Land and Environment Court New South Wales Medium Neutral Citation: Pittwater Council v Mundy [2016] NSWLEC 3 Hearing dates: 16 February 2016 Date of orders: 16 February 2016 Decision date: 16 February 2016 Jurisdiction: Class 4 Before: Sheahan J Decision: See orders in paragraph [18] Catchwords: CIVIL ENFORCEMENT – non-compliance with order issued by council – ex parte proceedings – declaration and orders made. Legislation Cited: Environmental Planning and Assessment Act 1979 Local Government Act 1993 Category: Principal judgment Parties: Pittwater Council (Applicant) Adam Mundy (Respondent) Representation: Counsel: Mr S Nash, barrister (Applicant) No appearance (Respondent) Solicitors: King & Wood Mallesons (Applicant) N/A File Number(s): 40569 of 2015 EXTEMPORE Judgment Introduction 1. Council seeks declaratory relief and consequential orders against the respondent Mundy, in respect of works which (1) have been done to and near his land without the benefit of any development approval, and (2) can be seen to encroach (from Mundy's land) upon public lands of which Council has control, pursuant to s 48 of the Local Government Act 1993 ("the LG Act"). 2. The subject property is known as 902 Barrenjoey Road, Palm Beach, and the public land most closely involved is the neighbouring McKay Reserve. The status and registered ownership of the Mundy land and the public land have not changed since 2013. Under Pittwater Local Environment Plan 2014 Mundy's land is zoned E4 Environmental Living and McKay Reserve E2 Environmental Conservation. Both areas of land are steep bushland (Konsti, tab 5). 3. The relevant works involved construction of stone retaining walls, timber retaining walls, timber decking, paving and timber stairs, some of which works clearly encroach upon McKay Reserve, when the Court considers the survey and aerial photographic evidence. 4. Those works involved removal of public bushland, and some additional harm to local ecology has resulted from exotic plantings. Council has concerns also about the structural stability of the works and the Mundy property. 5. Council became concerned about these matters originally in March 2013, and has since issued several orders to Mundy under s 124 items 27 and 28 of the LG Act. A schedule to each of those s 124 orders set out clearly and in detail what Council required by way of remediation, and also by way of reporting, but the evidence of repeated inspections in 2014 – 2015 establishes that Mundy has complied to only a very limited extent. 6. At all material times Mundy would appear to have been based overseas – firstly in Hong Kong, and now in New York. 7. Council brings these proceedings (1) to make the latest s 124 order dated 17 October 2014 (Konsti, tab 27) the subject of Court orders, (2) to obtain an order allowing it to do the works if Mundy does not comply, and (3) to have him pay its costs. 8. Council did not press prayer 3 of its summons, namely that seeking a declaration that Mundy is in breach of the Environmental Planning and Assessment Act 1979. It has chosen instead to focus on securing compliance with its LG Act order. 9. Although Mundy appears to have had legal representation at an early stage of the dispute, the Court has received no documentation or other communication from Mundy or anyone else on his behalf regarding these proceedings. 10. I am satisfied that, in accordance with directions given by Moore J, Mundy has been made aware of today's listing, and of the evidence etc upon which Council relies. An updating affidavit sworn only yesterday was sent to him by email. Council has relied upon street and email addresses provided by Mundy himself, and none of its despatches (see, e.g., Exhibit C1) have been returned. 11. In all the circumstances, I granted Council leave to proceed against him ex parte. 12. Counsel for the Council was very careful to satisfy the Court on every detail that anyone representing Mundy might have chosen to raise. The Court had before it extensive evidence from Council's Development Officer, Harry Konsti, including photographs taken on his various inspections, and relevant evidence also from Council's solicitor, Emily Gentle. 13. The schedule to the latest Council s 124 order (no. NOT0230/14) prescribes the following regime: Schedule 1 1. Engage the services of a geotechnical and structural engineer to inspect the property and prepare a report in accordance with the Council's Geotechnical Risk Management Policy. The report shall include the following recommendations: • The method of removing all unauthorised structures encroaching McKay Reserve and Dark Gully Park including the stone retaining walls, timber retaining walls, timber stairs, timber decking, paved pathways, paved steps and landscape plantings; • Any necessary works required to stabilise the affected areas where the unauthorised works have been removed; and • Restoration of the ground levels to match the previously existing ground level contours of the property. The report shall be provided to Council within forty (40) days from the date of this Order. 2. Prior to the commencement of any works, siltation control measures are to be installed to the disturbed areas of McKay Reserve and Dark Gully Park and maintained until the restoration works are completed. 3. Remove all encroachments from McKay Reserve and Dark Gully Park, including; stone retaining walls, timber retaining walls, timber stairs, timber decking, paved pathways, paved steps and landscape plantings, in accordance with the recommendations of the geotechnical and structural report mentioned in item 1 (above). All resultant building debris and materials are to be removed from McKay Reserve and Dark Gully Park and disposed of to an approved waste facility. The works are to be completed within sixty (60) days from the date of this Order. 4. Stabilise and restore the disturbed areas in accordance with the recommendations of the geotechnical and structural report mentioned in item 1 (above). All works are to be carried out under the supervision of the geotechnical engineer and/or structural engineer. The works are to be completed, within seventy (70) days from the date of this Order. 