Warringah Council v Ulrich
[2012] NSWLEC 234
•19 October 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Warringah Council v Ulrich [2012] NSWLEC 234 Hearing dates: 10, 11 and 12 October 2012 Decision date: 19 October 2012 Jurisdiction: Class 4 Before: Pepper J Decision: See judgment at [100].
Catchwords: CIVIL ENFORCEMENT - non-compliance with orders by council to remove collected items from residential property - whether orders breached - whether appropriate to order the removal of material - nature of further relief ordered - whether applicant to pay council's costs. Legislation Cited: Environmental Planning and Assessment Act 1979 ss 76A, 121B, 121H, 121ZJ, 122, 123
Local Government Act 1993 ss 124, 132, 672, 678Cases Cited: Council of the City of Sydney v The Estate of the Late Alfred Sulligoi care of The Public Trustee [2007] NSWLEC 778
Manly Council v Moffitt [2006] NSWLEC 184; (2006) 146 LGERA 215
North Sydney Council v Wouters [2012] NSWLEC 94
Warringah Council v Ulrich [1999] NSWLEC 227
Waverley Council v Bobolas (No 2) [2009] NSWLEC 211Category: Principal judgment Parties: Warringah Council (Applicant)
Joachim Ulrich (Respondent)Representation: Mr A Hudson (solicitor) (Applicant)
Mr J Ulrich (in person) (Respondent)
Wilshire Webb Staunton Beattie (Applicant)
N/A (Respondent)
File Number(s): 40983 of 2011
Judgment
Mr Ulrich is a Collector
The respondent, Mr Joachim Ulrich, is a collector of items that others have thrown away. Until 2004, when his van was the subject of an arson attack and was firebombed, he drove around collecting goods that other people had discarded or no longer had any use for, thus proving the adage that one person's trash is another person's treasure. After the use of his van ceased in 2004, he collected these items on foot, usually transporting them to his residence with the aid of strollers, also collected "in the usual way". He has engaged in this practice over many decades. The items range from televisions, video tapes, taps, clothing, tins of food, books, and include a myriad of other items. Some of the material is collected for personal use, some is recycled, and some is repaired and resold. The items are generally stored in organised piles on his property.
Mr Ulrich stores the items he collects at his property located at 17 Ballyshannon Road, Killarney Heights, or Lot 21 Sec 80 DP758566 ("the premises"). Killarney Heights is a suburb located in the Warringah local government area. It is a quiet residential suburb, characterised by separate single and two storey dwellings. The suburb is leafy and green and is in close proximity to a national park.
At first, the collected items were stored inside the dwelling located on the premises. But over the decades, the dwelling became full, causing Mr Ulrich to move and live outside on the premises, which he has done for the past eight years. Once the house had reached maximum storage capacity, the collected items overflowed into Mr Ulrich's front and rear yards, onto his driveway and around the sides of his house and onto two verandas at the rear of his house.
Because he now lives in his front yard, rather ingeniously, Mr Ulrich has constructed sleeping quarters in his front yard and an outdoor living area, where he cooks, eats meals, reads, watches television and listens to music.
Some, but not all, of Mr Ulrich's neighbours object to the collected and stored items visible not only from Ballyshannon Road, but also from at least one property situated across the road, and from another immediately adjacent to, the premises. Consequently, there have been complaints to the council by neighbours about the unsightly nature of the premises, odours emanating from the premises and disturbance late at night caused by the noise from Mr Ulrich's television set and stereo. But apart from these activities which Mr Ulrich engages in upon his premises, he otherwise keeps to himself and does not disturb others. Mr Ulrich is in his late sixties or early seventies. He lives alone and is not employed.
The Council Orders Mr Ulrich to Clean Up the Premises
These proceedings are civil enforcement proceedings relating to the failure of Mr Ulrich to comply with two sets of orders issued by the applicant, Warringah Council ("the council"), under s 124 of the Local Government Act 1993 ("the LGA") and s 121B of the Environmental Planning and Assessment Act 1979 ("the EPAA") to clean up the premises, on 11 May 2011 ("the 2011 orders").
The s 121B orders issued under the EPAA required Mr Ulrich to:
(1) Cease using the Premises for the purposes of the collection, display, storage and accumulation of goods, materials and articles whether new, used or second hand.
(2) In ceasing the uses specified in (1) you must:
(a) remove all goods, materials and articles whether new, used or second hand from those parts of the Premises which are shown in shading ("cleared area") on the plan attached and marked "A" ("Plan");
(b) once all the goods, materials and articles whether new, used or second hand have been removed from the cleared area; cease using the cleared area for the collection, display, storage and accumulation of goods, materials and articles whether new, used or second hand;
(c) remove from the Premises (including inside the dwelling) goods, materials and articles whether new, used or second hand so that reasonable access is provided to the inside of the dwelling and ensure that such access is maintained at all times;
(d) remove from the Premises (including inside the dwelling) goods, materials and articles whether new, used or second hand so that reasonable access is provided to functioning sewage facilities and potable running water inside the dwelling and ensure that such access is maintained at all times; and
(e) only collect, display, store and accumulate goods, materials and articles whether new, used or second hand on the Premises in the area which is not shown shaded on the Plan or inside the dwelling in a manner which is not likely to harbour and/or attract vermin, create odours, create a fire risk, prevent reasonable access being provided to the inside of the dwelling or prevent reasonable access being provided to functioning sewage facilities and potable running water on the Premises.
(3) In this order goods, materials and articles include:
(a) any goods, materials, articles, objects and items whether new, used or second hand including wooden/plastic chairs, large umbrellas, kitchen appliances/utensils, any open containers whether storing any matter or not, newspapers, buckets, batteries, pots and any other general refuse.
(4) In this order:
(a) "Land" means the land known as 17 Ballyshannon Road, Killarney Heights.
(b) "Dwelling" means the dwelling which is erected on the land.
(c) "Premises" means both the land and the dwelling which is erected on that land.
The LGA orders issued pursuant to s 124 of that Act were in identical terms. The "Plan" referred to in the 2011 orders is attached to this judgment at annexure "A".
It is the enforcement of the 2011 orders that the council seeks to effect by these proceedings. Although in a letter from the council to Mr Ulrich dated 14 September 2011, foreshadowing these proceedings, it stated that the summons would seek an order permitting it to enter the dwelling located on the premises to remove items and objects, no such order has been sought. And nor could it, given that at all times Mr Ulrich has been permitted to store items inside his dwelling, such storage permissible pursuant to the 2011 orders. There is no suggestion that Mr Ulrich was confused as to the terms of the 2011 orders by reason of this error.
