Kogarah Council v McNicol
[2001] NSWLEC 11
•02/08/2001
Land and Environment Court
of New South Wales
CITATION: Kogarah Council v McNicol [2001] NSWLEC 11 PARTIES: APPLICANT
RESPONDENT
Kogarah Council
McNicolFILE NUMBER(S): 40107 of 2000 CORAM: Cowdroy J KEY ISSUES: Costs - Development :- council alleging unauthorised fill on land - order issued by council - non-compliance by respondent - no evidence of a breach of local environmental plan - application dismissed - costs - disbursements only awarded to successful litigant appearing in person
LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: AF Saddington: Taxation of Costs Between Parties 13 ;
Cachia v Hanes (1991) 23 NSWLR 304 CA ;
Guss v Veenhuizen (1976) 136 CLR 47;
Holroyd City Council v Murdoch (1994) 82 LGERA 197;
London Scottish Benefits Society v Chorley (1884) 13 QBD 872DATES OF HEARING: 24/01/01, 8/02/01 EX TEMPORE
JUDGMENT DATE :
02/08/2001LEGAL REPRESENTATIVES:
APPLICANT
Ms S Duggan (Barrister)SOLICITORS
Abbott ToutRESPONDENT
SOLICITORS
Mr R McNicol (In person)
n/a
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 40107 of 2000
CORAM: Cowdroy J
DECISION DATE: 8/02/01
v
Robert Neil & Margaret Clare McNicol
The application
1. By amended application class four dated 24 January 2000 Kogarah Council (“the council”) seeks orders requiring the removal of unauthorised fill from land known as Lot 95 and Lot 96 in DP 15597 located at 48 Walton Street Blakehurst (“the land”). The land is owned by the respondents and their brick and tile residence is erected thereon.
2. The land is affected by the provisions of the Kogarah Local Environmental Plan 1998 (“the LEP”). Pursuant to the LEP the land is zoned 2(a) residential. Within such zone a person may ‘excavate or fill any land to which this plan applies, but only with the consent of Council’. The LEP was gazetted on 29 October 1999.
3. The council claims that the respondents have brought fill onto the land mostly comprised of garden refuse, tree cuttings and uncontrolled fill material without consent. The council’s claim relies upon the observations of a townplanner engaged by the council, Ms Rachel Louise Short.
4. Annexed to Ms Short’s affidavit sworn on 20 September 2000 is a letter from Mr Frank Lombardi dated 27 April 1998. Mr Lombardi had recently purchased the property located adjacent to the respondents land, on their western boundary, known as 24 Crawford Street Blakehurst (“No 24”). The letter complains of the stability of the land along Mr Lombardi’s eastern boundary. Mr Lombardi expressed his belief that the instability had resulted, ‘over the years due to the continual filling and levelling of my neighbours property and the generation of rubbish along our shared boundary originally contained within my neighbours property but is now precariously encroaching my land’.
5. On 27 May 1998 a site meeting was held between Mr Lombardi and the area building inspector from the council. On 29 September 1998 the council wrote to the respondents stating, inter alia:-
A recent inspection of the subject site has revealed large quantities of unauthorised fill material has been deposited on site adjacent to the common boundary with 24 Crawford Street.
The deposited fill has caused the boundary wall becoming unstable and unsafe.
5. On 14 October 1998 Mr McNicol responded by informing the council that he had lived on the land for 30 years and that the only fill that had been placed on the land, if any, was normal garden refuse. His letter contains the following history:-
The situation only became dangerous when the new owners of No. 24 bought a bobcat and large skipp onto the property and cleared along the boundary line, disturbing retaining structures which had been built by the previous owner. The boundary wall may now be unstable and unsafe, but this was built by the previous owner of No. 24 to enable excavation on his property and is therefore not my responsibility. If the land requires to be restored to natural levels to make the situation safe then No. 24 requires to be filled, not my property excavated.The large difference in ground levels at the rear of the block is due to the land at No. 24 being excavated to accommodate the two storey addition at the rear of the original house. The former owner of No. 24 built brick retaining walls on the boundary to retain my land whilst enabling him to excavate on his property. The natural ground level can be seen where the section of original house at No. 24 and my property are at virtually the same level, whilst adjacent to the rear extension at No. 24, steps and a retaining wall highlight the excavation.
