Bayside Council v Kelly [2024] NSWLEC 125

Land and Environment Court New South Wales

Medium Neutral Citation: Bayside Council v Kelly [2024] NSWLEC 125 Hearing dates: 25 June, 9 August, 26 September and 19 November 2024 Date of orders: 29 November 2024 Decision date: 29 November 2024 Jurisdiction: Class 4 Before: Duggan J Decision: See orders at [34] Catchwords: CONTEMPT – orders for removal of unused vehicles and other waste materials – respondents failed to purge contempt despite attempts – respondents convicted of contempt – costs awarded on usual basis Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Queanbeyan-Palerang Regional Council v Banks (No 2) [2024] NSWLEC 99 Category: Sentence Parties: Bayside Council (Applicant) Sandra Kelly (First Respondent) Raymond Kelly (Second Respondent) Representation: Counsel: P Brown, solicitor (Applicant) S Kelly, litigant in person (First Respondent) R Kelly, litigant in person (Second Respondent)

Solicitors: HWL Ebsworth (Applicant) N/A (Respondents) File Number(s): 2022/00061906 Publication restriction: Nil

JUDGMENT

Nature of proceedings 1. The respondents, Mrs Sandra Kelly and her son Mr Raymond Kelly (Respondents) have each pleaded guilty to the charges that they have disobeyed orders made by Robson J in this Court on 7 October 2022 (Orders).

Procedural History 1. By Notices of Motion and Statements of Charge filed on 21 December 2023 (Motions), Bayside Council (Council or Applicant) seek orders that the Respondents be punished for contempt for disobeying the Orders of this Court made on 7 October 2022 as well as costs. 2. The Orders are as follows: By consent the Court orders: 1. Except as provided by Order 3, the First and Second Respondents are to remove from the front and rear yard of the land at Lot 14 in Deposited Plan 1100425 also known as 44 Garden Street, Eastlakes NSW 2018 (Premises) all unregistered or scrap vehicles, vehicle parts, accumulated waste materials and discarded articles including but not limited to metals, wires, aluminium, frames, plastics, buckets, boxes, paint containers, gas cylinders, bicycle parts, furniture, tyres, rubbish, scrap metals, other miscellaneous materials, and other refuse materials (Materials) on or before 18 July 2023. 2. The removal of the Materials required by Order 1 must occur in the following manner: (a) the Materials must be disposed of lawfully; (b) the Materials must be removed only between the hours of 9:00am and 5:00pm Monday to Saturday; (c) the removal of the Materials must not obstruct vehicular access to or from Garden Street, Eastlakes; (d) the removal of the Materials must be carried out safely so as to ensure it does not cause any damage to third party property or persons; and (e) otherwise must occur in accordance with the SCHEDULE to these orders. 3. Order 1 does not apply to the parking/storage of motor vehicles on the driveway or under the carport (if cleaned of Materials) on the Premises, whether registered or unregistered. For the avoidance of doubt no vehicles are to be parked/stored in the front yard of the Premises, and no unregistered vehicles are to be removed from the Premises and parked on Garden Street. 4. Except as provided by order 3, from 18 July 2023 and continuing the Respondents are to by themselves, their servants and agents be restrained from using the Premises for the purposes of collecting and storing unregistered or scrap vehicles, vehicle parts, accumulated waste materials and discarded articles including but not limited to metals, wires, aluminium, frames, plastics, buckets, boxes, paint containers, gas cylinders, bicycle parts, furniture, tyres, rubbish, scrap metals, other miscellaneous materials. 5. Costs are reserved. … 1. On 9 February 2024, being the first directions hearing for the Motions, orders were made listing the matter for directions on 5 April 2024 specifically for plea or mention, the effect of which was to afford the Respondents additional time by which to comply with the Orders and thereby purge their contempt. Directions were also made providing for the Applicant to be granted access to the subject property (Premises) for the purposes of conducting an inspection to determine the progress of the works undertaken. 2. On 5 April 2024, the Respondents both entered guilty pleas in respect of their respective Statements of Charge. The Motions were listed for hearing on 25 June 2024 and directions were made not dissimilar to those on the previous occasion which both had the effect of provided additional time for the Respondents to comply with the Orders and granting the Applicant entry onto the Premises. 3. On 25 June 2024 at the hearing of the Motions, after the tendering of evidence, the Respondents sought further adjournment of both Motions to 9 August 2024 to enable further work to be undertaken to purge the contempt. The Council was prepared to not oppose the adjournment provided some progress was made in complying with the Orders. I adjourned the matter part heard. The Court file notes as follows: 1. Adjourn the Notices of Motion until 10am on 9 August 2024. Note: on that date, the Respondents are to have cleared at least 50% of the area identified as "Zone 1". If that area is so cleared, I will entertain making further orders to purge the contempt proceedings. If it is not cleared, I will entertain an application by Council to enter and undertake the work at the Respondents' costs. … 1. On 9 August 2024, the evidence indicated that whilst the Respondents had not completed the totality of the work referred to in the note to the Court file, substantial work had been undertaken in the area identified as Zone 1. The Respondents sought additional time to carry out further work, which, subject to continuing progress, was not opposed by the Council. Accordingly, I again adjourned both Motions to 26 September 2024. On that occasion, I also made orders for the filing and service of the form of orders the Council sought in relation to the undertaking of the works the subject of the Orders, as well as any evidence. 2. On 26 September 2024, the evidence indicated that some further progress had been made to comply with the Orders. At the further request of the Respondents, which was not opposed by the Council on the same terms previously indicated, I adjourned both Motions to 19 November 2024. The Court file notes as follows: The Court notes: 1. Unless: the white panel van; the white transit van; the white Commodore station wagon; and the red Calais are removed from the premises and not parked on the road I will not entertain any further application for a time extension. … 1. At the hearing of the Motions on 19 November 2024, it was apparent that the Respondents had only achieved the removal of the red Calais, and that the remaining works had not been undertaken. The Second Respondent submitted that whilst he had attempted to complete the works as indicated he had difficulties relating to the transport of vehicles to other premises on the Central Coast due to the boggy nature of the land and some difficulties with timing as he was undertaking the work on his own. Notwithstanding these submissions, I determined that a further adjournment was not appropriate as the works remained incomplete, that sufficient time had been provided to enable the works to be undertaken, such time previously being indicated by the Second Respondent as more than sufficient to carry out the identified works.