Land and Environment Court New South Wales Medium Neutral Citation: Armidale Dumaresq Council v Morrissey (No 2) [2011] NSWLEC 112 Hearing dates: 10 May 2011 Decision date: 10 May 2011 Jurisdiction: Class 4 Before: Preston CJ Decision: Mr Morrissey to pay the Council's costs of the proceedings in an amount of $9,845. Catchwords: COSTS - civil proceedings to enforce order under s 121B of the Environmental Planning and Assessment Act 1979 - applicant successful in obtaining order that respondent comply with s 121B order - applicant's conduct in bringing proceedings reasonable - no disentitling conduct by applicant - quantum of costs reasonable - respondent ordered to pay applicant's costs in an amount fixed by the Court Legislation Cited: Environmental Planning and Assessment Act 1979 Cases Cited: Armidale Dumaresq Council v Morrissey [2011] NSWLEC 71 Category: Costs Parties: Armidale Dumaresq Council (Applicant) Mr J Morrissey (Respondent) Representation: Mr C M Zucker, Solicitor (Applicant) Mr J Morrissey, in person (Respondent) Liston & Clifton (Applicant) File Number(s): 40106 of 2011 Judgment 1Armidale Dumaresq Council ("the Council") brought civil enforcement proceedings to enforce compliance by Mr Morrissey with an order that the Council had issued under s 121B, item 16 of the Environmental Planning and Assessment Act 1979 ("the EPA Act"). This order was that Mr Morrissey complete a dwelling house that he had been constructing for a considerable period of time, pursuant to a building approval issued in 1991, which is a deemed development consent under the EPA Act . 2The matter was heard on 24 March 2011 and, at the conclusion of the hearing, I was satisfied that the Council had made out its case and I made orders that Mr Morrissey complete, by 6 May 2011, all the approved work on the house to lock up stage in accordance with the building approval dated 11 June 1991: see Armidale Dumaresq Council v Morrissey [2011] NSWLEC 71. 3The matter was then listed for further hearing today, 10 May 2011, for the purposes of confirming that Mr Morrissey had done the work that the Court ordered that he do and determining the Council's application that Mr Morrissey pay its costs of bringing the proceedings. 4Mr Morrissey and Mr Zucker, the solicitor who appeared for the Council, have confirmed that Mr Morrissey has completed construction of the house to lock up stage in accordance with the Court's orders and the requirements of the building approval dated 11 June 1991. 5The Council does not seek any further orders in relation to construction of the house. This has meant that the Council has been successful in the proceedings it brought to enforce compliance with the s 121B order, which in turn was intended to enforce compliance with the building approval dated 11 June 1991. 6The Council seeks an order for costs on the basis that it has been successful in bringing the proceedings. The proceedings are brought in Class 4 of the Court's jurisdiction. In that class, the usual order for costs applies, that is to say, that the unsuccessful party should pay the costs of the successful party. This usual order can be displaced in the individual circumstances of the case if a different order is shown to be just. 7The Council submits that there is no circumstance which would justify a departure from the usual order that costs follow the event. The Council relied on the affidavit that it read in the principal proceedings of Steven Gow of 2 February 2011, which sets out the history of this matter. That history began when the Council issued the building approval in 1991 for Mr Morrissey to erect the house on his land. The affidavit then chronicles the history of delays in completion of the house for the next 20 years. I will summarise the important points. 8By 2003, the Council had issued a notice of intention to issue an order under s 121B of the EPA Act , to require Mr Morrissey to complete the construction of the house, which he had commenced back in 1991. 9Mr Morrissey had an opportunity and he availed himself of the opportunity to make a submission to the Council in response to the Council's notice of intention to issue an order under s 121B. As a result of Mr Morrissey's statement at that time, the Council determined to not take further action in relation to the issuing of the s 121B order on the basis of Mr Morrissey's undertaking to have the house completed by the end of 2003. 10However, Mr Morrissey did not complete the house in the time that he had undertaken to have completed it. So, in 2009, the Council wrote again to Mr Morrissey, asking why the house had not been completed and requesting Mr Morrissey to give advice about the matter. Mr Morrissey responded that he had not completed the house because he did not have time to finish it, as there had been more important matters in his life and complained of odour emanating from nearby premises which affected his health. 11The matter was referred again to the Council and the Council resolved to issue Mr Morrissey with a further notice of intention to issue an order under s 121B of the EPA Act , ordering him to complete the development within 12 months of the date of service of the order. Mr Morrissey was again given the opportunity to respond to this notice of intention to issue an order under s 121B. 12Mr Morrissey wrote to the Council and thanked them for allowing him a further 12 months to complete the construction of the house and he said he would make sure it would be done. The Council then resolved to issue a final order under s 121B, ordering Mr Morrissey to complete the development, the house, no later than 18 June 2010. This was 12 months after the date of the order. 13On 14 October 2009, that is some four months after issuing the order, the Council wrote to Mr Morrissey, ensuring that he was aware of the deadline for completion of the house by 18 June 2010. On 11 January 2010, the Council wrote again to Mr Morrissey, advising him that the date for completion of the house was 18 June 2010 and noting that there appeared to be little progress with the remaining work and asking for his urgent attention to the project and extending an invitation that if Mr Morrissey wanted to discuss the matter with the Council, he could do so. 14On 18 March 2010, that is now three months before the final date for completion of the work under the s 121B order, the Council wrote again to Mr Morrissey, reminding him that the work needed to be completed by 18 June 2010, noting that there appeared to be little visible evidence of progress with the work and inviting Mr Morrissey to discuss the matter with the Council. 