5. Provide to Council a completed Form 4 under Council's Geotechnical Risk Management Policy, within eighty (80) days from the date of this Order. 6. Engage the services of a professional bush regeneration consultant to inspect the disturbed area of McKay Reserve and Dark Gully Park the subject of this Order and prepare a Bushland Regeneration Remediation plan. A list of appropriate bush regeneration contractors can be found online on the Australian Association of Bush Regenerators AABR website: www.aabr.org.au/. The Bushland Regeneration Remediation plan is to be provided to Council within thirty (30) days from the date of this Order. The Bushland Regeneration Remediation plan shall address the following requirements: • All exotic and non-indigenous plant species are to be removed, and • Ecological restoration needs to be undertaken within the illegally cleared areas through planting of appropriate native endemic species and through natural regeneration. This does not entail any landscaping or formal garden construction. • Endemic species must be specific to the McKay Reserve and Dark Gully Park, Plan of Management (POM) and a list must be approved prior to commencement of restoration by the Bushland Management Officer. This list can be provided by Council upon request and Council will order provision of the tubestock at cost and an order for plants must be placed well in advance, and • Restoration works of the disturbed bushland are to be undertaken by a professional bush regeneration company, and • Prior to any works being carried out on the reserve land Council requires the name and contact details of the preferred bush regeneration company and copies of the regenerators public liability insurance policy. The bush regeneration company is to make contact with Council's Bushland Management Officer to arrange an onsite meeting prior to the commencement of the restoration works, and • The endemic planting guide will include a variety and diversity of native species from the list provided by Council. The species will reflect the following percentages: no less than 20% open native grassland with no less than 80% shrubs and trees with a minimum of 2 canopy trees per 15m², and • All weed seeds and/or propagules are to be bagged and removed from site and disposed of appropriately. Plantings must be routinely maintained and any attrition of species is to be replaced with the same species or an alternative endemic species from Council's plant species list, and • Maintenance weeding throughout the disturbed area will be required to be undertaken as part of the order. 7. The public lands are to be remediated in accordance with the Bushland Regeneration Remediation plan and are to be completed, within one hundred and eighty (180) days from the date of this Order. 8. Provide certification of the completed works by a professional bush regeneration consultant to confirm supervision of the remediation works and compliance with the requirements of the Bushland Regeneration Remediation plan, within one hundred and ninety (190) days from the date of this Order. Failure to comply Failure to comply with this Order may result in Council instigating legal action under the provisions of the Local Government Act 1993 (as amended), or the serving of penalty notices (on-the-spot-fines) under the provision of that Act. Right of appeal You are advised that you have a right of appeal to the Land and Environmental Court against: 1. The Order. 2. A specified part of the Order. An appeal to the Court must be lodged within twenty eight (28) days of the date of service of this Order. 1. Based on the evidence before the Court, those measures are appropriate. 2. A comparison of photographs shows that some remedial work has been done (see Konsti, tabs 10 and 29), but none of the documentation required by Schedule 1 has been provided. 3. Given the fact that Council's concerns date back some three years, it is also appropriate that the Court make an order, as sought by Council, pursuant to s 678(10) of the LG Act 1993. 4. As I am satisfied that Council has acted reasonably and appropriately in bringing and prosecuting these proceedings, it is also appropriate that the Court make the usual order for costs. Orders 1. The Court, therefore, makes the following orders: 1. Declares that the order given by the Applicant to the Respondent on 17 October 2014 under items 27 and 28 in the Table to s 124 of the Local Government Act 1993, being order NOT0230/14, in respect of the encroaching works and structures situated within McKay Reserve which emanate from the Respondent's land situated at 902 Barrenjoey Road, Palm Beach ("Council Order"), has not been fully complied with. 2. Orders the Respondent to comply with the Council Order, and that all references to "from the date of this Order" within Schedule 1 of the Council Order now refer to this order of the Land and Environment Court. 3. Orders, pursuant to s 678 of the Local Government Act 1993, that in the event of default with Order 2, the Applicant exercise its functions under s 678(1) of the Local Government Act 1993 in respect of the encroaching works and structures situated within McKay Reserve which emanate from the Respondent's land situated at 902 Barrenjoey Road, Palm Beach, namely to do all such things as are necessary or convenient to give effect to the terms of the Council Order including the carrying out of any work required by the Council Order. 4. Orders the Respondent to pay the Applicant's costs and expenses associated with carrying out these orders, pursuant to s 678(6) of the Local Government Act 1993. 5. Orders the Respondent to pay the Applicant's costs of these proceedings, on a party-party basis, as agreed or assessed. 6. The Applicant has liberty to apply to relist the matter on 48 hours' notice. 7. The Court book and Exhibit C1 will remain in the Court file. ********** 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. Decision last updated: 16 February 2016