Baulkham Hills Shire Council v Stankovic (No 3) [2008] NSWLEC 266

Baulkham Hills Shire Council v Stankovic (No 3) [2008] NSWLEC 266

The Court does not have power to authorize entry and removal by Council officers absent express statutory authority. Orders for removal of material are confined to what can be substantiated by the evidence and to what the Court has power to order under relevant statutes. The Respondent is granted additional time to comply with amended orders for removal, exclusion of personal items, and stacking requirements, but Council entry/removal is declined.

Parties
Applicant: Baulkham Hills Shire Council; Respondent: Milovan Stankovic
Jurisdiction
Australia
Judgment Date
18 September 2008
Procedural Posture
Civil Enforcement / Determination of Notice of Motion; Consequential Orders
Outcome
Amended orders for removal and stacking issued; Council's application for entry and removal declined; Costs reserved.
Legal Topics
Exercise of Discretion, Consequential Orders for Removal of Material, Power to Enter and Remove Property, Statutory Interpretation
Environmental Law Planning Law Exercise of Discretion Consequential Orders for Removal of Material Power to Enter and Remove Property Statutory Interpretation

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Parties

Baulkham Hills Shire Council

Applicant

Milovan Stankovic

Respondent

Procedural Posture

Civil Enforcement / Determination of Notice of Motion; Consequential Orders

Legal Issues

  1. 1 Whether consequential orders for removal of material ought be made
  2. 2 Court's power to authorize entry and removal by Council officers
  3. 3 Appropriate exercise of discretion under s124 of the Environmental Planning and Assessment Act 1979

Ratio Decidendi

The Court does not have power to authorize entry and removal by Council officers absent express statutory authority. Orders for removal of material are confined to what can be substantiated by the evidence and to what the Court has power to order under relevant statutes. The Respondent is granted additional time to comply with amended orders for removal, exclusion of personal items, and stacking requirements, but Council entry/removal is declined.

Court Disposition

Amended orders for removal and stacking issued; Council's application for entry and removal declined; Costs reserved.

Orders

  • Amended order for removal of secondhand and unused items, whitegoods, cars, and rubbish.
  • Order for exclusion of personal items within 10m of sheds.