Land and Environment Court New South Wales Medium Neutral Citation: Rogers v Clarence Valley Council (No 2) [2014] NSWLEC 62 Hearing dates: 22 May 2014 Decision date: 22 May 2014 Jurisdiction: Class 2 Before: Pepper J Decision: Application to adjourn hearing of notice of motion refused. Application to extend time for compliance of orders made on 14 November 2013 by three months granted. Catchwords: PRACTICE AND PROCEDURE: application to adjourn hearing of notice of motion - application made on day of hearing by respondent - application refused. CIVIL ENFORCEMENT: application to extend time for compliance with earlier made final court orders by three months - partial compliance with court orders - more time needed to achieve full compliance - application granted. Legislation Cited: Civil Procedure Act 2005, ss 56-60 Cases Cited: Aon v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 303 ALR 199 Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174 Rogers v Clarence Valley Council [2013] NSWLEC 194 Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 8) [2013] NSWLEC 168 Category: Interlocutory applications Parties: Sally Rogers (Applicant) Clarence Valley Council (Respondent) Representation: Ms S Rogers (in person) (Applicant) Mr N Hogan (Respondent) N/A (Applicant) Clarence Valley Council (Respondent) File Number(s): 20585 of 2012 Ex Tempore Judgment The Council Applies to Adjourn the Hearing of Ms Rogers' Notice of Motion 1By way of notice of motion filed 13 May 2014, the applicant, Ms Sally Rogers, an unrepresented litigant, requests a three month extension to comply with final orders made by the Court on 14 November 2013. 2The background to the application and the facts giving rise to the making of the orders is set out in detail in Rogers v Clarence Valley Council [2013] NSWLEC 194 ("the principal judgment"). 3The extension is opposed by the respondent, Clarence Valley Council ("the council"). 4An affidavit of Ms Kirsty Callander sworn 21 May 2014 and filed today with leave of the Court, deposes to the fact that the council was served with an unsigned copy of the notice of motion and an affidavit in support by Ms Rogers on 13 May 2014. On 16 May 2014, the council received sealed copies of the notice of motion and affidavit. 5At the outset of the hearing of the notice of motion, the council sought an adjournment on the basis that it required further time for the council to properly brief counsel, prepare a formal response to the matters raised by Ms Rogers' affidavit, issue a subpoena to Ms Rogers and generally gather evidence of matters "weighing against the grant of an extension" sought in the notice of motion. 6In my view, having regard to the matters contained in ss 56-60 of the Civil Procedure Act 2005 ("the CPA") and the principles articulated in Aon v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (at [5], [25]-[26] and [92]-[93]), Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 303 ALR 199 (at [51], [56]-[57]) and Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174 (at [13]), the application ought to be refused. 7In my opinion, the council should have made this application much earlier than now. Both Ms Rogers and the Court are ready to proceed with the hearing of her notice of motion. Time and resources have been set aside to deal with the matter. Applications to vacate hearing dates must be made with alacrity, unless there is a good reason for not doing so. 8Further, while it is acknowledged that the time between the filing of the notice of motion and its allocated hearing date was short, this ought not to have prevented the council from obtaining evidence that it could have relied upon to oppose the application. For example, evidence of continuing complaints to the council from residents from the noise emanating from the animal shelter the subject of the proceedings, or evidence of any prejudice to the council if the application for an extension of time was granted. 9For these reasons, the application for an adjournment of the hearing of the notice of motion must be refused. Ms Rogers Applies for Further Time Within Which to Comply With Court Orders 10When the final orders were made in the principal judgment, the council urged upon the Court a very short time frame for compliance in light of the extensive delay caused by Ms Rogers in the finalisation of the proceedings. The Court declined to make the orders as sought by the council noting the following (at [63]): 63 It was not a matter of controversy that Ms Rogers was a person of modest means and that Happy Paws is a non-profit shelter relying on the goodwill of volunteers and donations from the community to operate. In these circumstances it is appropriate to afford a degree of latitude to Ms Rogers in the time required by her to give effect to the recommendations contained in the ANMP and this is accordingly reflected in the orders made by the Court below. 