. In its further amended class 4 application, the council had sought an order against all four respondents for the removal of waste, such removal to commence within seven days of the date of the order, and to be completed within five weeks of the date of the order. The council, having succeeded in its case against the first three respondents, was entitled to the order that it sought. However, the orders were not combined into one order for removal of the waste, as the class 4 application had sought, but divided into separate orders against the first respondent, and against the second and third respondents, by reason of the finding of the former’s secondary responsibility as against the latter’s primary responsibility. But the orders were meant to be “similar” and they were not similar as a consequence of the omission of the time for compliance in order 6.
16. There are two other relevant factors. The first is that, so far as can presently be ascertained, no issue was raised at the hearing about the period of five weeks (or 35 days) for compliance. There were issues raised about the cost of compliance, but not the length of time required to comply. Secondly, the context is important in the exercise of the discretion which pt 10 r 7 confers upon the Court. I found that there were significant environmental consequences arising from the depositing of waste upon the site and there was a potential for the waste pile to topple, with consequent damage to aquatic life in the adjacent stream and damage to adjoining properties (see pars 65 and 66 of the substantive judgment). In that context, it is appropriate that those responsible for creating the risk of significant environmental damage should be subject to enforceable orders for the removal of the waste. A variation of order 6 as now sought by the council would achieve that objective.
17. For these reasons, I was prepared to vary the order pursuant to pt 10 r 7 of the LEC Rules. Mr Wheelhouse submitted a further alternative variation, but I reject that in favour of that which the council has sought.
18. I do not embark upon a consideration of the applicability of the other suggested sources of power (pt 15 r 6(3) or pt 15 r 9(e)) or a consideration of whether or not this Court possesses an implied or incidental power to make the variation sought, having regard to such cases as Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 and DJL v The Central Authority (2000) 201 CLR 226 (and see, in this Court, Starray Pty Ltd v Sydney City Council (2001) 112 LGERA 438, Multistar Pty Ltd v Minister for Urban Affairs and Planning and Anor (2001) 114 LGERA 106, and Ervin Mahrer and Partners v Strathfield Council [2002] NSWLEC 97, Bignold J, unreported).
19. There are two further matters. First, the second part of the second alternative, which I have quoted in par 8, seeks a stay of the variation order “until the discontinuance of or the determination by the Court of Appeal of appeal proceedings no.41026 of 2001”. Ms Byrne, appearing for the first respondent, submitted that such an order would be contrary to the terms of the stay order made by the Court of Appeal which simply stays orders 6 and 8 until 14 August 2002. I think Ms Byrne is correct. The order made by the Court of Appeal stays order 6, whether varied or not, until the specified time. If at that time there is some reason for an extension of the stay, then any of the parties may apply to the Court of Appeal for such an extension, or perhaps to this Court for a further stay. However, that is speculative at this juncture. For these reasons, I desisted from making an order in terms of the second part of the second alternative.
20. The second matter is the form of the order that I have made. After further submission from the parties, I deleted any reference to the commencement of the removal of the waste and its transfer. The first respondent’s obligation arose, as order 6 provides, immediately upon the failure of the second and third respondents to comply with order 5. Her obligation has commenced – it is only necessary to specify a time within which it must be completed.
Conclusion
21. In Akron Securities Ltd v Iliffe and Ors (No 3) (NSWCA, 40524 of 1994, 26 September 1997, unreported), Mason P said:
The appellant would have us follow St Augustine of Hippo, who said that “to err is human, to persist in error is devilish”(Sermons). The respondents prefer John Locke who wrote in the aptly named Essay on Human Understanding that “it is one thing to show a man that he is in error, and another to put him in possession of truth”.
22. To this I would add the remarks of Isaacs J in Australian Agriculture Co and Ors v Federation Engine-Drivers and Firemen’s Assoc of Australasia (1913) 17 CLR 261 at 278 that “[I]t is not … better that the Court should be persistently wrong than that it should be ultimately right”.
23. These proceedings have been replete with inadvertent errors, omissions and infelicities on the part of all parties, their legal representatives and the Court. It is sufficient in this respect to refer to par 5 of the substantive judgment. This judgment at least repairs one of them.
24. For the foregoing reasons, I made the orders set out in par 3.
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