6. The council did not interview Mr McNicol but nevertheless formed the view that his assertions were not true. The council responded by letter dated 12 January 1999 stating inter alia:-
Council has received a complaint regarding the placement of unauthorised fill material adjacent to the boundary with No. 24 Crawford Street.
The alleged complaint has been investigated and it has been found that a sufficiently reasonable basis exists for giving the following Order under Section 121 of Environmental Planning & Assessment Act, 1979.
7. By letter dated 20 January 1999, Mr McNicol responded to council’s letter reiterating his assertion that the adjoining owner had destabilised the ground and that this was the cause of differences in the levels between the two properties, not the presence of fill on his land. Mr Lombardi made another complaint to the council on 16 February 1999. The council requested an onsite inspection on 15 March 1999 however there is no evidence that any inspection took place. On the 10 June 1999 a Notice of Proposed Order was issued to the respondents requiring removal of the alleged fill. On 16 July 1999 the council issued the order requiring removal of the unauthorised fill within 21 days. Other correspondence took place between the parties which is not, for the present purposes, relevant.
8. The respondents failed to comply with the order and an infringement notice was issued by the council on 25 October 1999 imposing a penalty of $330. Mr McNicol elected to have the infringement notice determined by a court and accordingly a summons was issued requiring him to appear in the Sutherland Local Court on 13 March 2000. The hearing was adjourned until 26 July 2000. The council thereafter decided to withdraw the proceedings in the Sutherland Local Court. Instead the council commenced these proceedings.
9. Ms Short carried out an inspection of the premises on 1 September 2000 and observed fill material on the boundary between the land and No 24 which she describes as ‘bricks, dirt and garden refuse’. Ms Short estimates that it was placed over approximately a length of 20 m of the land to varying heights of up to 1.5 m. Ms Short stated that the alleged fill material was banked up against a retaining wall located on the eastern boundary to No 24 and the western boundary of the respondents’ land. Ms Short observed that the retaining wall was in a very poor condition and expressed the opinion that the weight of the fill on the land had caused the retaining wall to lean substantially into No 24. In her supplementary affidavit sworn on 24 January 2001 Ms Short again described her observation from a site visit made on the preceding day. Ms Short observed that none of the fill had been removed and made various observations concerning the levels of the land and material comprising the alleged fill.
The respondents’ defence
10. Mr McNicol has been unrepresented and appears not to have retained any legal advice at any stage concerning council’s allegations. For this reason the Court permitted him the opportunity to provide evidence concerning the allegations of council. Mr McNicol testified that he has lived at his current residence for 31 years and that substantial excavation had been undertaken over many years by the previous resident of No 24 at the boundary between the adjoining allotments. Such neighbour followed the occupation of a stonemason, and he had erected a retaining wall between the two properties to permit him to excavate at the rear of No 24. Such excavation accounted for the differences in height between his land and the rear yard of No 24.
11. Mr McNicol denied that he had ever placed any fill comprising earth, bricks or rubble at the boundary as alleged by Ms Short. He said that such material may have been part of the backfill behind the old retaining wall that had been gradually deteriorating. He estimated that at least half the height of the wall had fallen away. Photographs of the rear yard of No 24 show that it had been in a very dilapidated and overgrown condition with heavy vegetation, a crumbling fence and the remains of an old air raid shelter on the grounds. The photographs also show the remains of the retaining wall to which Mr McNicol had referred, together with material, as observed by Ms Short, held in place partly by vegetation and partly by the remains of the retaining wall.
12. Mr McNicol agreed that he had placed grass clippings and some vegetation in the vicinity of the boundary between the allotment. Photographs of his land show that it was well maintained with lawns, trees and dense vegetation on the western boundary between his land and No 24. Photographs apparently taken after sale of No 24 to Mr Lombardi show that the grounds of No 24 have been cleared of undergrowth and debris and reveal more clearly the difference in height between the two allotments and the condition of the retaining wall.