After two and a half days of hearing and additional written submissions filed by Mr Ulrich on 15 October 2011 and the council on 17 October 2011, ultimately, the parties were, with considerable and commendable effort, (with the exception of costs - discussed below), largely able to agree upon a form of orders that substantially amended the 2011 orders. While some areas of disagreement remained between the parties as to the precise scope and terms of the new orders, the areas of disagreement were sufficiently minor that the Court was able to, having regard to the parties' further written submissions, resolve the outstanding matters in dispute and make the new proposed orders.
These orders will compel Mr Ulrich to cease living in his front yard, remove the items stored in his front yard and from other identified parts of the premises identified in the orders, impose a 9pm curfew on Mr Ulrich watching television and listening to music outdoors and ensure that no additional items are collected and stored on the premises. While these orders will not entirely appease the neighbours who have lodged complaints with the council, and are not Mr Ulrich's preference, they nevertheless represent a reasonable compromise by both parties in resolving the issues in these proceedings.
The Statutory and Planning Framework
The council asserted two bases for enforcement of the EPAA orders:
(a) first, because Mr Ulrich is carrying out a separate and distinct collection and storage use without development consent on the premises in breach of s 76A of the EPAA; and
(b) second, because Mr Ulrich has not complied with the 11 May 2011 orders issued by the council.
In relation to the first basis, the council argued that the collection and storage of materials on the premises is so extensive that it constitutes a separate and distinct use of the premises, a use that goes beyond what might be an ancillary residential use, requiring development consent under the relevant Local Environmental Plan.
From December 2000 until 8 December 2011 the Warringah Local Environmental Plan ("the 2000 WLEP") applied to the premises.
Under the 2000 WLEP, a dwelling house was a Category 1 use, permissible with consent. The use of land for the separate purpose of the collection, display, storage and accumulation of goods, material and articles whether new, used or second hand ("collection use") was a Category 2 land use, also permissible with consent.
On 9 December 2011 the 2000 WLEP was repealed and Warringah Local Environmental Plan 2011 ("the 2011 WLEP") came into operation. Under the 2011 WLEP, the premises is zoned R2 - Low Density Residential. A collection use is prohibited under the R2 zoning, which provides:
Zone R2 Low Density Residential
1 Objectives of zone
To provide for the housing needs of the community within a low density residential environment.
To enable other land uses that provide facilities or services to meet the day to day needs of residents.
To ensure that low density residential environments are characterised by landscaped settings that are in harmony with the natural environment of Warringah.
2 Permitted without consent
Home-based child care; Home occupations
3 Permitted with consent
Bed and breakfast accommodation; Boarding houses; Boat sheds; Building identification signs; Business identification signs; Child care centres; Community facilities; Dwelling houses; Educational establishments; Emergency services facilities; Environmental protection works; Exhibition homes; Group homes; Health consulting rooms; Home businesses; Hospitals; Places of public worship; Recreation areas; Respite day care centres; Roads; Veterinary hospitals
4 Prohibited
Any development not specified in item 2 or 3
It is not in dispute that no development consent has ever been obtained by Mr Ulrich for a collection and storage use on the premises.
As a basis for enforcement of the LGA orders, the council submitted that the premises in their present state are not in a safe and healthy condition, that the exterior parts of the land outside the dwelling are covered with goods, materials and articles, that there is no access to the interior of the dwelling, and that Mr Ulrich has no access to potable water or toilet facilities. Failure to comply with the 2011 s 124 LGA orders constitutes a breach of the LGA pursuant to s 672 of that Act.
In addition to orders in these proceedings compelling compliance with the 2011 orders and restraining Mr Ulrich from bringing any further collected items onto his premises, the council seeks an order permitting it to enter onto the premises to undertake the works and actions required by and in accordance with the 2011 orders in the absence of Mr Ulrich failing to do so, pursuant to s 678(10) of the LGA and s 121ZJ(11) of the EPAA.
These sections respectively provide as follows:
678 Failure to comply with order-carrying out of work by the council
(10) In any proceedings before the Land and Environment Court that are brought by a council against a person as a result of the person's failure to comply with an order under Part 2 of Chapter 7, the Court may, at any stage of the proceedings, order the council to exercise the council's functions under this section. Having made such an order, the Court may continue to hear and determine the proceedings or may dismiss the proceedings.
121ZJ Failure to comply with order-carrying out of work by consent authority
(11) In any proceedings before the Land and Environment Court that are brought by a person who gave an order against another person as a result of the other person's failure to comply with the order, the Court may, at any stage of the proceedings, order the person who gave the order to exercise the person's functions under this section. Having made such an order, the Court may continue to hear and determine the proceedings or may dismiss the proceedings.
It has been held that the Court has the power to order that this be done by the council and its contractors (Waverley Council v Bobolas (No 2) [2009] NSWLEC 211, Manly Council v Moffitt [2006] NSWLEC 184; (2006) 146 LGERA 215, Council of the City of Sydney v The Estate of the Late Alfred Sulligoi care of The Public Trustee [2007] NSWLEC 778 and North Sydney Council v Wouters [2012] NSWLEC 94 at [22]).
The council submitted that the current state of the premises, together with its prior history, justifies the making of these orders.
Mr Ulrich is no stranger to enforcement proceedings of this nature. Court orders were made on 25 October 1999 restraining Mr Ulrich from using the premises for the separate purpose of a collection use and ordering him to remove goods, materials and articles from the front and rear yard areas ("the 1999 orders"). On 24 June 2000 the Court made further orders appointing and directing the council to carry out removal works under the 1999 orders (Warringah Council v Ulrich [1999] NSWLEC 227). These works were carried out by the council over a period of three days between 5 and 8 February 2001.
Although it is agreed between the parties that Mr Ulrich has made some recent progress in cleaning up the premises, as the evidence demonstrated, a significant number of goods, materials and articles remain, much to the consternation of the council and, as described above, some of the neighbours nearby.
