Penrith City Council v Solanowski

[1999] NSWLEC 144

Land and Environment Court

of New South Wales

CITATION:	Penrith City Council v Solanowski & Ors [1999] NSWLEC 144
PARTIES	APPLICANT Penrith City Council
FIRST RESPONDENT Zsigmond Solanowski SECOND RESPONDENT Paul Gauci THIRD RESPONDENT Shirley Gauci
NUMBER:	40209 of 1997
CORAM:	Sheahan J
KEY ISSUES:	Development :- unauthorised dumping of fill without consent
LEGISLATION CITED:	Environmental Planning & Assessment Act 1979 Local Government Act 1919
DATES OF HEARING:	04/12/1999; 04/13/1999; 05/11/1999; 06/17/1999
DATE OF JUDGMENT DELIVERY:	06/18/1999
LEGAL REPRESENTATIVES:	APPLICANT Mr D Miller, Barrister SOLICITORS Ms Jennifer Hills of Phillips Fox FIRST RESPONDENT Mr Solanowski (in person)

JUDGMENT:

IN THE LAND AND Matter No: 40209 of 1997

ENVIRONMENT COURT Coram: Sheahan J

OF NEW SOUTH WALES 18 June 1999

PENRITH CITY COUNCIL

Applicant

v

ZSIGMOND SOLANOWSKI

First Respondent

PAUL GAUCI

Second Respondent

SHIRLEY GAUCI

Third Respondent

JUDGMENT

Introduction

1. This case involves the unauthorised dumping of “ waste ” and/or “ fill ” on land (“ the affected land ”) in Council’s area. The Council has commenced Class 4 proceedings seeking:

(i) an appropriate declaration, and
(ii) orders both to restrain further unauthorised development and to remediate the affected land.

2. There were no Points of Claim filed in support of the Class 4 application, which remains unamended, but the case has had a somewhat unusual passage through the Court and the final form of relief sought by Council emerged in the form of draft Short Minutes of Order filed in Court on the last day of hearing, namely yesterday 17 June 1999. (The Short Minutes refer to the plans in Exhibit P8 ).

The affected land and its owners

3. The affected land involved in the proceedings, as they were originally constituted against Zsigmond Solanowski alone, was identified as lot 23 in Deposited Plan 25981 Certificate of Title volume 7706 folio 86 ( Exhibit P4 ). It has an area of approximately 5 ha or 12.5 acres, has the street address of 20-28 Macpherson Road, Londonderry, and lies within the area of Penrith City Council. It is what might be called a “ dog leg ” block, largely rectangular north-south, fronting Macpherson Road to the north-west at a 90 degree bend, and running down to Rickaby’s Creek.

4. Exhibit P4 indicates that lot 23 is unencumbered, and registered in the name of Mr Solanowski , as the sole proprietor.

5. After the Court adjourned the case on 13 April 1999 until 11 May 1999, the Council obtained a survey of the affected land (tendered on 11 May as Exhibit P5 ).

6. It became clear from that survey that some of the alleged unauthorised dumping activities of Mr Solanowski occurred on adjoining land, i.e. land outside the boundaries of lot 23, namely “ lot 19 ”, which is owned by Paul and Shirley Gauci, whom Council, on 5 May 1999, sought to join as the Second and Third Respondents in the proceedings. The Gaucis purchased their property, which adjoins Mr Solanowski’s property and is known as 136 Reynolds Road, Londonderry, in January 1985.

7. The Court is satisfied from the evidence of Jennifer Margaret Hills, Solicitor for the Council, that the Gaucis consent to their joinder as parties, but do not wish to take an active part in the proceedings. They are happy to acquiesce in the orders sought by Council in the Short Minutes, and to cooperate in their being carried out.

8. The boundary between lots 19 and 23, as depicted in Council’s survey, was disputed by Mr Solanowski when it was tendered on 11 May 1999, and the Court invited him to bring forward some survey evidence of his own. On 11 June 1999 he filed an affidavit expressing an objection “ to the surveyors map being handed over to the Court ”, and alleging that he had “ been informed by several surveyors that the border line that was drawn up is incomplete and inadequate ”. No “ alternative ” survey is in evidence.

Mr Solanowski

9. Mr Solanowski is a single and childless pensioner aged 70. He has serious disabilities of the right hand and back, and is apparently of modest means ( Exhibit S5 ). He was educated in Hungary and has had a colourful life. He adopted Australia as his homeland during his years as a sailor and purchased lot 23 in 1954; it has been his home, or at least his “ base ” since about 1966. He lives there alone - apparently in a tent until 1996, then in a modest home brought onto the property, and, now that that home has been ransacked, in a lockable container.

10. He claims to be a landscape artist and to have completed some relevant studies. He has ambitions to establish on lot 23 a rock garden and nursery, originally in conjunction with a landscape architect who was apparently frightened off by the trouble Mr Solanowski has had with the Council. In any event, he wants to leave his land in a better condition than that in which he found it. It was apparently cleared before 1954 and he has seen it flooded and burnt on several occasions. Much of its topsoil has been washed away. He wants to grow waratahs and endangered Australian tree species, keep bees and produce honey.

11. He has valued the advice he obtained from the NSW Department of Land & Water Conservation (“DLWC”) ( Exhibit S4 ), but the Court notes that the DLWC has also advised the Council regarding the subject matter of these proceedings (in a letter dated 21 February 1997).

