Warringah Council v Ulrich - [2001] NSWLEC 120

Land and Environment Court

of New South Wales

CITATION: Warringah Council v Ulrich [2001] NSWLEC 120

PARTIES:
APPLICANT:
Warringah Council
RESPONDENT:
Ulrich

FILE 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 :
07/24/2000

LEGAL REPRESENTATIVES:

APPLICANT:
Mr A M Hudson (Solicitor)
SOLICITORS:
Wilshire Webb
RESPONDENT:
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

Warringah Council

Joachim Ulrich

Respondent

REASONS FOR JUDGMENT

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] NSWLEC 120
Decision Date: 07/24/2000

CaseChat Overview and Summary

In the case of Warringah Council v Ulrich, the applicant, Warringah Council, sought enforcement of previous orders made by the Land and Environment Court of New South Wales. The respondent, Joachim Ulrich, had failed to comply with certain orders related to the removal of goods from his property. The central legal issue was whether the court should grant the council's request for enforcement of its previous orders and, if so, under what conditions. The court examined whether the respondent had made a reasonable effort to comply with the orders and whether additional time should be granted to him to remove the goods from his property.

The court considered the respondent's arguments regarding his belief in a reasonable effort to comply with the orders and his perception of injustice. However, it emphasised the importance of enforcing the court's orders to maintain the rule of law and the authority of the court. The court found that the respondent had not complied with the previous orders, particularly in relation to the removal of goods and materials from his property. It also noted that the goods and materials did not contribute to the aesthetic appearance of the premises and did not pose any direct environmental harm or physical detriment to other properties. The court was satisfied that the council had not requested the removal of goods that would cause harm if left on the property.

The court granted the council's request for enforcement of its previous orders but allowed a six-month period for the respondent to remove the goods from his property. This decision took into account the early springtime and the potential difficulty of carrying out the tasks during midsummer. The court also granted leave for either party to apply for further orders after 31 January 2001, upon five days' notice. The court emphasised that if any goods remained on the property at the end of the six-month period, they could be treated as rubbish in accordance with the court's orders.

Orders