RONALD DAVID SMITH v NEWCASTLE CITY COUNCIL [1989] NSWCA 186

RONALD DAVID SMITH v NEWCASTLE CITY COUNCIL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS AP, MAHONEY and CLARKE JJA 31 July 1989

[1989] NSWCA 186

Samuels AP This is an appeal from a decision of Perrignon J in the Land and Environment Court in proceedings which terminated by a judgment delivered on 21 August 1987. The proceedings, which were brought by the respondent, the Council, against Mr Smith, the appellant, complained of the use that he was making of land which was subject to flooding and which presented potential dangers to adjoining occupiers of that land, unless proper heed was paid to restrictions upon the way in which the land could be used.

The evidence which the learned judge accepted and which was not challenged by any evidence led by the appellant who gave none - was that the appellant had deposited unauthorised filling on the land and had concentrated there various types of what were described as "shack" structures, a Cessna aircraft, rubble, timber, fill, bottles, motor vehicles and a large quantity of used motor vehicle tyres. The land, of which the appellant is registered as the sole proprietor in fee simple, is approximately forty hectares in area.

Evidence was led from an engineer employed by the Department of Public Works that the presence of these artifacts would result in the concentration or diversion of flood or storm waters which would, if there were an inundation of the kind to which this country is prone, have the effect of producing a higher flood velocity through the area.

Accordingly, the uses which the Council sought to have discontinued did not merely involve questions of technical planning regulation or aesthetics but represented a potential danger to the property of adjoining occupiers.

The learned judge came to the conclusion that there was no legal ground or licence upon which Mr Smith could rely, that no development consent or building approval had ever been sought or given for the sheds and structures which had accordingly been erected illegally and in breach of the interim development order which affected the land. Permission to use the land as an airstrip had been refused as long ago as 1978. The judge, therefore, made certain recommendations and orders, the orders including directions that the material in question should be removed.