The proceedings against Mr Solanowski

12. The Council participated in a series of inspections of the affected land on and after 8 November 1996, following an anonymous complaint to the Environment Protection Authority (“the EPA”). On 12 and 15 November 1996 it issued letters requiring Mr Solanowski to “ cease this unauthorised work immediately and remove all material placed on the land within 30 days ”, and warning “ any person continuing to dump waste material including cleanfill and demolition waste ” on his land that they may be prosecuted.

13. After several more inspections Mr Solanowski wrote to Council on 25 November 1996 expressing his unhappiness about Council’s attitude to the controversy, but further inspections were carried out, discussions held, and letters sent to Mr Solanowski during 1997.

14. These proceedings were commenced on 25 August 1997 , on which date Talbot J made the following order on an ex parte basis:

Until further order, the Respondent by himself, his servants or agents be restrained from carrying out development or from causing, permitting or suffering the carrying out of development upon the property being Lot 23 Deposited Plan 25981 and known as 20-28 Macpherson Road, Londonderry (“ the Property ”) for the purposes of clearing the Property, placing or tipping fill thereon and the disposal upon the Property of waste material including felled trees, tree wastes, tree stumps, soil, tyres and building and demolition wastes including broken concrete, masonry and masonry wastes without the consent of the Applicant.

15. Talbot J also directed that service of the application and order be effected by 5pm on 27 August 1997, and that the application be returned before the Duty Judge on 29 August 1997. The order made by Talbot J on 25 August 1997 has never been varied and was eventually served on 23 March 1998.

16. Mr Solanowski did not file his appearance until 22 May 1998, which was the date on which he first appeared before the Duty Judge (Bignold J). He told the Court that he had been overseas from 8 June 1997 until 28 December 1997, and had not returned to his land until 23 February 1998.

17. Council further inspected the affected land on 21 and 30 April 1998 and the affidavit material alleges that further dumping had occurred, that erosion into/towards the creek was noted, that clearing had taken place, and that trees had been damaged near the banks of the creek. Council officers formed the view that the filling works were likely to cause flood damage to neighbouring properties.

18. Mr Solanowski next appeared in the Court on 8 October 1998 and has consistently appeared ever since, when the matter has been listed for any purpose. On 13 January 1999 the solicitors for the Council wrote to Mr Solanowski complaining that, following the service of Talbot J’s order, he had, in the then “ very recent past … tipped or permitted to be tipped upon the subject land in the order of 10-12 truck loads of demolition waste, consisting of clay, broken pipe, concrete, steel and bricks contrary to the order of the Court and in contempt of the order of the Court .”

19. On 28 January 1999 the matter was set down for the 12-13 April hearing. Some delay in Mr Solanowski putting on his later evidence was occasioned by a period of hospitalisation for his back condition, after a recurrence of problems on 29 January 1999.

20. The Court has extended to Mr Solanowski a fair amount of latitude in the conduct of his case. He represented himself at the hearing but, because he was having some difficulty with English, the Court allowed him to take advantage of the assistance offered by Mr Neville Diamond, Investigation Officer of Hawkesbury River Environment Centre, who had sworn an affidavit in these proceedings.

21. The Court had the benefit of a comprehensive view of the site on 13 April 1999, following what was thought to be the completion of the evidence, and this assisted in the evaluation of the extensive photographic evidence. (See Exhibit P2. ) It has also assisted in the understanding of the survey evidence which was tendered later.

22. The matter was the subject of further hearings on 11 May and 17 June 1999, on which latter date a further adjournment was refused, with the result that the Court is now dealing with:

(i) land belonging to Solanowski and allegedly also to the Gaucis, and
(ii) dumping which is alleged to have occurred on at least two occasions -
(a) sometime up until November 1996; and
(b) sometime in late 1998/early 1999.

23. It should be noted that no contempt proceedings have been commenced against Mr Solanowski in respect of his alleged contravention of Talbot J’s order of 25 August 1997.

The Council’s position and the relevant instruments

24. The Council alleges that material deposited on the affected lands has been graded and moved around upon the affected lands to a significant degree and that it is now difficult to distinguish the “ original ” from the “ recent ” material. It seems clear that total removal of all introduced material, which is not considered appropriate to the land, will now be physically impossible, apart from extremely costly.

25. The subject lands are zoned 1(b) Rural “B” Smallholdings under Penrith Local Environmental Plan 201 (“the LEP”), which was gazetted on 12 July 1991 and amended at various times up until 12 July 1996, and then on 8 August 1997 and 19 December 1997.

26. The relevant objectives of the zone are:

(a) to protect and enhance the scenic quality and rural character of the locality; and
(b) to assist in meeting the demand for hobby farms and rural/residential development in Penrith where it is consistent with the conservation of the rural, agricultural, heritage and natural landscape qualities; and
(c) to provide land for intensive agricultural and horticultural activities which are compatible with the environmental capabilities of the land and which are unlikely to adversely affect the amenity of the area; and

…
(i) to ensure that development will not lead to excessive soil erosion or run-off.

27. The only purpose permissible without consent is “ Agriculture (other than intensive livestock breeding establishments )”. The word “ Agriculture ” has the meaning ascribed to it in s 514A of the Local Government Act 1919, viz:

‘ Agriculture ’ and ‘ Cultivation ’ include horticulture and the use of land for any purpose of husbandry, including the keeping or breeding of live stock, poultry, or bees, and the growing of fruit, vegetables, and the like, and ‘ agricultural ’ and ‘ cultivate ’ have a corresponding meaning.