The Site Visit
The hearing commenced at the premises, where a site visit was conducted, with Mr Ulrich and representatives from the council present. An inspection was taken of the entirety of the premises, with the exception of the inside of the dwelling located on it. However, visual access was gained into part of the house by an open door at the side of the house leading into the kitchen and dining room. In addition to a 1996 Golden Girls calendar wedged into a box of miscellaneous items, piles of books, magazines, and innumerable goods and chattels could be seen on every surface, in every nook, and in every cranny. Indeed such was the amount of stored material that access into the house by more than half a metre from this door was almost impossible. This was, as Mr Ulrich frankly conceded, "a reasonable representation of what the rest of the house was like".
In the front yard there were piles of items covered with tarpaulins, collections of bottles, some empty and some full, water collection containers (some open, some covered), a table with material stored under it, suitcases, a tent with items in it (although Mr Ulrich stated that this was only temporary), a covered sleeping platform where Mr Ulrich sleeps, a bench with a hotplate where Mr Ulrich prepares his meals, a television set covered by a tarpaulin and beach umbrella, a chair shaded by another beach umbrella, in which Mr Ulrich sits to watch television, read or rest, and various covered and uncovered containers in which Mr Ulrich recycles and composts predominantly paper by soaking it in water until it turns to mush. Mr Ulrich admitted that occasionally he added organic matter (mainly food scraps) to these composting containers. It is these containers that, on the day of the site visit, emitted a localised unpleasant rotting odour. Mosquitos were also present and appeared to be breeding in uncovered containers of collected water.
The driveway contained the van that had been firebombed and multiple strollers used by Mr Ulrich to collect discarded items. The van also contained various items and materials.
To the rear of the driveway was an incomplete carport that similarly was used to store collected material. The carport is an area in which items were not permitted to be kept under the terms of the 2011 orders.
Downstairs from the carport and along the west side of the house, including on and under a side concrete veranda, were a significant amount of stored goods and materials, placed in an area where items were permitted under the 2011 orders. Most were organised into various piles and some of these piles were covered with tarpaulins. It is into this area that the property immediately adjacent to Mr Ulrich's premises, at 19 Ballyshannon Road, has, from the back deck, a clear line of sight and which is the subject of a complaint.
The immediate rear of the dwelling was in a similar state (both the bottom and top verandas). Likewise the passage along the east side of the house. A ladder was propped against the rear top floor balcony. It is by this means that Mr Ulrich enters his house. The rear yard also contained items such as surfboards, chairs, pottery and the remnants of the composing paper that Mr Ulrich had deposited as fertiliser. The remains of a dead tree that had fallen over were visible, as was the corpse of a dead rat. Again, mosquitos were present. Most of the rear yard was covered in a thick blanket of vegetation, hiding the majority of the deposited items.
The Council's Evidence
Evidence of the Council Inspectors
The council relied on the evidence of two witnesses: first, Mr Nicholas Ives, the Environmental Health and Protection Manager of the council; and second, Mr Pankit Shah, the Environmental Health Officer of the council.
In his first affidavit, affirmed 23 February 2012, Mr Ives deposed that:
(a) this was not the first time that the council had sought orders such as these. On two separate occasions (25 October 1999 and 24 July 2000) the Court had made orders restraining Mr Ulrich from using the land for the separate purpose of the collection, display, storage and accumulation of goods and materials and articles whether new, used or second hand without prior consent of the council; ordered Mr Ulrich to remove various goods, materials and articles from the front and rear yard areas; and permitted the council to carry out the removal of those items;
(b) however, since those orders, Mr Ulrich had continued to carry out the collection use on his premises;
(c) on 12 December 2008, Mr Ives received a complaint about the state of the premises from a neighbour at 18 Ballyshannon Road, pursuant to which he made an inspection of Mr Ulrich's premises and observed that Mr Ulrich was storing materials including waste on the premises in contravention of the 1999 orders. He observed that the collected materials were visible from the public road and that Mr Ulrich was living under beach umbrellas in the front yard. Annexed to Mr Ives' report were a number of photographs he took during the inspection which depicted the state of Mr Ulrich's property. The photos clearly demonstrated the extensive nature of the items collected and stored on the property;
(d) as a consequence, on 16 January 2009, the council issued Mr Ulrich with a Notice of Intention to Issue an Order;
(e) Mr Ives undertook an inspection of the premises on 17 March 2009. Pursuant to this inspection, the council issued an order under s 124 of the LGA, which was served on Mr Ulrich on 21 April 2009. The order demanded that Mr Ulrich remove the collected and stored items from his premises;
(f) on 5 June 2009, the council received a letter from Mr Ulrich in which he stated that he had commenced cleaning up the premises;
(g) on 9 June 2009, Mr Ives again inspected the premises to see if there had been compliance with the s 124 order. In Mr Ives' opinion, there had not;
(h) on 28 August 2009, the council issued Mr Ulrich with a Clean-Up Notice under s 91 of the Protection of the Environment Operations Act 1997;
(i) on 31 August 2009, the council received a letter from Mr Ulrich which again stated that he was attempting to comply with the s 124 order;
(j) on 11 September 2009, a council officer inspected the premises. This occurred again on 29 September 2009. This council officer determined that the order had not been complied with. A further inspection of the premises on 2 November 2009 was undertaken by the council. According to the council the clean up had not been completed;
(k) a penalty infringement notice was issued to Mr Ulrich on 4 December 2009, in respect of the Clean-Up Notice;
(l) on 19 May 2010, Mr Ives made a further inspection of the premises. Mr Ulrich permitted Mr Ives entry onto his property for the purposes of the inspection. Mr Ives described what he saw in the following terms:
I walked around the property looking at items that were stored. I noticed that many items were wet and mouldy, there was lots of water logged paper and cardboard. There were buckets of water that could provide mosquito breeding environment. The rear yard was overgrown and there were stockpiles of material stored under covers. The dwelling was overflowing with items and items were even stored on the adjoining property.
