Hornsby Shire Council v Olga Wallis

[2004] NSWLEC 217

Land and Environment Court

of New South Wales

CITATION:	Hornsby Shire Council v Olga Wallis & Ors [2004] NSWLEC 217
PARTIES:	APPLICANT Hornsby Shire Council FIRST RESPONDENT Olga Wallis SECOND RESPONDENT Helen Wallis THIRD RESPONDENT Vera Wallis
FILE NUMBER(S):	40821 of 2002
CORAM:	Pain J
KEY ISSUES:	Contempt :- failure to comply with order requiring compliance with development consent
LEGISLATION CITED:	Land and Environment Court Rules s 15 r 9 Supreme Court Rules Pt 42 r 7
CASES CITED:
DATES OF HEARING:	01/03/2004 02/03/2004
EX TEMPORE JUDGMENT DATE :	03/02/2004
LEGAL REPRESENTATIVES:	APPLICANT T G Howard SOLICITOR Mr I Woodward FIRST RESPONDENT Mr Y Wallis, as agent

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

40821 of 2002

Pain J

2 March 2004
HORNSBY SHIRE COUNCIL
Applicant
v
OLGA WALLIS
First Respondent

HELEN WALLIS
Second Respondent

VERA WALLIS
Third Respondent
Judgment


1. These are contempt proceedings commenced by the Council against Mrs Olga Wallis, the First Respondent, in relation to consent orders made by this Court in Class 4 proceedings on 3 July 2003. The consent orders relate to the building of a retaining wall on two sides of Mrs Wallis’s property. No orders are sought in relation to the Second and Third Respondents. The Scope of Works is attached to the consent orders and annexed to the Council’s Notice of Motion, as follows:
1. Before commencing any work on site, any contractor is to have Workers Compensation and Public liability Insurance and is to provide copies of these Insurances to the Council at least 2 days prior to the commencement of works by that contractor.

2. Obtain and submit to Council within fourteen (14) days, a dilapidation survey of:
(a) the public roads adjacent to the existing retaining wall; and
(b) the existing natural ground of that part of Lots 1 and 4 in DP 209830 adjacent to the retaining wall.


3. Install pollution control devices around the existing retaining wall prior to removal of this wall.

4. Demolish the existing brick wall and concrete foundation of the existing retaining wall, where the retaining height of filling exceeds 300mm, and remove from site to an approved waste depot. …

5. Affix two layers of hessian over the soil exposed by the removal of the existing retaining wall.

6. After the brick wall is demolished as required in paragraph 4, a consulting arborist is to inspect the site and determine if any more trees are required to be removed for safety reasons or to enable the remaining work set out in paragraph 7 to be carried out. In the event the consulting arborist determines that certain trees are a safety concern and warrant removal, or their root system will be substantially affected so that the survival of the tree is unlikely, then those trees and their root system are also to be removed. Particular reference and attention should be given to tree identified as Tree 18 (Jacaranda), 21 (Cocos Palm), 24 (Eucalyptus pilularis), 29 (Corymbia), 32 (Silky Oak) & 37 (Corymbia) as identified in the Aboricultural Assessment Report of Urban Tree Management, dated 24 March 2002 … as well as the Strelitzia adjacent to trees 15 - 17.

7. Construct new retaining walls in accordance with Development Consent No. 2093/03A issued by the Council on 10 June 2003 … .

8. In respect of the work specified in paragraphs 6 & 7:
(a) roots greater than 50mm in diameter may only be cut with the opinion and approval of a consulting arborist;
(b) removal of soil be by hand or with the use of an air "Laser"; and,
(c) removal of trees or pruning is to take place before root severance.


9. All soil above the height of the constructed retaining walls should be battered so that the height of the soil immediately adjacent to the walls is the same height as the retaining walls.

10. Employ a qualified Landscape Gardener to treat the new soil batter, to prevent erosion of the new battered soil slope.