28. The “ filling ” of land or the “ dumping ” of material would not appear to be embraced by this definition, but would be permissible on the subject land with consent .

29. As some clearing of the land is also alleged, clause 17 of the LEP is also relevant:

(1) A person shall not, except with the consent of the council, ringbark, cut down, top, lop, injure or wilfully destroy any tree which:
(a) is not less than 3 metres high; or
(b) has a girth of not less than 0.3 of a metre at a height of 0.4 of a metre from the ground; or
(c) is located within 20 metres of a watercourse.
(2) Subclause (1) does not apply to or in respect of:
(a) the pruning of any tree for the purpose of its regeneration or ornamental shaping; or
(b) any tree which is dying or dead or has become dangerous.

30. As Mr Solanowski suggests he was “ filling ” his land for the purposes of a nursery, the City of Penrith Rural Development Control Plan of 6 August 1991 (amended 9 December 1992) (“ the DCP ”) is also relevant. Plant nurseries may be permitted with consent (see p 59) and the following provisions apply to “ filling ” (p60) [emphasis added]:

Council will consider applications to fill for a variety of purposes where the method, nature and effect of filling are satisfactory. The use of waste building materials is not permitted apart from the use of crushed bricks or similar for vehicular access areas . Filling in conjunction with buildings does not require separate consent. The approval of the Waste Management Authority is required for some filling. Applicants should check with the Authority. Agricultural developments which involve substantial filling require consent.

AIMS:

n Allow filling only where it enhances the use of rural properties.

n Ensure that no adverse impact on local drainage characteristics occurs.

n Ensure filling will not increase flood hazard or risk to other properties.

n Ensure that material used is satisfactory in terms of potential impact on local soil and water quality .

POLICIES:
Material

n Introduced fill shall not include putrescible waste (waste that breaks down) or building material . Clean fill including soil and sand is generally acceptable.

Drainage

n The filled area shall be drained to Council’s satisfaction and not impact upon the drainage characteristics of other properties in the catchment area.

Runoff

n The material shall be suitably compacted and treated to prevent runoff and siltation of water courses.

Landscaping

n The finished filled area shall be re-vegetated and stabilised to blend the filled area and natural surfaces.

Development Applications

n Applications for consent to fill should be accompanied by plans prepared by a suitably qualified person drawn to scale which illustrate

(a) existing levels to Australian Height Datum;
(b) finished surface levels to Australian Height Datum (AHD);
(c) cross sections of the fill.

n Details as discussed should be included in a written submission accompanying the application.

31. It is clearly common ground between Mr Solanowski and Council that no development application has ever been submitted for the establishment of a nursery on the subject property, nor for any filling of the affected land.

32. It is also clear that, on any view of it, the amount of material introduced to the site is certainly, and is admitted to be, “ substantial ”.

33. Sydney Regional Environmental Plan No 20 - Hawkesbury-Nepean River (No.2 - 1997) was made on 7 November 1997 (“ the REP ”) and may be relevant to the allegation that further “ dumping ” took place late in 1998 or thereabouts.

34. Clause 8(2) provides:

Any such development that may be carried out only with development consent is indicated in the item by the words Consent required . The council of the area in which development is proposed to be carried out is the consent authority for that development for the purposes of this plan, except where the Act provides otherwise.

35. Clause 11 (18) imposes the following particular development controls:

(18) Waste management facilities or works
Definition:
Development for the purpose of waste management facilities or works described in Schedule 3 (Designated Development) to the Environmental Planning and Assessment Regulation 1994 .
Consent required.
Consultation:
Hawkesbury-Nepean Catchment Management Trust.
Additional matters for consideration by the consent authority:
(a) Any potential for groundwater contamination.
(b) The adequacy of the proposed leachate management system and surface water controls.
(c) The long-term stability of the final landform and the adequacy of the site management plan.
(d) If extraction of material is involved in the creation or other development of the waste management site, whether the extractive operation will have an adverse impact on the river system.

36. The relevant description in the 1994 Regulation is as follows (emphasis added):

Waste management facilities or works that store, treat, purify or dispose of waste or sort, process, recycle, recover, use or reuse material from waste and that:
(1) dispose (by landfilling, incinerating, storing, placing or other means) of solid or liquid waste:
(a) that includes any substance classified in the Australian Dangerous Goods Code or medical, cytotoxic or quarantine waste, or
(b) that comprises more than 100,000 tonnes of clean fill (such as soil, sand, gravel, bricks or other excavated or hard material) in a manner that, in the opinion of the consent authority, is likely to cause significant impacts on drainage or flooding, or
(c) that comprises more than 1,000 tonnes per annum of sludge or effluent, or
(d) that comprises more than 200 tonnes per annum of other waste material, or
(2) sort, consolidate or temporarily store waste at transfer stations or materials recycling facilities for transfer to another site for final disposal, permanent storage, reprocessing, recycling, use or reuse and:
(a) handle substances classified in the Australian Dangerous Goods Code or medical, cytotoxic or quarantine waste, or

