The Hills Shire Council v Needham

[2018] NSWLEC 1

Land and Environment Court

New South Wales

Medium Neutral Citation:	The Hills Shire Council v Needham [2018] NSWLEC 1
Hearing dates:	7 February 2018
Date of orders:	08 February 2018
Decision date:	07 February 2018
Jurisdiction:	Class 4
Before:	Pain J
Decision:	See par 18
Catchwords:	PRACTICE AND PROCEDURE – vacation of hearing dates at commencement of hearing to enable legal representation to be obtained conditioned on interlocutory order remaining in place and payment of applicant’s costs thrown away
Legislation Cited:	Civil Procedure Act 2005 ss 56, 58, 66 Uniform Civil Procedure Rules 2005 Pt 40.7
Category:	Procedural and other rulings
Parties:	The Hills Shire Council (Applicant) Norma Bianca Maree Needham (Respondent)
Representation:	COUNSEL: M Wright (Applicant) N Needham in person (Respondent)   SOLICITORS: Marsdens (Applicant) Roderick B Harris & Co (Respondent)
File Number(s):	17/162057

EX TEMPORE Judgment

Notice of motion to vacate hearing dates

1. The Hills Shire Council has commenced Class 4 civil enforcement proceedings restraining the use of Ms Needham’s land in Ascot Road Kenthurst for prohibited activities in a rural transition zone. The Class 4 proceedings identify the activities of a function centre and use as commercial premises for commercial videography and commercial photography on Ms Needham’s land as prohibited under the relevant planning instrument. The matter was set down on 22 September 2017 for a two day hearing commencing today.

2. This judgment concerns an oral application to vacate the hearing dates allowed to be made instanter by Ms Needham at the outset of the hearing. Section 66 of the Civil Procedure Act 2005 (NSW) provides for adjournment of proceedings at any stage, which would include vacation of a hearing date to another date. The exercise of the Court’s discretion must be done in accordance with ss 56 and 58 of the Civil Procedure Act ensuring the just, quick and cheap disposal of proceedings. It is necessary to balance the competing interests of fairness to the parties in light of the issues in the Class 4 proceedings.

3. The chronology in the Court Book which will be relied on at a final hearing identifies the following complaints made by neighbours in relation to activities on the land:

22 February 2016	Complaint concerning use of the land for weddings and weekend rentals.
5 March 2016	Complaint concerning use of the land for Mardi Gras party.
25 March 2016 - 28 March 2016	Complaint concerning use of the land for weekend rental and party.
2 April 2016	Complaint concerning use of the land for weekend rental and party.
30 April 2016	Complaint concerning use of the land for the purpose of a wedding.
19 June 2016	Complaint concerning use of the land for the purpose of a wedding.
27 August 2016	Complaint concerning use of the land for the purpose of a wedding.
13 December 2016	Inspection of the land by officers of the Council confirming use of the land at that time for Christmas party function.
16 December 2016 and 17 December 2016	Complaint concerning use of the land for weekend rental and party.
29 January 2017	Complaint concerning use of the land for the purpose of a wedding on 25 and 27 January 2017.
3 February 2017	Inspection of the land by officers of the Council confirming the land was used for an engagement function.
4 February 2017	Inspection of the land by officers of the Council confirming the land was used for an engagement function.
25 March 2017	Inspection of the land by officers of the Council confirming the land was used for a wedding.
25 November 2017	Complaints and inspection of the land by Council officers confirming use of the land for the purpose of a pool party function.
9 December 2017	Complaints and inspection of the land by officers of the Council confirming the land was used for a wedding.

4. In relation to the Court proceedings, the Council read the affidavit of Mr Baird solicitor affirmed 12 December 2017. Mr Baird set out the history of the proceedings until 12 December 2017. The Council filed its summons and points of claim on 30 May 2017. On 30 June 2017, Mr Baird appeared. Ms Needham appeared unrepresented and agreed to the short minutes of order made by the Court. The matter came back before the Court for a further directions hearing on 8 September 2017. Ms Needham had not complied with any of the orders made on 30 June 2017. The Court adjourned the matter for two weeks until 22 September 2017. Ms Needham intended to obtain legal advice during the adjournment. The matter came before the Court on 22 September 2017. Mr Baird appeared for the Council and Ms Needham was represented by Mr Harris solicitor. Ms Needham agreed to the short minutes of order made by the Court on this date. As at 12 December 2017 the Council had not received any affidavits, bundle of documents or points of defence from Ms Needham in accordance with the short minutes of order dated 22 September 2017.

