Land and Environment Court of New South Wales CITATION : North Sydney Council v O'Hara [2001] NSWLEC 155 PARTIES : FILE NUMBER(S) : 40119 of 1999 CORAM: Talbot J KEY ISSUES: Practice and Procedure :- Judgment entered against respondent - orders for enforcement against applicant upon default by respondent Environmental Planning and Assessment Act 1979 s 121ZJ LEGISLATION CITED: Land and Environment Court Act 1979 s 20(4) Local Government Act 1993 s 124, s 678 Supreme Court Rules 1970 Pt 42 r 9 CASES CITED: DATES OF HEARING: 09/07/01, 11/07/01 EX TEMPORE JUDGMENT DATE : 07/11/2001 APPLICANT: Ms S A Duggan (Barrister) SOLICITORS: LEGAL REPRESENTATIVES: Mallesons Stephen Jaques RESPONDENT: In person JUDGMENT: IN THE LAND AND Matter No. 40119 of 1999 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 11 July 2001 North Sydney Council Applicant v Louise O'Hara Respondent REASONS FOR JUDGMENT 1. This matter involves a long running dispute dating back to at least 1996. The dispute is between the applicant council and Ms Louise O'Hara, who is the owner of the property known as 21 Willoughby Street, Kirribilli. In order to appreciate the circumstances under which issues remain extant between the parties it is necessary to review the history. 2. On 6 December 1996 the council issued an order pursuant to s 124 of the Local Government Act 1993 ("the Local Government Act"). The order required Ms O'Hara, as the owner of the property, to carry out certain works within 21 days. The stated reason for the order was that, and I quote from the decision of Assessor Bly on 30 September 1997, "[t]he building is so dilapidated or unsightly as to be prejudicial to its occupants or property in the neighbourhood." 3. Ms O'Hara appealed against the making of the order to this Court. The appeal was heard by Assessor Bly, as he was then. Assessor Bly agreed that the roof needed to be repaired. However, he accepted the contention of Ms O'Hara that the roof, together with a tarpaulin attached to it, was not letting in water and accordingly decided to allow Ms O'Hara an extended period of 18 months to deal with the matter. He was also satisfied that the gutters and downpipes needed repair or replacement concurrently with the carrying out of the roof repairs. 4. The Assessor made formal orders on 30 September 1997 including the following:- (b) Replace broken and dislodged roof and slate tiles and replace rusted, holed or missing gutters and downpipes within a period of eighteen months from the date of this order. 5. Ms O'Hara did not comply with the Court's order. 6. On 22 June 1999 the council commenced these class 4 proceedings seeking, inter alia, a declaration that the respondent has not complied with the order made by the Court on 30 September 1997, and an order that she carry out the works within 28 days, in default that the council enter the property and undertake the works pursuant to s 678 of the Local Government Act. 7. The class 4 application was amended on 29 November 1999 to include reference to an order pursuant to s 121ZJ of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") and providing liberty for the council to apply to be released from the obligation to carry out the works in certain circumstances. 8. On 29 November 1999 a hearing took place before Cowdroy J. His Honour dismissed a notice of motion in the earlier class 2 proceedings, whereby Ms O'Hara applied to have the time for compliance with the order made 30 September 1997 extended and to appeal against the decision of Assessor Bly. 9. Cowdroy J found that the orders had not been complied with and made a declaration accordingly. Ms O'Hara was ordered to carry out the work by 31 March 2000. In default of the applicant complying with the Court's further orders by 15 April 2000, the council was ordered to enter the property and undertake such works as are required to comply with the terms of the order made by Assessor Bly. Those orders made by Cowdroy J on 29 November 1999 appear to be extant. 10. On 31 March 2000, no work having been done, Cowdroy J refused to extend the time for compliance with the orders made on 29 November 1999. 11. On 7 June 2000 Cowdroy J refused an application by Ms O'Hara for a stay of the orders made on 29 November 1999. 12. On 24 October 2000 Cowdroy J made further orders in the absence of Ms O'Hara. By notice of motion dated 26 October 2000 Ms O'Hara made application for the orders made 24 October 2000 to be rescinded. 13. On 23 November 2000 Cowdroy J adjourned the hearing of the notice of motion and fixed a hearing for 20 December 2000. 14. On 20 December 2000, after a hearing when Ms O'Hara appeared, Cowdroy J made orders by way of directions. The Court gave directions establishing a timetable for certification by a structural engineer, and relisted the matter on 27 February 2001 before the duty judge. 