During this inspection Mr Ives indicated to Mr Ulrich that in his opinion Mr Ulrich was in breach of the s 124 order. Mr Ulrich informed Mr Ives that he had been making attempts to comply with the order. For example, he had ordered and filled a skip bin with items and had been using the council clean ups and the weekly wheelie bins to remove items from his property. He also told Mr Ives that he was not using the toilet because he had turned the water off at the water meter when his hot water service had broken. Consequently he used the toilet at shopping centre facilities or used the nearby bush. Mr Ives informed Mr Ulrich that the council would seek legal advice in relation to enforcing the s 124 order. He advised Mr Ulrich to arrange for the materials to be removed and to reconnect the water to the house;
(m) on 7 December 2010, the council issued Mr Ulrich with a new Notice of Intention to Issue an Order pursuant to s 121H of the EPAA and s 132 of the LGA, requiring him to remove the materials and waste from the premises;
(n) on 25 January 2011, the council issued orders pursuant to s 121B of the EPAA and s 124 of the LGA to Mr Ulrich;
(o) on 1 February 2011, the council received a lengthy letter from Mr Ulrich again stating, amongst other things, that he had been making an attempt to remove items from his property;
(p) on 25 March 2011, Mr Ulrich contacted Mr Ives stating that he had never received the Notices of Intention. As a consequence, on 1 April 2011 Mr Ulrich was served with new Notices of Intention to Issue an Order pursuant to s 121H of the EPAA and s 132 of the LGA;
(q) on 12 April 2011, the council received a further letter from Mr Ulrich, referring to the Notices of Intention that had been issued on 1 April 2011, and requesting further time to complete the clean up of the premises;
(r) on 11 May 2011, the council issued Mr Ulrich with an order pursuant to s 121B of the EPAA and an order pursuant to s 124 of the LGA demanding that he clean up his premises;
(s) on 27 July 2011, Mr Ives carried out an inspection of the premises. Mr Ulrich was present. Mr Ives determined that the land was not satisfactorily cleaned up as required by the 2011 orders and that it was being used to store materials that constituted waste. Photographs were taken at the time and were annexed to Mr Ives' affidavit. These demonstrated that a considerable number of items were stored on the property that, on any view, constituted waste;
(t) on 14 September 2011, the council's solicitors sent a letter to Mr Ulrich advising him that, in the absence of compliance with the orders within 28 days, proceedings in this Court would be commenced;
(u) on 20 September 2011, Mr Ulrich sent a letter to the council seeking to justify his non-compliance with the 2011 orders;
(v) on 2 November 2011, Mr Ulrich was served with the summons commencing these proceedings; and
(w) attached to Mr Ives' affidavit were a number of complaints from neighbours about the state of the premises.
It was Mr Ives' opinion, as expressed in his first affidavit, that the premises posed a risk to health and safety because:
(a) first, many of the items included rotting cardboard, mattresses, empty and full jars of food and other items, that could attract and harbour vermin;
(b) second, water was accumulating in open containers and was likely to encourage mosquito breeding and cause odours spreading beyond the premises;
(c) third, the accumulated materials constituted a fire risk; and
(d) fourth, there was no access to functioning sewerage facilities and potable water on the premises.
Mr Ives also concluded that based on what he had observed during his inspections of Mr Ulrich's property, Mr Ulrich appeared to sleep, cook and live outside his premises in his front yard.
In his second affidavit, affirmed 13 July 2012, Mr Ives deposed that he had carried out an inspection of Mr Ulrich's property on 11 July 2012. He stood on the front verge and observed that there was still a large amount of goods and materials being stored on the premises. It was his opinion that since conducting his prior inspections of the site, the site did not appear to be noticeably different.
Mr Pankit Shah deposed in his affidavit affirmed 13 July 2012 that on 2 July 2012 he, along with another council officer, carried out an inspection of the premises. Upon his arrival at the premises he noticed a small stockpile of accumulated material on the front verge outside the property. Mr Ulrich would not let Mr Shah enter the property. Accordingly, he took photographs of the front garden of the premises from the front verge and photos of the items located on the front verge. Again these photos depicted a number of items stored in Mr Ulrich's front yard, some of which appeared to be waste material.
On 4 July 2012, Mr Shah returned to the premises to undertake a further inspection. The purpose of this inspection was to see to what extent the council clean up that had occurred on or about 3 July had lessened the volume of material on the premises. The council clean up was one of the ordinary council clean ups provided by it several times a year to residents of the area. Again Mr Ulrich did not permit Mr Shah to enter onto his property and photos were taken by him from the front verge. These photos supported the observations made by Mr Shah that there was still a considerable number of goods and materials accumulated in the front garden of the property. The items on the front verge had, however, been removed.
Mr Ulrich cross-examined both Mr Ives and Mr Shah. Mr Ives agreed that general "untidiness" was not unlawful, but stated that the volume of material stored on the premises meant that there was a continuing breach of the 2011 orders. Mr Shah agreed that he had in fact only inspected Mr Ulrich's property on 2 and 4 July 2012, and did not have a fulsome appreciation of Mr Ulrich's clean up efforts.
Evidence of the Neighbours
In support of its claim, the council furnished the Court with affidavit evidence from two of Mr Ulrich's neighbours: Mr Raymond Mooney (sworn 23 February 2012) and Mr Steven Maas (sworn 23 February 2012). During the site visit, an inspection was taken of the rear deck on Mr Mooney's property and the bedroom and deck of Mr Mass' property.
Mr Mooney owns and resides with his wife at 19 Ballyshannon Road, Killarney Heights, which adjoins Mr Ulrich's property. The Mooneys have lived there since 1967.
During the hearing, it was acknowledged by the parties that a degree of animosity has arisen between Mr Mooney and Mr Ulrich as a result of the subject-matter of these proceedings.
In his affidavit, Mr Mooney attested to the negative visual impact of Mr Ulrich's collected and stored materials and items. He stated that from the downstairs dining room and upstairs bedrooms he could see into Mr Ulrich's yard and could see piles of items, including video tapes, DVDs, books, old newspapers, suitcases and clothes, many of which were covered with tarpaulins. He additionally stated that from the upstairs window he could see that Mr Ulrich was storing "an old derelict combie van in the driveway".
During cross-examination by Mr Ulrich, Mr Mooney admitted that he could not see into Mr Ulrich's carport from any of the rooms at his house, and that his view was only of the "rubbish" at the side of the house and in the rear yard. In response to Mr Ulrich's question as to whether or not Mr Mooney was aware that Mr Ulrich was permitted to store items at the west side of the rear yard, Mr Mooney replied that knew Mr Ulrich had been told by the Court that he could keep items in certain areas, but he did not know what those areas were.
Mr Mooney additionally objected to Mr Ulrich's activities on the bases of "unpleasant smells coming from the respondent's property", which were noticed "from time to time", and the high volume of noise emanating from the premises as a result of Mr Ulrich watching TV or listening to music in his front yard, which, Mr Mooney stated, occurred "sometimes".