5. The Council read the further affidavit of Mr Baird, affirmed 6 February 2017. The Council filed a notice of motion dated 7 December 2017 seeking interlocutory orders. The Council also filed a notice to produce dated 8 December 2017. Both notices came before Justice Moore on 14 December 2017. Ms Needham was represented by Mr Mantei solicitor. Ms Needham did not consent to or oppose the orders sought in the notice of motion. Justice Moore made the orders preventing Ms Needham from using or advertising the land as a function centre. Ms Needham did not produce any documents in answer to the notice to produce. Justice Moore adjourned the notice to produce until 19 January 2018.

6. On 19 January 2018 the notice to produce came before Justice Moore. Ms Needham appeared unrepresented. She did not produce any documents and requested an adjournment. The matter was adjourned to 2 February 2018. On 1 February 2017 Ms Needham emailed Justice Moore’s Associate requesting that the hearing be vacated as she had been unable to find legal representation. The matter was to be heard before Justice Robson the following day. Justice Robson’s Associate replied to the email stating that to the extent Ms Needham sought to vacate the hearing, she needed to file and serve a notice of motion seeking that order accompanied by the evidence she intended to rely upon.

7. On 2 February 2018 the matter came before Justice Robson. Ms Needham did not produce any documents and requested that the hearing dates of 7 and 8 February 2018 be vacated. Justice Robson refused to vacate the hearing dates without a formal application supported by an affidavit and adjourned the notice to produce to 5 February 2018. The matter came before the Court on 5 February 2018 in relation to the notice to produce. Ms Needham was represented by Ms Erzin solicitor. Ms Erzin produced documents to the Court in answer to the notice to produce.

8. The basis for the vacation application is Ms Needham’s inability to obtain legal representation for today. According to a written statement provided to the Court she is in the process of engaging Mr Fozzard barrister and solicitors Bilias and Associates but cannot do so until she has provided them with an upfront payment. According to oral evidence she approached her bank for a loan for this purpose yesterday and hopes to be able to make that payment next Monday. She also stated that she or her business partner Mr Vernon tried on numerous occasions to obtain legal representation after the matter was set down for hearing. The reasons she stated she was told why various solicitors could not appear did not appear entirely credible if reputable firms were contacted. Ms Needham and her business partner receive income from rent of a car dealership.

9. I note that different solicitors have appeared on Ms Needham’s behalf at mentions before this Court in September 2017 and February 2018. Ms Needham was also legally represented before Justice Moore in the Council’s successful interlocutory application in December 2017 when an order was made restraining the use of the land for a function centre.

10. In any event Ms Needham appears today unrepresented. Her principal argument against the Council’s case so far as I am aware from her written statement is that the Council has given approval for events on the land in the last calendar year which it opposes in the Class 4 proceedings and has also tacitly approved use of the land for commercial photography and commercial videography. There was also reference to an argument that some of the activity of filming falls under the definition of “home industry” in the planning instrument.

11. Ms Needham has failed to comply with any interlocutory orders made by the Court for service of a defence and timetable for the filing of affidavits. She has also had a lengthy period to obtain legal representation.

12. The orders sought by the Council do impact directly on Ms Needham’s ability to earn income at her house. Having observed Ms Needham in Court, the nature of the evidentiary contest she wishes to raise and in light of the voluminous evidence and submissions on which the Council intends to rely I have formed the view that Ms Needham would benefit from having legal representation at a final hearing. The Court will also benefit from counsel drafting a defence and any affidavits to be relied upon and appearing at a hearing to represent Ms Needham. I therefore consider it is in the interests of fairness to Ms Needham in particular that I vacate the hearing dates although I do so reluctantly given the lengthy amount of time Ms Needham has had to obtain legal advice and in light of the lengthy time there have been issues about her use of her land.

13. The issue of prejudice to the Council’s interests including those of the public which it represents, being a number of Ms Needham’s neighbours impacted by the activities at her land, arises if I do vacate the hearing dates. Orders which address the Council’s interests can be made.

14. Considering costs firstly, the Council has incurred considerable cost in preparing for the hearing and has attended today with eight council officer deponents of affidavits, two affidavits sworn by Mr Baird solicitor and one sworn by Mr Levison sworn 5 February 2018. An order for the payment of costs thrown away with provision for payment in a specified time will be made.

