Wollongong City Council v Hollis

[2017] NSWLEC 123

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Wollongong City Council v Hollis [2017] NSWLEC 123
Hearing dates:	5 December 2016 and 21 September 2017(mentions 30 January, 27 March, 10 and 16 May 2017)
Date of orders:	25 September 2017
Decision date:	25 September 2017
Jurisdiction:	Class 4
Before:	Moore J
Decision:	Directions for sentencing hearing annexed after [58]
Catchwords:	CONTEMPT – two charges laid by Council for alleged breaches of court orders made by consent in Class 4 proceedings – not guilty pleas entered to each charge CONTEMPT – Charge 1 – failure to remove building materials and other materials from the site within the period required by the court orders – some materials removed from site – other materials moved and restacked but remaining on site – Respondent guilty of contempt with respect to Charge 1 CONTEMPT – Charge 2 – failure, within the period required by court orders, to remove fittings from a shed that converted the shed into a dwelling– modification application to existing development consent approved by the Applicant – some of the fittings now not required to be removed but others still required to be removed – proposed orders to stay existing court orders with respect to fittings now approved to be retained – proposed staying orders require redrafting – Respondent to be found guilty of contempt with respect to Charge 2 after staying orders made to exclude now permitted fittings from the removal orders DIRECTIONS – directions to be made for a sentencing hearing on Charges 1 and 2 – directions to be annexed to decision
Legislation Cited:	Wollongong Local Environmental Plan 2009
Category:	Principal judgment
Parties:	Wollongong City Council (Applicant) Paul Hollis (Respondent)
Representation:	Counsel: Mr R O’Gorman-Hughes, barrister (Applicant) Respondent in person   Solicitors: Wollongong City Council (Applicant)
File Number(s):	224643 of 2016
Publication restriction:	No

TABLE OF CONTENTS

Introduction

Mr Hollis' business

Mr Hollis’ shed

The 2015 Court proceedings

The contempt proceedings

Mr Hollis’ applications to the Council

The hearing on 21 September 2017

The Council’s evidence

Introduction

Mr Sharp’s first affidavit

Mr Sharp’s second affidavit

Mr Sharp’s third affidavit

Mr Hollis' evidence

The status of Mr Hollis’ shed

Conclusion on Charge 1

Conclusion on Charge 2

Further progression of the matter

Judgment

Introduction

1. Mr Hollis owns land at Avondale, an area toward the south-western end of the Wollongong City local government area. Mr Hollis’ land (the site) is over seven hectares in area and is largely tree-covered. In 2002, Mr Hollis was granted development consent by Wollongong City Council (the Council) to construct a dwelling and a large shed on the site. Mr Hollis has constructed the shed but has not yet commenced building the dwelling. There is no dispute that Mr Hollis' development consent has commenced and remains operative. It thus remains permissible for Mr Hollis to construct the dwelling for which consent was given.

Mr Hollis' business

2. Mr Hollis is self-employed, running a demolition contracting business. As a result of his business activities, he has accumulated significant quantities of a wide range of building materials (using that expression in a very broad sense). Those materials have been transported to, and are stored at, the site.

Mr Hollis’ shed

3. Although Mr Hollis' development consent permitted the construction of the large shed on the site, it did not permit the conversion of that structure, when erected, into a dwelling. However, after Mr Hollis had had the shed constructed, he proceeded to fit it out as a dwelling.

4. This conversion of his shed into a dwelling has, as later discussed, been partially resolved by modification to his development consent to permit some of the interior fitout to be retained, but excluding a number of elements (such as the kitchen) that render it possible for the shed to be used as a separate dwelling.

The 2015 Court proceedings

5. The site is zoned E2 - Environmental Conservation and E3 ‑ Environmental Management under the Wollongong Local Environmental Plan 2009 (the WLEP). “Waste or resource management facility” is a defined term in the WLEP. The Land Use Table in the WLEP makes it clear that use for this defined purpose is prohibited in both the E2 and E3 zones and thus on the site.

