Land and Environment Court New South Wales Medium Neutral Citation: Richmond Valley Council v Ison [2011] NSWLEC 142 Hearing dates: 12 August 2011 Decision date: 12 August 2011 Jurisdiction: Class 4 Before: Pepper J Decision: The Court orders that: (1) the hearing date is vacated; (2) the respondent is to lodge with the council a development application in respect of any proposed development on the property by no later than 16 September 2011; (3) the proceedings are stood over for a further directions hearing before Pepper J at 9.30am on 19 September 2011; and (4) the respondent is to pay the applicant's costs thrown away occasioned by the vacation of the hearing date. Catchwords: PROCEDURE: application to vacate hearing made on day of hearing - application granted due to ill health and personal difficulties of respondent - respondent ordered to pay applicant's costs thrown away Legislation Cited: Civil Procedure Act 2005, ss 56, 57, 58, 59, 60, 61 Environmental Planning and Assessment Act 1979, s 121B Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) HCA 27; (2009) 239 CLR 175 Category: Procedural and other rulings Parties: Richmond Valley Council (Applicant) Rodney Harold Ison (Respondent) Representation: Ms A Pearman (Applicant) Mr C Braid (Respondent) Hannigans Lawyers, Solicitors, Attorneys (Applicant) Walters Solicitors (Respondent) File Number(s): 40363 of 2011 Ex Tempore Judgment The Respondent Applies to Adjourn the Hearing 1The summons filed in the Court by Richmond Valley Council ("the council") on 28 April 2011, seeks an order that the respondent, Mr Rodney Ison, comply with the terms of a demolition order dated 21 December 2010 under s 121B of the Environmental Planning and Assessment Act 1979 ("the EPAA") within 40 days of the date of the order. 2If this order is not complied with, then the council seeks an order that after the expiration of 40 days the council is permitted to do all things necessary and convenient to give effect to the terms of the s 121B order, including the removal of any of the materials on Mr Ison's property, the selling of the materials and the destruction and disposal of the materials. The council also seeks an order that Mr Ison pay the council any shortfall in the cost incurred by it in carrying out these works. 3On 3 June 2011, the Court made orders directing Mr Ison to file and serve its pleadings and the evidence upon which he wished to rely by 8 July 2011. Mr Ison did not appear on that occasion. On that day the proceedings were listed for hearing on 12 August 2011. As a consequence, liberty to restore on three days notice was granted and the council was directed to serve a copy of the orders made by the Court on Mr Ison by 10 June 2011. 4Affidavits of service of Mr Andrew Saad sworn 17 May 2011 and Mr Joseph Khoury sworn 16 June 2011, reveal, first, that the summons and affidavit of Mr Stephen McCarthy sworn 7 April 2011 were personally served on Mr Ison on 12 May 2011, and second, that on 9 June 2011 Mr Ison was personally served with a copy of the Court orders made on 3 June 2011. The Court is therefore satisfied that Mr Ison received notice that the matter was listed for final hearing today. 5The day before the hearing on 11 August 2011, Mr Clint Braid of Walters Solicitors, the solicitors, at least for present purposes, assisting Mr Ison, wrote to the Court and to the council, indicating that Mr Ison intended to seek an adjournment of the hearing for "at least one month" so that he could seek further advice. No notice of motion was filed seeking the vacation and adjournment and there was no affidavit evidence setting out in proper terms either the reasons that necessitate the vacation or the reasons for the delay in making the application. 6The reasons given in the letter for seeking the adjournment were that: (a) Walters Solicitors had no knowledge of the proceedings until 10 August 2011, and had not seen a copy of the summons or any of the affidavits filed by the council; (b) Mr Ison had instructed Walters solicitors that "he has not been a well man"; and (c) information had now come to Mr Ison's attention, pursuant to a request to a real estate agent engaged by Mr Ison for an appraisal of the property ("the Flood Information Enquiry"), that because the property is situated in a flood plane hazard category designated "high floodway hazard" Mr Ison would be unlikely to be permitted by the council to rebuild the existing dwelling on the property, which would have an obvious detrimental impact on the price of the property. 