(b) have an intended handling capacity of more than 10,000 tonnes per annum of waste containing food or livestock, agricultural or food processing industries waste or similar substances, or
(c) have an intended handling capacity of more than 30,000 tonnes per annum of waste such as glass, plastic, paper, wood, metal, rubber or building demolition material, or
(3) purify, recover, reprocess or process more than 5,000 tonnes per annum of solid or liquid organic materials, or
(4) are located :
(a) in or within 100 metres of a natural waterbody , wetlands, coastal dune fields or an environmentally sensitive area, or
(b) in an area of high watertable, highly permeable soils, acid sulphate, sodic or saline soils, or
(c) within a drinking water catchment, or
(d) within a catchment of an estuary where the entrance to the sea is intermittently open, or
(e) on a floodplain, or
(f) within 500 metres of a residential zone or 250 metres of a dwelling not associated with the development and, in the opinion of the consent authority, having regard to topography and local meteorological conditions, are likely to significantly affect the amenity of the neighbourhood by reason of noise, visual impacts, air pollution (including odour, smoke, fumes or dust), vermin or traffic.
This designation of waste management facilities or works does not include:
(a) development comprising or involving any use of sludge or effluent if:

(i) the dominant purpose is not waste disposal, and
(ii) the development is carried out in a location other than one listed in paragraph (4) above, or
(b) development comprising or involving waste management facilities or works specifically listed elsewhere in this Schedule, or
(c) development for which State Environmental Planning Policy No.52 - Farm Dams and Other Works in Land and Water Management Plan Areas requires consent.

37. The contour map ( Exhibit P1 ) and the sworn evidence of Council officer Laurence Cafarella (a Senior Environmental Planner) indicate that all of the affected land relevantly lies below the 1 in 100 year flood level. Mr Cafarella was not cross-examined on this evidence, even though Mr Solanowski objected to the tender of the map. The Council witnesses acknowledge that Mr Solanowski appears to be striving to place his land above the flood plain level. Also, some of the introduced material has clearly been stored and/or disposed of near a watercourse , namely Rickaby’s Creek, even though Mr Solanowski strongly contests any claim that any of it has entered the creek.

38. The Council relied on four affidavits from Mr Cafarella; an affidavit from Terry Stuart Agar , another Senior Environmental Planner with the Council, with particular responsibilities in “ flora and fauna ” matters; an affidavit from Robert William Odewahn , a Senior Subdivision Engineer with Council; an affidavit from Kenneth Ralph Hardy , a Regional Operations Officer with the EPA; and an affidavit dated 17 June 1999 of Jennifer Margaret Hills , a solicitor having carriage of the matter on Council’s behalf.

39. All four Council-employed deponents were required by Mr Solanowski for cross-examination, and Council relies on their oral evidence as well. Mr Odewahn was recalled to give further oral evidence yesterday.

40. Council officers inspected the affected land many times in the relevant period, and Council submits that on each occasion a different picture emerged, indicating continued works without consent.

41. There is no evidence or suggestion that any works have been carried out since the view was taken, and the picture presented to the Court on the view, while quite disturbing, was in some ways not quite as bad as that presented in some of the photographs, indicating that some grading etc works carried out on the introduced material may indeed have improved, over time, the post-dumping condition of the affected lands.

Mr Solanowski’s position and evidence

42. Mr Solanowski filed several affidavits at various stages during the proceedings, and also gave oral evidence.

43. At the hearing he relied also upon an affidavit and sworn evidence by Neville Diamond , affidavits of Joseph Hobor and Paul Gauci , an unsworn statement of evidence filed on the first day of the hearing from David Watson , who gave oral evidence on the second day, and a report faxed to the Court late on 16 June 1999 from Stephen Mateffy , a consulting engineer from “ MPN Group ” ( Exhibit S6 ).

44. Mr Diamond’s evidence is of little assistance to the Court, but his assistance to Mr Solanowski is appreciated.

45. Mr Gauci ’s affidavit in support of Mr Solanowski notes that he and his wife were aware of a dam on Mr Solanowski’s property, traversed by an access road under which there is a PVC culvert, but he testified that the dam does not adversely affect their property.

46. Mr Hobor is an earthmoving contractor who constructed the dam on Mr Solanowski’s property in about 1978 and has returned to the property on 3 or 4 occasions since to repair that dam when part of its walls have been washed away as a result of heavy rainfall. He testifies also that on the last occasion (“ some time in 1997 ”), he placed certain demolition fill on the base and around one wall of the dam.

47. Mr Mateffy’s report was helpful to the Court, but was comprehensively answered by Mr Odewahn’s oral evidence on 17 June 1999.

48. Some of the material in Mr Solanowski’s own affidavits was not admitted into evidence, but Mr Solanowski asked the Court to take account of that material as part of his submissions , and I have acceded to this request.

49. Mr Solanowski relies also upon “ unwritten rules ”, and a cooperative and advisory attitude, advanced to “ the battlers of Londonderry” by senior officers of the Council “ for more than half a century ” in respect, particularly, of developments set back at least 150 feet from a road frontage.

50. It appears that, against that background, in approximately 1996, he learnt of significant demolitions about to occur in the Richmond area, from which some very good brick and related material would be available. No-one paid him for the rights to dump material on his land. He apparently paid someone $150 in November 1996 for four truckloads of such good quality material and, in his absence from the land, “ rubbish ” was delivered instead. He does not know how much material was delivered.