15. Were the matter heard today and tomorrow, a reasonably early determination of whether the activities at Ms Needham’s property can continue could be expected. If the Council is successful the activities being conducted will have to cease with consequent reduced impact on neighbours from prohibited development. Such a result is being delayed by the decision to vacate the hearing dates.

16. This can be addressed on an interim basis. The interlocutory injunction issued by Justice Moore preventing use and advertising of the house for a function centre should continue and Ms Needham does not oppose such an order.

17. When Ms Needham did not consent to a further interim order restraining the use of the land for commercial photography and commercial videography, the Council also sought instanter an interlocutory order restraining the use of the land for commercial photography and commercial videography which it had not pressed before Justice Moore in December 2017. It read the affidavit of Mr Levison a neighbour in support of this application which attests to filming activity at the end of January 2018 which impacted on the neighbourhood. Ms Needham who had no notice of this application opposes this on the basis that this is how she earns income and stated that she had a regular monthly booking for a photographer lined up. It is difficult to weigh up this material in these circumstances as the matter was not comprehensively argued before me. The Council appears to have an arguable case. Doing the best I can I will make an order limiting commercial photography and commercial videography to prohibit this for the time being but for the regular monthly booking that is presently in place. The terms of an order enabling this to occur will be discussed with Ms Needham.

18. Accordingly interlocutory orders will be made to vacate the hearing dates, restraining the use of the land as a function centre, a qualified order preventing commercial photography and commercial videography except for the regular monthly booking. Advertising use of the property for commercial photography and commercial videography filming should not be permitted until the final hearing. An order for costs to be paid to the Council which I will discuss further with Ms Needham will also be made. Pursuant to Pt 40.7(5) of the Uniform Civil Procedure Rules 2005 (NSW) the requirement for service of these orders is dispensed with.

19. I note that I am not part heard in the substantive hearing of this matter. The matter will be stood over for hearing to specified days with an appropriate timetable for filing of a defence and affidavits.

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Addendum made on 8 February 2018

20. In accordance with the terms of paragraph 18 and the directions in my judgment of 7 February 2018 the parties provided me with their agreed proposed orders. Accordingly I make orders as follows:

1. Hearing dates are vacated.

2. Until further order, the Respondent by herself, her servants and agents be restrained from using, causing or permitting the land known as Lot 1 in Deposited Plan 31243 (11) Ascot Road, Kenthurst (the Land) to be used for the purposes of a “function centre” including the holding of events, functions, conferences, wedding receptions and the like.

3. Until further order, an order that the Respondent by herself, her servants and agents be restrained from using, causing or permitting the land to be used for the purposes of a “commercial premises” including commercial photography and commercial videography except for photography by Richard Arthur Photographer involving no more than four (4) persons including Mr Arthur as follows:

1. No more than once a week for one (1) day;

2. Only between the hours of 9am to 6pm;

3. All vehicles involved in the photography session are to be parked within the land;

4. The photography session is not to cause any offensive noise beyond the boundary of the land; and

5. The Applicant Council is to be notified 24 hours in advance of the photography session by telephone call or email to Craig Woods.

4. Until further order, the Respondent by herself, her servants and agents be restrained from advertising or promoting the Land by any means, including via websites and/or services such as “Airbnb” or “Stayz” for:

1. The purposes of a “function centre” including the holding of events, functions, conferences, wedding receptions and the like; or

2. The purposes of a “commercial premises” including commercial photography and commercial videography.

5. Respondent to pay the Applicant's costs thrown away in the sum of $11,660.00 within 42 days.

6. Pursuant to Part 40.7(5) of the Uniform Civil Procedure Rules 2005 (NSW) the requirement for service of these orders is dispensed with.

PENAL NOTICE

To: Norma Bianca Maree Needham

The Respondent named in the proceedings in which the Orders to which this Penal Notice is endorsed.

THIS PENAL NOTICE is given in accordance with the Uniform Civil Procedure Rules 2005 (UCPR) Part 40 Division 2 rule 40.7.

TAKE NOTICE that the Orders made by the Land and Environment Court on 8 February 2018 and entered 8 February 2018 (which bear this Penal Notice) will, if you disobey the Orders, render you liable to imprisonment or to sequestration of property in addition to liability for a fine.

Decision last updated: 12 February 2018