New South Wales Court of Appeal CITATION : Solanowski v Penrith City Council [2002] NSWCA 175 FILE NUMBER(S) : CA 40532/99 HEARING DATE(S) : 23 May 2002 JUDGMENT DATE : 18 June 2002 PARTIES : Zsigmond Solanowski (Appellant) Penrith City Council (Respondent) JUDGMENT OF : Mason P at 1; Stein JA at 2; Giles JA at 32 LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT LEC 40209/97 FILE NUMBER(S) : LOWER COURT Sheahan J JUDICIAL OFFICER : COUNSEL : Litigant in Person (Appellant) D Miller (Respondent) SOLICITORS : Litigant in Person (Appellant) Phillips Fox (Respondent) CATCHWORDS : LAND AND ENVIRONMENT COURT - local council - unauthorised dumping of waste material without development consent - whether development consent required - ND LEGISLATION CITED : Environmental Planning and Assessment Act 1979 CASES CITED: n/a DECISION : Appeal dismissed with costs IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40532/99 LEC 40209/97 MASON P STEIN JA GILES JA Tuesday, 18 June 2002 Zsigmond SOLANOWSKI v PENRITH CITY COUNCIL This appeal concerns the unauthorised dumping of waste material on land which lies within the area of the respondent, the Penrith City Council. The appellant, Zsigmond Solanowski, has owned the affected land since 1954. The land is flood prone and for some years, at least since 1996, the appellant has been attempting to raise the height of his land to make it less susceptible to flooding. To this end, the appellant caused or permitted large quantities of waste and fill materials to be deposited and spread on the land. It is common ground that Mr Solanowski has at no time sought development consent from the Council for the dumping of waste on his land or for storage and spreading of such waste material. The respondent commenced Class 4 proceedings in the Land and Environment Court seeking to prevent further dumping of waste on the land. It further sought mandatory orders for the removal of the offending material and remediation of the land. It obtained interlocutory relief. Sheahan J, at first instance, found that the dumping of the waste gave rise to the likelihood of increased flooding to adjoining properties and that no sediment control measures had been put in place to prevent erosion of the material into Rickaby's Creek. His Honour found that Mr Solanowski had participated in and controlled the dumping activities without development approval which was required. Accordingly, his Honour made the orders sought by the Council. On appeal , Mr Solanowski submits that his Honour made an error of fact in concluding that the appellant was responsible for the placing of waste material on the land. The appellant further contends that his Honour made orders that went against the weight of the evidence. The appellant also claims that he was not informed of the need to obtain development consent. Held (per Stein JA, Mason P and Giles JA agreeing): 1) His Honour made no error of fact in concluding that the appellant was responsible for the placing of waste material on the land. The finding of fact was open to his Honour and reasonable in view of the evidence. 2) The evidence does not support the appellant's contention that his Honour made orders against the weight of the evidence. Indeed, the orders complained about were consistent with the majority of the scientific evidence before the court, including some emanating from the appellant's side. 3) Order No 6, requiring the spreading of stockpiled fill material, was justified on the evidence. The order was not contrary to Council's own rules and would not constitute an environmental hazard to the land. The order was designed to prevent and alleviate the adverse environmental consequences posed by the unlawful dumping and unauthorised works. 4) The appellant was in breach of the Environmental Planning and Assessment Act 1979 and the local planning regime. He was required to obtain development consent for the importation and placing of fill material on the land, as well as the spreading and working of the fill material in the manner which occurred on the subject land and into the adjoining property. 5) The appellant illegally introduced waste materials both onto his land and his neighbour's land, and carried out unlawful works on those lands. Orders: The appeal is dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40532/99 LEC 40209/97 MASON P STEIN JA GILES JA Tuesday, 18 June 2002 Zsigmond SOLANOWSKI v PENRITH CITY COUNCIL Judgment 1 MASON P: I agree with Stein JA. 2 STEIN JA: Introduction 3 The appellant, Zsigmond Solanowski, has owned land at 20 – 28 Macpherson Road, Londonderry since 1954. It is 5 ha in area and runs from Macpherson Road to the north, in a rectangular shape to Rickaby's Creek, in the south. The street frontage is a 'dog-leg' shape to the north west of the block. It is described as Lot 23 in Deposited Plan 25981. The land is flood prone and for some years, at least since 1996, the appellant has been attempting to raise the height of his land to make it less susceptible to flooding. To this end, the appellant has caused or permitted large quantities of waste and fill materials to be deposited and spread on the land. 4 It is common ground that the appellant has at no time sought development consent to the dumping of waste on his land or for storage and spreading of such waste material. 