11. Remove all the debris from the site. Turf all affected natural ground areas of Lots 1 and 4 in DP 209830 that have been damaged, with a turf grass species selected in writing by those owners. Maintain the turf until regrowth occurs.

12. After a period of three (3) months, remove with the concurrence of the Applicant, all pollution control devices if all ground cover of the turf and battered bank is effective in preventing erosion of the soil.

2. The Scope of Works numbers twelve items in all. Paragraphs 1 to 11 of the Scope of Works were required to be completed within 28 days of the date of the orders, that is by 3 July 2003. Paragraph 12 of the Scope of Works was required to be complied with following completion of par 1 to 11. No issue is raised by the Council in relation to par 3 and 4 in the Scope of Works, however the Council asserts that Mrs Wallis has failed to comply with the remaining items in the Scope of Works.

3. Mrs Olga Wallis was present in Court on the second day of the hearing, having been required to attend by the Court pursuant to Pt 42 r 7 of the Supreme Court Rules when she did not appear on the first day of the hearing. Her husband, Mr Yuri Wallis, also appeared and acted as her agent on the second day in her presence. Mrs Wallis essentially left the running of her case to her husband, stating from the bar table that she left these matters in his hands. It was agreed by the Council that it was appropriate for the matter to proceed on the basis that Mr Wallis would so act as Mrs Wallis’s agent provided Mrs Wallis was present in Court.

4. Mr Wallis swore an affidavit and gave oral evidence in the case and I take this evidence into account in this decision. It must be remembered at all times however, that the contempt order is sought against Mrs Wallis, the First Respondent, as one of the parties to the consent orders made on 3 July 2003. Mr Wallis was not a party to those orders.

5. The Council relied on extensive affidavit evidence of its officers, arborist and Mrs Wallis’s neighbours. I refer to the following nine affidavits which were relied on by the Council as part of this judgment:
(a) affidavits of Robert Francis Boys dated 1 December 2003 and 23 December 2003;
(b) affidavits of Paul Frederick Fitzgerald dated 18 September 2003, 27 November 2003 and 19 December 2003;
(c) affidavits of Scott Bronte Gatenby dated 5 February 2004 and 25 February 2004
(d) affidavit of Kerry John Griffen dated 23 December 2003; and
(e) affidavit of Anthony John Pickup dated 18 September 2003.


Paragraph 1 of the Scope of Works
6. There is a dispute between the parties as to whether par 1 has been complied with. It is Mr Wallis’s oral evidence that he did provide the necessary contracts of insurance to the Council for himself and his contractors before work was carried out last year. There is no documentary evidence of this provided by Mr Wallis and the Council does not have any record of receiving this information. I will make no finding on this matter today. I will allow Mrs Wallis, through her husband if she so chooses, to provide to the Council the information which Mr Wallis stated in his oral evidence that he has and which evidence, he says, demonstrates that par 1 was complied with.

7. As it is necessary for this matter to come back before me, this can be considered on the next occasion and I will return to this at the end of my judgment.

Paragraph 2 of the Scope of Works
8. It is very clear on the evidence presented by the parties that no dilapidation survey was provided. Indeed, the engineer’s report relied on by Mr and Mrs Wallis which appears as exhibit JJJ to Mr Pickup’s affidavit of 18 September 2003, specifically states that no such report was prepared.

Paragraph 5 of the Scope of Works
9. It is admitted by Mr Wallis that no hessian has been placed over the exposed soil as par 5 requires. It was Mr Wallis’s evidence that her engineer considered this was unnecessary. Relying on the evidence of his engineer does not assist Mrs Wallis. As complying with the Court order is not optional it is not open to Mr or Mrs Wallis to unilaterally decide not to comply with the orders, regardless of the advice they receive.

Paragraphs 6, 7, 9, 10, 11 and 12 of the Scope of Works
10. I accept that the joint report of the arborists employed by the Council, which is attached to one of the affidavits of Mr Gatenby, is an agreement as to the further trees which require removal. It would appear on this basis that par 6 has been complied with. The difficulty has been in having Mrs Wallis, through her husband Mr Wallis, do the work specified in that joint arborists report. Mr Wallis states that the retaining wall referred to in par 7 of the Scope of Works has not been built. This paragraph has not been complied with. This is also clear from the Council’s affidavit evidence. It must follow that par 9, 10, 11 and 12 have not been carried out by Mrs Wallis.

