Eurobodalla Shire Council v Gerondal (No 3)

[2012] NSWLEC 46

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Eurobodalla Shire Council v Gerondal (No 3) [2012] NSWLEC 46
Hearing dates:	15/3/2012
Decision date:	15 March 2012
Before:	Biscoe J
Decision:	Declaration, injunction and substituted performance order as per [35] of judgment.
Catchwords:	CIVIL ENFORCEMENT:- failure to comply with Prevention Notice under s 96 Protection of the Environment Operations Act 1997 - substitute performance order appropriate.
Legislation Cited:	Land and Environment Court Act 1979 ss 20(2), 20(3), s 56A Protection of the Environment Operations Act 1997 ss 95, 96, 97, 98, 252, 289(1A), 292 Uniform Civil Procedure Rules 2005 r 40.8
Cases Cited:	Gerondal v Eurobodalla Shire Council [2010] NSWLEC 1217 Gerondal v Eurobodalla Shire Council [2011] NSWLEC 77 Speedo Holdings B V v Evans (No 2) [2011] FCA 1227 Sumitomo Mitsui Banking Corporation v Sumitomo Mitsui Financial Group Pty Ltd (No 2) [2009] FCA 496 Wollongong City Council v Falamaki (No 3) [2009] NSWLEC 80
Category:	Principal judgment
Parties:	Eurobodalla Shire Council (Applicant) Monica Netta Gerondal (Respondent)
Representation:	COUNSEL: Mr P Larkin SC (Applicant) Mrs Monica Gerondal (Respondent - in person) SOLICITORS: Sparke Helmore (Applicant) N/A (Respondent)
File Number(s):	40661 of 2011

EX TEMPORE Judgment

OVERVIEW

1. In these Class 4 civil enforcement proceedings, the applicant, Eurobodalla Shire Council, seeks a declaration that the respondent Mrs Monica Gerondal has infringed s 97 of the Protection of the Environment Operations Act 1997(POEO Act) by failing to comply with a Prevention Notice issued under s 96 of that Act issued by a Commissioner of this Court in respect of certain land known as Lot 1 DP 806104, also known as 19 Munjeroo Lane, Bingie NSW (the Bingie Land). Injunctive relief is sought to enforce the terms of the Prevention Notice. Given the history of defiance and default by Mrs Gerondal orders are also sought to authorise the Council to enter onto the Bingie Land and effect compliance with the Prevention Notice at Mrs Gerondal's cost. The Council also seeks costs of the proceedings.

1. The original Prevention Notice was made by the Council on 13 July 2009 under s 96 of the POEO Act . After an agreed extension, the time for compliance with the order expired on 8 December 2009. Mrs Gerondal did not apply to stay the operation of the Prevention Notice. She took no steps to comply with it. In the absence of a stay, the Prevention Notice remained operative: s 289(1A) of the POEO Act .

1. As was her right, Mrs Gerondal commenced a merits appeal to this Court. On 31 August 2010, a Commissioner confirmed and partly varied the Prevention Notice: Gerondal v Eurobodalla Shire Council [2010] NSWLEC 1217 . The notice, as varied, and as now in force, provides:

Premises to which this notice applies:

19 (Lot 1 DP 806104) Munjeroo Lane, Bingie NSW

This notice has been issued under Section 96 of the Protection of the Environment Operations Act because Eurobodalla Shire Council reasonably suspects that an activity has been or is being carried on in an environmentally unsatisfactory manner. Eurobodalla Shire Council hereby directs the person nominated on the notice to take action as detailed below.

Perusal of Council records shows no development consent has been sought or issued for the premises to be used for the purpose of a waste facility. Under the Protection of the Environment Operations (POEO) Act 1997 it is an offence to unlawfully transport waste to a place that cannot lawfully be used as a waste facility for that waste and/or use land as a waste facility without lawful authority .

Action To Be Taken And Time Periods For Compliance:

A. Cease transporting waste to the premises.

This action is to be undertaken immediately, effective from 31 August 2010 and is to be ongoing.

