Richmond Valley Council v Willis

[2009] NSWLEC 195

Land and Environment Court

of New South Wales

CITATION:	Richmond Valley Council v Willis [2009] NSWLEC 195
PARTIES:	PLAINTIFF Richmond Valley Council DEFENDANT David Martin John Willis
FILE NUMBER(S):	40395 of 2009
CORAM:	Pain J
KEY ISSUES:	CIVIL ENFORCEMENT :- failure to carry out work in accordance with orders made by Court - consideration of financial circumstances - Defendant given time to carry out works
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 121B
DATES OF HEARING:	30 October 2009
EX TEMPORE JUDGMENT DATE:	30 October 2009
LEGAL REPRESENTATIVES:	PLAINTIFF Mr M Seymour SOLICITORS Hannigans DEFENDANT In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

30 October 2009

40395 of 2009 Richmond Valley Shire Council v Willis

EX TEMPORE JUDGMENT

1 Her Honour: Richmond Valley Shire Council (the Council) has filed a summons seeking to enforce orders of the Court made by consent by Hussey C on 11 December 2007. Those orders in turn amended, in part only, an order issued by the Council under s 121B of the Environmental Planning and Assessment Act 1979 (the EP&A Act) on 19 February 2007 to enforce the conditions of development consent granted by the Council in December 2004 for the construction of a rural shed on the Defendant’s property at Woodburn Evans Head Road, Doonbah. The conditions of consent stated that the shed was to be used for the storage of agricultural goods and was for use in conjunction with agricultural purposes.

2 The shed as built was able to be used as a dwelling and has that appearance based on photographs which were tendered as exhibit A.

3 The Council’s summons presses for a declaration that the order has not been complied with and an order that the works be carried out.

Evidence

4 Stephen McCarthy, development officer with the Council, swore an affidavit on 11 June 2009 which was read for the Council. Mr McCarthy’s affidavit annexed photographs of the subject property taken by him on 2 February 2009 for the purposes of these proceedings. These photographs showed according to Mr McCarthy, inter alia:

(i) the spa bath area

(ii) wires hanging from the ceiling where internal walls had been removed

(iii) the spiral staircase

(iv) the partially demolished brick fire place

(v) the glass door on the southern side of the structure

(vi) the kitchen area

(vii) the double glass doors at the front of the structure

(viii) the water heater outside the structure

(ix) the barbeque area at the rear of the structure

(x) the storage container on brick structure outside the structure

(xi) the sink area on the side of the structure

(xii) the motors to the air conditioning units beside the structure

5 An affidavit of Peter Cotterill, manager of environmental health and regulatory control with the Council, swore an affidavit on 9 June 2009. Mr Cotterill’s affidavit set out the history of the matter. Mr Cotterrill annexed the orders made by consent on 11 December 2007 by Hussey C and the original order of the Council issued 19 February 2007 referred to in the orders of the Commissioner. Mr Cotterill attests to visiting the site on 2 February 2009 to determine whether the orders of the Court had been complied with. At the time the Defendant told Mr Cotterill that he had carried out some of the works over the Christmas break, that he wanted to talk to someone about the removal of the internal stairs, that no engineer had yet been engaged to inspect the works and that no surveyor had been engaged to determine the flood level, required in order to comply with one of the conditions. Mr Cotterill referred to the photographs annexed to Mr McCarthy’s affidavit in stating what had been removed in compliance with the Court’s orders and what had not yet been removed as at 2 February 2009.

6 Based on the Council’s affidavit evidence, counsel for the Council produced a schedule of work (schedule 1) which remained outstanding. The Defendant agreed that this work had not been done. The schedule as finalised identifies 14 items of work outstanding from the original s 121B order issued by the Court and as amended by the consent orders made by Hussey C.

7 The Defendant prepared an affidavit sworn 19 October 2009. His affidavit states that he began demolition works on the property in February 2008. He engaged a number of people to give an approximate costing for the works required for compliance with the Court’s orders. He attests that the approximate cost of the works exceeded $18,000. The Defendant states that he approached the Council through a planner he had engaged in order to explore ways of reducing the costs of complying with the orders. No such agreement was reached. He also approached the Council in June 2009 in relation to pursuing a development application for a youth recreation camp on the subject site. The Defendant states that the earlier proceedings in this Court were expensive and his financial situation deteriorated through 2008. He also had costs incurred in Family Court proceedings, a disputed matter with a local contractor and a pending insolvency application. He has had to sell numerous properties, had no cash flow and was unable to secure any finance against his properties. These problems have continued into 2009 and any income he receives is required for servicing existing debts. He states that this precarious financial situation has been mentally and emotionally difficult. He has communicated to the Council several times that he cannot afford to undertake the works required by the Court’s order.

