Armidale Dumaresq Council v Morrissey [2011] NSWLEC 71

Land and Environment Court New South Wales

Medium Neutral Citation: Armidale Dumaresq Council v Morrissey [2011] NSWLEC 71 Hearing dates: 24 March 2011 Decision date: 24 March 2011 Jurisdiction: Class 4 Before: Preston CJ Decision: 1. The respondent, Mr Morrissey, is to complete by 6 May 2011, all approved work on the dwelling under construction at the premises being Lot 6, DP 213591 at 93 Taylor Street, Armidale, New South Wales to "lock up" stage, including all external brick cladding and doors, as well as the installation of stormwater downpipes connected to the Council's drainage system. The required work is to be in accordance with the requirements of Council's Building Approval reference 149/91 dated 11 June 1991. 2. The matter is listed for further hearing on Tuesday, 10 May at 9.00am, which can be conducted by a telephone conference. 3. The Court reserves the question of costs of the proceedings to be heard on 10 May 2011. Catchwords: CIVIL ENFORCEMENT:- enforcement of council order under section 121B of the Environmental Planning and Assessment Act 1979 Legislation Cited: Environmental Planning and Assessment Act 1979 Category: Principal judgment Parties: Armidale Dumaresq Council (Applicant) John Patrick Morrissey (Respondent) Representation: Mr David Clifton Liston & Clifton (Applicant) Respondent in person File Number(s): 40106 of 2011

Ex Tempore Judgment 1In these proceedings, Armidale Dumaresq Council ("the Council"), brings civil enforcement proceedings to enforce compliance by the respondent, Mr Morrissey, with an order that the Council issued under s 121B, order 16 of the Environmental Planning and Assessment Act 1979 ("the EPA Act"). This order was that Mr Morrissey complete a dwelling house that he has been constructing for a considerable period of time pursuant to a deemed development consent that had been granted by the Council. 2There have been delays in the completion of the works. Mr Morrissey has been in correspondence and discussion with the Council over the years as to the reasons for the delays. Nevertheless, the Council was concerned that there was no end point in the construction of the dwelling and for that reason it gave, as it is entitled to do, an order under s 121B of the EPA Act requiring Mr Morrissey to complete the dwelling to what is called, "lock up stage". 3Mr Morrissey was not able to comply with that order and complete the building to lock up stage by the date specified. Although the Council gave notice to Mr Morrissey that he would need to comply with that order or they would come to court, Mr Morrissey was unable to do so, for reasons that he has given in the various correspondence. So the Council did commence proceedings in the Court seeking an order that Mr Morrissey comply with that s 121B order. 4The matter has now come on for hearing today. Mr Morrissey was unable to attend the Court in Sydney. He wrote a letter dated 21 March 2011 to the Court in which he explained that he had not been able to travel to Sydney. However, the Court has been able to convert the hearing to a telephone conference hearing and has had the benefit of Mr Morrissey explaining where he is up to in the construction of the dwelling and what he can do to comply with the order. 5The situation is now that the brickwork for the dwelling has been completed. Essentially only two tasks remain. The first task is to put the doors on the front and rear. When that is done the house will be at lock up stage because the windows, brickwork and roof have all been installed. The second task is to install downpipes, which can be connected at one end to the guttering which has already been installed and at the other end to pipes that run to the Council's drainage system in the gutter in the street. 6The Council has put on evidence to say that it considers that the works could be completed within a period of one month. Mr Morrissey has helpfully explained where he is up to and also concurs that he should be able to complete all of the works within one month. At that stage, if the works are done, the Council's order that the building be to lock up stage would have been achieved. 7I am satisfied that Mr Morrissey has been in breach of the Council's s 121B order in that the building has not been completed to date to lock up stage, as was required by the order. However, compliance seems to be able to be achieved. Nevertheless, the Council has been successful in establishing that there has been a breach and that breach should be remedied by having the Court make an order compelling compliance with the order. 8I intend, therefore, to make an order which reinforces the s 121B order issued by the Council but has, of course, the added sanction and authority that it is a court order. I have explained to Mr Morrissey the serious consequences if there is non-compliance with the court order, which includes being held guilty of contempt and the punishment for being in contempt can include imprisonment in a civil case or fines or both, as well as other civil sanctions such as sequestration of assets. Of course, one hopes one never has to get to that stage and Mr Morrissey has assured the Court that he will comply with the Court's order and complete the building to lock up stage within the month. 9I, therefore, propose to make an order. But what I intend to do is to add two weeks on top of the month that had been agreed between the Council and Mr Morrissey by way of contingency. I hope that extra two weeks is not required, but it is there in case unforeseen events happen, which prevent the works being completed within the month. 10In order to ensure that the works are done, Mr Morrissey will need to complete the works, then notify the council that the works, in his opinion, have been completed in accordance with the court order and the s 121B order, and allow sufficient time for the Council to inspect the works, and confirm that they have been done in accordance with the Court order and s 121B order. That needs to be done by 6 May 2011. 11I intend to list the matter for further hearing to confirm that all works have been done in accordance with the Court's order. I fix Tuesday, 10 May 2011 at 9.00am and it will be done by telephone hearing for the benefit of Mr Morrissey. I would expect on that occasion both Mr Morrissey and the Council to provide confirmation that the work has been done, but if it has not been done, to identify precisely what else needs to be done. 12The Council has also applied for an order that Mr Morrissey pay its legal costs of bringing these proceedings. I intend to have that question heard on 10 May 2011 when we return and hopefully having confirmed that the works have been done. 13So for those reasons I will now make the following orders: 1.The respondent, Mr Morrissey, is to complete by 6 May 2011, all approved work on the dwelling under construction at the premises being Lot 6, DP 213591 at 93 Taylor Street, Armidale, New South Wales to "lock up" stage, including all external brick cladding and doors, as well as the installation of stormwater downpipes connected to the Council's drainage system. The required work is to be in accordance with the requirements of Council's Building Approval reference 149/91 dated 11 June 1991. 2.The matter is listed for further hearing on Tuesday, 10 May at 9.00am, which can be conducted by a telephone conference. 3.The Court reserves the question of costs of the proceedings to be heard on 10 May 2011. 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. Decision last updated: 19 April 2011