7No development application has, however, been submitted to the council by Mr Ison in respect of any proposed development on the property. From 2006 Onwards Orders to Demolish Are Served on Mr Ison by the Council 8The background to the filing of the summons is set out in the affidavit of Mr Stephen McCarthy sworn 7 April 2011. Mr McCarthy is a senior planning and development officer employed by the council. In his affidavit Mr McCarthy deposes to the following chronology: (a) on 3 January 2006, the council issued a notice of intention to give an order to demolish or remove a building to Mr Ison in respect of Lot 1, DP 909857, Pacific Highway, Broadwater, New South Wales ("the property"). The reason for doing so was founded upon an inspection of the property that revealed a dilapidated timber framed and metal roofed dwelling. The building was in such a state of disrepair, so the notice stated, that it was uninhabitable. Photos annexed to Mr McCarthy's affidavit confirmed the dilapidated nature of the dwelling. The photographs depicted that the front corner of the dwelling had been severely damaged and was missing, the windows in the dwelling were broken, the front of the dwelling was leaning, the load bearing wall at the front of the dwelling was missing and that parts of the lintel roof were unsupported; (b) on 22 February 2006 an order was served on Mr Ison demanding that he demolish and remove the dwelling within 30 days; (c) the order was not complied with and on 13 April 2006 the council sent a letter to Mr Ison requesting him to show cause as to why the council should not issue a penalty of $1,500 against him for failing to comply with the demolition order; (d) Mr Ison responded on 12 May 2006, stating that he wished to restore the house that had been damaged when the driver of a motor vehicle had collided with it. He stated that he did not wish to demolish the building. Mr Ison described in the letter the delay suffered by him in being able to proceed with the restoration due to difficulties obtaining information from the police and the NRMA as to the identity of the driver of the vehicle. In addition, Mr Ison stated that he had been involved in a head-on motor vehicle collision; (e) on 8 May 2007 the council wrote to Mr Ison requesting advice as to the current status of the removal of the derelict and unsafe building; (f) no advice was forthcoming and on 9 May 2009, a second notice of intention to give a demolition order was served on Mr Ison, requiring demolition or removal of the dwelling within 30 days; (g) on 15 June 2009 another demolition order was served on Mr Ison. Mr Ison was given 30 days to demolish and remove the dwelling on the property; (h) on 15 July 2009 the council wrote to Mr Ison stating that as there had been no compliance with the demolition order, Mr Ison should show cause within seven days as to why the council should not refer the order to its solicitors for the commencement of legal proceedings in this Court; (i) again no response was received from Mr Ison and on 2 September 2009, the council wrote to Mr Ison requesting that he advise them in writing within 14 days as to why the council should not proceed to enforce the demolition order in the Court; (j) again no response was received from Mr Ison regarding either the demolition order or the associated correspondence. The council, however, did not execute its threat to enforce the order. As a consequence, on 1 June 2010 a third notice of intention to give a demolition order was served on Mr Ison; (k) This resulted in an order being served on Mr Ison on 23 June 2010 that he demolish and remove the dwelling and any attached structures on the property within 30 days. Again, no response was received from Mr Ison to this order; (l) on 20 July 2010 Mr McCarthy took photographs of the continued state of disrepair of the property. In addition to the dilapidated condition of the dwelling on the property, the property had become overrun with grass, weeds and vines; (m) regrettably, the council again did not carry out any of its threats to execute any of the orders served on Mr Ison. Thus, on 16 August 2010 a fourth notice of intention to give a demolition order was served on Mr Ison; (n) this fourth order provoked a response from Ms Felicity Ison on behalf of Mr Ison on 6 September 2010. The response was an email to the council requesting a delay of any action with respect to the notice served on 16 August 2010. Ms Ison indicated in the email that the property had been damaged by a car accident and that legal advice had been sought to recover damages. Difficulties had ensued with identifying the driver alleged to have caused the damage. Further, alternate legal advice needed to be secured because the original solicitor with carriage of the matter had left the firm, taking with him the relevant information and correspondence in relation to the potential claim. Mr Ison's current solicitor was, however, arranging an appropriate engineer to inspect the building in order to complete a report. Finally, Ms Ison, indicated that Mr Ison had been "temporarily away for medical reasons"; (o) in response to the email, Mr McCarthy wrote to Ms Ison on 15 September 2010 requesting the provision of information within seven days. This information included the expected date of the engineering report, the date of the inspection of the building and a written undertaking that a copy of the report, once released, would be provided to the council. The council also required an undertaking that if repair works were proposed to return the building to a habitable condition, that the repair works would commence within 60 days from the date of the undertaking and would be completed within four months; (p) on 1 October 2010 Mr Ison replied to Mr McCarthy's email stating that an engineer