Mosman Municipal Council v Jackson

[2005] NSWLEC 201

Land and Environment Court

of New South Wales

CITATION:	Mosman Municipal Council v Jackson [2005] NSWLEC 201
PARTIES:	Mosman Municipal Council (Appl) James Murray Jackson (Resp)
FILE NUMBER(S):	40603 of 2003
CORAM:	McClellan CJ
KEY ISSUES:	Contempt :- Failure to comply with orders requiring the removal of materials from the property Respondent misunderstood terms of order A further period to comply with orders allowed
DATES OF HEARING:	16 March 2005
EX TEMPORE JUDGMENT DATE:	03/16/2005
LEGAL REPRESENTATIVES:	S Duggan (Appl) Pike Pike & Fenwick (Sol - Appl) In person (Resp)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

McCLELLAN J

WEDNESDAY 16 MARCH 2005

40603/03 MOSMAN MUNICIPAL COUNCIL v JACKSON

JUDGMENT

1 HIS HONOUR: This matter comes before me on the council’s motion that the respondent be found guilty of and punished for contempt. The contempt alleged arises from orders which were made by consent by a judge of this Court on 20 November 2003. Eleven operative orders were made on that occasion and the council now submits that the evidence discloses that the respondent has failed to comply with order 6(c), order 7(a), order 7(b) and order 10(a). There is little dispute about the facts and there is before me a series of photographs which indicate the present condition of the respondent’s premises.

2 The difficulty between the parties seems to arise from a belief by the respondent that the orders which were made did not require him to remove combustible material from an area of his property to the rear of the laundry adjacent to the garage and between those two facilities and the relevant side and rear boundary fences. That area of the property is in the south western corner and it is accepted that there is stored in that area a variety of items of combustible material. A significant quantity of timber which is also combustible is stored on the roof of the garage.

3 The relevant orders are as follows:

“6. The respondent shall:

(c) remove all combustible material from the rear yard of the premises except for:

(i) the timber workbench;

(ii) two (2) metal boxes containing combustible material - stacked no higher than the sides of the said boxes;
(iii) a stack of timber (neatly stacked) measuring no more than one (1) metre high and two (2) metres wide and two (2) metres deep.”

4 Read in isolation there could be no doubt that the area of controversy forms part of the rear yard of the premises. It is an area to the rear of the residential flat building which comprises the main building on the land and although in part made into a discrete area by reason of the wall of the garage and the laundry it would be contrary to any ordinary understanding of the words to conclude that it did not form part of the rear yard.

5 Order 7 was in the following terms:

“(a) The respondent shall stack neatly and maintain in such a state all other material in the area adjacent to the existing garage so as to not protrude into the rear yard any further than the eastern wall of the said garage;
(b) The respondent shall store any metal pieces for personal use on the concrete area near the laundry provided that the metal is contained and occupies an area of not more than two (2) square metres.”

6 The difficulty in the present matter to which Mr Jackson points is the choice of words in order 7(a). The obligation upon the respondent to stack neatly and maintain all other material in the area adjacent to the existing garage is plain and it is accepted that this is a reference to the area in the south-west corner between the garage and the laundry. The further obligation that the material be maintained “so as not to protrude into the rear yard” would give rise to a possible construction that the orders did not intend that the area between the garage and the laundry formed part of the rear yard.

7 If order 7(a) stopped at that point, that construction would be attractive. However, the order does not stop with those words but continues with the words “any further than the eastern wall of the said garage”. The inclusion of these words makes plain, in my opinion, that the orders provide that the area in the south-west corner is, as order 6(c) would suggest, part of the rear yard in which material other than combustible material may be stacked, provided it does not extend beyond the eastern wall of the garage.

8 In my opinion, this construction is not only correct but it also accords with the apparent purpose for which the orders were obtained. It is plain from the terms of the orders that the council was concerned in relation to the accumulation of indiscriminate materials in and about the sites and was also concerned with the accumulation of combustible material which, no doubt, represents a fire hazard not only to the subject property but to its immediate neighbours. There would be little purpose in excluding the accumulation of combustible material from the rear yard area between the house and the garage if it was to be allowed to be stacked at the rear of the property in and about the garage itself.

