Warringah Council v Ulrich
[2001] NSWLEC 167
•07/31/2001
Land and Environment Court
of New South Wales
CITATION: Warringah Council v Ulrich [2001] NSWLEC 167 revised - 2/08/2001 PARTIES: APPLICANT
RESPONDENT
Warringah Council
Joachim UlrichFILE NUMBER(S): 40105 of 1998 CORAM: Talbot J KEY ISSUES: Practice and Procedure :- orders - payment of expenses incurred complying with direction made pursuant to Pt 42 r 9(1)(a) of the Supreme Court Rules upon default of a party. LEGISLATION CITED: Supreme Court Rules 1970 CASES CITED: DATES OF HEARING: 20/07/01 DATE OF JUDGMENT:
07/31/2001LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Ms J Smith
SOLICITORS
Wilshire Webb
In Person
JUDGMENT:
IN THE LAND AND Matter No. 40105 of 1998
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 31 July 2001
Respondent
1. After a hearing on 20 September 1999 the Court held that the storage and display of a plethora of goods in and about the premises known as 17 Ballyshannon Road, Killarney Heights was the use of the land by Mr Ulrich, the respondent, which requires development consent pursuant to Warringah Local Environmental Plan 1985.
2. The Court made a declaration that the use of the land for the purposes of the collection, display, storage and accumulation of goods, materials and articles, whether new, used or second hand, is a distinct and separate use of the land.
3. Orders were made that the respondent be restrained from using the land for the separate purpose within 120 days of 25 October 1999, together with consequential orders that, inter alia, required a staged removal of the goods, materials and articles from specified areas on the property.
4. In a further hearing on 24 July 2000 the Court was satisfied that the orders made on 25 October 1999 had not been complied with.
5. On 24 July 2000 the council was appointed and directed by the Court to carry out the works required by the orders made on 25 October 1999, pursuant to Pt 42 r 9(1)(a) of the Supreme Court Rules. Further, the respondent was ordered to pay the reasonable costs incurred by the council. Both orders were postponed until 31 January 2001.
6. Finally, the Court also ordered on 24 July 2000 that the amount to be paid by the respondent, in respect of the reasonable costs incurred by the council, be finally determined by the Court following completion of the work.
7. By notice of motion dated 27 April 2001 the council seeks an order that Mr Ulrich be ordered to pay costs incurred by it, pursuant to the orders made on 24 July 2000, in the sum of $5,835.32.
8. The evidence before the Court, which is not disputed, is that over a period of three days, between 5 February 2001 and 8 February 2001, the council carried out the works required by the orders made on 25 October 1999. The work was postponed on Tuesday 6 February 2001 due to inclement weather.
9. Stewart Cook, a council development inspector of Environmental Compliance Services, has given evidence that the council engaged two labourers to carry out the work. The construction and maintenance section of council provided a truck and driver for the removal and disposal of paint products found on the site. A backhoe and eight tonne truck were used over three days to lift and remove the material from the site. Eight trips were made to Kimbriki Recycle and Waste Centre to dispose of the material removed. The total cost of $5,835.32 includes $936 paid to a employment agency company which provided two labourers and $606.34 paid to Kimbriki Recycle and Waste Centre.
10. Mr Ulrich has sworn a lengthy affidavit that addresses what he believes to be the excessive cost incurred by council in removing the material. In his opinion, if alternative means had been adopted the cost would have been $1,220. Furthermore, Mr Ulrich says that he had identified many items as scrap material and that he made independent arrangements for a recycler to remove it. The arrangement made with the recycler was not fulfilled.
11. Mr Ulrich also complains about damage to the surface of the footpath outside his property and the removal of vegetation in the course of the cleanup by the council. He further alleges that goods worth $510, in his opinion, were removed from a neighbours property. Moreover, he asserts that a number of household items removed from his property did not fall within the compass of the Court’s orders. He also refers to a number of ornaments which he alleges were seized illegally and claims $1,500 compensation for their loss. In addition he says that reading material and other items worth $50 were stolen.
12. Mr Ulrich makes a lengthy complaint about the overuse of machinery, in particular a front end loader to remove the material over three days. He alleges that it took him four hours to clean up his property after the work was completed. In this respect he is claiming $60 compensation. He also says that it is necessary to repair a concrete floor in the carport and the driveway, in respect of which he says it will be necessary to expend $525. He claims “several thousand dollars compensation” for the removal of what he describes as “economical sheds”.
13. Various other complaints are made about extravagant work practices employed by the council, namely, double handling, slow operation and unnecessary caution in relation to the disposal of paint.
14. In addition to further compensation for removal of a ladder ($200) and 10 hardwood joists ($150), Mr Ulrich also claims a compensation amount of $1,000,000 from the council. This he says is a conservative assessment of damages to allow for some “traumatisation compensation as well as some punitive damages”.
15. Even if the Court has the jurisdiction to deal with the claims for compensation and damages Mr Ulrich has not provided the necessary proof to substantiate the quantum of his claims. Neither has he identified any basis whereby any of the amounts he refers to should be set off against the council’s claim for costs.
16. There is one aspect of the council’s claim, however, which requires some further consideration. A claim has been made in the sum of $672, for the co-ordination and supervision of the works by Mr Cook. This cost is in a different category to the use of council equipment. The latter has been charged at an hourly rate equivalent to the rate charged to the building and services branch of council, by council’s plant hire section. The figure of $672 is based on the current salary of Mr Cook, calculated at the hourly rate of $28 at eight hours per day, for three days. There appears to be no other justification for this cost. The Court is prepared to assume, in Mr Ulrich’s favour, that the direct costs incurred by council for plant hire and labour contemplates some element of supervision. In any event it is not appropriate, in the Court’s view, for the council to be reimbursed for part of the salary of an administrative officer. There is no evidence that the council suffered any direct loss as a consequence of Mr Cook being involved in the supervision of the removal operation. It is appropriate, therefore, that the sum of $672, plus GST which the council added to the claim, be disallowed.
17. In conclusion it must be said that the whole circumstances surrounding this litigation are distressing for Mr Ulrich, and in many respects unsatisfactory and certainly unfortunate. Nevertheless, notwithstanding that Mr Ulrich believes that the council has not acted fairly towards him, he was given every opportunity by the Court to remedy the situation by carrying out the cleanup operation himself.
19. The Court makes the following orders:-18. The Court is satisfied, after having regard to the evidence from the council and the extensive evidence given by Mr Ulrich in his affidavit and his comprehensive submission to the Court, that the council should be paid its expenses in the sum of $5,096.12.
- 1. The respondent pay the sum of $5,096.12 to the applicant on or before 30 September 2001 or such other date as the Registrar, upon application by the respondent and for good cause, orders.
- 2. The respondent pay the applicant’s costs of the notice of motion 27 April 2001.
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