6. On 19 June 2015, the Council commenced Class 4 proceedings seeking orders restraining Mr Hollis from using the site as a waste or resource management facility (this complaint arising from Mr Hollis’ transportation to and storing of building materials at the site).

7. The Council sought orders requiring the removal of the building materials Mr Hollis was storing at various locations on the site.

8. The Council also sought orders requiring the removal of a number of the elements of the internal fitout of Mr Hollis’ shed, with this removal seeking to render it unable to be used as a separate dwelling.

9. The Council’s Class 4 application did not proceed to a contested hearing. On 2 October 2015, I made orders, by consent, intended to resolve the Council’s concerns about Mr Hollis' activities on the site.

10. For the purposes of that with which I am now dealing, it is unnecessary to set out the entirety of those orders. It is, however, appropriate to set out the terms of orders (2) and (4). Those orders were in the following terms:

2.   The Respondent remove, or cause to be removed, all Material from the Subject Property within 50 days from the date of these orders.

3.   …

4.   Within 120 days from the date of these orders the Respondent is to demolish and remove, or cause to be demolished and removed, from the Subject Property the Works from the Shed and, if disposed of, lawfully dispose of them.

11. Mr Hollis was in Court when those orders were made and, self-evidently, was aware of their terms.

12. “Material” and “Works” were defined in the orders in the following terms:

“Material” means the material located on the Subject Property in the areas marked “Area No. 4”, “Area No. 6” and “Area No. 7” on the aerial photograph annexed to these orders.

and

“Works” mean the timber mezzanine level, the staircase, internal walls and doors, benches, toilet, sinks, bathroom, including bath and shower, external windows and doors, all kitchen and cooking facilities, built-in wardrobes, lighting fixtures and fittings, and the rear timber landing and stairs.

The contempt proceedings

13. On 26 July 2016, the Council commenced contempt proceedings against Mr Hollis for what the Council considered were sufficiently significant breaches of the orders to warrant Mr Hollis being brought before the Court to address the Council’s concerns.

14. The Council has stated two charges against Mr Hollis. These charges are in the following terms:

Charge 1

The Respondent Paul Andrew Hollis has failed to comply with the Order of this Honourable Court made on 2 October 2015 in that he has failed to remove, or cause to be removed, all Material, as defined in the Order, from Lot 2 DP 867347 (otherwise known as 155 Avondale Colliery Road Avondale) by the time required by paragraph 2 of the Order made by this Honourable Court, a copy of which is annexed hereto and marked with the letter “A”.

Charge 2

The Respondent Paul Andrew Hollis has failed to comply with the Order of this Honourable Court made on 2 October 2015 in that he has not, within 120 days of the date of that Order, demolished and removed, or cause to be removed, all Works, as defined in the Order, from the Shed on Lot 2 DP 867347 (otherwise known as 155 Avondale Colliery Road Avondale) as required by paragraph 4 of the Order made by this Honourable Court, a copy of which is annexed hereto and marked with the letter “A”.

15. Annexed to the Statements of Charge document was a copy of the orders made on 2 October 2015 (also recording that they had been entered on 25 November 2015).

Mr Hollis’ applications to the Council

16. The 2 October 2015 orders contained a provision (order (5)) that, relevantly, suspended order (4) to permit Mr Hollis to lodge such a development application to permit the shed to be used as a dwelling.

17. Mr Hollis has, since the 2 October 2015 orders, applied to the Council:

1. To permit the shed to be used as a dwelling. Mr Hollis lodged such a development application but withdrew it as the cost of the works necessary to render the shed compliant with the required building standards (including fire protection standards) was too great. Time was then allowed to Mr Hollis to lodge a further application (dealt with immediately below); and

2. Subsequent to the withdrawal of the application to have the shed approved as a dwelling, to modify his already-granted development consent to permit some of the internal fitout of his shed to be retained, whilst, at the same time, rendering the shed incapable of being used as a separate dwelling.