5 The respondent, the Penrith City Council, commenced Class 4 proceedings in the Land and Environment Court in August 1997 seeking to prevent further dumping of fill and for mandatory orders for the removal of material and remediation of the land. As events unfolded, and further dumping took place on the land in 1997 and 1998, it became apparent that some material had been placed on neighbouring land (Lot 19) owned by Mr and Mrs Gauci. With their consent the Gaucis were joined as parties in the proceedings. 6 The Gaucis also acquiesced in orders sought by the Council, which included remedial work to be performed by the appellant upon their land. These orders were made on 18 June 1999 after a four-day hearing before Sheahan J. 7 It is from these orders that the appellant appeals to this court. The appellant appeared in person before us, as he did before the Land and Environment Court. He was, however, assisted and supported by a friend, Mr Hill, who addressed the court with its permission. Mr Solanowski's English was at times difficult to fully understand and it was not always easy to completely comprehend the points he was wishing to make. Nonetheless, the court understands the main thrust of Mr Solanowski's complaints about the judgment. Judgment at first instance 8 Sheahan J made a series of findings of fact which were the basis for the orders which he made. These include findings that the appellant was aware of the dumping of material on his land prior to 8 November 1996 and had admitted to organising the dumping of a substantial amount of waste materials without seeking development consent. The appellant accepted that more material was dumped on the land while he was overseas between June 1997 and February 1998. This was without his knowledge until he returned. However, his Honour found that the dumping which occurred after February 1998 was with the actual knowledge of the appellant. 9 His Honour found that Mr Solanowski participated in and controlled the dumping activities which occurred in 1996 and 1998. None of the dumping of fill was authorised by the granting of development approval, which was required. The land is in an area zoned 1(b) Rural 'B' Smallholdings under the Penrith Local Environmental Plan 201. Under the LEP, the dumping of fill on land is a permissible use but only with the consent of the respondent Council obtained under the Environmental Planning and Assessment Act 1979 (the EPA Act). 10 Sheahan J further found that the appellant removed some of the offending material, but 'only on a swap basis, under which other material would be dumped without consent'. Mr Solanowski also controlled the grading of the waste material on the land, as well as causing or permitting extensive clearing of vegetation. Some of the appellant's unauthorised activities took place after he had been informed on numerous occasions that such waste importation and works required Council's consent. Some of the unauthorised activities also occurred after an interlocutory injunction was made by Talbot J on 25 August 1997 restraining the appellant from the subject activities without the respondent's consent. 11 His Honour also found that the dumping of the waste gave rise to the likelihood of increasing flooding to adjoining properties and that no sediment control measures had been put in place to prevent erosion of the material into Rickaby's Creek. 12 Sheahan J concluded that the affected land was 'in a very sorry state indeed' and one which required remediation. The suite of orders which his Honour made acknowledged that, because of the grading and mixing of materials, it was impossible to know exactly what was imported and impossible to order removal of all of the waste dumped on the land. The objective of the orders was to remediate the subject land, and the adjacent land of the Gauci's where, after a survey was produced, it was clear that waste had also been placed and spread by the appellant. The orders were made bearing in mind the appellant's parlous financial circumstances. The appellant's arguments 13 The appellant raised a number of arguments in his Notice of Appeal, in written submissions and orally before the court. I will attempt to deal with them. 14 The first ground of appeal claims that his Honour made an error of fact in concluding that the appellant was responsible for the placing of waste material on the land without consent. This is a difficult ground to understand since there was ample evidence from council officers and other witnesses to justify his Honour's finding. Moreover, there was evidence of admissions by the appellant that he organised for the delivery of fill to raise the level of the land. He also admitted knowledge of the dumping of material on his land. Indeed, the appellant was frank in his evidence of what was occurring on the land and the reasons why he was permitting the dumping of waste to occur. 15 The finding of fact was open to his Honour, as were each of the findings to be found in para 69 of his judgment. Indeed, they were reasonable findings of fact considering the evidence. 16 Grounds 2 and 3 maintain that his Honour made orders against the weight of the evidence. These relate to orders restraining the appellant from raising the height of his land (without consent) and requiring certain remedial drainage works to be performed. 17 An examination of the evidence, particularly the expert evidence, does not support the appellant's contention that the orders were against the weight of the evidence. Indeed, the evidence indicates to the contrary. 