15On 3 June 2010, that is now some two or so weeks before the due date for completion under the s 121B order, the Council telephoned Mr Morrissey in relation to the lack of progress with completion of the house and Mr Morrissey indicated he had been prevented from undertaking the work because of commitments in connection with a rural property he owns. However, he very much wished to see the house completed and asked for a further four months to do so. 16The Council officer advised Mr Morrissey that the matter would be referred to the Council at its meeting on 28 June 2010 and invited Mr Morrissey to come to address the Council at that time if he wished to do so. At the Council's meeting on 28 June 2010, Mr Morrissey took the opportunity to address the Council in relation to his incomplete house and explained why it had not been completed. 17According to the note that was made of what Mr Morrissey said at that meeting, Mr Morrissey said that some lucerne silage that he had purchased from the Council in 2009 had been contaminated with thistles and that had to be sorted out prior to him feeding it to his stock at his rural property. Mr Morrissey said this went on for 15 to 16 weeks and this delayed him undertaking work on his house. 18Mr Morrissey also said that there had been sickness in his family. He also said that he had repaired hail damage at the house in preparation for new brickwork. He advised that he would need another 15 to 16 weeks to bring the premises to lock up stage, so that the house could be liveable. 19When Mr Morrissey was asked if he was a builder he agreed that he was. He also agreed that it normally takes three to four months to complete a house. He agreed that he would make sure that the house would be completed this time and then he said, "unless I die". Mr Morrissey said the first priority was now to ensure premises were ready for a bricklayer to start work. 20Having considered Mr Morrissey's statement and the history of the matter, the Council resolved that the Council would issue a modified order pursuant to s 121ZF, allowing Mr Morrissey a further and final period of four months to complete the house as previously required. It was further resolved that if Mr Morrissey did not comply with the modified order, an application would be made to the Land and Environment Court for an order requiring compliance. 21So on 29 June 2010, that is the day after the Council meeting on 28 June 2010, the modified order pursuant to s 121B was issued to Mr Morrissey, allowing him a further four months for compliance to Friday 29 October 2010. 22On 15 October 2010, that is two weeks before the modified due date for completion, Mr Morrissey wrote to the Council, stating he had not completed the work because of wet weather and raising various other issues about surrounding land, which he suggested required attention before the Council should worry about Mr Morrissey's property. 23On 26 October 2010, that is three days before the modified due date for completion of the works under the modified order, the Council wrote to Mr Morrissey advising that the matter would be considered by the Council again at a Council meeting on 1 November 2010. At the meeting of the Council on 1 November 2010, it was recommended, and the Council adopted the recommendation, to instruct the Council's solicitors to commence proceedings in the Land and Environment Court for an order requiring compliance. 24On 3 November 2010, after the Council's meeting on 1 November 2010, the Council wrote to Mr Morrissey, noting that there had been no material change in the condition of the house since the Council had issued its original order in 2009. The Council noted the committee's concern with the ongoing situation and its recommendation that Mr Morrissey be advised that the Council wishes to convene an urgent meeting with Mr Morrissey and any suitable representative he may wish to accompany him, to confirm his legal position at this time. 25The Council wished to encourage Mr Morrissey to provide evidence of the engagement of the builder for the required work by 1 December 2010 and agree a reasonable timeframe for completion of the work. The committee recommended that if this approach did not lead to an acceptable outcome, the Council should instruct its solicitors to commence proceedings under the EPA Act to have the Land and Environment Court make an order requiring compliance. 26Mr Morrissey was asked to contact the Council to arrange the meeting. Mr Gow in his affidavit noted that the Council did not receive a response to the Council's letter of 3 November 2010. As a consequence, the Council commenced proceedings on 11 February 2011, seeking an order requiring compliance with the 121B order that the Council had issued. 27The Council's solicitor, Mr Zucker, says that the history set out in Mr Gow's affidavit that I have summarised, shows that Mr Morrissey had ample opportunity to complete the house without the need for the Council to take proceedings. However, for various reasons, Mr Morrissey did not complete the house. The Council therefore had no choice but to bring the proceedings to enforce compliance with the order. 28The Council has been successful in that it obtained an order from the Court that Mr Morrissey complete the house to lock up stage in accordance with the s 121B order. Therefore, the Council ought to have its costs. 29Mr Morrissey made submissions saying that the main reason why he had not been able to complete the work in accordance with the original building approval from 1991 was roof water running off from a neighbour's roof at 83 Dumaresq Street. That water, he said, did not go to the street but instead came onto his property and caused the property to be boggy and that impeded him carrying out the work. 30Although Mr Morrissey said that was the main reason for him not completing the work, that does not accord with the reasons that Mr Morrissey gave in his written correspondence and oral statement made to the Council over the course of the 20 year history in this matter. 