18. The Council approved that modification shortly before the final hearing on 21 September 2017, the hearing necessary to determine whether Mr Hollis was guilty of the two contempt charges earlier set out, as Mr Hollis had pleaded not guilty to these charges.

The hearing on 21 September 2017

The Council’s evidence

Introduction

19. At the hearing, Mr O'Gorman-Hughes, counsel for the Council, read three affidavits from Mr John Sharp, the Council’s Development Project Officer (Compliance). These affidavits were dated:

1. 2 September 2015;

2. 20 September 2016; and

3. 28 July 2017.

20. Mr Sharp was not required by Mr Hollis for cross-examination.

Mr Sharp’s first affidavit

21. As can be seen, the first of these affidavits pre-dates the orders that currently bring Mr Hollis before the Court on these two contempt charges. It is unnecessary, for the present purposes, to set out the detail of that which is traversed in Mr Sharp's first affidavit. It is sufficient to note that, amongst the material contained in the folder exhibited to his affidavit (which became Exhibit C), there are 42 photographs showing the state of the site and 32 photographs of the shed as at 8 May 2015.

22. The exhibited materials also include an aerial photograph of portion of the site, upon which have been placed a number of arrow stickers identifying and sequentially numbering eight locations on the site. Three of these locations comprise Areas 4, 6 and 7 - areas expressly identified in the 2015 consent orders.

23. The materials in Exhibit C also include a copy of the Construction Certificate plans for Council’s 2002 (and subsequently amended) development consent permitting Mr Hollis to erect a dwelling and shed on the site. The stamped Construction Certificate plans are dated 29 September 2005.

24. The photographs taken by Mr Sharp, during the course of his inspection on 8 May 2015, show:

• the considerable range of building materials brought to the site by Mr Hollis;

• a number of shipping containers;

• the interior fitout of the shed, making it clear that it has been converted into a dwelling; and

• various other items of plant and equipment, including vehicles, an excavator and various different types of bucket attachment for the excavator.

Mr Sharp’s second affidavit

25. Mr Sharp's second affidavit details what was the state of the site when he conducted further inspections of it on 16 December 2015 and 20 May 2016. It is also unnecessary, at this point, to set out any significant detail from the contents of this affidavit.

26. First, it is sufficient to note that the affidavit relates to the state of the site after the expiry of the 50-day operative period provided in order (2) of the orders of 2 October 2015, this being the time by which Mr Hollis had agreed to remove from the site all the material that he had stored in Areas 4, 6 and 7 as identified in the aerial photograph, this aerial photograph having, by then, been incorporated for identifying purposes in the consent orders made in October 2015.

27. A series of photographs taken by Mr Sharp during the course of these inspections was annexed to this 2016 affidavit. The photographs comprise photographs of Areas 4, 6 and 7 and show that significant quantities of the materials, which had been in those areas at the time of the making of the 2015 orders, had not been removed from the site as required. Although those in the series of photographs at Annexure C are captioned 16 December 2016, this year is clearly a typographic error with the caption intended to be 16 December 2015.

28. Second, no photographs were included, for either of the inspection dates dealt with in Mr Sharp’s second affidavit, of the interior fitout of the shed.

Mr Sharp’s third affidavit

29. Finally, Mr Sharp's affidavit of 28 July 2017 details, relevantly, what Mr Sharp observed during the course of his inspection of the site on 20 July 2017. As with the earlier affidavits, this affidavit was also accompanied by a series of photographs. These photographs depict the state of the site during the course of Mr Sharp's 20 July 2017 inspection. The photographs also depict the materials that remain on site, stored by Mr Hollis in Areas 4, 6 and 7.