B. The applicant is to prepare and submit for the council's approval a plan of action for the removal of the waste materials from the property by 15 October 2010. Such a plan is to include a fenced footprint area of 10 x 10 metres to allow selected items only to be stored in an environmentally satisfactory manner that do not have the potential to pollute and a timetable for the removal of all other items. The only exceptions to the 10 x 10 footprint area is the ride - on lawnmower, 2 caravans; the bricks and pavers. The action plan is to provide a timetable for the removal of all other waste material, including unregistered vehicles, from the property that has been placed there without approval and monthly monitoring reports for the staged removal with the first due 1 December 2010 with the removal of all waste to be completed by 30 April 2011.

C. The waste material removed is only to be removed to a place which can lawfully accept such waste material.

1. By s 292 of the POEO Act , the varied Prevention Notice was "final and binding" on Mrs Gerondal. It required Mrs Gerondal, by 15 October 2010, "to prepare and submit for the council's approval a plan of action for the removal of the waste materials from the property". The plan was to require a fenced area of 10 x 10 metres to be established to allow "selected items only to be stored in an environmentally satisfactory manner that do not have the potential to pollute". The only materials permitted to be retained outside of the fenced area were a "ride - on lawnmower, 2 caravans; the bricks and pavers". There was to be monthly reporting with the first removal of the remaining waste to take place on 1 December 2010. All of the remaining waste was removed by 30 April 2011.

1. No application to stay the operation of the notice has ever been made. No plan of action has ever been submitted. No other steps have ever been taken by Mrs Gerondal to comply with the notice.

1. Mrs Gerondal launched an appeal against the decision of the Commissioner under s 56A of the Land and Environment Court Act 1979 (LEC Act). The appeal was dismissed with costs by Craig J on 2 May 2011: Gerondal v Eurobodalla Shire Council [2011] NSWLEC 77 .

1. Mrs Gerondal seeks to dispute some aspects of the judgments of the Commissioner and Craig J but that is not permissible in these proceedings.

1. Subsequently, by letter dated 10 May 2011, the Council invited Mrs Gerondal to submit the plan of action or to make any proposal for compliance with the notice. Mrs Gerondal responded, in an undated letter attached to an email of 24 May 2011 as follows:

none of the Orders [of Craig J] stipulates any action to be taken ... in terms of removal of any item and any time period for compliance.

1. Craig J's orders, dismissing Mrs Gerondal's s 56A appeal with costs, left the Prevention Notice in the form ordered by the Commissioner on foot. It has never been stayed. It remains fully operational: s 289(1A) of the POEO Act .

1. The Council by letter dated 3 June 2011 and the Council's solicitors in a formal letter of demand dated 1 July 2011 informed Mrs Gerondal of the effect of the dismissal of her appeal and of the fact that the Prevention Notice as determined by the Commissioner remained in force. Mrs Gerondal did not reply. These proceedings were commenced on 1 August 2011.

1. Mrs Gerondal has never asserted any basis upon which it might be said that the Prevention Notice in the form ordered by the Commissioner is not in force. Her response of 14 May 2011 to the Council's invitation, her failure to respond to the Council's letters of 3 June and 1 July 2011 and her silence upon the issue throughout the proceedings reflect adversely on her.

1. Further, Mrs Gerondal has told the Court that she proposes to defy the Prevention Notice. Before Pain J, the following exchange took place:

HER HONOUR: Mrs Gerondal. Mrs Gerondal.

RESPONDENT M GERONDAL: -- totally ridiculous.

HER HONOUR: Mrs Gerondal the order's been made you have to comply with it.