11. I accept the Council’s evidence that in order for the consent orders made by this Court in July 2003 to be complied with, and for the retaining wall for which consent has been given to be completed, the additional trees identified by the joint arborists' report must be removed.

12. Further excavation in accordance with the Scope of Works must also be carried out and the retaining wall as detailed in the plan attached to development consent no 2090/03A must be built by Mrs Wallis.

13. Mr Wallis sought to rely on amended plans apparently lodged with the Council, although not presented to the Court, on the basis that he does not need to build a 600 ml footing any more because there is a rock base on which the retaining wall will now sit. It was said by Mr Wallis that this factor was not previously known to the engineer who did the development consent plan for Mrs Wallis. This course is simply not available to him, Mrs Wallis or indeed the Court as the Court Order must stand in the absence of any of the factors listed under s 15 r 9 of the Land and Environment Court Rules applying. It is only these factors which enable a judgment of the Court to be set aside and no application has been made in relation to these factors which would enable me to set aside the order. The Court Order therefore stands.

14. No technical reason has been advanced by Mr Wallis on Mrs Wallis’s behalf in relation to why the retaining wall cannot be constructed as the consent order requires. Mr and Mrs Wallis presumably wish to comply with the modified plan because this does not require that any further trees be removed, according to a further report of the arborist relied on by Mr and Mrs Wallis dated 3 November 2003 which is exhibit 1. Nor is any further excavation apparently required according to Mr Wallis’s engineer’s report which is exhibit 2. As I have already said however, it is simply not open for modified plans to be applied in this case given the orders that now stand.

15. There is clearly contempt of Court established beyond reasonable doubt by the Council in relation to pars 2, 5, 7, 9, 10, 11 and 12 of the Scope of Works.

Paragraph 8 of the Scope of Works
16. In relation to par 8(b) of the Scope of Works, Mr Wallis states that he did not carry out the excavation by hand to any extent because it was very difficult due to the number of tree roots. I do not consider this contempt to be as serious as that which has occurred in relation to the paragraphs identified earlier.

Further action
17. I consider it appropriate to allow Mrs Wallis the opportunity to purge her contempt before sentencing takes place in relation to her contempt.

18. I note that the requirements for the further work required by the orders of 3 July 2003 are set out in a letter dated 12 February 2004 to Mrs Wallis’s previous solicitors which I have now labelled exhibit B. I note this has been read out in Court by me and that Mr Wallis has indicated on behalf of himself and his wife that he understands what is required to be done.

19. I confirm that Mr Fitzgerald is the relevant contact at the Council on all occasions in this matter. As there are several steps to be taken by Mrs Wallis at various stages of the building process I think it is safer to allow ten weeks in order for this work to be carried out. I will allow Mrs Wallis ten weeks to purge her contempt on the basis that Mr Wallis states the actual work required should take about eight weeks, consisting of tree lopping to take about two weeks, excavation another two weeks, and building of the retaining wall approximately four weeks.

20. In relation to costs, I note the Council is seeking its costs of the motion seeking contempt orders. I further note this is opposed by Mrs Wallis on the ground that it is unfair and Mrs Wallis is a pensioner who cannot afford to pay any costs order.

21. At this stage I will reserve the question of costs and deal with it on a later occasion when the matter is again before me.

Orders
22. The Court makes the following orders:

1. Mrs Olga Wallis, the First Respondent, is guilty of contempt of Court in that she has failed to comply with the orders 2, 5, 7, 9, 10, 11 and 12 of this Court dated 3 July 2003.

2. The matter is stood over for a period of ten weeks to give Mrs Wallis the opportunity to purge her contempt.

3. The question of costs is reserved.