30. The photographs also include a number of photographs of the interior fitout of the shed.

31. There are three matters to be observed concerning that which these photographs depict. These observations are:

1. First, although significant quantities of the building materials and a number of the shipping containers have been moved (including being arranged in a much more organised fashion), nonetheless, significant quantities of the material on the site in 2015 and 2016 can be identified as remaining on the site and, although at different locations and configuration, nonetheless, remaining in Areas 4, 6 and 7;

2. Second, there is also some further building material on the site, which the Council concedes it cannot establish, conclusively, was present on the site at the time of the making of the 2015 orders. Therefore, there is some material on the site, which, for the purposes of these contempt proceedings, I cannot conclude falls within the scope of that which was ordered to be removed from the site that had been stored at Areas 4, 6 or 7; and

3. Third, there is no obvious alteration to the interior fitout of the shed so that, at the date of these photographs, it remained able to be used as a dwelling.

Mr Hollis' evidence

32. Before Mr Hollis went into the witness box, I explained to him that I proposed to permit him to give his evidence on a narrative basis, without needing to draw the distinction between what he said which would be evidence and what he said which should be taken as submissions.

33. I indicated to him that, by permitting him to speak on that basis, I (and Mr O'Gorman-Hughes) would take what he said, which was properly to be regarded as evidence, as being evidence, whilst that which he said, which should properly be regarded as submissions, would be taken as such.

34. Mr Hollis then gave evidence in that narrative fashion.

35. Mr Hollis had provided to the Court, on an earlier occasion, a bundle of documents upon which he proposed to rely. Those documents had been filed on 23 August 2017 and were tendered as Exhibit 1 in these contempt proceedings. It is unnecessary, at this stage, to refer to any of the documents contained in them in any detail.

36. During the course of his evidence, Mr Hollis referred to a number of coloured photographs. As he was self-represented, I invited Mr Hollis (without objection from Mr O’Gorman-Hughes) to:

• write an identifying letter on the back of each of the photographs;

• describe to me that which was depicted in each of the photographs; and

• tender the photographs.

37. Mr Hollis did so and the Council arranged for additional copies to be made. The photographs were then tendered by Mr Hollis as Exhibit 2.

38. Mr Hollis’ oral evidence dealt with:

1. the nature of the activities that he had undertaken, since the Court’s consent orders on 2 October 2015 were made, in removing material from the site that he accepted was waste (and lawfully disposing of it);

2. his tidying up the material that had remained on the site (including moving and stacking materials such as pallets of bricks and Besser blocks);

3. the fact that he had moved some of the material that had been stored in Areas 4, 6 and 7 into space within the shed;

4. the uses to which he had placed some of the material, such as the construction of retaining walls; and

5. his understanding that he believed he was entitled to retain material on the site, provided it was kept located within the building envelope (correctly to be described as a building footprint) identified on his development consent plans.

39. It is unnecessary, at this point, to reproduce that building envelope diagram but it will be a matter necessary to which further attention is given at the next phase of these proceedings.

40. Mr O’Gorman-Hughes cross-examined Mr Hollis, concisely, about matters to which it will be necessary to return at the next phase of these proceedings.

The status of Mr Hollis’ shed

41. I have earlier noted the fact that Mr Hollis’ application to the Council for modification of his development consent concerning some of the internal fittings within his shed had been successful, but that other elements of order (4) of the orders of 2 October 2015 remained to be implemented.

42. It was clear from the photographs of the interior of the shed, taken by Mr Sharp during the course of the site inspection on 20 July 2017 (forming part of the annexures to his affidavit of 28 July 2017), that fittings remained in the shed rendering it capable of being used as a dwelling (such as a kitchen).

43. The Council proposed that the outcome of the modification application, permitting some fitout elements to remain, should be dealt with by further orders that would stay those elements of order (4) of the 2 October 2015 orders, on a permanent basis, to reflect those items that had been approved by the Council's modification approval of 13 September 2017.

44. Although I raised with Mr O’Gorman-Hughes the necessity for some greater precision in the drafting of such further orders, I am satisfied that taking that course would be an appropriate response to clarify that which remained the obligation on Mr Hollis in order for him to comply with what now remained to be done arising from the 2 October 2015 orders.