was inspecting the damaged house "next week" and that he had no objection to the council receiving a copy of the engineers report. In addition, he stated that he would write to the council with his decision in relation to whether or not he would repair the dwelling after he had assessed the engineer's report. Mr Ison agreed to the terms of the undertaking if the repairs were to proceed, subject to possible labour or material supplies caused by the usual seasonal holidays; (q) on 8 November 2010, Mr McCarthy wrote to Ms Ison referring to the 1 October 2010 email and requesting a copy of the structural engineer's report and stating that if Mr Ison intended to repair the building that the council would require advice to this effect together with a work schedule. The email indicated that if the council did not receive this written advice by 24 November 2010, then the council would issue a demolition order with a 30 day compliance period, after which if the demolition order was not complied with, the council would refer the matter to its solicitors for further action; (r) on 21 December 2010, the demolition order the subject of these proceedings, as foreshadowed by Mr McCarthy, was served on Mr Ison. The terms of the order were to be completed within 40 days; and (s) on 21 December 2010 Mr McCarthy sent an email to Mr Ison again attaching the demolition order and stating that the council had not received any information from Mr Ison that would warrant the council not pursuing the demolition of the entire dwelling. The email stated that if no action was taken within 40 days the matter would be referred to the council's solicitors for further action. A hand written notation dated 26 January 2011 on the email indicated that Mr Ison had called Mr McCarthy and advised that he would make contact with him on Monday, 31 January 2011 to "discuss house". However, a further handwritten notion by Mr McCarthy on 31 January 2011 indicated that no call had been received from Mr Ison. A final hand written notion on the email dated 2 February 2011 by Mr McCarthy indicated that the house remained "as is" and it was his recommendation that the matter be referred to the council's solicitors. Photos, taken that day, were annexed to the affidavit demonstrating that the dwelling in fact remained "as is". 9Mr McCarthy swore a further affidavit on 9 August 2011. In this affidavit he indicated that as at 8.00am on 9 August 2011 he attended the property and saw that no work had been done in compliance with the demolition order served on Mr Ison dated 21 December 2010. 10Significantly, annexed to the affidavit was an email from Mr Ison dated 8 August 2011. The terms of the email are reproduced in their entirety: Dear Mr McCarthy, I wish to follow up messages and contact with your offices of last week. I am writing to provide an update on the situation regarding the property located at Pacific Highway Broadwater. Having recently just been discharged from hospital and able to travel to the North Coast from Sydney, I have now inspected the property concerned. As a result, I wish to advise that: i) I intend to demolish the current structure ii) I am currently obtaining quotes for this work iii) I am separately pursing the party responsible for the traffic accident I expect to be provided with quotes and timeframes by contractors by the close of business Thursday. Given this situation, my understanding is that this action would comply with the order and I would propose that it is in the interest of both parties to settle this issue and the matter not proceed to court as scheduled, this Friday August 12 2011. It would be greatly appreciated if you could please advise whether the above assurance meets councils needs, such that the court action and unnecessary cost might be avoided. My telephone number is 0413 449 985. Yours sincerely, Rodney Ison hickoryglenn@aol.com cc: bennison@live.com.au 11Consistent with this expressed intention, on 11 August 2011, Mr Ison signed the following document (attached to an affidavit of Mr Hannigan sworn 11 August 2011): I, Rodney Harold Ison, hereby agree to the following:- 1. The Affidavit of Stephen Martin McCarthy dated 9 August 2011 is true and correct; 2. The orders referred to in Stephen Martin McCarthy's Affidavit dated 9 August 2011 be made (other than the order delaying compliance for 30 days) (see order 3 below): 3. Sixty (60) days relief be permitted to comply with the Council Order issued and dated 21 December 2010; and 4. Costs be awarded on Friday 12 August 2011(to be agreed or assessed). Dated: 11 August 2011 [signature] ...................... Rodney Harold Ison Witness: [signature] ..................... Name: John James Reed Address: Justice of Peace Regn. No. 172647 12It is this agreement, namely, that Mr Ison intended to demolish the dwelling and pay the council's costs to date, that Mr Ison now resiles in the face of the Flood Information Enquiry received from the real estate agent. Mr Ison is Not Present When the Matter is Called On For Hearing 13At approximately 9.30am, the morning of the hearing, the Court received a communication from Mr Braid that Mr Ison had been unable to secure a flight from Ballina to Sydney in time to appear at 10.00am. The Court consequently requested that Mr Braid be available by telephone. 