Warringah Council v Ulrich
[2001] NSWLEC 120
•07/24/2000
Land and Environment Court
of New South Wales
CITATION: Warringah Council v Ulrich [2001] NSWLEC 120 PARTIES: APPLICANT:
RESPONDENT:
Warringah Council
UlrichFILE NUMBER(S): 40105 of 1998 CORAM: Talbot J KEY ISSUES: Orders :- compliance by council following individual default LEGISLATION CITED: CASES CITED: DATES OF HEARING: 24/07/2000 EX TEMPORE
JUDGMENT DATE :
07/24/2000LEGAL REPRESENTATIVES: RESPONDENT:
APPLICANT:
Mr A M Hudson (Solicitor)
SOLICITORS:
Wilshire Webb
In person
SOLICITORS:
N/A
JUDGMENT:
IN THE LAND AND Matter No. 40105 of 1998
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 24 July, 2000
Respondent
1. HIS HONOUR: Mr Ulrich, I have listened carefully to what you have put to the Court today. I accept that you believe that you have made what you would consider to be a reasonable and fair effort to comply with the Court’s orders made on 25 October 1999.
2. I accept also that you harbour some concern that an understanding was reached on an earlier occasion when these issues were before the Magistrate’s Court. Your understanding, following orders made in those proceedings, was that you were entitled to continue using part of your land, as defined in those orders, for the purposes which are now the subject of the complaint in these proceedings.
3. That of course is now in the past. This Court is dealing with the situation as it was declared to be following a formal written judgment at the time when the orders were made on 25 October 1999.
4. I accept also that you honestly believe that there is an injustice against you, if not a conspiracy. There is most certainly a belief that certain neighbours and the council are acting in concert to interfere with what you believe is your right to use your land in the manner that you consider is appropriate and to provide for your own recreation in the way that you personally prefer.
5. That of course is also behind us. We are here today because orders have already been made. More particularly, Orders 5, 6 and 7 have not been complied with. The council has come to this Court to seek assistance by way of further orders, whereby the Court directs the council to carry out the orders made against you on 25 October 1999.
6. We live in a society which has many conflicting interests, ideals, thoughts and perceptions. Those who make the laws in this country no doubt have regard to those differing views and seek to steer a course whereby the interests for the common good are served in the best way that one can in such a society.
7. This Court is part of that process. It does not make the laws. The Court’s function and duty is to uphold and where necessary enforce those laws. Very often the Court may have to make decisions which could be quite contrary to the personal beliefs of the presiding judge. In other cases they may well be entirely in accord with the beliefs of the presiding judge, or the law may be such that the judge feels frustrated that something cannot be done that he or she would prefer to be done.
8. The duty of the Court is to set those personal aspects aside and to deal with matters according to law. Orders have been made requiring the removal of the goods. I do not need to read out those orders because they are well known to everybody here. They have not been complied with. It is important for not only the law to be obeyed but for the authority of the Court to be recognised. Without the courts enforcing their orders where justice demands it there would be anarchy.
9. I am satisfied that the orders made on 25 October 1999 have not been complied with in that the premises at 17 Ballyshannon Road, Killarney Heights, are still being used for the separate purpose described in Order 5. Furthermore, the goods and materials referred to in Order 6 have not been removed, notwithstanding that the 60 day period therein referred to has expired. I am also satisfied, in relation to the balance of the land, that the goods, materials and articles referred to in Order 7 have not been removed, notwithstanding the expiration of the period of 120 days.
10. The Court is satisfied that the respondent, Mr Ulrich, does perceive some value, not always commercial, in the goods which remain in and about the house at 17 Ballyshannon Road. Obviously not everyone would agree with the manner in which they have been stored, collected and displayed. The council has not foreshadowed that there will be any direct environmental harm or physical detriment to other properties if a reasonable time is allowed for an opportunity for the respondent to remove the goods, materials and articles over a short period.
11. It is clearly evident, notwithstanding Mr Ulrich’s views which are directly contrary, that the goods, materials and articles do not contribute to the aesthetic appearance of the premises in a suburban situation. That in itself is of course sufficient justification to ensure that the orders are ultimately complied with or that something else is done to ensure that the goods in question are removed.
12. That is not to say that, as Mr Ulrich suggested, there will be no opportunity in the future for domestic items to be used on a day to day or other regular basis in connection with the usual residential purpose of living in the dwelling and enjoying the environs and curtilage of the dwelling. That judgment of course is yet to be made, but it will be made having regard to the general community standard and expectations rather than what might be described as the eccentric approach of Mr Ulrich.
13. The time has come Mr Ulrich for you to increase the rate of removal. You have placed some significance on what efforts have been made in the last few months. That does not necessarily explain why it is that something was not done before that, in particular immediately following the orders made in October last year. I accept that it is going to take some time. I also accept that it is only as a matter of last resort that the council should be given the authority to remove the goods and to dispose of them summarily by placing them on a garbage tip.
14. I propose to make the orders the council requests in the notice of motion dated 30 May, subject to deferring the effect of the orders for a period of time.
15. In the witness box Mr Ulrich was asked to consider whether the task could be accomplished within a period of less than nine months. Somewhat equivocally, he thought that it might be able to be done in something less. The council asks that a period of two months be allowed in order to enable Mr Ulrich to have this final opportunity.
16. I have given consideration to the problem. Mr Ulrich himself recognises that some of the goods may not have even an intrinsic value. He may not know in some cases until he has had an opportunity to look at the individual item. Nevertheless, over the last few months and weeks a large quantity of material has been placed on the street ready for disposal. That is clearly a consequence of Mr Ulrich going through his possessions and determining which items are of no value to him, either commercially or intrinsically. The process must continue.
17. If at the end of the time I allow there are any goods left on the land it is reasonable to assume that by then Mr Ulrich will have removed out of the yard to another place or within the house, those items which he believes are important to him. At the end of that time, anything that is left may be treated as rubbish as a consequence of the orders that the Court now proposes to make.
18. I propose to allow a period of six months. That particularly takes account of the early springtime referred to by Mr Ulrich. It also takes account of the fact that by the time midsummer comes he might find it difficult to carry out the tasks involved because of the nature of the weather at that time of the year. In the Court’s opinion a further period of three months would not take the matter much further having regard to the present time of the year.
19. I make Orders 1, 2, 3 and 4 in the notice of motion. I postpone Order 1 until 31 January 2001. In respect of Order 2 I insert the word “reasonable” before “costs” , just to make it quite clear. I grant leave for either party to apply upon five (5) days notice in respect of Order 3 after 31 January 2001.
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