51. He does not accept that “ good ” material can be defined as “ waste ”. He claims that he did not “ wilfully ” dump any harmful material and that the offending material delivered was “ a mistake ”, which the Council has prevented him from rectifying. He has employed truck drivers on a casual back-loading basis to take perhaps a total of 20 truckloads off the property prior to his departure in June 1997. He admits to having some clean fill delivered in early 1997 and knew that the Council did not grant consent. He believed that it was “ okay ” to do so.

52. When he returned from overseas he found evidence of robbery and of squatters, including damage, looting, bottles, syringes, etc, and an enormous quantity of additional material had been brought on to the lands during his absences. The person he left “ in charge ” of lot 23 during his long overseas absence apparently absconded quite early in that period and has not been seen since.

53. Mr Solanowski undertook to, and says that he will, remove the offending material, at least from his own land, as quickly as possible. Indeed he says he has already done some of this “ clean-up ” work. Hobor provided two front end loaders, a large one and a small one. Hobor operated it/them, but Mr Solanowski occasionally did so as well. That equipment was used only to load material onto trucks and spread it around the property. Exhibit P3 is an invoice from Hobor indicating a payment from Solanowski in the amount of $3,000 and an amount still outstanding of $11,950.

54. Effectively Mr Solanowski is asking the Court to exercise its discretion to make no substantive orders, and no costs orders, on the basis of:

(i) his sincere commitment to the environmental improvement of his land,
(ii) his efforts in that regard,
(iii) the alleged multi-faceted impropriety on the part of Council officers, and
(iv) inaccurate identification of the boundary between his land and that of the Gaucis.

55. The adjournment from 13 April to 11 May enabled pursuit of reliable information as to Mr Solanowski’s financial capacity to do either that which he intends over time, or that which the Court might now order. He was content to submit to an order that he meet the Council’s solicitors for the purpose of clarifying his financial position, and Exhibit S5 is a result of such meeting. When Exhibit S5 was tendered, Mr Solanowski informed the Court he also owed the Legal Aid Commission “ $40,000 ” and also had a liability for some typing services.

56. Mr Solanowski’s financial position would appear to be quite parlous but his assertions in this regard are not verified or corroborated in any appropriate way (except for the limited utility of Exhibit S7 ). The last valuation he had seen of his property when he gave evidence on 13 April was one done by a bank in 1979, in the sum of $8,000. Exhibit P7 indicates that Mr Solanowski and Mr Hermannsson were seeking a new valuation, but none was produced in evidence.

57. Mr Solanowski refuted the Council’s allegations that some of the affected land has been “ extensively ” cleared, and that at various times inspections have indicated stockpiles of material measuring up to 8-10 metres. The spreading and grading operations have reduced the height of the material at any one spot to a maximum of 3 metres. There is also some conflict in the Council’s evidence regarding the area of land cleared. Mr Hardy estimates 150 square metres and Mr Agar 0.5 ha. Neither of those witnesses supports Mr Cafarella’s assertion of 8-10 metre stockpiles.

58. Mr Watson is a full-time project manager for Greening Australia NSW Inc. and is possessed of relevant qualifications and experience, detailed in his statement of evidence dated 9 April 1999. He assessed the affected lands on 8 April 1999 and is of the opinion that removal of the rubbish would create significant regeneration potential. He did not corroborate Council’s allegation regarding dead trees. Those that he detected died as a consequence of natural causes. He agreed that oxygen deprivation over a long period would result in the death of roots of the trees stressed as a result of soil modification. He attributed the medium crown thinning among the trees to water stress and “ the usual slow recovery from a period of dry weather that has occurred over six years ”.

59. In cross-examination Watson estimated that approximately 30-40 tonnes of fill, and/or brick etc material, have been introduced at some stage to the affected lands. In his opinion the site can be rehabilitated if best practice measures are undertaken. Some advice may be available free of charge but the work is likely to involve substantial cost .

60. Watson recommended the following regeneration and revegetation programme:

(a) That particularly woody weeds such as Privet and Cassia be controlled on the site.
(b) Native grass seed be broadcast on the site to assist colonisation of the understorey.
(c) That professional regeneration and site management advice be provided to or further sought by Mr Solanowski.
(d) That silt fences be erected.
(e) That a suitable seed mix be applied to areas along the creek bank.
(f) That Penrith City Council provide landholders with non-threatening educational information about endangered ecological communities and the best practice management thereof.

Adjournments and Interim Orders

61. After hearing (at least preliminary) submissions from the parties on 13 April 1999, I decided to adjourn the proceedings to enable the view to be had, a survey to be made, and some discussions to take place between the parties as to Mr Solanowski’s means and the appropriate orders for the Court to make, in an environment in which the condition of the property as presented to the Court on the view remain unchanged. It was thought that a survey might allay Mr Solanowski’s concerns regarding the map in Exhibit P1 .

62. It occurred to me that an adjournment for some weeks might also enable the value , and perhaps development potential, of the land to be reviewed by the parties, and also would allow time for Mr Solanowski to obtain some legal advice on questions of discretion and final relief.