14Mr Braid contacted Mr Ison and requested that he attend his offices rather than securing a flight to Sydney by 10.00am. While Mr Ison was not present when the matter was called on for hearing at 10.00am, he nevertheless attended Mr Braid's offices a short time later and was able to participate fully in the hearing. 15Mr Braid informed the Court that he did not formally appear for Mr Ison as his solicitor on the record, but that he had received instructions from Mr Ison to assist him for the purpose of today's application to vacate the hearing date. 16Mr Braid also informed the Court that he did not possess any of the affidavits that the council had filed in the proceedings and that were to be relied upon by it. The affidavits were located in Sydney. The reason for this material being physically present in Sydney, and not with Mr Ison in Ballina, was because until very recently Mr Ison had been in Sydney for medical reasons (discussed further below). 17The Court noted in strident terms that an application to vacate a hearing date made this late and in this form is generally unacceptable. 18Mr Braid indicated that it was his intention to put evidence before the Court from Mr Ison explaining the circumstances giving rise to the late application but because Mr Ison was not present in the Court room this posed some difficulty. As a consequence, the Court adjourned the proceedings to enable Mr Braid to prepare an affidavit on Mr Ison's behalf, and to permit the council to email to Mr Braid the affidavits upon which it intended to rely so that Mr Braid could take suitable instructions. Mr Ison Has Been Unwell 19When the matter resumed before the Court at 2.00pm the Court was furnished with a faxed affidavit of Mr Rodney Ison sworn 12 August 2011. The affidavit was made in support of his application for an adjournment of the proceedings. The affidavit deposed to the following unchallenged facts: (a) that in February 2009, Mr Ison and his wife were divorced after 48 years of marriage. Due to the marriage breakdown and the subsequent property settlement with his wife, Mr Ison had been struggling from depression and financial difficulties; (b) that in June 2010 Mr Ison fell ill. His symptoms included severe headaches and swelling in his legs. Mr Ison sought medical assistance from Dr Zhang of Sydney Inner West Medical Centre. Mr Ison stated that he was having mobility difficulties due to the swelling. As a consequence, in the past 12 months Mr Ison has been admitted to Concord Repatriation and General Hospital on at least three occasions. The doctors have advised Mr Ison that the condition in his legs is known as "cellulitis". In addition, Dr Naga Nathan has advised Mr Ison that he has a serious heart murmur. Mr Ison has seen a cardiologist, Dr Tommy Chung, for tests. Mr Ison stated that his most recent admission to Concord Hospital was on 11 July 2011 for ten days; (c) that he was served with the summons the day after he was discharged from hospital. On that occasion he had been admitted to hospital, he had been suffering from dizziness when he stood and could not travel; (d) that he turns 80 on 14 August 2011; (e) that he signed the agreement on 11 August 2011 prior to receiving the advice from his real estate agent, Mr Brodie Aleckson of LJ Hooker, Evans Head. It was Mr Aleckson who advised Mr Ison that as a consequence of the High Floodway Hazard Zone Classification of the property contained in the Flood Information Enquiry, the future use of the property was likely to be severely restricted and that the property may be unsaleable. Upon receipt of the Information, Mr Ison asked Mr Aleckson to immediately contact Mr Braid and provide him with a copy of the flood information provided by the council. On the same day Mr Ison instructed Mr Braid to write to the council's solicitors requesting an adjournment and to send them a copy of the Flood Information Enquiry. Mr Ison also requested Mr Braid to withdraw his consent to the agreement he had signed on 11 August 2011 and to seek an adjournment of the matter for one month. Mr Ison stated that he had no prior knowledge of the Flood Information Enquiry or flood level classification and that at no point in time did the council inform him of it; (f) that the flood level classification was not consistent with Mr Ison's knowledge of the property. Mr Ison bought the property in about January 1976 and operated a bus business from the property for almost 40 years. During this time the property remained relatively unaffected by flood; (g) that he was very concerned that if the order for demolition that is being sought by the council is made, that the council will either not permit him to rebuild the dwelling on the property or may impose extensive conditions on any development consent because of the information contained in the Flood Information Enquiry. If this is so, then the property will be unusable and its value greatly diminished. As a consequence, he intends to obtain expert advice and assistance prior to lodging a development application to demolish and rebuild a dwelling on the property or alternatively to rectify the existing damaged dwelling; and therefore, (h) that he needs a month to properly instruct solicitors in the matter, to obtain expert advice and assistance, and that subject to the advice he receives, that he intends to defend the proceedings. 