Baulkham Hills Shire Council v Stankovic (No 2) [2007] NSWLEC 870

Baulkham Hills Shire Council v Stankovic (No 2) [2007] NSWLEC 870

Declaration 2 and orders 4 and 5 made on 22 March 2005 were final and perfected orders. Pt 15 r 9 did not apply because the First Respondent was present, the orders were not interlocutory, and they reflected the Court's intention. Even assuming an inherent power to reopen perfected orders, the First Respondent's age, hearing, language difficulties, lack of representation and failure to raise arguments earlier did not demonstrate procedural unfairness or sufficiently exceptional circumstances to justify setting aside the orders. The Council had shown non-compliance, but further specificity by inventory and clarification of the power to authorise Council entry were required before final...

Jurisdiction
Australia
Judgment Date
06 December 2007
Procedural Posture
Civil Enforcement Proceedings / Notices of Motion After Final Declarations and Orders, Including the First Respondent's Motion to Set Aside Orders and the Council's Motion Seeking Enforcement and Further Orders
Outcome
The First Respondent's Notice of Motion was dismissed. The Council's Notice of Motion was not finally determined; an inventory was to be prepared, further issues were deferred, and the balance of the orders sought by the Council was stood over pending the inventory.
Legal Topics
['setting Aside Perfected Orders' 'finality of Litigation' 'procedural Fairness' 'enforcement of Land and Environment Court Orders' 'alleged Junk Yard Use of Land']
['environmental Planning and Assessment' 'local Government' 'practice and Procedure' 'civil Enforcement'] ['setting Aside Perfected Orders' 'finality of Litigation' 'procedural Fairness' 'enforcement of Land and Environment Court Orders' 'alleged Junk Yard Use of Land']

Case Brief

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Procedural Posture

Civil Enforcement Proceedings / Notices of Motion After Final Declarations and Orders, Including the First Respondent's Motion to Set Aside Orders and the Council's Motion Seeking Enforcement and Further Orders

Legal Issues

  1. 1 ['Whether declaration 2 and orders 4 and 5 made on 22 March 2005 should be set aside under Pt 15 r 9 of the Land and Environment Court Rules 1996 or an inherent power of the Court.' 'Whether the First Respondent was denied procedural fairness because of personal characteristics, lack of legal representation and matters not put at the 2005 hearing.' 'Whether the Council should obtain further enforcement orders for removal of second hand and unused items, timber, bricks and accumulated building material from the property.' 'Whether the Court should require an inventory and further clarification of the power relied on before making orders allowing the Council to enter the land and do the removal work.']

Ratio Decidendi

Declaration 2 and orders 4 and 5 made on 22 March 2005 were final and perfected orders. Pt 15 r 9 did not apply because the First Respondent was present, the orders were not interlocutory, and they reflected the Court's intention. Even assuming an inherent power to reopen perfected orders, the First Respondent's age, hearing, language difficulties, lack of representation and failure to raise arguments earlier did not demonstrate procedural unfairness or sufficiently exceptional circumstances to justify setting aside the orders. The Council had shown non-compliance, but further specificity by inventory and clarification of the power to authorise Council entry were required before final...

Court Disposition

The First Respondent's Notice of Motion was dismissed. The Council's Notice of Motion was not finally determined; an inventory was to be prepared, further issues were deferred, and the balance of the orders sought by the Council was stood over pending the inventory.

Orders

  • ["The First Respondent's Notice of Motion is dismissed." 'An order is to be made requiring that an inventory be prepared.' 'Orders are to be made providing for the safe conduct of Council officers on the land if orders for verification of the inventory are required.' "A final decision about order 2 of the Council's...