63. therefore, adjourned the hearing to 11 May 1999 and pronounced the following interim orders , which had been sought by the Council:

1. Continuation of the order made by Talbot J that the respondent
by himself, his servants or agents, be restrained from carrying out development or causing, permitting or suffering, the carrying out of development upon the property being Lot 23 Deposited Plan 25981 and known as 20-28 Macpherson Road, Londonderry (“the Property”) for the purposes of clearing the Property, placing or tipping fill thereon and the disposal upon the Property of waste material including felled trees, tree wastes, tree stumps, soil, tyres and building and demolition wastes including broken concrete, masonry and masonry wastes without the consent of the Applicant.
2. An order that the respondent be restrained until the resumption of the hearing on 11 May 1999 from dealing with any of the fill or waste material currently deposited or placed upon the property, including the grading, compaction or removal of any of that fill or waste material.
3. An order that the matter be adjourned until 11 May 1999 to enable the applicant to explore, and the parties to seek to agree upon, a form of mandatory order that is appropriate bearing in mind the current state of the land and the location of the said fill and waste material.
4. An order that in the event that the parties are unable to agree to the wording of an appropriate Short Minute of Order, the parties may present any further evidence and submissions as to the final form of orders (including orders as to costs) to be made when the matter resumes on 11 May 1999.
5. An order that the respondent meet with the relevant solicitor from Phillips Fox at 2pm on Friday 16 April 1999 to compile a verified statement of assets and liabilities.

64. On the morning after the making of those orders and the taking of the view I communicated to the Council’s legal representatives my continuing and serious concern that Mr Solanowski was allowing the proceedings to run on, towards some apparently inevitable conclusions of serious consequence to himself, without the benefit of even limited legal advice and assistance. I asked them to urge and assist Mr Solanowski in this regard when he attended the meeting mentioned in interim Order 5.

65. Mr Miller of Counsel wrote to Mr Solanowski along these lines ( Exhibit P6 ) but when the hearing resumed on 11 May and then on 17 June, Mr Solanowski was still unrepresented and had apparently obtained no legal advice.

66. Mr & Mrs Gauci were served on 7 May 1999 with copies of the Notice of Motion seeking their joinder as respondents, but they have chosen not to appear.

67. The substantive proceedings, and the Notice of Motion, were adjourned on 11 May to 17 June 1999. Interim Orders 1 to 4 above were continued, and Mr Solanowski was also ordered to furnish to the Council’s legal representatives, no later than close of business on Friday 4 June 1999, any valuation of lot 23 on which he intended to rely and any documents, hopefully verified by affidavit, substantiating his assets and liabilities, including (but not limited to) those set out in Exhibit S5 .

68. When the hearing resumed on 17 June I granted leave to the Council to file in Court an affidavit of that date by Ms Hills referring particularly and in detail to a meeting she held on 8 June with all three respondents regarding the orders Council has ultimately decided to seek.

Findings of Fact

69. Leaving aside the evidence which demonstrates and recounts the acrimony that has developed between Mr Solanowski and some officers of the Council, the following factual position emerges from the evidence presented (primarily on 12-13 April 1999):

· Mr Solanowski was aware of the dumping of material on the affected lands prior to 8 November 1996. He admits to organising the dumping of some material, but not necessarily that which was eventually placed there, and to doing so without seeking consent.

· Mr Solanowski admits that more material was dumped while he was away from the area between June 1997 and February 1998. He may not have consented to, nor organised, the dumping of that material, but the arrangements he made for care and supervision of his land while he was away leave a lot to be desired.

· Any dumping after February 1998 was with the actual knowledge of Mr Solanowski.

· Even though he may not have wilfully arranged for the dumping of offending material, he participated in, and controlled, dumping activity during 1996 and 1998.

· None of the dumping of fill was authorised by development consent.

· Mr Solanowski arranged for the removal of some of the offending material, again without seeking consent, but only on a swap basis, under which other material would be dumped, without consent, and the offending material removed. He also controlled the grading on the site of the remaining waste material.

· Some of these unauthorised activities occurred after Mr Solanowski had been informed by Council on many occasions, both personally and in writing, that such works could not be undertaken without consent. Some also occurred after the interlocutory relief had been granted and had been communicated to him, and while he was having a series of meetings with Council.

· The nature and extent of this dumping was not for “ agricultural ” purposes within the meaning of the term in the DCP.

· The material has been placed on the property in such a manner and to such an extent that it gives rise to the likelihood of increasing flooding to adjoining properties and no sediment control measures have been introduced to prevent erosion of the material into the natural watercourse known as Rickaby’s Creek.

· On the balance of probabilities the material can be held to have caused some damage to native vegetation. In addition, significant undergrowth and possibly some trees have been cleared.

Should relief be granted?

70. The above findings of fact established, by as early in the trial as 13 April 1999, a prima facie entitlement to the granting of relief to the Council, certainly by way of the declaration sought in the first prayer of its Class 4 application and repeated in the draft Short Minutes of Order.

71. However, the difficult question for the Court is what, if any, mandatory orders, including remedial orders , should also be made, particularly given the discovery/allegation that not all the affected lands were Mr Solanowski’s.

72. Mr Solanowski submits that some of the dumping was done without his consent and/or while he was away from the area, but I am completely satisfied that a significant proportion of the dumping and grading was done while he was resident on, and in effective control of, his land. Much of it was done when he knew consent was required, and some of it when he knew of Talbot J’s order.

73. The Courts have a serious obligation in the “ orderly enforcement ” of a “ public duty ” to comply with laws made by Parliament for the orderly and proper development and use of the environment - there is a public interest in upholding the law and seeing that it is obeyed. ( Tynan & Ors v Meharg & Newcastle City Council (CA 40119/98) 30 September 1998, per Stein JA, at p7).