RESPONDENT M GERONDAL: I'm not complying with something that I have to take a tractor away, on a farm -

HER HONOUR: Mrs Gerondal if the order was made requiring that then you do. Anyway, that's -

RESPONDENT M GERONDAL: I am not and they can darn well -

1. Mrs Gerondal asserts that she cannot lawfully fence off or in any other way mark off a 10 x 10 metre area to allow selected items to be stored as provided for in the Prevention Notice. She complains to me that the Prevention Notice required her to remove a working tractor, boat and circular barbeque seen in photographs in evidence. I am minded to exclude them from the removal order which the Council seeks subject to the caveat that she demonstrate to the Council's satisfaction that the tractor is in working order (as to which there is some doubt). Mrs Gerondal also complains that the Prevention Notice in effect requires her to remove her sculpture and in this context I was taken to a photograph showing corrugated iron sheets partially overhanging a disused corrugated iron water tank. Artworks were addressed in the Commissioner's judgment at [13] and [34] and were found to be waste. The Commissioner also had the benefit of a site visit. I do not think I can or should open up the merits of that judgment in these proceedings.

1. Since the commencement of the proceedings, despite orders made against her at five different interlocutory hearings, Mrs Gerondal has not complied with a single direction made by the Court at any time during the course of these proceedings. She has not filed a defence or any affidavits in the principal proceedings. She tendered no evidence at the hearing before me.

1. In closing submissions Mrs Gerondal indicated that she wished to put into evidence a list of items she allegedly removed from the property in December 2011 and photos of them. This was in defiance of the Court's pre - trial direction that she serve her affidavits last December and of a letter from the Council emailed to her on 12 March 2012 which referred to her assertion at Court on 9 March, said to be for the first time, that she had removed some items. The letter objected to her giving oral evidence at the hearing about this unless she permitted Council officers to obtain access to the land to check. There was no reply to the letter. I permitted Mrs Gerondal and her husband to give evidence about this and the list and photos were tendered. She claimed that she had not seen the letter of 12 March 2012 before. In the circumstances, I give minimal weight to the list and photos. Even if these items have been removed, it does not dissuade me from giving relief along the lines proposed by the Council.

1. Mrs Gerondal raised an issue as to the presence of acid sulphate soil. However, as Craig J found, the Commissioner did not found her decision upon evidence given as to the existence of acid sulphate soil: judgment of Craig J at [60].

1. There were a number of other matters put by Mrs Gerondal from the bar table which I have considered but which were either assertions of fact for which there is no evidence before me or which are insignificant or irrelevant for present purposes.

THE STATUTORY BASIS FOR THE NOTICE AND THESE PROCEEDINGS

1. Section 96 of the POEO Act provides:

96 Preventive action

(1) Application of section

This section applies when the appropriate regulatory authority reasonably suspects that an activity has been or is being carried on in an environmentally unsatisfactory manner at any premises or by any person (otherwise than at premises).

(2) Prevention notices

The appropriate regulatory authority may, by notice in writing, do either or both of the following:

(a) direct the occupier of the premises,

(b) direct the person carrying on the activity (whether or not at premises),

to take such action, as is specified in the notice and within such period (if any) as is specified in the notice, to ensure that the activity is carried on in future in an environmentally satisfactory manner.

(3) Examples

The action to be taken may (without limitation) include any of the following:

...

(d) ceasing to carry on or not commencing to carry on an activity,

(e) carrying on an activity in a particular manner,

...

(h) action with respect to the transportation, collection, reception, re - use, recovery, recycling, processing, storage or disposal of any waste or other substance,

(i) preparing and carrying out a plan of action to control, prevent or minimise pollution or waste,

(j) reviewing the carrying out of an activity.

1. As Craig J observed in his judgment on the s 56A appeal ( Gerondal v Eurobodalla Shire Council [2011] NSWLEC 77 at [7]), the provisions of s 96(1) make clear that the foundation for the giving of a Prevention Notice is reasonable suspicion on the part of a regulatory authority that an activity is being or has been carried out "in an environmentally unsatisfactory manner". That phrase is defined in s 95 of the POEO Act , which relevantly provides as follows:

95 Meaning of environmentally unsatisfactory manner

For the purposes of this Part an activity is carried on in an environmentally unsatisfactory manner if:

(a) it is carried on in contravention of, or in a manner that is likely to lead to a contravention of, this Act, the regulations ... or

(b) it causes, or is likely to cause, a pollution incident, or

(c) it is not carried on by such practicable means as may be necessary to prevent, control or minimise pollution, the emission of any noise or the generation of waste, or

(d) it is not carried on in accordance with good environmental practice.

