Randwick City Council v Athens

[2002] NSWLEC 165

Land and Environment Court

of New South Wales

CITATION:

Randwick City Council v Athens and Another [2002] NSWLEC 165

PARTIES:

APPLICANT
Randwick City Council

FIRST RESPONDENT
Peta Athens

SECOND RESPONDENT
Athens Holdings Pty Limited

FILE NUMBER(S):

40097 of 1999

CORAM:

Talbot J

KEY ISSUES:

Contempt :- Difficulty construing original orders

LEGISLATION CITED:

CASES CITED:

Australian Consolidated Press Limited v Morgan and Another (1964 - 1965) 112 CLR 483

DATES OF HEARING:

26/08/2002

EX TEMPORE
JUDGMENT DATE :

08/26/2002

LEGAL REPRESENTATIVES:

APPLICANT
Mr A J J Thompson (Barrister)
SOLICITORS
Bowen & Gerathy

FIRST AND SECOND RESPONDENTS
Mr S A Levitt (Solicitor)
SOLICITORS
Selby Kent Levitt

JUDGMENT:

IN THE LAND AND Matter No. 40097 of 2000
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 26 August 2002

Randwick City Council
Applicant

v
Peta Athens
First Respondent

Athens Holdings Pty Limited

Second Respondent

REASONS FOR JUDGMENT


1. HIS HONOUR: The second respondent is firstly charged in that it has failed to cease using a double carport of premises, known as 40 Coogee Bay Road, Coogee, other than in accordance with a development consent granted by Randwick City Council (‘the council”) on 19 November 1996, as required by Order 3 made by Sheahan J on 1 June 2001. Secondly, that it has failed to demolish and remove an unauthorised addition to the front fence of the subject premises by 30 September 2001 as required by Order 5 made by his Honour on 1 June 2001. The second respondent has entered a plea of not guilty to each of those charges.

2. The only evidence before the Court is by two council officers. The first is Michael Van Dam, a Health and Building Surveyor. Mr Van Dam says he observed that the unauthorised additions to the front fence of the subject premises had not been removed in accordance with Order 5 made by the Court on 1 June 2001. He supported his observations with a photograph of two buildings, one of which appears to have a fence, but without any clarity as to what is, or is not, said to be the unauthorised addition.

3. The balance of the evidence comes from a town planner, Kerry Kyriacou. Mr Kyriacou inspected the subject premises with Mr Van Dam on 5 October 2001. The evidence, again, is of his observations. He entered the carport area. In the northwestern corner of the double carport he observed a table and four chairs. Two young men were sitting around smoking, drinking coffee and chatting. The only other observation he makes in admissible form is that in the eastern side of the carport there was a set of lockers, which had been dragged away from the wall. Once again, there are some photographs of something, presumably the carport, and certainly there is a photograph that depicts four chairs and a table, some persons and some lockers.

4. The first difficulty that the Court encounters in relation to this matter is whether or not the Court is able to give a meaning by way of construction to Order 5 made by Sheehan J. The Order is in the following terms:-

The First and Second Respondents are to demolish and remove unauthorised additions to the front fence at 40 Coogee Bay Road, Coogee and reinstate it to its condition prior to the unauthorised work.

5. Although unassisted by any of the evidence that was before Sheahan J, I nevertheless have had the opportunity to read the judgment delivered by his Honour. I am unable to determine what additions were the subject of his Honour’s Order. Mr Thompson, who appears for the council, was placed in the position where he had to concede, in my view quite properly, that no assistance could be gained from his Honour’s reasons in order to understand exactly what comprised the additions referred to as unauthorised additions to the front fence. Furthermore, it must follow that there is nothing on the face of the Order which assists the Court to understand how the fence is to be reinstated to what his Honour has described as “its condition prior to the unauthorised work” . It is readily apparent that the unauthorised additions could have taken any number of forms. Even if it is accepted that the nature of the additions can be properly understood by reference to the evidence before his Honour, or by further evidence, there remains the difficulty of understanding what the condition of the fence was prior to the so-called unauthorised work. I hasten to add, of course, that the second respondent is not charged with failing to reinstate. The charge merely refers to the failure to demolish and remove unauthorised additions.