74. The nature and extent of the Court’s wide discretion to make orders when a successful applicant establishes a breach a public law has been considered and explained in some detail in the Court of Appeal decisions in Warringah Shire Council v Sedevcic (1987) 63 LGRA 361 and ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 64 LGRA 177.

75. In Sedevcic (at 365-7) Kirby P, as he then was, set out some of the issues and principles the Court must consider and spoke of the “ equal and orderly enforcement ” of the law, at the instance of Councils as “ proper guardians of public rights ”, so as not to prejudice those who comply with appropriate regimes. In Fat-Sel (at 192) His Honour also noted that the discretion entitled the Court to refuse injunctive relief which “ would work such an injustice as to be disproportionate to the ends secured by enforcement of the legislation ”.

76. Two former Chief Judges of this Court had also made some relevant and useful comments on the subject, prior to the two Court of Appeal judgments to which I have referred.

77. In Rowley v New South Wales Leather & Trading Co Pty Ltd and Woollahra Municipal Council (1980-82) 46 LGRA 250, Cripps J (at 261) stated:

The discretion to be exercised in these proceedings involves the weighing up of all relevant factors - not only the public interest, but also the rights and interests of the parties including matters of conduct, hardship and convenience. It is also relevant to determine the extent of the breach and whether the breach was the result of deliberate flouting of the law or whether, as in this case, it has resulted from a misunderstanding by a local authority of its obligations under the legislation. Finally, the Court must decide to do what is fair and just as between the parties and in the public interest.

78. In Council of the Municipality of North Sydney v Ankarindo P/L (unreported, Land and Environment Court, 3 November 1983), McClelland J stated:

I am not, of course, suggesting that the authorities establish that a mandatory injunction should be granted only in cases where a deliberate flouting of the law is established. But where that ingredient is missing, there is no environmental damage and no or little encroachment on the amenity of the neighbourhood, and where, moreover, the burden imposed upon the infringing developer would be of the severity proposed in this case, the Court, in the exercise of its discretion, should not grant such relief.

79. On the relevant questions of intention, knowledge and control, Stein J said, in Holroyd City Council v Murdoch (1994) 82 LGERA 197 (at 202-3):

The illegal dumping of fill, sometimes containing putrescible matter, is a widespread problem in the State. On some occasions an owner will invite, directly or indirectly, third parties to dump waste materials on his land. It is unsurprising that unfenced and unsupervised land attracts illegal dumpers. What can a local government authority, with a duty to uphold the law, do in response to such a situation? In this case the Council put the absentee owner expressly on notice of the situation, in calling upon him to remove the waste which he failed to do. In fact, it is apparent that the respondent removed none of the waste but merely employed Mr Wilson to rearrange it so as to construct a barrier to restrict vehicular access from the highway. It was essentially a ‘ tidying ’ operation. Indeed, as I have found, he was willing to turn a blind eye to Mr Wilson dumping more of his own fill on the land.

In my opinion an owner of land may be liable under planning law to be restrained from leaving his land in such a condition so as to be an open invitation to illegal dumpers. Furthermore, an owner may be required to remove fill unlawfully dumped on his land without his authority, so long as he knows or is made aware of the situation and takes no steps to prevent its recurrence.

On the facts of this case Mr Murdoch knew full well what was happening to his land. He was made specifically aware by the Council in particular, but also by his agents and a neighbour, of the illegal dumping of fill on his land. He took no real steps to prevent its continuance over a period of at least eighteen months and failed to remove any of the illegal fill. His concern was to do the minimum to keep the Council satisfied and hopefully, in the meantime, find a purchaser. In my view the Council is entitled to a declaration that the subject land is being used by the respondent for the purpose of the storage of fill without development consent and in breach of the Environmental Planning and Assessment Act.

80. I adopt the reasoning and conclusions of Stein J, and I have, therefore, determined that Mr Solanowski is not immune from the orders sought by Council, if discretionary considerations lead the Court towards making them.

Conclusion

81. While the Court cannot help but feel some sympathy for Mr Solanowski’s position, I have concluded that the public interest dictates that discretion not be exercised against the making of the orders sought by Council.

82. Further, no evidence has been adduced to derogate from the precise terms of the suggested orders in any way. The arguments raised against some of them by Mr Solanowski were convincingly refuted by the evidence and submissions of the Council.

83. In essence, the position is that the affected land is in a very sorry state indeed. Its regrettable situation may not be entirely of Mr Solanowski’s own making, but it is certainly in no way of Council’s making, nor that of the Gaucis. Council has statutory and moral public obligations in regard to the condition of the land and the Gaucis have signified that they will cooperate in any remediation ordered by the Court.

84. I am assured by Mr Miller that the Council has arrived at its suggested regime of orders, bearing in mind the financial situation of Mr Solanowski, and incurring substantial expense in finding the right menu of measures, short of the expensive, and perhaps impossible option of total removal of all the introduced material.

85. The Court can, therefore, find no reason to depart from the suggested orders, and has decided to make them.

The Question of Costs

86. On the question of costs Mr Miller argues that as Council had tried to negotiate with Mr Solanowski to get him to put in a development application and agree to a remediation programme, it had acted in good faith over a period from 8 November 1996, and brought these proceedings only as a last resort more than 9 months later.

87. Its conduct of the negotiations and proceedings could attract no criticism such as to be regarded as exceptional circumstances warranting a departure from the usual rule that in Class 4 proceedings costs should follow the event.