1. This Court has held that the "extremely large amount of material" (Commissioner's judgment at [32]) and the "extraordinary and significant amount of material" (Commissioner's judgment at [33]) stored on the Bingie Land constitutes an "unreasonable accumulation of large amounts of waste" (Commissioner's judgment at [40]), which is being carried out in an "environmentally unsatisfactory manner" within the meaning of the POEO Act (paragraph [40] of the Commissioner's judgment and paragraph [62] of the judgment of Craig J).

1. Section 97 of the POEO Act makes it an offence to fail to comply with a Prevention Notice. Thus, non - compliance with a Prevention Notice is a breach of the POEO Act.

1. The jurisdiction of the Court to grant orders in the circumstances of this case is conferred by s 252 of the POEO Act and s 20(2) of the LEC Act . The former section provides as follows:

252 Remedy or restraint of breaches of this Act or regulations

(1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act or the regulations.

(2) Any such proceedings may be brought whether or not proceedings have been instituted for an offence against this Act or the regulations.

(3) Any such proceedings may be brought whether or not any right of the person has been or may be infringed by or as a consequence of the breach.

...

(6) If the Court is satisfied that a breach has been committed or that a breach will, unless restrained by order of the Court, be committed, it may make such orders as it thinks fit to remedy or restrain the breach.

...

(8) In this section:

breach includes a threatened or apprehended breach."

1. Section 20(2) of the LEC Act provides:

(2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of the following proceedings:

(a) to enforce any ...obligation or duty...imposed by a planning or environmental law ...,

...

(c) to make declarations of right in relation to any such ... obligation or duty ...

1. The POEO Act is a "planning or environmental law" within the meaning of s 20(2) of the LEC Act : see s 20(3) .

THE APPROACH TO THE ENFORCEMENT OF THE PREVENTION NOTICE

1. The first thing which the Prevention Notice required Mrs Gerondal to do was to -

prepare and submit for the council's approval a plan of action for the removal of the waste materials from the property by 15 October 2010. Such a plan is to include a fenced footprint area of 10 x 10 metres to allow selected items only to be stored in an environmentally satisfactory manner that do not have the potential to pollute and a timetable for the removal of all other items.

1. Craig J held that the function of the required plan was as follows (paragraph [68] of his Honour's judgment):

By requiring the submission of a plan, including identification of materials stored and to be removed, as the case may be, the Commissioner was affording to Mrs Gerondal the opportunity to reach agreement with the Council as to those items that, although constituting waste, may remain, provided they can be contained in the dimensioned area nominated and do not have the propensity to pollute. An understanding of the materials constituting waste is evident from the preamble to the action section of the notice whereby it is made tolerably clear that any item stored on the property and meeting the definition of 'waste' within the meaning of the POEO Act will be caught by it. As the judgment also makes clear, the fact that an item stored on the property may be processed, recycled, re - used or recovered does not prevent it from being waste (at [34]).

1. Mrs Gerondal has not availed herself of the opportunity she was given. In the absence of an approved plan, the Prevention Notice requires the removal of "all" waste from the property, other than the nominated exceptions, being "the ride - on lawnmower, 2 caravans; the bricks and pavers". I propose to grant declaratory and injunctive orders against Mrs Gerondal requiring her to remove waste from the Bingie Land with exceptions for those and some other items.

AUTHORISATION OF THE COUNCIL TO EFFECT COMPLIANCE WITH THE PREVENTION NOTICE

1. The Council also seeks a substituted performance order that if Mrs Gerondal does not comply with those orders within three months, that the Council be entitled to enter the Property and carry out works at her cost.