31Since 2003, when the Council first started taking action to enforce compliance by Mr Morrissey with the building approval, Mr Morrissey has given a variety of reasons for his delay in completing the house. For example, back in 1994, Mr Morrissey had said that he had found it difficult to be working on the house because he was finding it hard to rent another house and therefore he had requested that he use a caravan on the land. He also noted that thieves had started taking building material from the site and he was finding it hard to get the shed insured. 32In 2003, Mr Morrissey said that he had to finish the house that year. He acknowledged that work had been slow but he was delayed by the drought on his rural property with feeding and watering stock. 33In 2009, Mr Morrissey wrote saying that the reasons for the delay in completing the house were that there had been more important matters in his life and that at another property in the street, 79 Dumaresq Street, there had been motor vehicle repair work going on. According to Mr Morrissey, this had affected his health so much that he had to receive medical treatment and his doctor said that, "if [Mr Morrissey] slept in the same place there was a huge chance [he] would not wake up in the morning". According to Mr Morrissey, this was from "repairing and spraying a car as the fumes were unbearable." 34Nevertheless, Mr Morrissey had said that he would commence work again and continue until finished because he wants his house finished more than the Council does so he can live in it and later sell it. 35Later in 2009, Mr Morrissey said that he had been concerned about draining between his land and the Wicklow sporting field. He otherwise thanked the Council for giving him 12 months to complete the work and he would make sure it would be done. 36Finally, there was the occasion when Mr Morrissey addressed the Council on 28 June 2010, which I have set out earlier in the judgment, where Mr Morrissey gave various reasons why he had not completed the house, including the contamination of the lucerne silage with thistles, the fact that there had been a sickness in his family and that there had been hail damage to the house. 37In October 2010, Mr Morrissey referred to the fact that there had been wet weather, which had made his land boggy and that indeed his ride-on mower had been bogged twice, he could not push the Victor mower in the wet ground, his light truck had been bogged on the property twice, and that the bricklayer could not come because of the wet weather. Mr Morrissey also referred to other properties in the area which had been in a bad state and needed to be cleaned up, including one with dock growing above the fence. 38It can be seen from these various reasons that, for over a period for 20 years, Mr Morrissey has found many reasons why he cannot complete building the house and it is not solely due to the water running off from the neighbour's roof at 83 Dumaresq Street. 39In any event, the time period we are dealing with is a 20 year period. The actual time needed to complete the house is comparatively short, three to four months, and it is inconceivable that Mr Morrissey, if he applied his mind and resources to the task, could not have completed the work within that 20 year period. 40Mr Morrissey also then referred to the amount of costs that the Council's solicitor nominated, being $9,845. Mr Zucker says that the actual costs to the Council were in the order of $14,000. However, the Council would accept a discount on that amount on the basis of, firstly, the normal discount that would apply for party/party costs and, secondly, in order to keep the costs reasonably in proportion to the matter. 41Mr Morrissey did not seek to have that quantum taxed. He said that he thought he might probably lose if he did so. Nevertheless, he considered that he ought not to have to pay the costs. Indeed, he said that the Council should have to pay the costs for its conduct in not taking action in relation to other properties in the area. 42I consider that a costs order should be made in these proceedings. As the Council submits, the usual rule is that costs follow the event. The Council has been successful in obtaining the orders that it sought to enforce compliance with the s 121B order. The history of the matter shows that Mr Morrissey has delayed time and time again in completing the work. He has been given many opportunities over the years to complete the house. 43He said on many occasions that he would complete the house but for various reasons he did not meet his statements or promises that he would complete the house by various due dates. He was given notice, prior to the Council bringing these proceedings, that if he did not comply with the s 121B order, the Council would be bringing proceedings in the Court. Mr Morrissey did not, however, respond to that notice or complete the house as required by the s 121B order. 44There was ample time to complete the house to lock up stage in accordance with the order. There was the original 12 month period, which was extended for a further four months. However, that period needs to be seen in the context where there had been a history of giving notice of intention to issue an order under s 121B. That, in effect, extended the time by which Mr Morrissey was on notice that he needed to complete the house to lock up stage. 45Accordingly, the Council's bringing of these proceedings was entirely reasonable and there is no conduct which would disentitle it to an order for costs. The quantum of costs I consider to be reasonable for proceedings of this nature. The Council has already discounted the solicitor/client fees by a margin of around $5,000. That is an appropriate discount to take into account the normal discount that applies to party/party costs and also brings the costs to an amount that is proportionate to the nature of the proceedings and what was required to bring the matter to hearing, including the costs hearing today. 46For these reasons, I consider that the Court should make an order that Mr Morrissey pay the Council's costs that are fixed in the amount of $9,845. 47Accordingly, the Court orders Mr Morrissey to pay the Council's costs of the proceedings in an amount of $9,845. ********** 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: 29 June 2011