88. The Court’s discretion on costs is wide, but must be exercised judicially having regard to all the circumstances of the case [ Donald Campbell & Co Ltd v Pollak [1927] AC 732 at 811-812] and against the background that costs orders are compensatory and not punitive in character [ Latoudis v Casey (1990) 170 CLR 534 at 543, 567].

89. Mr Solanowski’s possible lack of capacity to meet an order for costs is not a consequence of this litigation and, in any event, the Court is not convinced that it knows of his actual financial position. See Talbot J in Director General of Department of Land & Water Conservation v Ramke [1999] NSWLEC 22, especially pars 41-45.

90. The Court acknowledges that Mr Solanowski feels greatly aggrieved by Council’s attitude to him. He believes he has been continually harassed, and that justice demands not only that he not be ordered to pay Council’s costs, but that perhaps Council should be ordered to pay his costs. The Court sees his point of view but cannot see how the evidence would justify imposing the costs burden of these proceedings on the Council’s ratepayers.

91. Costs must, and will, accordingly, “ follow the event ”.

Orders

92. The orders made by the Court on 25 August 1997, 13 April 1999 and 11 May 1999 are discharged and in place thereof the following orders are now made:

1. Mr Paul Gauci and Mrs Shirley Gauci, both of 136 Reynolds Road, Londonderry, are ordered to be joined as respondents in these proceedings.

2. I declare that the First Respondent by himself, his servants or agents has carried out development or caused, permitted, or suffered the carrying out of development upon the property being lot 23 deposited plan 25981 and known as 20-28 Macpherson Road, Londonderry (“ the property ”) for the purposes of clearing the property, placing or tipping of fill thereon or the disposal upon the property of waste material including felled trees, tree wastes, tree stumps, soil, tyres and building and demolition wastes including broken concrete, masonry and masonry wastes (“ the unauthorised development ”) without the consent of the applicant, contrary to the Environmental Planning and Assessment Act 1979.
3. The First Respondent by himself, his servants or agents is hereby restrained from carrying out unauthorised development or causing, permitting or suffering the carrying out of unauthorised development upon the property without the consent of the applicant.
4. The First Respondent by himself, his servants or agents is restrained from raising the height of that part of the access track on the property that is represented in yellow on attached plan number 11589T2.
5. The First Respondent, at his cost and within 30 days of the date of this order, is ordered to spread the stockpiles of material represented in green on the plan numbered 11589T2 over access tracks on the property, other than that part of the access track represented on the plan numbered 11589T2 and referred to in order numbered 3 above.
6. Subject to order 9, I order that the First Respondent, at his cost and within 30 days of the date of this order, carry out the following drainage works to ensure that water ponding behind the access track in the area represented in orange on the plan numbered 11589T3v3 does not extend beyond the Property boundary as marked on that plan:
(a) the construction or extension beyond deposited material of two additional pipes of 225 millimetres in diameter at 10.96m AHD under the existing access track at the location marked with the dotted lines on the plan numbered 11589T3v3; and
(b) reshaping of the overflow channel from the existing pond in the area shaded orange on the plan numbered 11589T3v3 so that run-off from the pond is directed to pipes under the existing access track.
7. The First Respondent, at his cost, is ordered to obtain, within 21 days of the date of this order, a site characterisation report in relation to the material represented in red and blue on the plans numbered 11589T3v3 and 11589T4v2. Such report is to be prepared by a person who is accredited as a site auditor under the Contaminated Land Management Act 1997, and is to be prepared in accordance with the EPA guidelines entitled “ Contaminated Sites - Sampling Design Guidelines ” dated September 1995.
8. I order that, if the report obtained in accordance with order No.7 above states that the material represented in red and blue on the plans numbered 11589T3v3 and 11589T4v2 can be considered to be uncontaminated, the First Respondent, at his cost and within fourteen days of the date of obtaining the report, must remove all of the material represented in red on the plans numbered 11589T3v3 and 11589T4v2 from that area and spread that material over the area represented in yellow on the plan numbered 11589T3v3. Appropriate erosion/sediment controls (straw bales or sediment fence or a combination of both) shall be installed around the perimeter of all areas to be disturbed prior to commencement of work. All sediment control devices shall be maintained until revegetation of the disturbed area has been established.
9. Leave is granted to the parties to approach the Court for further orders on seven days’ notice if:
(a) the First Respondent is able to propose alternative drainage works to those specified in order 6 where such proposed alternative works are acceptable to the applicant; or
(b) the report prepared in accordance with order 7 does not state that the material represented in red and blue on the plans numbered 11589T3v3 and 11589T4v2 can be considered to be uncontaminated.
10. The Second and Third Respondents are ordered to permit the First Respondent or his servants or agents to access the property known as 136 Reynolds Road, Londonderry and to carry out such works as are necessary on the said property to enable the First Respondent to comply with the above orders.
11. The First Respondent is ordered to pay the Council’s costs in these proceedings, such costs to be as agreed or assessed, on a party-and-party basis, but I make no other order as to costs.
12. Exhibit P8 containing the plans referred to in these orders is to be retained in the Court file to assist in the interpretation and enforcement of these orders.
13. Exhibits P6 and S6 are also to be retained in the Court file, but Exhibits other than P6 , P8 and S6 are to be returned to the parties.