Burwood Council v Wanless

Land and Environment Court

New South Wales

Medium Neutral Citation:	Burwood Council v Wanless [2014] NSWLEC 20
Hearing dates:	26 February 2014
Decision date:	26 February 2014
Jurisdiction:	Class 4
Before:	Preston CJ
Decision:	Orders as set out at [21]
Catchwords:	CIVIL ENFORCEMENT - contempt of court - failure of respondent to comply with Court orders to cut vegetation on her property and to maintain the cut vegetation - respondent guilty of contempt as charged - lump sum fine imposed - respondent to pay the applicant's costs on the motion for contempt
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 s 3A Local Government Act 1993
Cases Cited:	Burwood Council v Ruan [2008] NSWLEC 167 Wood v Staunton (No. 5) (1996) 86 A Crim R 183
Category:	Principal judgment
Parties:	Burwood Council (Applicant) Ms Susan Wanless (Respondent)
Representation:	Ms C A Middleton (Solicitor) (Applicant) No appearance for the respondent Houston Dearn O'Connor (Applicant) No appearance for the respondent
File Number(s):	40831 of 2011
Publication restriction:	No

Judgment

1. On 14 December 2011, this Court made orders against Ms Wanless, the owner and occupier of residential land at 22 Austin Avenue, Croydon, regarding cutting and maintaining vegetation on her property. The precise terms of the orders are important and I will return to these in a moment. The orders were made in Ms Wanless' absence. The Council served the sealed Court orders on Ms Wanless personally on 21 December 2011.

1. Ms Wanless failed to comply with the first order that she cut certain vegetation within the time ordered by the Court of 14 days of service of the orders.

1. Thereafter, as ordered by the Court, the Council undertook the works the subject of the first order. On 9 February 2012, the Council, through contractors, cut vegetation on Ms Wanless' property. The Council tendered photographs taken on 9 February 2012 on the morning before the work commenced (showing the overgrown rear yard, particularly by a creeper commonly called Morning Glory), during the work, and at the conclusion of the work (showing the rear yard cleared of the creeper and undergrowth and with mown grass).

1. The vegetation on the property has, however, regrown since that time. The Council adduced evidence from its officers of inspections on 2 May 2012 (by Mr Morley) and 23 July 2012, 3 December 2012, 6 June 2013 and 12 August 2012 (by Mr Henderson). The officers took photographs of the rear yard and the front yard of the property showing, over the period, the regrowth of vegetation, particularly of the Morning Glory creeper, but as well of grass.

1. By permitting this regrowth of vegetation, the Council contended that Ms Wanless is in breach of order 4 of the Court's orders and that such breach constitutes a contempt in connection with the proceedings. The Council has applied, by notice of motion in the proceedings filed on 22 August 2013, for Ms Wanless to be punished for the contempt. The Council filed, also on 22 August 2013, with the notice of motion…