Hornsby Shire Council v Olga Wallis (No. 2) [2004] NSWLEC 440

Land and Environment Court of New South Wales

CITATION : Hornsby Shire Council v Olga Wallis (No. 2) [2004] NSWLEC 440 APPLICANT Hornsby Shire Council PARTIES : RESPONDENT Olga Wallis

FILE NUMBER(S) : 40821 of 2002 CORAM: Pain J KEY ISSUES: Contempt :- Failure to comply with Court orders - failure to purge contempt LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 121ZJ(11) Land and Environment Court Act 1979, s 69 CASES CITED: DATES OF HEARING: 21/07/2004 EX TEMPORE 07/21/2004 JUDGMENT DATE :

APPLICANT T G Howard (barrister) SOLICITOR Mr I Woodward LEGAL REPRESENTATIVES: RESPONDENT Ms L L Tucker (barrister) Mr Y Wallis (as agent)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PAIN J

21 JULY 2004

40821 OF 2002 HORNSBY SHIRE COUNCIL v

OLGA WALLIS

EX TEMPORE JUDGMENT ON CONTEMPT (NO 2) 1 HER HONOUR: These are contempt of court proceedings taken by the Council against Mrs Wallis. On 2 March 2004 I found Mrs Wallis guilty of contempt of court in that she failed to comply with numerous orders made by this Court on 3 July 2003 in relation to the construction of a retaining wall. On that occasion I allowed her ten weeks to do the necessary work so that the contempt could be purged before I determined what sentence was appropriate.

2 The Council brought the matter back before me on 27 April 2004, some eight weeks later, because no work had been commenced by Mrs Wallis at that stage. I allowed Mrs Wallis another ten weeks for the work to be done before the postponed sentencing hearing on 2 July 2004. Throughout this matter Mrs Wallis has been represented, with her consent, by her husband Mr Wallis and I note that he, on his wife's behalf, has an important decision-making role in relation to the matters before me.

3 On 2 July 2004 Mr Wallis applied on Mrs Wallis' behalf for a further opportunity to do the necessary work to purge her contempt before sentencing. On that date the same orders as the Council seeks today were sought by the Council. The key order the Council seeks is under section 121ZJ(11) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") to the effect that it, or its contractors, undertake the necessary work. However, I granted Mrs Wallis a further 2 ½ weeks to start to do the necessary work, setting the matter down again before me today. Once again no work has been done by or on behalf of Mrs Wallis.

4 The Council seeks this order on the basis that, in the Council's view, there has been a total failure on the part of Mrs Wallis to do the work despite numerous opportunities for her to do so.

5 This matter is longstanding, having commenced in December 2001 with unsuccessful Class 1 proceedings brought by Mrs Wallis in relation to an order issued by the Council requiring work on the retaining wall at that time. The details of the various court proceedings are detailed in a chronology, which was relied on by the Council in these proceedings (exhibit E). I refer to the matters set out in exhibit E as demonstrating the lengthy and protracted nature of these proceedings.

6 Another matter of substantial concern to the Council is that two of Mrs Wallis' neighbours are also being disadvantaged while this work remains undone. They have, in fact, been disadvantaged for some time because part of the old retaining wall on Mrs Wallis' property was demolished in or about September 2003.

7 In particular, one neighbour, Mr Boyce, cannot effectively use his right-of-way given that the now-demolished retaining wall on Mrs Wallis's property adjoins this right of way. The other neighbour's back yard is affected because there is currently no retaining wall in place along large portions of the embankment between the properties, making the bank very vulnerable to erosion in the event of rain.

8 Mrs Wallis, whilst present at the bar table throughout the matter, has been represented as I have already said by her husband, Mr Wallis. It is important to recall, however, that it is Mrs Wallis who is the subject of these contempt proceedings. The excuse given by Mr Wallis on Mrs Wallis's behalf on 2 July 2004 as to why the work had not been done was that they had received from the Council a stamped amended plan shortly after the mention before me on 27 April 2004, which they took to be an approval of an amendment to the plan the subject of the Court orders before me. It was stated from the bar table by Mr Wallis that no accompanying letter was received with the plans.

9 On 2 July 2004 the Council tendered in evidence a copy of a letter dated 30 April 2004 from the Council to Mr and Mrs Wallis. The letter stated that the Council was returning to Mrs Wallis the plan lodged by them and that it was not approved. It is clear from the face of the plan that it was not approved, as the only stamp on the plan simply indicates that the Council received the plan and not, it seems to me, that the plan was approved.