9 The terms of order 7(b) reinforce the conclusion which I have reached. It provides for metal pieces for personal use to be stored on the concrete area near the laundry, provided it is in an area confined to no more than two metres. Read in conjunction with orders 7(a) and 6(c), the effect is that combustible material is to be removed from the rear of the property. But for the items for which an exception is made all other material is to be neatly stacked in the area between the garage and the laundry with the exception that metal pieces for personal use can be stored in a confined area near the laundry itself.

10 The council also complains about a breach of order 10(a). The respondent obtained a pest report from an organisation other than Flick, Rentakil or Enviropest and did not obtain the agreement of the council to the alternative pest controller. The council does not complain about that fact, however the report on its face relates only to the residential flat building and does not offer an opinion in relation to whether or not rats may be present on the rest of the property. The respondent accepts that he would be able to obtain a report which deals with that aspect of the matter and, in my opinion, this would be appropriate.

11 I have expressed the conclusions which I have without, at this stage, coming to any view as to whether or not the charge has been made out. I have taken that step at this stage because it is unclear to me what the appropriate orders may ultimately be. I accept that the respondent, until today, may not have clearly understood his obligations under the orders and I believe it appropriate for me to provide him with a further opportunity to carry out the tasks that are required. I will invite him to tell me how long it may take for that to be done and I propose to stand the matter over for an appropriate period of time. If the respondent does not take the opportunity to now comply with the orders then I will at some later stage consider what should be done, which may include exercising the power which I have under s 678(10) of the Local Government Act 1993 to require the council to enter upon the property and carry out the orders which were originally made by it.

12 I will say this further. Following the delivery of my reasons, Mr Jackson sought leave to make a further submission. I granted him that leave. The submission which he makes deals with the question which was raised in argument and which I endeavoured to ensure that he had an opportunity to deal with. In short, the argument which he now seeks to put is that when order 7(a) speaks of the material being stacked in the area adjacent to the existing garage so as not to protrude into the rear yard any further than the eastern wall, the order speaks in terms which defines the rear yard as limited by the line made between the eastern wall of the garage and the laundry.

13 I have already indicated I do not accept that submission. Order 7(a) must be read with order 6(c) for they are both speaking in relation to the removal and stacking of relevant materials. The reference to “all other material” in order 7(a) must be a reference to material other than that which has been referred to in order 6(c). Accordingly, because order 6(c) speaks of the rear yard without any limitation, it must extend to combustible material which is within the yard area at the rear of the residential flat building, that must include, as I have already indicated, the area in the south-west corner.

14 Accordingly, as order 7(a) is speaking to material other than combustible material which has already been required to be removed altogether it must be understood as referring to non-combustible material which is to be stored in an area to the west of the line of the garage wall to the laundry. Understood in that way, in my view, there is no difficulty in construing the orders in the manner I have indicated.

15 HIS HONOUR: Do you understand, Mr Jackson? You see 6(c) is dealing with your yard and the combustible material. That says all combustible material. 7(a) is only dealing with other material.

16 RESPONDENT: Good. That means 7(b) I cannot have any metal material anywhere in the property except on a concrete area?

17 HIS HONOUR: No you could have it in the area in the south west corner.

18 RESPONDENT: No, it doesn’t say that, “any metal pieces personally used must be on the concrete area”.

19 HIS HONOUR: 7(a) is talking about all other material, that’s to go behind the line in the south west corner but then there’s an exception, your metal pieces for personal use can be stored forward of that line in the appropriate bins, all right? That’s how it works. It is important to understand that 7(a) is only relating to other material: that is other than combustible and the other material that’s referred to in order 6.

20 RESPONDENT: I can’t see why 7 is coupled in with 6.

21 HIS HONOUR: It’s not coupled in with it--

22 RESPONDENT: An independent stand alone paragraph.

23 HIS HONOUR: Yes, but it’s referring to other material, other than what? It must be the material other than that which is referred to in 6.

24 RESPONDENT: Combustible material, other than combustible. Six says combustible except bits and pieces but any other material, anything at all - the word “other material” doesn’t mean to say it’s relating to (c), it’s a stand alone paragraph. 6(a) is a Land Rover, 6(b) along a northern wall, (c) combustible material rear yard, (7) stacked neatly other material adjacent to ..(not transcribable)..., not to protrude into the rear yard further than the eastern wall of the garage. Any further than that it can’t protrude into it.