15. Further orders were applied for by the council before Bignold J as the duty judge on 27 February 2001. The orders included a declaration that the orders made on 20 December 2000 had not been complied with and consequential orders requiring Ms O'Hara to permit (a) inspection of the premises, and (b) entry by the council and its agents to carry out the work. 16. On 27 February 2001 Bignold J set down for hearing the respondent's notice of motion dated 26 October 2000 and the council's notice of motion. The Registrar fixed two days for the hearing on 5 and 6 April 2001. 17. On 28 March 2001 I vacated the hearing dates on the application of the respondent and set the notices of motion down for hearing as a special fixture for three days on 9, 10 and 11 July 2001. 18. On 6 July 2001 the respondent made a further application to vacate the dates for the three day hearing. The notice of motion was stood over to the hearing. 19. When the matter was called shortly after 10am on 9 July Ms Duggan appeared for the council and Ms O'Hara appeared in person. Ms O'Hara firstly renewed her application for an adjournment, relying upon her frustrated attempts to have council officers discuss the matter with her and the failure of the council to return some roof tiles belonging to her. The tiles are apparently needed to facilitate the covering of the roof. Ms O'Hara also presented some unconvincing written medical reports in support of her application for an adjournment. She further told the Court that she had experienced a bereavement in the early hours of that morning. 20. The hearing nevertheless proceeded on the basis that Ms Duggan open the council's case by reiterating the history of the litigation and explaining the orders that it now seeks in lieu of the orders made by Cowdroy J in October 2000. 21. During the course of the opening it became apparent to the Court that it would be preferable for a structural engineer to inspect the roof supports for the purpose of certifying the structural condition of the building before the Court proceeded to consider what orders, if any, should be made. After discussion, Ms O'Hara agreed to facilitate the obtaining of a structural engineer's report on Tuesday 10 July, with the prospect of it being made available to the Court and the council by 11 July 2001. The Court granted Ms O'Hara an adjournment until 10am on 11 July 2001 upon the following terms:- (1) that the applicant provide an opportunity for telephone conversation with a structural engineer that afternoon; (2) that the respondent make arrangements for a structural engineer to inspect the property on 10 July 2001; (3) that the structural engineer provide a certificate and report to the parties by 4pm on 10 July 2001; (4) that the respondent address the Court at 10am on 11 July 2001. 22. It was noted that if the respondent complied with the Court's orders the applicant council agreed to pay the structural engineer's fees for inspection and report of certification, that is, not only in respect of the inspection and report of certification on 10 July 2001, but again immediately prior to the tiling taking place and then following completion of the work. It is agreed by the parties that in lieu of the slate tiles referred to in the order made by Assessor Bly, the tiles be CSR Monier Wunderlich Cambridge profile and pot-ash in colour. 23. I am informed by a member of the Court Registry staff that shortly before 10am this morning a telephone message was received to the effect that Ms O'Hara was feeling very unwell. At 10am Ms Duggan informed the Court she had received a message that Ms O'Hara would not be attending Court today. Needless to say, Ms O'Hara did not appear at 10am. 24. After discussion with Ms Duggan, the Court was adjourned to 2pm to enable the council to make enquiries about the result of the inspection of the property by a structural engineer, if any. At 2pm today, when the Court reconvened, Ms Duggan reported that she had spoken to a structural engineer who advised her that he had been instructed not to speak with the council representatives. 25. A subpoena has been issued requiring the structural engineer, Ayman Fakhoury, to attend the Court for the purpose of giving evidence. Leave was given for short service. Mr Fakhoury has given evidence. He confirmed that he had been requested by Ms O'Hara to attend 21 Willoughby Street, Kirribilli, yesterday and he did so at about 11.30am. He was instructed to inspect the roof and determine whether it was structurally sound to support a tile roof. He did that. 26. From a strength point of view he was satisfied that the roof supports were sound. However, from a deflection point of view the roof supports require upgrading before proceeding with tiling. The upgrading involves providing under-purlins of the existing rafters and strutting beams to support the under-purlins attached to the walls. He also explained that the spans were slightly large and that it would be appropriate to place another beam just above the ceiling to support the strutting points. He told the Court that in his opinion there was no risk to life or property or any other danger whilst the tarpaulins presently on the roof remained in place. Notwithstanding this evidence it is self evident that the roof cannot be left in its present state indefinitely. 