Conclusion on Charge 1

45. Although Mr Hollis has pleaded “not guilty, and although he has removed some of the material from the site, his own evidence (together with the July 2017 evidence of Mr Sharp) clearly demonstrates that significant quantities of the material ordered, by the consent orders of 2 October 2015, to be removed from the site have not been removed. The time for compliance with the requirement to remove the material from the site had been 50 days from 2 October 2015.

46. For the reasons earlier explained, all of the evidence demonstrates that Mr Hollis has not complied with the terms of that order.

47. In effect, the evidence which Mr Hollis gave, orally, during the course of this hearing is evidence which would go to mitigation, potentially, of any penalty and further orders which might arise from a sentencing hearing (and will be taken into account by me when these proceedings move to that phase).

48. There is no doubt that the Council has established, beyond reasonable doubt (this being the evidentiary standard required), that Mr Hollis has failed to comply with the order made on 2 October 2015 that he remove, or cause to be removed, all material (as defined in the 2 October 2015 order) from Lot 2 DP 867347 (otherwise known as 155 Avondale Colliery Road, Avondale) within 50 days of the date of making that order.

49. Mr Hollis is, therefore, found guilty of Charge 1.

Conclusion on Charge 2

50. I have earlier explained that Mr Hollis’ development consent has been modified so that all of the internal fitout of his shed that was defined as “works” within the meaning of the 2 October 2015 orders has resulted in a number of the elements no longer being required to be removed. The relevant order (order (4)), as earlier set out, required those works to be demolished and removed from the site within 120 days of 2 October 2015.

50. The “works” as defined in the order were:

“Works” mean the timber mezzanine level, the staircase, internal walls and doors, benches, toilet, sinks, bathroom, including bath and shower, external windows and doors, all kitchen and cooking facilities, built-in wardrobes, lighting fixtures and fittings, and the rear timber landing and stairs.

52. As the Council no longer suggests that all of the items, which were set out in the above definition, now require to be removed as a consequence of Mr Hollis’ successful modification application, I will not be in a position to formalise any finding of guilt with respect to Mr Hollis for his failure to comply with order (4) until after the Council provides, and I deal with, the proposed permanent stay of those elements within the works that have now been approved as a result of Mr Hollis’ amendment application.

53. It is therefore not yet appropriate that I make a formal finding of guilt with respect to Charge 2. Although I am unable to make such a formal finding at this time, it is clear that a finding of guilty on the failure to remove those elements of the works (which remain unapproved and have not yet been removed) within the 120-day permitted time for their removal must be made.

54. However, when the necessary formal process has been completed to effect a permanent stay of those now approved elements, it will then (and only then) be appropriate for me to make a formal finding of guilt on Charge 2, but to do so in the more circumscribed form that will then be appropriate.

55. Although, technically, Mr Hollis is also guilty of failure to remove those works which have now been approved, it has been my understanding throughout much of the process on the hearing of these charges that either a development application or (as subsequently became the case) a modification application would be pursued and, if approved, that which was no longer objected to by the Council would be outside the scope of any finding which I might make and subsequent penalty which might be imposed.

56. As a consequence, the formal finding of guilty on Charge 2 is deferred and will be dealt with at the commencement of the necessary sentencing hearing to follow. Mr Hollis’ understanding should be that, at the commencement of that sentencing hearing, an appropriate finding of guilty on Charge 2, in the more confined terms, will be made.

Further progression of the matter

57. The matter will now need to proceed to a sentencing hearing at a later time. That sentencing process will be undertaken on the basis that Mr Hollis has been found guilty of both charges by the time that the substantive sentencing submissions are made.

58. I propose to discuss with the Council and Mr Hollis what will be the date of that hearing and the necessary directions to be made in preparation for it. Those directions will be added as an annexure to this decision when they are made.

Wollongong City Council v Hollis - sentencing hearing directions (15.0 KB, docx)

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Amendments

26 September 2017 - Directions on sentencing hearing inserted after [58].

Decision last updated: 26 September 2017