During cross-examination Mr Mooney indicated that he noticed the odours every two to three weeks, and believed they emanated from an area on the premises where paint and chemicals were stored. In relation to noise, Mr Mooney indicated that he heard Mr Ulrich's TV on a weekly basis, usually late at night, and that the noise was more noticeable in summer when his windows were open. Mr Mooney stated that he could hear the noise in his living room and in the past had heard the noise in his dining room, but not in his bedroom.
Mr Mooney emphasised that the subject matter of the proceedings have caused him a great deal of stress. Mr Mooney gave evidence that he and wife do not like to entertain because they are embarrassed about the state of Mr Ulrich's property. He indicated that he and his wife were intending to sell their property in the near future and he "feared" that the state of Mr Ulrich's property would "significantly decrease" the value of his property.
Mr Maas and his wife own and reside at 16 Ballyshannon Road, Killarney Heights, directly across the street from the premises. Mr Maas purchased his home in 1985 and moved in about late 1994, after living overseas.
In his affidavit, Mr Maas stated that he had observed Mr Ulrich using the premises to store and display various goods in the front garden, the driveway and sometimes on the front verge. This included a van, which sat in the driveway. Mr Maas also attested to having observed Mr Ulrich using the garden tap at 15 Ballyshannon Road to drink from, wash himself and to do his washing.
Mr Maas stated that the premises presented to him, at least from his house, as "a junkyard". The vegetation was overgrown, the grass on the nature strip was tall and unmown and, from time to time, Mr Ulrich placed objects across his front fence, thereby attracting onlookers.
During the site visit and during cross-examination, Mr Maas agreed that Mr Ulrich's property had improved over the past six months insofar as the amount of material stored on the premises appeared to have diminished.
Mr Maas' primary complaint was in respect of the noise emanating from Mr Ulrich's front yard. He attested to the fact that, over the years, Mr Ulrich had kept him awake while Mr Ulrich watched television late at night. Because Mr Ulrich watched TV and listened to music in his front yard, and Mr Maas' bedroom faces the street, the noise often forced him to close his bedroom window, even on hot nights. On a number of occasions, Mr Maas had gone across the street during the night in his pyjamas and asked Mr Ulrich to lower the noise level. He agreed that Mr Ulrich obliged these requests in a civilised manner.
Again, Mr Maas indicated that in the last six months Mr Ulrich has not been playing the television as loudly as he had previously. However, he gave evidence that recently he had heard Mr Ulrich playing a movie late at night with lots of loud gunfire.
Finally, Mr Maas stated in his affidavit that he and his wife were considering selling their house and moving elsewhere "sometime" in the future, and that he was concerned that he would have to sell the house well below the market value because it looked directly onto Mr Ulrich's property. Mr Maas indicated that he and his wife did not have any other major assets.
Mr Ulrich's Evidence
Mr Ulrich provided a detailed and comprehensive affidavit, filed on 21 June 2012. The relevant evidence is summarised below.
In response to the written evidence of Mr Ives, Mr Ulrich generally took issue with Mr Ives' approach to his investigations of the premises. This included the way in which Mr Ives had taken photographs (by enlarging objects, cropping pictures and using a "foreshortening effect") and the use of what Mr Ulrich considered to be inflammatory language in Mr Ives' written material. Mr Ulrich also responded to a number of specific points made by Mr Ives.
First, Mr Ulrich objected to the suggestion that his activities constitute an impermissible separate use, as distinct from ordinary domestic usage. For this reason, he never regarded it as necessary to apply for a development consent. He indicated that the term "collection use" is misleading in that it suggests a commercial activity. Mr Ulrich contended that his goods are "unexceptional" ordinary household items such as "clothing, brushes, vitamins, stationary, blankets, records". He indicated that the term "collection use" had not been applied in the orders in such a way as to describe the particular offending articles, or their quantity or location.
Second, Mr Ulrich indicated that he had made many efforts to clean up the premises. These efforts began in 1997 and were assisted in 2001 by the council removing items from the premises pursuant to the 2000 Court orders. Mr Ulrich indicated that there was "heightened activity" during 2009 and 2010, at which time he "worked fairly hard, especially at council-clean-up time" to remove materials. Specifically, he has, at various times, held a garage-sale, hired a skip bin, filled a number of "wheelie-bins" on Sundays, and discarded larger quantities of goods and materials at twice-annual council clean-ups. Sometime during 2009 and 2010 a large suitcase was filled with metal objects and taken to a buyer. Nineteen other similar trips have been made with this suitcase up to 2012.
Despite these efforts, Mr Ulrich was issued with a Notice of Intention to Issue a Clean-up Notice by Mr Ives in August 2009, with a time to respond of seven days. By way of response Mr Ulrich ordered a skip bin, which arrived ten days later. He then assembled materials near the front wall ready for pick-up. The official Clean-up Notice was, however, issued, with the items placed out the front being described as "pollution".
Third, in response to Mr Ives' comment that Mr Ulrich has "only been using council's normal domestic waste collection service" to discard materials, Mr Ulrich indicated that he had, with permission from neighbours, borrowed additional receptacles from neighbouring properties.
Fourth, in relation to council assessments of "public health and safety risk", Mr Ulrich indicated that his health has not been affected during his approximately 30 years at the premises.
Fifith, in relation to Mr Ives' concerns regarding Mr Ulrich's access to potable water, Mr Ulrich indicated that he is content to drink and wash using rainwater collected by him in buckets. His water facilities are operative, but he has deliberately turned the water off following a leak in his hot water system. The use of rainwater has saved Mr Ulrich water, time usually spent showering, and money. As for toileting, Mr Ulrich stated that he "goes for a bushwalk" to relieve himself and that this is adequate.
Sixth, Mr Ulrich addressed the issue of mosquitos. He argued that mosquitos do not pose a health risk in the Sydney region and although they cause "some annoyance", they have so far not caused any harm to anyone.
Seventh, Mr Ulrich highlighted the fact that, as Mr Ives acknowledged at paragraph 27 of his affidavit, there has been some change in the amount of materials now stored at the premises. He indicated that his clean-up efforts have been extensive and that this may not be wholly apparent to the outside observer because "a lot of the eliminations came from the foundation space, the back verandas, upstairs bedrooms, then later in 2011/12 from laundry, kitchen, dining room and adjacent floorspace." Although some areas have been re-populated, "elbowroom" has been cleared in all passages and some risks and hazards have been dramatically reduced.
