North Sydney Council v Louise O'Hara

[1999] NSWLEC 265

Land and Environment Court

of New South Wales

CITATION:

North Sydney Council v Louise O'Hara [1999] NSWLEC 265

PARTIES

APPLICANT
North Sydney Council

RESPONDENT
Louise O'Hara

NUMBER:

40119 of 1999; 20072 of 1997

CORAM:

Cowdroy J

KEY ISSUES:

Costs :- non-compliance - work to be carried out to make property structurally safe

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 121ZJ
Local Government Act 1993 s 678

DATES OF HEARING:

11/29/1999

EX TEMPORE JUDGMENT DATE:

11/29/1999

LEGAL REPRESENTATIVES:

APPLICANT
Ms S Duggan (Barrister)

SOLICITORS

RESPONDENT
In person

SOLICITORS
n/a

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 40119 of 1999
CORAM: Cowdroy J
DECISION DATE: 29/11/99

North Sydney Council

Applicant

v

Louise O’Hara

Respondent

JUDGMENT

Background

1. In this matter by application class four the council seeks a declaration that the respondent has not complied with the order of the Court of 30 September 1997 and orders requiring the respondent to carry out the subject work within 28 days of the Court's order. Alternatively an order that the council be permitted to do the work.

2. By an amended application class four which was filed in court today and for which I grant leave, an amendment was sought to one of the orders which may or may not have any consequence depending upon the events that happen hereafter.

3. The respondent filed a notice of motion on 22 November 1999 in class two proceedings no 20072 of 1996. In this notice of motion the applicant sought that the time for compliance with the order made by the Court on 30 September 1997 be extended; secondly, that the order made on 30 September 1997 be set aside and her appeal heard; thirdly, that the hearing in proceedings no 40119 of 1999, which was set down for hearing today and tomorrow, be vacated. Accordingly the two matters are before the Court.

4. It is appropriate that the Court deal with the history of the matter so that the two applications can be understood. On 30 September 1997 the Court made orders which required the respondent to do two things. Firstly to repair or replace the centre verandah post within a period of twelve months from the date of the order. Secondly, to replace broken and dislodged roof and slate tiles and replace rusted, holed or missing gutters and downpipes within eighteen months of the date of the order. The orders related to the respondent's residence known as 21 Willoughby Street, Kirribilli.

5. Those orders were made by Commissioner Bly following a hearing. The judgment of Commissioner Bly records the fact that he had inspected the premises and agreed with the council evidence, namely that the verandah post was then in a rotten state and a sandstone pillar upon which it apparently rested was loose and partly broken.

6. Whilst there appeared at that stage to be no imminent likelihood of any catastrophic collapse of the whole verandah structure, Commissioner Bly said that he was satisfied there was a possibility that if the verandah did collapse debris could fall onto the footpath. However he considered there was no imminent danger and allowed substantial time for the respondent to do the required work.

7. So far as the roof tiles are concerned, he also accepted the evidence of the council's witness that the roof needed attention and that if it was not undertaken there could be structural damage. He again considered that there was no immediate urgency to do that work or work to the rusted drainpipes and gutters but he considered that repairs were required in the interest of health and safety. For that reason he ordered the work be undertaken within eighteen months.

8. The evidence discloses that no work has been undertaken. The photographs tendered in evidence show that the house is in a dilapidated state. There have been several tarpaulins placed over the roof and in position for over two years.

9. The current evidence put before the Court in the form of an affidavit by Mr O'Brien sworn on 16 August 1999 reflects upon the state of the premises. The deponent has qualifications as set out in Annexure A to his affidavit. He is a team leader of the Division of Planning and Environmental Services and currently completing a Master of Applied Science Fire Safety Design at the University of Western Sydney. He has had extensive experience in planning, health, building and fire related issues. In his opinion there are various consequences concerning the state of the premises. One of the consequences is a significant risk of injury to persons and property arising from tiles falling from the roof of the dwelling house. There is a loss of amenity to the adjoining properties.

10. The respondent does not challenge the fact that repairs are required to the roof, to the guttering and to the verandah post. Ms O’Hara has informed the Court this morning over a period of several hours that her inability to carry out the work results from her allocation of time to other matters. Therefore she is unable to devote her attention to this matter until the other matters with which she is engaged have been attended to.