27. Mr Fakhoury informed the Court that he was firstly requested to provide his report to Ms O'Hara. However, when advised of his findings, the person who he believed to be Ms O'Hara instructed him not to provide the report until she got back to him. That instruction, he said, was given by telephone at about 3.30pm the same afternoon. He has not heard from that person since. 28. Mr Fakhoury produced photographs to show the state of the roof as he inspected it. He was confident that the cottage is free-standing, notwithstanding its close proximity to an adjoining property. However, he could not be dogmatic in that respect as he had not the opportunity to thoroughly inspect the property and all its elements. 29. Mr Fakhoury explained that if a contractor was retained to carry out the preliminary work he believes is necessary, then it could be specified by reference to Australian Standard 1684 ("AS1684") Residential Light Frame Construction. Moreover, in his opinion, any good carpenter could carry out that work. In his view, all the work on the roof could be done within AS1684. 30. The Court has heard evidence from a builder, Paul Joseph Meehan. Mr Meehan says that he has had experience in carrying out re-roofing work from time to time. He was present in Court when Mr Fakhoury gave his evidence. Mr Meehan has taken the opportunity to inspect the subject property from the road today. In order to carry out the work, he explained that access to the roof space would be required but that no access would be required otherwise to the interior of the dwelling. It would be preferable however for the occupants not to be present while work was being carried out. He expected that the time to re-roof the building as well as replacing the gutterings, downpipes and other fittings would be approximately two weeks. 31. Although Mr Meehan, so far as he was able to tell, was confident the cottage on the subject property is free-standing, there may nevertheless be some necessity to stand on the next door roof and possibly interfere with a shared flashing. Mr Meehan thinks that it will be necessary to remove the existing battens, which were suitable for the former slate tiles, as the spacing required for the concrete tiles now proposed is different. 32. Mr Meehan was able to provide what could only be described as a very rough guess in the way of an estimate of the cost of the work. The Court takes from what Mr Meehan says that it could be in the order of $10,000. 33. The position now is that the Court is required to deal with the motion of the respondent dated 26 October 2000 whereby Ms O'Hara seeks to have the order made by Cowdroy J on 24 October 2000 rescinded. Furthermore, there is an outstanding motion by the respondent which actually bears date 21 February 2001, although it was not filed until 21 March 2001, whereby, inter alia, she seeks the variation of the orders made by Cowdroy J on 20 December 2000. That notice of motion also seeks an order that North Sydney Council return the respondent's tiles. The council's notice of motion dated 27 February 2001 is also outstanding. 34. Apart from the orders of 24 October and 20 December 2000, the other order of this Court which remains relevant for this hearing is the order made by Cowdroy J on 29 November 1999. 35. The Court is satisfied that notwithstanding the absence of Ms O'Hara and after careful consideration of the history of the matter, as I have outlined it, including reading the judgments delivered by Assessor Bly and Cowdroy J, the Court should proceed to the point whereby it makes final orders. 36. The behaviour of Ms O'Hara displays a recalcitrant approach to complying with the Court's orders. Making the most liberal allowance that it can in favour of Ms O'Hara, the Court is driven to the conclusion that she has an inherent inability to deal with the problem. On a less generous view, her actions have been deliberate and designed to obstruct the council and the Court. Whatever the underlying motive or reason is, it is apparent that without the Court's further intervention in a formal way the work will never be done. 37. It is appropriate, having regard to the passage of time and the present circumstances to vacate the orders made by Cowdroy J on 24 October 2000 in the absence of Ms O'Hara and to in effect vary the orders made by Cowdroy J on 29 November 1999 and in lieu thereof to make current orders which will ensure that Ms O'Hara is given one last opportunity to do the work