ARMIDALE CITY COUNCIL v. ROSS CONNELL [1998] NSWLEC 12

Land and Environment Court of New South Wales

CITATION : ARMIDALE CITY COUNCIL v. ROSS CONNELL [1998] NSWLEC 12 PARTIES : ARMIDALE CITY COUNCIL v. ROSS CONNELL FILE NUMBER(S) : 40197 of 1995 CORAM: Pearlman J KEY ISSUES: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 20 July 1998 EX TEMPORE JUDGMENT DATE : 07/20/1998

Applicant Mr W P O'Rourke, Solicitor LEGAL REPRESENTATIVES: Respondent in person

JUDGMENT: EXTEMPORE JUDGMENT

Two matters are before me. The first concerns punishment of Mr Connell for contempt of the orders of this Court. The second is a notice of motion lodged by the council seeking an order under pt 42 r 9 of the Supreme Court Rules for the substitution of the council to carry out the orders that this Court made in February 1997 for the removal of a building and building materials from the land at Madgwick Drive, Armidale ("the site").

I deal first with the question of the notice of motion. I propose to stand that over.

As to the question of punishment for contempt, on 3 July 1998 Mr Connell came before this Court of his own volition, but arising out of my direction to the sheriff to deliver him to the Court to be given an opportunity to purge his contempt. On that day, he gave an undertaking to this Court that he would remove the building and the building materials by midnight on 17 July 1998. I was satisfied on that day and I am still satisfied that he knew what that undertaking meant and he knew that if he did not comply with it, then the warrant would be executed.

This morning a number of matters have been put before the Court. The affidavit of Stephen Gow, who is a council officer, has been read. He deposes to his inspection of the site on 18 July 1998. Mr Gow says that he observed secondhand building materials comprising relocatable dwellings and materials associated with them stored on the northern part of the site. He also observed that a dwelling was erected at the southern end of the site. In relation to the secondhand building materials stored at the northern end of the site, he observed that some windows and doors had been removed since his last inspection. In relation to the dwelling at the southern end of the site, he observed that some windows, doors and hot water systems had been removed since he last inspected the site, some of the roofing iron had been dismantled and was propped up against the northern side of the building, and the electricity supply appeared to have been disconnected. As exhibits to his affidavit, there were two photographs, numbered SG1 and SG2, showing the building and the secondhand building materials appearing on the site. Indeed, there is no doubt that that is so because Mr Connell does not deny it but instead seeks to put before the Court a number of explanations as to why he did not comply with his undertaking and thereby purge his contempt.