Baulkham Hills Shire Council v Varga

[1999] NSWLEC 58

Land and Environment Court

of New South Wales

CITATION:	Baulkham Hills Shire Council -v- Varga [1999] NSWLEC 58
PARTIES	APPLICANT: Baulkham Hills Shire Council
RESPONDENT: Varga
NUMBER:	40328 of 1997
CORAM:	Bignold J
KEY ISSUES:	Orders :- · Contempt:- wilful disobedience of Court’s orders requiring demolition of partly erected dwelling-house. Whether stay of order should be granted in circumstances of case, involving an undetermined development application for retention of partly erected dwelling.
LEGISLATION CITED:
DATES OF HEARING:	03/15/1999
EX TEMPORE JUDGMENT DATE:	03/15/1999
LEGAL REPRESENTATIVES:	APPLICANT: Mr R. Lancaster, Barrister SOLICITORS: Coleman and Greig RESPONDANT: Mr A. Ali, Agent SOLICITORS: N/A

JUDGMENT:

IN THE LAND AND Matter No. 40328 of 1997

ENVIRONMENT COURT OF Coram: Bignold J.

NEW SOUTH WALES 15 March 1999

BAULKHAM HILLS SHIRE COUNCIL

Applicant

v.

ZOLTAN VARGA

Respondent

JUDGMENT

Bignold J:

1. By Notice of Motion filed on 22 December 1998, the Council seeks a declaration that the Respondent be found guilty of contempt of Court for failing to comply with a mandatory order made by the Court on 26 May 1998 in the proceedings; the Respondent be punished for contempt; an order be made for the demolition of the partly erected structure on premises known as 24 Telfer Road, Castle Hill owned by the Respondent; and further ancillary relief.

2. On the hearing of the Motion, Mr Varga, the alleged contemptor, did not appear in person but as was the case when judgement was delivered against him on 26 May 1998, Mr Varga has been represented by Mr Ali, an architect retained by the Respondent who has acted as his authorised agent.

3. The orders made by the Court on 26 May 1998 required the partly erected structure to be demolished within three months of the Court's order, but the order was suspended for a period of three months in view of the fact that there was pending before the Council, at the time of the hearing, a development application that had not been determined by the Council made on behalf of the Respondent by Mr Ali, which if granted, would result in the substantial retention of the partly built structure in the approved structure.

4. The evidence filed by the Council in support of the Motion satisfies me that the Respondent was aware of the orders made by the Court on 26 May 1998 and of his obligations thereunder, and that the partly built structure has not been demolished as required. Mr Ali, in his evidence, has stated that both he and his client understood the orders as not requiring demolition until the development application before the Council had been determined. The evidence indicates in that behalf, that the development application has still not been determined, though having been lodged in November 1997. This is an extraordinary delay in the determination of the development application, but the Council's justification for lack of action is founded upon ongoing requirements that it has made of Mr Ali on behalf of Mr Varga to provide additional information in support of the application. That was the position when the matter was before me on the occasion of 26 May 1998.

5. The evidence indicates that the Council Planning Department was in contact with Mr Ali in June and July of last year seeking the additional information. It was eventually supplied to the Council, so it seems, in August of last year. Nothing much seems to have happened between the parties until a meeting was held between Mr Ali on behalf of Mr Varga and the Council Planning Staff on 2 December 1998. According to Mr Ali's evidence, it was on that occasion, for the first time, that he learned or appreciated from the Council's perspective that the orders of the Court were already operational against Mr Varga and that the Council saw the undetermined development application as involving essentially a different case from that raised by the Court orders made on 26 May last year. This came as a surprise to Mr Ali who had seen the unconcluded development application and the obligations imposed by the Court’s orders upon his client, Mr Varga, as being indissolubly linked.

6. I must say, from my reading of the reasons for judgement of 26 May 1998 that I can well understand why Mr Ali had that view but in his candid evidence, he has stated today that from 2 December 1998, he appreciated that the orders operated differently. In my view, there is really no ambiguity or confusion in the orders. They required the demolition work to be undertaken within 28 days, but provided a stay of three months to see what the outcome of the development application would be.

7. The mistake that was made by Mr Ali (on his own behalf and on behalf of Mr Varga) appears to be their failure to appreciate that any application for a further stay of the orders after the initial stay of three months had expired, required an initiative on their part. It is unfortunate that they laboured under that misunderstanding but I do not think it can affect the outcome of the present Motion. It is well established that contempt of Court is established where the relevant disobedience of Court orders is shown to be wilful in the sense of being deliberate—not accidental, casual or unintentional.

8. The evidence in the present case satisfies me that the disobedience of the Court's orders in the present case is relevantly wilful. Accordingly, the Council has made out its case for a finding of contempt against Mr Varga, in that he has failed to comply with the orders made on 26 May 1998. However, the Council agrees that it would not be appropriate to now deal with the question of punishment, and in that behalf does not oppose an application made on behalf of Mr Varga for a further stay of the Court's orders made on 26 May 1998 pending the final determination of the development application made to the Council. That application, as I have said, dates back to November last year. The most recent request by the Council for additional information is found in Mr Hurley's letter to Mr Ali dated 14 December 1998 in which additional information on six particular items was requested. Mr Ali has given evidence that that information was supplied to the Council by being delivered by himself to the Council chambers on Christmas Eve, ie on the afternoon of 24 December. According to the Council's evidence, no such documents were received and certainly Mr Hurley has not seen them hitherto. In any event, copies of the documents have been tendered to the Court as Exhibit A and Mr Ali has indicated that the three copies of all those plans can be delivered to the Council tomorrow to enable the Council to complete its consideration of the pending application.

9. I do not think it necessary to make any finding in relation to the evidence, other than to say that I accept the evidence of Mr Ali that the documents were delivered to the Council on 24 December 1998 and in view of the fact that there is no record of them, can only conclude that they went astray for reasons not known. That is perhaps not surprising because the delivery box most probably was not opened for a number of days from 24 December until 4 January (some ten days later) and one would assume that the delivery box contained a lot of previously unopened communications lodged in that ten day period. Be that as it may, the Council has not opposed the stay operating prospectively and Mr Ali will supply the Council with the copies of the plans tomorrow. It is appropriate, in my view, that the prospective stay be granted.

10. In the course of presentation of the case, I raised the question of whether an application for a retrospective stay might be made by Mr Varga. Obviously, such an application would have a material effect upon the question of any penalty that might be ordered in relation to the found contempt and indeed it may even go to the question of whether the finding of contempt could be sustained legally. In all of the circumstances, I am prepared to make a finding of contempt as sought in paragraph 1 of the Council's Notice of Motion. That order however, will be subject to the determination of any application for a retrospective stay that may be made by the Respondent. I do grant, without opposition from the Council, a stay from today for a period of three months to enable the Council to complete its consideration and determination of the pending development application, and I defer the question of penalty and any other orders sought by the Council in its Notice of Motion until after the expiration of the foresaid period of three months. I grant the parties liberty to apply for a hearing date after the expiration and I direct the Respondent to file and serve any Notice of Motion seeking a retrospective stay of the orders of 26 May 1998 within seven days of being notified of the Council's decision on the development application.