herself or face the consequences of the council entering her property and causing workmen to do the job, at her expense, under the authority of a court order. In the course of discussion with Ms O'Hara at the hearing on 9 July, she indicated a willingness to acquiesce in the following requirements:- (1) to replace the broken and dislodged roof tiles by recladding the roof in Monier roof tiles with Cambridge Profile in colour pot-ash; (2) replace rusted, holed or missing gutters and downpipes; (3) to obtain a structural engineer's certificate that certifies the roof supports are adequate for the proposed recladding or alternatively what structural works are required to make the supports adequate; (4) to carry out work pursuant to the structural engineer's certificate prior to cladding the roof; (5) to provide a certification to the council that the works have been completed in accordance with the structural engineer's certificate; and (6) that the council pay the structural engineer's fees. 38. With some reservation, Ms O'Hara expressed confidence the work could be carried out within three months. The council has drafted a form of order it is seeking. The orders proposed by council would represent the exercise of a combination of the powers that the Court has under s 121ZJ of the EP&A Act, together with part 42 rule 9 of the Supreme Court Rules 1970 pursuant to s 20(4) of the Land and Environment Court Act 1979. 39. Ms O'Hara stated she would be seeking compensation from the council for costs and expenses incurred as a consequence of the delay in having the tiling completed. No evidence or even details of that claim have been provided to the Court so that even if there is jurisdiction to make such an order, which I doubt, it is not appropriate to do so. 40. Any application by Ms O'Hara, be it by way of an outstanding notice of motion or implied, for a further adjournment of the matter is dismissed. The Court proposes to make orders in the form of a declaration that the work has not been carried out in accordance with the orders made by Assessor Bly or Cowdroy J, and consequential orders whereby the intervention of the council is directed and it is authorised to enter the property pursuant to a court order. The council has provided minutes of orders that it urges the Court to make. The orders that the Court ultimately makes of course are totally within the discretion of the Court. 41. The order proposed by the Court will reflect the terms of a foreshadowed undertaking by Ms O'Hara on 9 July 2001 to the effect that the work be carried out within 3 months in such a manner that it can be certified by a structural engineer. 42. They will be to the effect, although not necessarily in terms, that Ms O'Hara may yet be able to avoid the consequence of having a third party carry out the work on her property if she acts expeditiously and prudently. Otherwise the ultimate consequence of the orders will be that the council will be ordered to enter the property and to carry out the work in accordance with such advice as may be forthcoming from a structural engineer and to have that work certified. If Ms O'Hara elects to do the work herself then she will also be required to have the work certified in an appropriate way by a structural engineer. 43. I note an undertaking by the council to return the respondent's tiles. The Court is not appraised of the circumstances under which the tiles came into the council's possession. However, Ms Duggan has indicated that the tiles can be returned and will be returned either by delivery to the rear of the premises or to be stacked on the road verge outside the front of the property. 44. It is reasonable to expect, and the Court will make orders unless otherwise advised by the council, that the tiles will be delivered to the property within a period of what, Ms Duggan, seven days? 45. DUGGAN: I'll need to address your Honour on that because the timing depends on how long your Honour is giving Ms O'Hara to do the work. HIS HONOUR: I don't know about that. DUGGAN: Your Honour, I can indicate not later than 14 days before she's required to do the work. The concern is that if the tiles remain on the footpath-- HIS HONOUR: She mightn't be required to do the work. DUGGAN: She may not be required to do the work? HIS HONOUR: No, because if your order is made, if the form of your order is such then there'll be no further order against her. It'll just be the order that you've provided in default will come into play. DUGGAN: It depends then on the time your Honour proposes to defer the operation of the order. The concern is if the tiles remain on the footpath for an extended period of time, they operate as a danger and inconvenience to members of the public, which the council being the placer of the tiles and the owner of the road may be required to bear. HIS HONOUR: You want an order to put them there do