8 The Defendant tendered a number of documents as evidence of his financial situation (exhibit 1):

· Letter dated 11 March 2009 from the Office of State Revenue notifying the Defendant of an overdue land tax liability of $16,599.76

· Three default notices issued by First Mortgage Company Home Loans Pty Ltd in respect of four properties in which the Defendant is referred to as mortgagor. The amount required to pay out each loan is identified as $160,971.29, $321,519.91 and $518,058.84, respectively.

· Three statements for loans in the Defendant’s name on three separate properties showing debts of $473,437.54, $244,527.19 and $311,970.82

9 The Defendant was cross-examined and he identified the extent of his existing five property holdings and his substantial liabilities in relation to these, his plans for sale of most of these properties with two presently the subject of a delayed settlement sale. He also gave evidence as to his sources of income, being rent on one of the properties he owns which does not cover the cost of the mortgage, income from his business as a self-employed electrician and income from the use of his house as a bed and breakfast business. In addition to the properties the Defendant owns several motorcycles, a mini-excavator and woodchipper, a car used for his work and a jetski. The Defendant gave oral evidence about the advice he had received in relation to the cost of the works required by the order and stated that he was unable to do the work required himself because of the expertise necessary.

10 The Defendant submitted that he has been unable to comply with the court orders in large part because of his financial circumstances which are detailed in his affidavit. He has owned and continues to own a number of properties which due to the recent financial downturn have left him badly overextended in terms of debt. He is still trying to extricate himself from that position through the sale of properties. He estimates that the work will cost $18,000 based on discussions he has had with various building contractors. No quotes to support this assessment were provided.

11 The Defendant has stated that he faced a very large bill for court costs after the hearing before Hussey C and that his financial situation since then has been very difficult. He seeks 18 months in which to complete the work.

12 He has stated that he wishes to use the property including the existing shed for a youth facility. I am told that he lodged a development application very recently which was refused. That circumstance is not relevant to the enforcement of orders I have before me.

Finding

13 The Court has wide powers to enforce its own orders, in this case the orders of Hussey C and also a s 121B order issued under the EP&A Act. The Defendant has admitted that he has not done the work identified in schedule 1 (but for one item discussed in the next paragraph). In any event, the evidence of Mr Cotterill establishes that the work identified in schedule 1 remains to be done. The declaration sought by the Council should be made in these circumstances.

14 In relation to the consequential order sought by the Council, that work be done as identified in schedule 1, there is one issue to resolve and that is the meaning of item 2 concerning removal of the partially demolished brick fire place. The Defendant maintains that he has complied with that order (order 3 in the s 121B order) by the removal of the chimney and the flue from the fireplace. What remains is the brick fireplace structure. Order 3 in the Council’s original order referred to demolition and removal of the brick fireplace to the ground floor of the shed. There is no development consent for a fireplace. Order 3 requires the removal of the brick fireplace structure down to the ground floor. Accordingly item 2 in schedule 1 also requires demolition of the brick structure to ground floor level. The Defendant will have to remove the existing brick structure in order to comply.

15 The main issue before me is what time frame the Court should allow the Defendant to undertake the work in schedule 1.

16 The Council opposes the time frame of 18 months requested by the Defendant as excessively generous because, if granted, it will not provide adequate enforcement of planning laws and is likely to undermine confidence in that system. I agree. While I appreciate that the Defendant is in very difficult financial circumstances, in light of the now lengthy history of the matter with an extended period of non-compliance with Hussey C’s orders since June 2008, 18 months is too long. That the orders made by Hussey C were made by consent does not undermine the necessity to comply with them. But for his financial position I would have ordered the work to be done in two months. In view of that financial position I will allow him ten months to do the work. Failure to comply with court orders can result in contempt proceedings so I encourage the Defendant to use his very best endeavours to comply. He has indicated that he is able to apply $1000 per month to the carrying out of the work in his present financial circumstances. He owns farm equipment which I consider he may be able to sell to raise additional money.

17 Accordingly I will make the declaration in prayer 1 and the order in prayer 2 as handed up by the Council, except that the order will require the work to be done within ten months.

18 I also need to resolve costs issues as the Council seeks its costs.

Addendum

19 After submissions on costs were heard, the following costs order was made:

Order the Respondent to pay the Applicant’s costs, as agreed or assessed, within 18 months of the date of this order.