6. Mr Levitt, who appears for the first and second respondent, has referred the Court to three judgments by members of the High Court in Australian Consolidated Press Limited v Morgan and Another (1964-1965) 112 CLR 483. Barwick CJ, Windeyer and Owen JJ all gave their account of the difficulties that might be encountered in circumstances where the language of an order which subsequently becomes the subject of contempt proceedings is either meaningless or it is open to several ways that it might be construed. Although, with great respect, the Order made by his Honour is not totally meaningless, it is not an order which on its face explains exactly what is required of the person to whom the Order is directed. The terms of the Order are certainly not clear.

7. That then takes me to the evidence of Mr Van Dam. His evidence is couched in terms which adopt the exact wording of the Order and merely tell the Court that the unauthorised additions to the front fence have not been removed. In those circumstances, the evidence goes no further than being an expression of his opinion. Firstly, as to what the unauthorised additions to the fence may have been, without an explanation of his understanding. Secondly, his opinion that whatever his understanding of what the additions were had not been removed. It could be, for example, that some additions have been removed or it could be that nothing has been done. As I have said, even reference to the judgment of Sheahan J does not assist the Court to identify the nature of the unauthorised additions.

8. In the circumstances, I am not prepared to hold that it has been proved beyond reasonable doubt that the second respondent has contumaciously and deliberately failed to comply with Order 5. The council has not been able to demonstrate what was the subject of the Order. There has been no attempt by the council to establish a precise meaning for the words in Order 5. The Court is satisfied that there are any number of circumstances which could apply. It is not a matter that the second respondent is required to prove in order to establish its innocence, unless the council has first made out a case against it.

9. The charge relating to Order 5 is dismissed.

10. The circumstances in relation to the first charge in respect of the use of the double carport are different. Order 3 is couched in permanent terms so that the double carport can never be used for anything other than in accordance with the development consent granted by the council on 19 November 1996, even any future development consent. It is capable of being understood as an order restraining the second respondent from using the carport other than in accordance with the development consent, by reference to the Order itself and the development consent.

11. The development consent is in evidence. The development approved is the erection of a double carport for an existing three storey residential flat building. The conditions of consent predictably require implementations substantially in accordance with details set out in identified plans. Furthermore, they make provision for the discharge of roof water, hours of building operations, reduction in height to maintain an appropriate streetscape presentation and details of the materials of the construction. There is no suggestion in the council’s case that the carport has been erected otherwise than in accordance with the development consent. Order 3 does restrains the first and second respondents from using the double carport at 40 Coogee Bay Road, Coogee, other than in accordance with the development consent granted by a Notice of Determination dated 19 November 1996.

12. Mr Levitt submits that the evidence discloses no more than that, on the particular day of the inspection, namely on 5 October 2001, a table and some chairs were being used in the area of the carport and that people were drinking coffee and chatting. The photographs take the matter no further except to explain how far the lockers appear to have been dragged out from a wall. There is nothing in the terms of the development consent which would specifically preclude the placing of lockers in the carport. There is nothing in the evidence which would suggest that the placing of storage facilities such as a locker is a matter so inconsistent with the use of a carport that it should be regarded as a use other than in accordance with the development consent. The Court is not satisfied that the presence of a table and four chairs and several people who are having coffee and chatting is evidence of a long term use of that area for something other than a carport. Indeed, as Mr Levitt submits, carports are often casually used for purposes other than car parking.

13. There is no evidence of continuity of a use such as conversion into a bedroom or a lounge room or some other use totally inconsistent with the concept of a carport. In the circumstances, I am not satisfied beyond reasonable doubt from the evidence before me that the second respondent, even if the actions on 5 October 2001 could be contributed to it, are contumacious or in wilful disregard of the requirements of Order 3 made by Sheahan J. The Court determines that the first charge in the statement of charge must also be dismissed.

14. In the circumstances both charges will be dismissed. It is appropriate that the Court exercise its discretion in regard to the question of costs in favour of the successful respondent. The Court orders that the applicant council pay the second respondent’s costs in respect of the notice of motion.

15. The statement of charge against the first respondent, Peta Athens, was before the Court at 10:00am this morning. Mr Thompson indicated that the council would not be proceeding with that charge. Mr Levitt advised the Court that he had been instructed to appear in relation to the charge against the first respondent. Mr Thompson makes no submissions in respect of that matter. In the circumstances, it is also appropriate that any order for costs be made in favour of the first respondent. However, separate costs of representation were not incurred.

16. The Court makes the following formal orders:-


(1) Notice of motion dated 6 November 2001 dismissed.

(2) The applicant pay the costs of the first and second respondents in relation to the notice of motion dated 6 November 2001.
(3) Exhibits may be returned.