This change, Mr Ulrich argued, should have been apparent to Mr Ives during his inspection on 27 July 2011, which occurred "after the largest ever (10 plus m3) culling had been done during May, June 2011". Following this inspection, however, Mr Ives presented a list of items he considered to be risky or offensive and in need of removal, including cardboard boxes, video tapes, suitcases, buckets, food containers, cooking equipment, mattresses, clothing, sporting equipment and broken furniture. Mr Ulrich argued that this list "shows clearly that I own nothing else but intrinsically non-offending ordinary goods and chattels". Specifically, he stated that:
(a) cardboard boxes are environmentally friendly, sustainable, versatile, cheap, lightweight, strong, flexible and safe, and can be recycled or biodegraded;
(b) video tapes provide a means of recreation;
(c) suitcases are practical transportation containers;
(d) buckets are necessary to harvest rainwater and are used by him to biodegrade cardboard and food refuse which is in turn used to fertilise the garden;
(e) food containers are sealed and, upon opening, are either consumed or discarded if spoiled;
(f) "cooking equipment" refers only to one hotplate and a bench top used for food preparation;
(g) clothing is an important commodity;
(h) it is unlikely that Mr Ives observed mattresses, sporting equipment or broken furniture but, that if he did, these items could be easily discarded.
Eighth, Mr Ives expressed concern that, due to the presence of "empty and full jars of food and other items, the premises would attract and harbour vermin". Mr Ulrich indicated that he has, in the past, sighted rats on the premises and, although they did not pose a problem to him, they were easily eradicated using rat poison.
Ninth, in relation to Mr Ives' reports of an "odour", Mr Ulrich argued that any smell was localised to the two soaking buckets in the front yard "which are usually lid-covered" and "only emit a faint, localised mini-pong occasionally", and were located some distance from either the Maas or Mooney properties.
Tenth, in relation to Mr Ives' concerns regarding "fire risk", Mr Ulrich had not observed any fire at the premises in 50 years of occupation.
Eleventh, although Mr Ives had expressed concern in his affidavit regarding Mr Ulrich's access to his dwelling, Mr Ulrich submitted that there had not been any complaint made in this regard. Mr Ulrich admitted that he lives - that is to say, works, cooks and sleeps - predominantly in his front yard, but does not believe that this causes a problem. He indicated that front and back yards are commonly used in a number of ways, as evidenced by the presence of sheds, trampolines and pools.
Twelfth, in relation to evidence to the effect that he needed to effect "repairs" to the dwelling, Mr Ulrich attested that he neither has the time nor the funds to effect repairs. Further, any money put aside by him is intended for the purchase of a new car.
Finally, Mr Ulrich argued that any complaints made to the council regarding his use of the premises have originated from four neighbours, only two of which have provided evidence in these proceedings. Complaints made by Mr Maas relating to items being "stored" or placed on the council strip and/or on the top of the front wall were unfounded because these items were only placed in these locations in preparation for removal - either via a council clean-up, or as part of a garage sale. Similarly, complaints made by Mr Mooney on 9, 16 and 22 June 2011 related to goods placed at the front of the property pre-council clean-up and/or in preparation for a garage sale.
Mr Ulrich responded to the affidavit evidence of Mr Maas, and the issues raised by him, in a similarly thorough fashion.
First, Mr Ulrich indicated that, although Mr Maas' property is located directly across the street from his own, a "totally impervious, when in leaf, Liquid Amber (?) street tree has grown (so far) to the height of the first-floor verandah" that partially obscures Mr Maas' view of the premises. Nonetheless, Mr Maas' block slopes upward and, from his front veranda, he conceded that Mr Maas could see into Mr Ulrich's front yard from above. From this position, however, Mr Ulrich did not believe that Mr Maas could see his van, which was parked some way down in the driveway and was largely hidden behind vegetation. In any event, it was parked there legally.
Second, as with the affidavit of Mr Ives, Mr Ulrich took issue with some of the language employed by Mr Maas, particularly words such as "rubbish", "junkyard", "stores" and "displays". Mr Ulrich denied having stored or displayed items on the "front verge", as alleged by Mr Maas, and argued that he did not leave goods and chattels sitting out the front of his premises where they could be taken by others. He further indicated that the word "junkyard" was rejected by the Court during the 1999 proceedings and should therefore not now be used to describe the premises.
Third, in relation to Mr Maas' concerns regarding Mr Ulrich's "tall grass", Mr Ulrich indicated that he preferred to let his grass to grow tall, rather than to trim it using a "petrol-combustion mower", because the former had a positive carbon sequestration effect.
Fourth, in relation to Mr Maas' complaints about noise emanating from Mr Ulrich's property, specifically from the television and radio, Mr Ulrich indicated that Mr Maas has never made any formal complaint to this effect. He objected to this evidence from Mr Maas on the basis that he had not specified how often, at what time of day, and how loud this noise disrupted Mr Maas in his day-to-day activities. Mr Ulrich argued that Mr Maas should not need to open his bedroom windows due to the heat because Mr Maas had recently installed an air conditioner.
Finally, in relation to Mr Maas' concerns that Mr Ulrich's activities were devaluing the real estate value of his property, Mr Ulrich indicated that Ballyshannon Rd, Killarney Heights is a highly sought-after street and that he did not believe that the activities of a single neighbour would be a material deterrent for potential buyers. He speculated that, although Mr Maas discussed selling his property, this would not in fact occur for some 10 to 15 years.
In response to Mr Mooney's affidavit, Mr Ulrich noted that Mr Mooney's property was located to the immediate west of his premises and that the kitchen and living room were located on the east side of the house, looking onto the dividing fence between his property and the premises. In his affidavit, Mr Ulrich addressed a number of specific issues raised by Mr Mooney.
First, Mr Mooney's primary objection was to the visual impact of those items located at the westerly side of Mr Ulrich's rear yard. Mr Ulrich indicated that the Mooneys' main view was in fact to the south. The items in his yard had, over time, been largely replaced with low, medium and high vegetation. He did not believe that Mr Mooney could see into the carport, where the van was located, because ivy had grown up the carport wall and over the roof of the van. However, in any event, the van was legally parked in the driveway.