The findings
13. The applicant bears the onus of establishing, on the balance of probabilities, that the orders in the application should be made (see s 140 Evidence Act 1995 (NSW)). Such orders are sought upon the basis that the respondent has not obtained the development consent required pursuant to clause 9(1) of the LEP which provides:-
(1) Despite any other provision of this plan, a person may excavate or fill any land to which this plan applies, but only with the consent of the Council.
14. Mr McNicol has sworn that there is no fill on his land and that at no stage has he ever placed fill thereon, other than vegetation comprising lawn clippings from maintenance of the grounds of his land. Although Mr McNicol’s credit was called in question, the Court is satisfied that his testimony is truthful and that there is no evidence that Mr McNicol has ever placed fill on the site as alleged or any debris for which a development application is required.
15. It is unfortunate that Mr McNicol was not interviewed by the council before any opinion was formulated that the failure of the wall was caused by fill on Mr McNicol’s land. Had such steps been taken, these proceedings may not have been instituted. Mr McNicol has been required to defend these proceedings, as well as the proceedings instituted in the Sutherland Local Court when they were based upon a misconception that fill was causing the retaining wall to fail. The whole of the council’s case has been based on assumptions which were activated from complaints by Mr Lombardi. The photographs upon which council placed reliance showed no more than domestic garden debris. Such debris appeared to include rocks, earth, some bricks. Even if such material could be said to constitute “fill” the Court considers that it is of a minor nature. Clause 9(3) of the LEP relevantly provides:-
(3)(b) any excavation or filling of land which in the opinion of the Council is of a minor nature, including minor landscaping works, or
16. There is another matter for consideration. If fill was brought to the land, and used as backfilling of the retaining wall prior to Mr McNicol’s ownership of the land, the council argues that it is ‘fill’ for which Mr McNicol is nevertheless responsible. Council refers to the decision of Holroyd City Council v Murdoch (1994) 82 LGERA 197, in which Stein J determined that the owner of land may be restrained from permitting his land to be available for illegal dumpers. However, such decision is irrelevant. The LEP was gazetted on the 29 October 1999, and the requirements of cl 9(1) of the LEP applies to land ‘to which this plan applies’. In view of the finding on credit, it must follow that if any fill or backfill for the retaining was ever brought to the land, it was done so as at date which preceded the LEP. There is no evidence of any legal restriction upon the placement of fill prior to the commencement of the LEP.
17. In further support of his defence Mr McNicol placed much reliance upon a contour map provided to him by council which he submitted showed the similarity of levels at the front of the subject properties and a gradual slope to the rear thereof. Mr McNicol said that such plan supported his evidence that it was solely the excavation upon No 24 which has resulted in the elevation of his land. Council acknowledges that there has been excavation upon No 24 but there is no evidence concerning the extent thereof. The Court can draw little support from the plan except that it tended to support that there was, at some stage, little discrepancy between the levels of the two properties.
18. It is apparent that the retaining wall between the two properties may require attention for the continual support of Mr McNicol’s land. It is not possible on the evidence to conclude that the embankment is causing the retaining wall to fail. No geotechnical or engineering evidence has been tendered in evidence to support such submissions. The Court accepts Mr McNicol’s statement that the retaining wall was constructed to support his land to enable the previous owner of No 24 to excavate adjacent to the boundary between the two allotments.
19. The Court finds that there has been no breach of the LEP which would entitle the council to any orders as claimed in the amended application. Any failure of the old retaining wall and issues of support between neighbours in this instance are not matters in respect of which this Court has power to exercise jurisdiction.
Costs
20. Each party has applied for an order for costs. The only issue is whether Mr McNicol is entitled to such order. A principle has been clearly established that a litigant in person cannot recover costs for work done relating to the litigation, nor for loss of time. He can only recover out-of-pocket costs: see London Scottish Benefits Society v Chorley (1884) 13 QBD 872 at 875, 877; Guss v Veenhuizen (1976) 136 CLR 47 at 51; AF Saddington: Taxation of Costs Between Parties at 13 - 15; Cachia v Hanes (1991) 23 NSWLR 304 CA; 179 CLR 403.
Orders
21. The Court orders:-
1. The application be dismissed.
2. The exhibits be returned.
3. The council pay costs of the respondent comprising disbursements.
2
4
1