18 The orders complained about were consistent with the majority of the scientific evidence before the court, including some emanating from the appellant's side. 19 Ground 4 is also difficult to appreciate but appears to suggest that order No 6, requiring the spreading of stockpiled fill material, was contrary to Council's own rules and would constitute an environmental hazard to the land. However, in my opinion, the order was justified on the evidence, which did not suggest that such spreading as required over the access tracks on the land would cause any 'environmental hazard'. Indeed, to the contrary, the order was designed to prevent and alleviate the adverse environmental consequences posed by the unlawful dumping and unauthorised works. 20 Ground 5 appears to raise an issue concerning the applicability of the Limitation Act 1969 regarding the access tracks. However, there was no evidence that the access track had been in place for more than 20 years, as alleged in the ground of appeal. Apart from the fact that no Limitation Act defence appears to have been pleaded or raised, it is difficult to comprehend the relevance of this ground. 21 Turning to the appellant's written submissions. Some of these seem to challenge his Honour's factual findings regarding the likelihood of increased flooding to adjoining properties. The appellant claims that Council officers gave deliberately false evidence. However, his Honour's findings were based on evidence before him, not shown to be false, and were findings which were reasonable to be made having regard to the evidence. 22 Part of the appellant's written submission claims that he was not informed of the need to obtain development consent. However, this flies in the face of the evidence which establishes that the appellant was well aware of the need to obtain consent from a very early point of time in 1996. 23 The balance of the written submission appear to challenge findings of fact which were reasonable findings available on the evidence before the court, or to challenge his Honour's conclusions as to the need for rehabilitation of the land. It seems to me, having perused the evidence and examined the extensive photographic exhibits, that his Honour's conclusions as to the sorry state of the land and the need for rehabilitation were amply available. 24 Annexed to the appellant's written submission is a statement dated 30 July 2001 from the former mayor. The document post dates the hearing before Sheahan J, which concluded on 17 June 1999. It is not fresh evidence, is inadmissible and ought not be received. Although, even if it was admitted, it would not assist the appellant. For example, it points out the need for the appellant to obtain development approval. 25 During the appellant's oral submission, he appeared to argue that development consent was not required, although it seems that he accepted that it was so required in the Land and Environment Court. 26 It is plain that the local planning regime requires the obtaining of approval to the importation and placing of fill on land, as well as the spreading and working of the fill material in the manner which occurred on the subject land and into the adjoining land. 27 The appellant also raised an issue relating to the position of the common boundary with his neighbours. However, a survey was produced to the Land and Environment Court and, apart from objecting to it, the appellant called no contrary evidence. 28 During his address to this court, the appellant said that he could not obtain access to the neighbouring land to carry out the works required by the orders because the Gaucis had sold their land. This is irrelevant to the appeal, although may be an issue in the carrying out of the orders made in the Land and Environment Court. At this stage, it does not arise because it is necessary for the appellant to comply with order 8, before order 9 (which involves work on Lot 19) is activated. By order 11 the Gaucis permit the appellant access to their allotment to carry out the works required by the orders. Order 8 requires the appellant to produce within 21 days, a 'site characterisation report' in relation to the material delineated on Exhibit P8. The appellant has not as yet complied with this requirement. 29 One member of the bench raised the question of the power of the Land and Environment Court to order the appellant to carry out remedial works on the adjoining land. Where consent is required to carry out development, as here, s 76A of the EPA Act provides that a person must not carry out development on land unless consent is obtained and in force. The carrying out of development without consent is therefore contrary to the statute and unlawful. It is a breach of the Act, see s 122. 30 The breach may be sought to be remedied by orders applied for under s 123. Orders may be made in accordance with s 124 which, inter alia, may include reinstatement of land to its pre-breach condition. The court may also make 'such order as it thinks fit to remedy or restrain the breach', s 124(1). 31 Here his Honour found that the appellant had illegally introduced waste materials onto his land and also onto the neighbours' land and carried out unlawful works on those lands. The owners of the adjoining land became parties to the litigation and consented to orders being made requiring the appellant to carry out remedial works on their land. It appears to me that in the circumstances there was jurisdiction in the court to make the orders which it did. 32 The appeal should be dismissed with costs. 33 GILES JA: I agree with Stein JA. ********** 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.