10 Mr Wallis advised the Court on 2 July 2004 that he, presumably acting on behalf of his wife, had decided not to do any work in reliance on the amended plan, but rather, waited more than two months from the date he received the amended plan until the matter came back before me on 2 July 2004. I do not find this behaviour reasonable given that I have made it extremely clear to both Mr and Mrs Wallis that it is very important that the work the subject of the contempt orders be carried out and that any failure to carry out the work in the nominated timeframes would be considered a serious matter by this Court.

11 Even if the Council had approved the amended plans, which it did not, it does not alter the circumstance that I found Mrs Wallis guilty of contempt for failing to comply with earlier Court orders. I do not understand why no attempt has been made by Mr or Mrs Wallis to contact either the Council or the Court about the matter before it came before me on 2 July 2004. The contempt finding by this Court is significant and the behaviour of Mr and Mrs Wallis does not seem to reflect an appreciation of that significance.

12 Mr Wallis stated on 2 July 2004 from the bar table that he would ensure the start of the necessary work so that, if I stood the matter over for two weeks, all the trees which needed to be removed would be within that two weeks as the first part of the work required to be done. I brought the matter back before me today so that the Court could see that Mrs Wallis' attempt to purge the contempt was in fact genuine. Today, however, I am informed by Mr Wallis that no work has been undertaken, and instead, Mr Wallis initially sought an adjournment on the basis that an appeal has been lodged against the conviction for contempt. After discussions with Ms Tucker, who has appeared to assist Mr and Mrs Wallis before the Court today, that application has essentially been changed and Mr Wallis indicated that he was in fact seeking further time to do work. However, the time has come where the Court's authority must be exercised and I am not prepared to grant Mrs Wallis any more time. I am going to make the order that the Council is seeking.

13 I note that the Council has stated the main outcome it seeks in this matter is that Mrs Wallis complies with the Court's orders. I note that the Council does not seek that a fine be imposed on Mrs Wallis in relation to this matter as it considers that this is unlikely to result in compliance with the Court's orders. Counsel for the Council has also submitted that, other than the orders which the Council seeks today, the only other sentencing alternative is incarceration which the Council does not consider appropriate. I agree with the Council that incarceration is inappropriate. The making of an order under s 121ZJ(11) of the EP&A Act is available as an alternative to incarceration. There has clearly been an ongoing failure to comply with the Court's orders of 3 July 2003 and also a total failure to purge the contempt in any way on Mrs Wallis' part. It is therefore appropriate that I make order 1 sought by the Council in the short minutes of order handed up in Court today. At this stage order 2 is not sought by the Council so I will not make order 2.

14 The Council is seeking its costs of this application. I note that under s 69 of the Land and Environment Court Act 1979 I have broad discretion to decide whether or not costs will be granted. My understanding is that the Council, having tendered before me in exhibit B a bill of costs which records costs and disbursements having been incurred in the amount of $47,415.50, is seeking a costs order of $30,000 which appears quite reasonable in the circumstances. However, as I have indicated to Mr and Mrs Wallis and to Ms Tucker, I will leave it to a date some six weeks hence to finalise costs, and I stand the question of costs over to that date. I note for the record that I expect that such a costs order will be made in the Council's favour. I make order 1 today and I will set the matter down at 9:30 am on 1 September 2004.

Orders 15 The Court makes the following orders:

1. The Applicant is to exercise its functions under s 121ZJ of the Environmental Planning and Assessment Act 1979 by its servants, agents, contractors or employees, to carry out the remainder of the works to give effect to the Scope of Works annexed to the Court Orders dated 3 July 2002, namely: (a) to remove the trees which are identified as requiring removal in the Joint Arborists Report of Scott Gatenby and Mark Hartley dated 11 February 2004, which is attached and marked "A" and the tree plan attached and marked "B"; and (b) to construct new retaining walls generally in accordance with Development Consent no 2093/03A issued by the Council on 10 June 2003; and

(c) to carry out any other works which, in the exercise of the Applicant's functions under s 121ZJ, are reasonably required in order to carry out the works described in paragraphs (a) and (b) above. 2. The matter to be listed for final determination before me at 9:30 am on 1 September 2004.

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