20Upon consideration of the contents of the affidavit the council, quite properly, informed the Court that it would not oppose the application for a vacation, provided two conditions were met; (a) that Mr Ison lodge a development application in respect of any development he proposes to undertake on the property within a month; and (b) that Mr Ison honour at least one of the terms of the written agreement dated 11 August 2011, namely, that he pay the council's costs of the proceedings to date. 21Mr Ison agreed to condition (a), but not to condition (b). Instead, Mr Ison offered to pay the council's costs thrown away occasioned by the vacation of the hearing. The Hearing Must be Vacated 22As the extensive history of this matter set out above indicates, Mr Ison has engaged in, at least until he fell ill, unreasonable and inexcusable delay in complying with the orders for demolition served upon him by the council. That the council has been as lenient and patient as it has in an attempt to resolve the matter without the need for litigation is laudable. 23Further, while Mr Ison's affidavit gives a partial explanation for his failure to comply with the orders of the Court made on 3 June 2011, the reason for the late application to vacate, and his attempted withdrawal from the purported agreement he made in writing on 11 August 2011, the affidavit does not indicate why it was that Mr Ison did not engage a real estate agent earlier to make appropriate enquiries from the council that would have revealed the flood constraints attendant upon the land. Had these enquiries been made in a more timely fashion by Mr Ison, then, while an application to vacate may nevertheless have been made, it would not have been made in circumstances that have inconvenienced both the council and the Court (see Aon Risk Services Australia Limited v Australian National University (2009) HCA 27; (2009) 239 CLR 175 at [23] and [30]). 24But the Court is nevertheless cognisant of the personal, financial and health issues burdening Mr Ison and Mr Ison's advanced age. 25Having regard to these matters, and the fact that this is only the second time that the proceedings have been before the Court - the first and only other occasion, when the mater was set down for hearing, Mr Ison was not present for the reasons he explains in his affidavit - to refuse the application to vacate would not be in conformity with the overriding purpose of this Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings (s 56 of the Civil Procedure Act 2005 having regard to the matters contained in ss 57-61 of that Act). In this regard, the Court notes that other than further delay, the council will suffer no prejudice that cannot be met by an award of costs. 26While applications to vacate hearing dates should not lightly be made and are not lightly granted by the Court, particularly when the application is made on the eve of the hearing, the circumstances, and therefore, justice of this application, dictate that the application is acceded to. Having said this, the Court was at pains to impress upon Mr Ison that any further delay by him would be unlikely to be viewed favourably. Mr Ison Must Pay the Council's Costs Thrown Away 27The Court empathises with the frustration felt by the council both in respect of the delay to date in resolving the undisputed dilapidated state of the dwelling on Mr Ison's property and the apparent resiling by Mr Ison of the purported agreement made by him on 11 August 2011. The Court, however, does not think that it is appropriate that an order be made that Mr Ison pay the council's costs of the proceedings to date. If the council wishes to enforce the agreement, either in whole or in part, made by Mr Ison on 11 August 2011, it must do so in other proceedings, in another place. The conduct of Mr Ison, when it is confined to these proceedings, while not beyond criticism, would not warrant the costs order sought by the council. 28But it is appropriate, in light of the very late notice by Mr Ison that he intended to make an application to vacate the hearing date and the even tardier furnishing, in proper form, of his reasons for doing so, that Mr Ison pay the council's costs thrown away by the vacation of the hearing date. Orders 29Consistent with the reasons given above, the orders of the Court are as follows: (1) the hearing date is vacated; (2) the respondent is to lodge with the council a development application in respect of any proposed development on the property by no later than 16 September 2011; (3) the proceedings are stood over for a further directions hearing before Pepper J at 9.30am on 19 September 2011; and (4) the respondent is to pay the applicant's costs thrown away occasioned by the vacation of the hearing date. ********** 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: 18 August 2011