you? DUGGAN: No, I don't want - well your Honour, an order-- HIS HONOUR: They've got to go back. DUGGAN: They do. The question is when. HIS HONOUR: That's right. DUGGAN: If they stayed there for two weeks or three weeks, that wouldn't be a problem. If they were there for four or five months, it would. That's the ambit of our concern. HIS HONOUR: Well I'm shooting in the dark. I don't know what Ms O'Hara is going to do. DUGGAN: As I said, it really depends on the period of time which your Honour proposes to defer the operation of the order requiring the council to do it. HIS HONOUR: Is the council prepared to deliver the tiles within seven days of a written request by Ms O'Hara or, alternatively, at such time convenient to the council when it carries out the work? DUGGAN: Yes your Honour, we can-- HIS HONOUR: There's got to be some mechanics. DUGGAN: We can return the tiles within seven days of a request. The concern is that the tiles would then not sit there for three months and that depends on the period of time that your Honour defers the operation of the orders for. The ambit of our concern is that, your Honour. HIS HONOUR: Look, if I give her three months and you don't deliver within the next seven days, then that's an excuse for not doing it immediately. DUGGAN: Yes, but if your Honour gives her three months, and we will give the written notice immediately-- HIS HONOUR: I'm only saying for example. DUGGAN: For example. The tiles will sit there for three months. People who park adjacent to the tiles can't open their car doors. They operate as a-- HIS HONOUR: What are you suggesting I do? Let's be practical about this. The tiles have got to be there during such period as Ms O'Hara is afforded the opportunity to do the work herself if I decide to do that. DUGGAN: Yes. What I would indicate to your Honour is, if your Honour was going to defer for a period of four weeks then a seven day notice period would be sufficient, then the tiles would be sitting there for three weeks and no more. Any longer period creates a danger to members of the public. HIS HONOUR: Can I put it this way then. Is the council prepared to accept a direction to return the tiles within a period specified by the Court following a written notice from Ms O'Hara? DUGGAN: Yes, your Honour. HIS HONOUR: You will just have to take the risk on what the effect of that is. I don't think, using the best wit available to us all, that a formula can be devised which covers all the contingencies, but if you've got one I'd be obliged to hear about it. DUGGAN: The only scenario that we could think of that may tie it down a little more is if the notice of the retention of a contractor with the date of commencement of works was notified to us, we would deliver the tiles seven days prior to the date of that work. I can't guarantee that the contract would then be fulfilled, but it would mean that the tiles potentially were not there for a longer period of time. HIS HONOUR: That involves proving that there's a contract. DUGGAN: Well she would have to let us know or the roofer could contact us and we would send the material over. HIS HONOUR: Well there are practical difficulties aren't there? DUGGAN: All I ask is that your Honour bears in mind where they will be sitting, which is on the road verge adjacent to where people park their cars and pedestrians walk, when your Honour determines the period of time, which potentially those tiles may-- HIS HONOUR: Why can't they go at the rear? DUGGAN: Because we need to get access, which is denied to us. HIS HONOUR: Well you'll be ordered to do it and she'll be ordered to permit it. DUGGAN: Additionally your Honour, the crane has the potential to damage the tiles. HIS HONOUR: Any more contingencies, difficulties, obstructions, qualifications, caveats or embargoes? DUGGAN: No. The road verge your Honour is the preferable course from the point of view of the well being of the tiles but not the preferable course for the well being of the members of the public, and with the tiles being the only tiles-- HIS HONOUR: It's a finite time. DUGGAN: Yes. HIS HONOUR: Whatever it is, whether it's three months less seven days or something shorter than that, after the period of time, whatever it is, the council is then in a position to be its own master. DUGGAN: Yes, your Honour. HIS HONOUR: The council is prepared nevertheless to-- DUGGAN: To take that direction. HIS HONOUR: --comply with a request in accordance with the direction made by the Court. DUGGAN: Yes, your Honour. HIS HONOUR: I think it's the only way to do it. DUGGAN: Yes, your Honour. HIS HONOUR: Yes alright, well an order will be formulated in an attempt to deal with that contingency. 46. I direct that the Registrar arrange for service of the orders upon the respondent and to notify the applicant when the orders may be uplifted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.