1. The Uniform Civil Procedure Rules 2005 r 40.8 provides:

40.8 Substituted performance

If a judgment requires a person to do an act and the person does not do the act, the court:

(a) may direct that the act be done by a person appointed by the court, and

(b) may order the person to pay the costs incurred pursuant to the direction.

1. In Wollongong City Council v Falamaki (No 3) [2009] NSWLEC 80 at [47], Pain J applied r 40.8 in circumstances analogous to the present. In the Federal Court a similar rule was applied in Speedo Holdings B V v Evans (No 2) [2011] FCA 1227 at [34] - [37] per Flick J and Sumitomo Mitsui Banking Corporation v Sumitomo Mitsui Financial Group Pty Ltd (No 2) [2009] FCA 496 at [8] - [10] per Foster J.

1. The history of defiance and default by Mrs Gerondal outlined at [ 11 ] - [14] above weigh in favour of making a substituted performance order. A further consideration weighing in favour of a substituted performance order is that at various times during the interlocutory stages of the proceedings, Mrs Gerondal has claimed that she is too unwell to effect compliance with the Prevention Notice. Whilst the Council does not accept that this is so, if it be so, an order for substituted performance authorising the Council to effect compliance with the Prevention Notice is justified and is in the interests of all parties, including Mrs Gerondal.

1. It may also be noted that s 98 of the POEO Act provides:

98 Action in event of failure to comply

If a person does not comply with a prevention notice given to the person, the appropriate regulatory authority may take action to cause the notice to be complied with by itself or by its employees, agents or contractors.

1. The Council is "the appropriate regulatory authority" for the purposes of s 98: cf. paragraph [6] of the judgment of Craig J on the s 56A appeal.

COSTS

1. The Council has been successful and Mrs Gerondal should be ordered to pay the Council's costs of these proceedings.

ORDERS

1. The orders of the Court are as follows:

1. Declaration that the respondent has breached the Protection of the Environment Operations Act 1997 ("POEO Act") by failing to comply with the prevention notice issued under s 96 of that Act by the applicant on 13 July 2009 and amended by the Land and Environment Court on 31 August 2010 ("the Prevention Notice").

2. Order that the respondent:

A    by herself, her servants and agents, be restrained from transporting waste to the premises known as Lot 1 DP 806104 at 19 Munjeroo Lane, Bingie ("the Property"); and

B    complete, whether by herself or by servants, agents or contractors, the following works within 3 months from the date of this order:

(a) Remove from the Property the items referred to in paragraph 3 of the affidavit of Nathan Ladmore of 11 August 2011 filed herein and shown in the photographs referred to in paragraph 3 and all other items which constitute "waste" within the meaning of the POEO Act but not including the ride - on lawnmower, two caravans, bricks, pavers, the boat shown in photographs B12 and B13 annexed to the said affidavit, the spherical barbeque on a stand shown in photograph B6 annexed to the said affidavit, and the tractor shown in photograph B5 annexed to the said affidavit provided that it is demonstrated to the satisfaction of the applicant that the tractor is in working condition.

(b) The items removed from the Property under this order (whether or not they are sold) are only to be removed to a place which can lawfully accept such waste material.

3. Order that if the respondent does not completely comply with Order 2B above within 3 months from the date of the order, that the applicant by itself, its employees, agents or contractors, be entitled to enter the Property and carry out the works referred to in Order 2B within 6 months from the date of this order.

4. Order that if the applicant carries out works pursuant to Order 3, the respondent pay the applicant's reasonable costs thereof as agreed or assessed.

5. Order that the respondent pay the applicant's costs of these proceedings as agreed or assessed.

6, Liberty to apply on three days' notice.

Amendments

13 July 2012 - amendments under "slip rule" to typographical errors.

Amended paragraphs: cover, [1], [35]

Decision last updated: 13 July 2012