Land and Environment Court of New South Wales CITATION : Sutherland Shire Council v Obradovic [2001] NSWLEC 68 APPLICANT Sutherland Shire Council PARTIES : RESPONDENT Obradovic FILE NUMBER(S) : 40236 of 1998 and 40074 of 2000 CORAM: Pearlman J KEY ISSUES: Compensation :- s 181 Local Goverment Act 1993 - whether s 124 orders unreasonable and unsubstantiated LEGISLATION CITED: Local Government Act 1993 s 124, s 181 CASES CITED: DATES OF HEARING: 14/03/2001 EX TEMPORE JUDGMENT DATE : 03/14/2001 APPLICANT Mr S M Berveling SOLICITORS Abbott Tout LEGAL REPRESENTATIVES: RESPONDENT in person SOLICITORS N/A JUDGMENT: IN THE LAND AND 40236 of 1998 and 40074 of 2000 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 14 March 2001 SUTHERLAND SHIRE COUNCIL Applicant v ALEXANDER OBRADOVIC Respondent JUDGMENT 1. The application that is before me today is made by the respondent, Mr Obradovic, by way of notice of motion. In that notice of motion the first order which is sought is as follows: 1. Order to set the date for hearing. 2. However, in opening his case, Mr Obradovic has said that the prayer is intended to be a claim for compensation under s 181 of the Local Government Act 1993. Furthermore, it is apparent that although the notice of motion refers to proceedings 40074/00, it also refers to related proceedings numbered 40236/98. 3. Section 181 provides as follows: The Land and Environment Court, on the hearing of an appeal or otherwise, has a discretion to award compensation to a person on whom an order is served for any expense incurred by the person as a consequence of the order, including the cost of any investigative work or reinstatement carried out by the person as a consequence of the order, but only if the person satisfies the Court that the giving of the order was unsubstantiated or the terms of the order were unreasonable. 4. I deal first with the s 124 order the subject of proceedings 40074/00. The s 124 order, a copy of which is annexed to the affidavit of Mr A S Markham, dated 12 May 2000, in summary sought from the respondent in these proceedings, firstly, an assessment of the structural stability of the dwelling house, secondly, the carrying out of works deemed necessary by an engineer to make the premises safe, and thirdly, the provision to the council of a certificate of structural adequacy. 5. The s 124 order is expressed to have been made for the following reasons: 1. The premises are currently in an unsafe condition; 2. The excavation carried out in the subfloor area presents a potential to affect the structural stability of the dwelling house; 3. There is a lack of engineering details or certification concerning: (a) the extent of excavation in the subfloor area; and (b) whether the excavation will affect the structural stability of the dwelling house. 6. The s 124 order was the subject of proceedings in this Court. On 14 November 2000, this Court declared that the respondent had failed to comply with the s 124 order, and it made certain orders which the respondent asserts he has now carried out. 7. Mr Obradovic appears for himself. His evidence is as follows. As to the question of whether the s 124 order was unsubstantiated, Mr Obradovic has tendered a report from an engineer, Mr M H Aplin. The report is dated 10 January 2001, and it states that, amongst other things: The integrity of the existing house and foundations remains unchanged since my original structural report of 3 August 1994. There is no evidence, in my opinion, that any remedial foundation work or excavations have been carried out within the subfloor areas of the house. 8. Attached to that report is a report of 3 August 1994 in which Mr Aplin sets out his opinions as to the brick walls of the subfloor area and as to requiring work to be done upon them. 9. Mr Obradovic points to the fact that he had no real notice of the s 124 order before it was made because of the confusion in the addresses of places where he lives. He asserts that he lives at 29 Knight Street, Erskineville, and that he does not live at the subject premises although he spends time there. He tendered a rate notice dated 1993 in respect of the subject premises addressed to him at Erskineville, another rate notice for 1993 addressed to him at the subject premises, an electoral role review addressed to the subject premises, and a list of persons which shows his address as being at Erskineville. 10. Mr Obradovic was asked by the Court to provide evidence of the compensation to which he claims he would be entitled if the Court should find in his favour under s 181. He gave no such evidence but asserted from the bar table firstly, that the engineer would charge him $100 per hour for 25 hours work, amounting to $2,500, if the Court should uphold Mr Obradovic's claim for compensation. However no invoice has yet been rendered for these services. 11. Secondly, Mr Obradovic is self-employed. He asserts that he has lost 10 days income because of frequent site inspections required by the council in connection with the proceedings, amounting to $2,000, and that he is entitled to compensation for pain and suffering. In relation to the latter claim he tendered two medical reports, one from Dr Kecmanovic, dated 10 June 1997, and one from Dr Shara, dated 15 August 1996, which Mr Obradovic asserts reveal the huge level of anxiety that he has suffered because of these proceedings. 12. In general terms Mr Obradovic asserted that the council has persecuted him for matters which are not his fault. He stated that the excavation at the house, which was the subject of proceedings 40074/00, was carried out by experts in consequence of some proceedings apparently between Mr Obradovic and his builder in the District Court some time ago, and that it was not he who carried out the excavation. 