Land and Environment Court of New South Wales CITATION : Howard v Port Stephens Council [2009] NSWLEC 1209 APPLICANT Robert James and Natina Louise Howard PARTIES : RESPONDENT Port Stephens Council FILE NUMBER(S) : 11076 of 2008 CORAM: Taylor C KEY ISSUES: APPEAL :- against a s 124 order; aquatic weeds and drainage clearance; consent orders LEGISLATION CITED: Local Government Act 1993 DATES OF HEARING: 04 May 2009 & 22 June 2009 DATE OF JUDGMENT: 22 June 2009 APPLICANT Robert James and Natina Louise Howard (self represented) LEGAL REPRESENTATIVES: RESPONDENTS Mr M Ball (solicitor) SOLICITOR Harris Wheeler Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Taylor C 22 June 2009 11076 of 2008 Howard, Robert James and Natina Louise v Port Stephens Council JUDGMENT This determination was given extemporaneously and has been edited prior to publication. 1 Commissioner: This is an appeal under s 180 of the Local Government Act, 1993, against the service of an Order Notice under s 124 (12) of the Local Government Act, 1993, dated 30 September 2008. 2 The Order was served on Mr and Mrs Howard (the owners), of Lot 1, DP 742832, 75 Cabbage Tree Road, Williamstown, NSW 2318, which required them to remove aquatic weed and sediment from a Council drain traversing their property. 3 I had the benefit of inspecting the property, the drain and the aquatic weeds on 4 May 2009. During the on site hearing I also heard evidence from weed experts Mr G. Pritchard (for the Council) and Mr Nelson (for the Respondent). 4 The matter was heard on site on 4 May 2009, but at the request of the Council, a further hearing was held following the discovery of additional evidence on the blockage and ownership of the drain. The second phase of the hearing was held at Port Stephen's Council on 22 June 2009. The Issues 5 The Council had originally contended that drain was obstructed completely or partially and that this had resulted in flooding 'up stream' on adjacent properties on Cabbage Tree Road. 6 In addition, the Council had initially wished to press the Order to include the whole drainage line running north to south across the Applicants property (Figure 1) in order to facilitate clearing and removal of aquatic weeds. However, following a careful search and analysis of land title documents by the Council after the first hearing, it became transparent that only the northern half of the drainage line shown in Figure 1 was located on the property of the Applicant. The remaining length of drainage line belonged to other owners, who at the time of the final hearing had not been established unequivocally and in any case did not now form part of this determination. 7 My on site observations of the drainage line on the Applicant's property on 4 May 2009 showed that it was unblocked despite containing the noxious Alligator and Sylvania weeds. The Council confirmed and agreed with this observation at the final hearing on 22 June 2009. 8 Consequently and by necessity, the Order had to be revised so as to apply only to the northern half of the Howard's land for which there exists an easement to drain water in favour of the Council. Further, the Order was reworded so as not to attribute the cause or source of any blockage to the drain in Lot 1, DP 742832, 75 Cabbage Tree Road, Williamstown. 9 There was also a dispute between the parties as to what to do with any weeds that were sprayed with herbicide and removed from the drain. The Council wished to place the treated weeds at the margins of the drain that passed through the Applicant's land so that they could be sprayed as necessary following their removal. The Applicants had vehemently objected to this process, preferring instead that any weeds and sediment excavated from the drain were removed from their property. 10 Following discussions between the parties, a management strategy to deal with the weeds was agreed. This agreement meant that any excavated weeds and sediment would be removed from the Howards' land and placed alongside the Council's drain that flows parallel to Cabbage Tree Road, immediately to the north of the subject property. Consent Orders 11 As a result of the amendments to the Order and agreements as to how to treat any sediment and weeds removed from the drain, the parties sought consent orders from the Court. I note that the parties sought consent orders on a 'without admissions' basis. 12 On reviewing the revised Order including the reasons for the Order, the proposed ongoing management of any excavated weeds and sediment and arrangements for access to the drainage easement for the Council, I am content that the relevant issues have been dealt with satisfactorily. Consequently, consent orders may be issued. Orders i. By consent of the parties, the appeal 11076 of 2008 is dismissed. ii. The order under s 124 of the Local Government Act, 1993 , dated 30 September 2008, as issued and served on the Applicants is to be upheld, subject to the amendments to the terms of the Order as set out in Annexure 'A'. iii. The exhibits are returned. ________________________ Dr Mark P. Taylor Commissioner of the Court Figure 1 Annexure 'A' 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.