11. On 9 June 1999 Ms O’Hara wrote the council a letter saying that she would try to obtain and select a firm quotation from a suitable contractor to carry out the work and an appropriate time for that work to be undertaken. Having signed the letter Ms O’Hara says that she reconsidered it overnight and that it was a letter with which she could not abide by, yet council was not informed of that qualification.

12. Accordingly the matter has now come back before the Court to seek appropriate orders for enforcement. I am satisfied that the Court should intervene in the manner requested by council and I consider the respondent has been treated exceptionally leniently by Commissioner Bly and this Court. The Court has endeavoured to afford her every assistance in seeking reasons why the work has not been done and also to afford her an opportunity to indicate when she might carry out the work without the intervention of the Court. On both scores the respondent has been unco-operative and unhelpful.

13. So far as the appeal is concerned, or the purported appeal, it is quite clear that the Court would not entertain extending the time in which the appeal should be brought. Pt 13, r 35 of the Land and Environment Court Rules require an appeal to be instituted 28 days from the date of any judgment. The Court does have power to extend the time as the Court may fix. The fact remains that there was no attempt to appeal from Commissioner Bly's decision until 22 November 1999, being two years and two months since the decision was made.

14. When I asked the respondent what was the ground of appeal the answer was utterly inconclusive and muddled. Despite the fact that the respondent is not legally represented, she was not able to articulate any specific matter which would be raised in opposition to an order being made. Accordingly, even if a right to appeal had been granted I am satisfied there is nothing of relevance that could have been raised on the hearing of any appeal. For this reason I am confident that there is no denial of justice as has been alleged by the respondent in the hearing of the matter on 30 September 1997 or on any date since.

15. So far as vacation of the hearing date is concerned, a medical certificate was tendered in evidence which I did not regard as sufficient to warrant the hearing being vacated. The respondent was present before the Registrar on 3 August when this matter came before the Court. On that day it was adjourned to a call-over on 9 September. On 9 September the respondent did not appear but she was informed either that day or the following day by the applicant’s solicitors of the hearing date. No steps were taken by the respondent until 22 November to have the hearing date vacated. When asked the reasons for the vacation of the hearing date it is alleged by the respondent that she is unwell and secondly that she is very occupied with other matters. I am not informed what those matters were. I am satisfied that there is no valid reason for any orders to be made in respect of the notice of motion other than an order that the notice of motion be dismissed.

16. The position has now been reached that the orders made by the Court have not been fulfilled. It places the council in a situation where it could be held liable in the event that any accident happened in consequence of the state of the premises. The orders by Commissioner Bly were made in September 1997 and he gave one year namely until September 1998, for the respondent to renovate the verandah post. Nothing was done. He gave until March 1999 for the other repairs to be done. Nothing has happened. Accordingly since March of 1999 until the present, that is almost six months, the council has been hoping and waiting for the respondent to take steps, but despite all this nothing has been done to rectify the state of the building. It is accordingly time that the Court made the necessary orders.

17. So far as the scale of the work is concerned, the respondent estimates that the work could be undertaken in a week. Bearing in mind the fact that the work could be undertaken in that period of time it is monstrous that the work has not been undertaken by the respondent before today.

Orders

18. Accordingly the Court will make orders as set out in the amended application class four subject to certain changes.

1. The Court makes the declaration set out in paragraph (1) of the Amended Application dated 26 November 1999.

2. The Court orders the respondent to carry out or cause the carrying out of such works as are required to comply with the terms of the Order made by the Court on 30 September 1997 by 31 March 2000.

3. The Court makes the order in paragraph (3) of the Amended Application but orders that it shall not be executed until 15 April 2000.

4. The Court orders that in the event the respondent seeks to extend time for compliance with the Order in paragraph (2) hereof, any such notice is to be filed in Court by 1 March 2000.

5. The Court orders paragraph (4) of the Amended Application.

6. No order as to costs. Any application for an order for costs of this hearing and reserved costs be stood over until the work referred to in paragraph (2) hereof has been completed.

7. In respect of proceedings no 20072 of 1996 and T4 of 1997 the Notice of Motion to appeal out of time is dismissed. Any application for costs of this motion including reserved costs be stood over until the work the subject of these proceedings has been completed.