25 HIS HONOUR: That’s right. It can’t go further into the yard than that point.

26 RESPONDENT: How can it go into the rear yard when it’s already in the rear yard?

27 HIS HONOUR: There would be a good argument there if the words “any further” weren’t there but you don’t need the words “any further” if what you say is right.

28 RESPONDENT: Well it could be not to protrude further than the eastern wall of the garage but they’ve got the words “into the rear yard”. So stacked in the area south of the wall not to protrude any further than east wall of the garage. There is no need to put into the rear yard there but that’s been put there to define into the rear yard. It cannot be already in the rear yard.

29 HIS HONOUR: To make it read the way you want it to read it would have been written “shall not protrude beyond the line of the wall” but that hasn’t happened.

30 RESPONDENT: Yes but they’ve got the words “the rear yard” and they’ve got “other material”. Well that’s all other material.

31 HIS HONOUR: Anyway Mr Jackson I think we’ve talked about it enough now. Now how long do you want to do the work?

32 RESPONDENT: Well there’s no fire risk and I have got commitments for a couple of months and also I have to get the Land Rover running to be able to move it and also I will probably have to have a permit to where I’m going to put it and I also have to move my tiles.

33 HIS HONOUR: I don’t know about the tile, they are not combustible.

34 RESPONDENT: They will have to be moved to get in the vehicle and to move the stuff and would this also include the stack of timber on the driveway?

35 HIS HONOUR: No.

36 RESPONDENT: Combustible.

37 HIS HONOUR: We’re talking about combustible material in the rear yard.

38 RESPONDENT: That’s half the fence just been erected next door. I can’t put a combustible fence up, half of it is in my yard.

39 HIS HONOUR: No we are not talking about the fence, we’re talking about material.

40 RESPONDENT: Well fence is material.

41 HIS HONOUR: Mr Jackson, I’m sure you understand.

42 RESPONDENT: A minor point.

43 HIS HONOUR: How long? I’m prepared to give you three months, I think.

44 RESPONDENT: How long?

45 HIS HONOUR: Three months, subject to what the council says.

46 DUGGAN: I don’t wish to make submissions on three months.

47 RESPONDENT: I think it’s a bit short, three months if I’m to get a vehicle going and also I’ve got to be able to put it somewhere where I want to put it.

48 HIS HONOUR: These orders were made back in November 2003, we do have to do something about the situation, don’t we?

49 RESPONDENT: If the material is moved will this be the end of the council harassing me for ascetic reasons, they have never stopped.

50 HIS HONOUR: Mr Jackson, I don’t know about that but do you want to say anything further as to why I shouldn’t stand the matter over for three months?

51 RESPONDENT: We’ll try three months and see what happens.

52 HIS HONOUR: What I’ll do is stand the matter over until 15 June for mention only at 9.15 and Mr Jackson if the work hasn’t been done by that day I’m going to consider whether or not I should order the council to come in and do the work.

53 RESPONDENT: Good. And may I have - present to the Court in the meantime a report by my solicitor who was there as to his concept of what was meant to be negotiated?

54 HIS HONOUR: No, that’s now gone. I have now said today what the orders mean and they’re orders that bind you. If I came to the point of convicting you for contempt and I was looking at the matter of penalty then what you’re solicitor has to say may be relevant.

55 RESPONDENT: Would this mean that all the timber - the council has photographed bits of timber here and there, any timber at all on the premises?

56 HIS HONOUR: What it means is you’ve got to get rid of the combustible material in the rear yard, that’s what it means.

57 DUGGAN: But for that excepted in paragraph 6(c).

58 HIS HONOUR: Yes but for the three items in 6(c).

59 DUGGAN: If it’s convenient for your Honour could we make it Friday 17 at 9.15.

60 HIS HONOUR: Right, 17th 9.15. You understand Mr Jackson, I have not determined whether or not you are in contempt or not today, all I’ve done is speak in relation to what the orders mean. If they are not complied with though by that day then I will consider what further action I will take and that may include requiring the council to come in and do the work.

61 RESPONDENT: Good, they won’t have to. I’m just very upset that what was negotiated at the time has been phrased in a manner that was not applicable. The fire brigade weren’t worried about the stuff at the back, they wanted access.

62 HIS HONOUR: That’s all we can do today, we will adjourn until June.

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