Second, in relation to Mr Mooney's complaints regarding odour, Mr Ulrich admitted that there was one instance where meat scraps placed in the "wheely-bin", coupled with high temperatures, had generated a foul odour. This was, however, solved by using "de-odouriser spray". Further, the Mooneys had no way of knowing that any smells originate from Mr Ulrich's property, and not the property to his east or some other nearby property.
Finally, in relation to noise impacts, Mr Ulrich indicated that the descriptors "sometime" and "from time to time" were not instructive as to the true impact of Mr Ulrich's activities upon Mr Mooney. He argued that, in fact, the Mooneys "go to bed early and use a south facing bedroom", meaning his TV and speakers were located a reasonable distance away.
In summary, Mr Ulrich emphasised the effort he had made to date in clearing materials from his property. He estimated that between December 2008 and March 2012, he had removed 50 to 80m3 of material from his property.
Mr Ulrich highlighted a number of concerns regarding the relief sought by the council. These are summarised briefly given the ultimate resolution of this matter.
First, Mr Ulrich was concerned that, absent the identification of specific items to be removed, he did not know which items he would be left with following the entry of council officers onto his property and its removal of various objects.
Second, Mr Ulrich was concerned that his unregistered van would be removed because it was currently located in the "cleared area" pursuant to the 2011 orders, notwithstanding that the van was parked in the driveway upon council instruction.
Third, Mr Ulrich did not agree that the "cleared areas" identified in the 2011 orders were the most practical areas to be emptied of materials and items. For example, the removal of materials would not quell Mr Mooney's anxiety because, under the 2011 orders, it was not envisaged that materials would be removed from the side rear yard area of the premises.
Mr Ulrich also gave oral evidence during the hearing. This evidence was relevantly to the effect that:
(a) fewer items were now located on the premises and that considerable effort had been engaged in by him to remove items from the property and to comply with the 2011 orders;
(b) Mr Mooney and Mr Maas had complained about items located in lawful storage areas pursuant to the 2011 orders;
(c) on the last occasion the council cleaned up the property, inappropriate machinery was used resulting in additional time taken and thus additional expense to him;
(d) he was reluctant "to do much work in the back" yard because of verbal abuse by Mr Mooney; and
(e) collecting, recycling and repairing was his hobby, which he commenced when he became unemployed in the late seventies and early eighties, and that he should be permitted to engage in what is otherwise a lawful activity. In addition, he derived an income from the items he sold, particularly scrap metal.
Mr Ulrich was cross-examined by the solicitor for the council. He agreed that he was essentially living in his front yard and had done so for the past eight years. He stated that the house had eight entrances and two bathrooms. He also stated that occasionally he found abandoned rats' nests and that from time to time he saw rats on his premises.
Mr Ulrich divulged that he owns another house in Chatswood which had been tenanted but which is currently being used to store items he has collected. He stated that it is in a state of disrepair and that it would, by his estimation, cost approximately $50,000 to repair. He also stated that neither house is subject to a mortgage and that he owns both outright.
Mr Ulrich is in Breach of the 2011 Orders
By reason of the new orders proposed by the council and agreed to, albeit reluctantly, by Mr Ulrich, it is not necessary for the Court resolve the argument put forward by the council that the current use of the premises for collection and storage is not permissible, either because there is no consent for such use under the 2000 WLEP or because, pursuant to the current 2011 WLEP, such use is prohibited.
Having said this, and by way of observation, based on the evidence before the Court, the current activity on the premises does, on any view, travel far beyond the boundaries of ordinary domestic collection and is arguably unlawful. Indeed, there is much force in the submissions of the council that the premises are not being used for their lawful purpose, namely, as a residential dwelling.
It is necessary for the Court to determine, first, whether or not there has been a breach of the 2011 orders, and second, whether or not it is appropriate to make the new orders proposed by the parties.
In my opinion, the evidence overwhelmingly demonstrates that Mr Ulrich is currently in breach of the 2011 orders given the location, nature and volume of items and material currently stored on the premises. In reaching this conclusion, I nevertheless acknowledge the very real efforts Mr Ulrich has made to reduce the items stored on the property.
The New Proposed Orders Are Appropriate
It is clear from the evidence of Mr Ives, Mr Shah and that observed by the Court during the site visit, that the new proposed orders should be made. In their present state, the premises are causing, or are likely to cause, a threat to public health given the emission of, admittedly only periodically, foul odours, and the presence of rats and mosquitos. Moreover, the volume and nature of the material on the premises (for example, books, magazines, paint and other flammable liquids) presents a demonstrable fire hazard in an area known to be at risk from bushfires.
I have considered the further submissions made by Mr Ulrich and the council as to the final form of the orders to be made. I have, in light of these submissions, amended the terms of the orders that were otherwise tentatively agreed to by the parties in Court. In some instances Mr Ulrich has been successful and in other instances, the council has succeeded.
Costs
Order 15 of the new proposed orders sought the payment of the council's costs of the proceedings by Mr Ulrich. Mr Ulrich submitted that, instead, each party should bear their own costs.
The council sought this order on three bases: first, that Mr Ulrich is in breach of the 2011 order which has necessitated these proceedings being brought; second, that Mr Ulrich was given ample warning of the initiation of these proceedings and ample opportunity to comply with the 2011 orders; and third, that there is no evidence that Mr Ulrich is impecunious, to the contrary, the evidence demonstrates that he owns two substantial assets.
Mr Ulrich opposed the costs order sought by the council because, first, he has made genuine attempts to comply with the 2011 orders, and second, because although he owns two houses, he does not have any liquid assets that he can mobilise in order to satisfy any costs order made. He also submitted that he ought not be liable for the overly complicated manner in which the council has brought and conducted these proceedings.
In North Sydney Council v Wouters [2012] NSWLEC 94 Pain J summarised the position with respect to costs thus (at [26]):
26 I have a broad discretion to award legal costs in Class 4 proceedings: s 98(1) of the Civil Procedure Act 2005. Legal costs are generally ordered to be paid in civil enforcement proceedings where there is no disentitling conduct as the award of costs is compensatory, not punitive. The Council through no fault of its own has had to approach the Court for relief in these unfortunate circumstances. There is authority that a person's means to pay is not a relevant consideration of whether an order for costs ought be made: Kempsey Shire Council v Thrush (No 2) [2011] NSWLEC 130 at [11]. An order for costs should be made in the Council's favour. If the costs are not agreed and are to be assessed, Mr Wouters or Mr Gibbons on his behalf can ensure that the amount is reasonable. Whether the Council enforces payment for all of its costs or will agree to Mr Wouters making payments by instalments is a matter for the Council: see Director-General of the Department of Environment, Climate Change and Water v Venn (No 2) [2011] NSWLEC 232 at [31] per Preston J.