13. I turn now to the claim in respect of the other proceedings which are 40236/98. In these proceedings a s 124 order was issued to Mr Obradovic on 30 March 1998, which in summary required Mr Obradovic to submit to council a fully dimensioned plan of all retaining structures, a structural engineer's certificate for the retaining structures, and a fully dimensioned survey plan indicating the location of the retaining structures. The reason for the order was stated as follows: The method of construction of the rock retaining walls on the premises is considered unsafe due to the lack of any technical and professional advice to the contrary. 14. Mr Obradovic relied upon a certificate from Mr Aplin in which Mr Aplin said: The dry stacked stone retaining wall on the northern boundary was constructed approximately 7 years ago, has no visible sign of movement, and is considered stable. But the concrete Griplock retaining wall on the southern boundary has visibly moved, and the back fill has not been provided in accordance with the manufacturer's recommended specifications, and the wall has moved as a result of poor backfill. 15. Mr Obradovic states that he did not build the Griplock wall, that it was built by his neighbour in connection with, or at the same time as, the construction of an inclinator on the neighbour's land which caused damage to Mr Obradovic's land and was itself unsafe and threatening, that the inclinator caused damage to him in the sense that water permeates under his house, and that rocks were placed on his land by the neighbour. Photographs intended to depict these allegations were tendered by Mr Obradovic as ex 'G'. 16. I repeat that Mr Obradovic feels that through no fault of his own he has been called to account for the structural instability of his house and the retaining walls. He agrees that his house is unsafe, but he contends that the council has placed him in a position which has caused him stress and anxiety, and that the s 124 orders which it issued were neither substantiated nor were their terms reasonable. 17. In response, first of all, to proceedings 40074/00, Mr Berveling, appearing for the council, pointed out that the assertion that the excavation came about as a consequence of District Court proceedings had never been mentioned by Mr Obradovic prior to today despite there having been a site inspection on 16 February 1998 with the council's officer, Mr Markham, when Mr Obradovic showed Mr Markham, according to Mr Markham's evidence, that the subfloor area of the dwelling house had been excavated. No mention was made of those District Court proceedings as being the cause of the excavation when notice of intention to give the s 124 order was given, and nothing was said about those proceedings at the hearing of this matter on 14 November 2000. 18. Nevertheless, in Mr Berveling's submission, there is an excavation. The whole basis for the council's order was the safety of the premises. The evidence of Mr Aplin does not in any way detract from the problem of safety of the house by reason of excavation in the subfloor area, and therefore the giving of the order was substantiated, and its terms were reasonable in the circumstances. Those orders merely sought, because of the matter of safety, the assessment of the excavation, the carrying out of work certified by an engineer, and a certificate of structural adequacy. 19. In relation to the s 124 order in proceedings 40236/98, Mr Berveling submitted that Mr Aplin's letter of 10 January 2001 confirms that one of the retaining walls has shifted from its position. Again, it was the safety of the premises that was the concern of the council. The s 124 notice was therefore substantiated and its terms were reasonable because all it asked for were plans, a certificate in relation to the retaining wall, and survey plan. 20. As to the evidence of the amount of compensation, Mr Berveling submitted that this does not arise because the foundational requirements of s 181 have not been met, but even if they had been met, there is no evidence to support the monetary claims that Mr Obradovic has made. 21. I have gone at length through the evidence today because Mr Obradovic appears for himself. He does not have the benefit of legal advice, and he is proceeding from a sense of considerable injury to him. I am sympathetic with his position, and I understand that he feels that he has been the victim of the circumstances rather than the perpetrator. But I am required to deal with this case according to the law and according to evidence. In my opinion, the evidence does not substantiate that the giving of either of the s 124 orders was unsubstantiated, or that the terms of either of the s 124 orders were unreasonable. 22. I accept Mr Berveling's submission that the issue behind the s 124 orders in each case was safety. They were not directed to Mr Obradovic as a punishment for having carried out excavation or having built the retaining walls. They were issued in order to try and rectify the safety issue of both the excavation and the retaining walls. What they sought in each case was, in my opinion, reasonable, their terms were reasonable, and I have no evidence which could lead to any other conclusion. 23. Accordingly, I have no alternative but to dismiss that part of the applicant's notice of motion which seeks compensation under s 181 in respect of proceedings 40074/00 and 40236/98. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.