I endorse and apply her Honour's remarks. In the present case, the council has, despite Mr Ulrich's submissions to the contrary, engaged in no disentitling conduct that would preclude a costs order in its favour. Mr Ulrich is in breach of the 2011 orders and despite several opportunities afforded to him by the council to remedy his non-compliance, he has persisted in breaching those orders. As for Mr Ulrich's means to pay, even if this were a relevant factor, there is no cogent evidence that Mr Ulrich is unable to pay any costs ordered. In these circumstances, the Court makes the costs order sought by the council.
Orders
In conformity with the reasons above the Court makes the following findings and orders:
The Court finds that:
(1) the respondent has failed to comply with an order issued by the council to the respondent under s 121B of the Environmental Planning and Assessment Act 1979 dated 11 May 2011; and
(2) the respondent has failed to comply with an order issued by the council to the respondent under s 124 of the Local Government Act 1993, dated 11 May 2011.
The Court orders that:
In these orders:
(a) "the Land" is 17 Ballyshannon Road, Killarney Heights Lot 21 Sec 80 DP 758566;
(b) "the Plan" is the plan attached to these orders and marked "B"
(c) the Areas referred to as Areas 1-9 are the following Areas:
(i) the front yard areas of the Land as marked "Area 1" on the Plan;
(ii) the eastern side of the dwelling to the eastern boundary of the land as marked "Area 2" on the Plan;
(iii) the rear areas of the land to the south of the dwelling as marked Area 3 on the Plan;
(iv) the area commencing three metres from the base of the southern wall of the carport slab approximately to the southern end of the rear lower floor verandah as marked "Area 4" on the Plan;
(v) those parts of the rear lower floor verandah (including the area under the lower western part of this verandah) as marked "Area 5"on the Plan;
(vi) the rear bathroom at the eastern end of the rear lower floor verandah as marked "Area 6" on the Plan;
(vii) the carport area as marked "Area 7" on the Plan;
(viii) the rear garden area (covered with vegetation) as marked "Area 8" on the Plan;
(ix) the area from the base of the southern wall of the carport slab for a distance of 3m to the south as marked "Area 9" on the Plan;
(d) "articles" includes any goods, materials, articles, objects and items whether, used or second hand;
(e) "storing articles" includes keeping articles, placing articles, locating articles;
(f) "cleared path" means cleared of articles and vegetation;
(1) an order that the respondent within three months from the date of these orders remove all articles from:
(a) Area 1 (except the van which can remain on the driveway in its current location, a bicycle, a garden sunbed, three chairs, a table, one TV, one beach umbrella, three empty strollers, two bucket sized (or smaller) containers to collect rainwater and the existing partly buried blue plastic drum which is to be generally covered);
(b) Area 2 (except for the existing four piles of bricks, one petrol whipper snipper, a singer sewing machine base and four Council wheelie bins);
(c) Area 3 (except for the gazebo and an aluminium powder coated chair);
(d) Areas 4, 5 and 6;
(2) an order that within six months from the date of these orders, the respondent remove the fallen dead tree and its limbs from the rear garden area (as generally shown in Area 8 on the Plan);
(3) an order that within three months from the date of these orders the respondent carry out repair works or renewal works to make operative, to the council's reasonable satisfaction, each of the toilet, shower and hand basin in the rear bathroom (Area 6 on the Plan);
(4) an order that after three months from the date of these orders the respondent be restrained from storing any articles:
(a) in Area 1 (except for the van which can remain on the driveway in its current location, a bicycle, a garden sunbed, three chairs and a table, one TV, one beach umbrella, three empty strollers, two bucket sized (or smaller) containers to collect rainwater and the existing partly buried blue plastic drum which is to be generally covered);
(b) in Area 2 (except for the existing four piles of bricks, one petrol whipper snipper, a singer sewing machine base and four Council wheelie bins);
(c) in Area 3 (except for the gazebo, and an aluminium powder coated chair); and
(d) in Areas 4, 5 and 6;
(5) an order that after three months from the date of these orders the respondent be restrained from storing any articles:
(a) within the 0.75 - 1m eastern walkway within the carport (Area 7);
(b) higher than 2.3m in the carport (Area 7); and
(c) in Area 9 - higher than approximately 1-1.5 bricks in height above the floor of the carport;
(6) an order that after three months from the date of these orders the respondent be restrained from occupying (including cooking, watching television and listening to music, between 9pm and 9am the next day) as a living area, the front yard area (Area 1) of the Land;
(7) an order that from the date of these orders the respondent be restrained from putting or placing any further articles in Area 8;
(8) an order that within three months from the date of these orders the respondent carry out the necessary works to the council's reasonable satisfaction to provide a cleared path in the 1m areas from the eastern, southern and western boundaries of Area 3;
(9) an order that after three months from the date of these orders and continuing the respondent maintain a cleared path in the 1m areas from the eastern, southern, and western boundaries of Area 3;
(10) an order that, within three months from the date of these orders the respondent erect and maintain a fixed 2m screen to the council's reasonable satisfaction in the location marked within Area 5 as "Screen to be erected";
(11) if the respondent does not comply with any, or any part, of orders 2, 3, 4, 9 and 11 within the times referred to in those orders, (and subject to order 12) then pursuant to s 678(10) of the Local Government Act 1993 and s 121ZJ(11) of the Environmental Planning and Assessment Act 1979, an order that the council enter the Land and give effect to those orders, or parts of those orders, that have not been complied with by the respondent;
(12) an order that the council give the respondent at least seven (7) days written notice of any time that the council intends to enter the land and give effect to any or any part of the orders in accordance with order 11;
(13) an order that the respondent pay the council's reasonable expenses of complying with orders 11 and 12 of these orders as determined by agreement between the council and the respondent, or failing agreement, by the Court by way of motion filed in these proceedings; and
(14) an order that the respondent pay the council's costs of and incidental to these proceedings, as agreed or assessed.
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Attachments "A" and "B"
Decision last updated: 19 October 2012
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