11The Court therefore made the following orders in the principal judgment (at [64]): 64 In conformity with the reasons above, the orders of the Court are therefore as follows: Note: unless otherwise specified, all references to "Happy Paws Haven" or "Happy Paws" in these orders excludes the areas marked "House" and "House Yard" on the site plan annexed to this judgment at 'C' ("the site plan"). (1) no later than six months from the date of these orders: (a) the existing sheds or enclosures, including the three small runs labelled "single run" on the site plan and any enclosure used to house puppies, in which all dogs other than the applicant's, Ms Sally Rogers, personal pets are kept at Happy Paws Haven ("Happy Paws") located at 140 Tindal Road, Eatonsville, New South Wales, must be properly modified for noise attenuation in the manner recommended by the Court appointed acoustic expert, Mr Neil Gross, in Mr Gross' Third Acoustic Report filed 18 July 2013 at page 6 of that Report, and divided in two to allow for individual sleeping quarters for each dog; and (b) the areas described on the site plan as "Dog Yard 1" and "Dog Yard 2" shall be divided into yards 1A, 1B, 2A and 2B in accordance with the site plan by way of solid dividing fences at least 1.8m high, such fences to be located in accordance with the lines marked on the site plan and the size of those areas shall remain at all times in accordance with that which is noted on the site plan; (2) any existing shed or enclosure at Happy Paws which is not noise attenuated in accordance with Mr Gross' recommendations referred to above in order (1)(a) is not to be used for the keeping of dogs; (3) no later than three months from the date of these orders, Ms Rogers must make contact in writing with Clarence Valley Council Animal Pound, the Queensland and New South Wales branches of the RSPCA, the Queensland and New South Wales branches of the Animal Welfare League or any other organisation of her own choosing and offer for re-location to any facility controlled by one or more of those organisations and under their terms, a sufficient number of dogs presently housed at Happy Paws to enable her to comply with these orders; (4) no later than six months from the date of these orders, Ms Rogers must cause to be removed from Happy Paws a sufficient number of dogs and puppies (that is, dogs between eight weeks and three months old) such that only the following numbers remain in the areas prescribed for dog keeping by Dr Gaille Perry in the Amended Noise Management Plan filed 18 July 2013 ("the ANMP") (as those areas are delineated on the site plan): (a) up to two dogs in yard 1A; (b) up to two dogs in yard 2A; (c) up to two dogs in the area described as the "Middle Yard"; (d) up to two dogs (or compatible pups over three months old) in the area described as the "Rear Yard"; and (e) one litter of puppies in the puppy pen, being the two sheds adjacent to the "Kitten Room"; (5) no dogs shall be housed overnight at any time in the areas described as 1B and 2B on the site plan; (6) Ms Rogers must not increase the number of animals kept at Happy Paws beyond the limits set in these orders unless and until a kennel block is constructed at Happy Paws in compliance with the recommendations of Dr Perry in the ANMP; (7) Ms Rogers must notify the respondent, Clarence Valley Council ("the council"), of any proposal to construct further accommodation for dogs at Happy Paws (such as a kennel block or an additional enclosure), and where necessary, any development consent must be obtained prior to the commencement of its construction; (8) dogs must at all times be housed and managed at Happy Paws as follows: (a) alone or in compatible pairs (compatibility should be determined on a leash in a neutral place, with dogs meeting on a walk, then returning and entering the shared housing together, to keep arousal levels manageable); (b) in separate pens constructed in accordance with order 1(a) above; (c) all dogs must be confined to sheds between the hours of 6pm and 7am on weekdays and 6pm and 8am on weekends and public holidays, with each dog in its individual sleeping quarters within those sheds; (d) no Happy Paws dogs may be kept in the areas marked "House" or "House Yard" on the site plan; (e) unless they are being exercised or otherwise attended to, puppies at all times must be kept in the two sheds adjacent to the "Kitten Room" on the site plan; (f) the area described on the site plan as the "Holding Yard", including the three "single run" enclosures noted therein, shall only be used to house dogs for a period of less than a week upon their first arrival to Happy Paws and these areas must not be used for housing dogs to be retained at Happy Paws over the longer term; (g) the behaviour of each dog must be investigated, either during a period in isolation or at a veterinary practice using a validated behaviour assessment test before acceptance. Written records must be kept of this test for all dogs. Dogs that do not pass this assessment must not be accepted for rehoming; (h) written behaviour records, including barking issues and how they are managed, must be kept for each dog; (i) all dogs must be trained to the cue "quiet" using positive reinforcement methods; (j) behaviour modification plans must be written for all dogs showing any undesirable behaviour, and continuing records must be kept to monitor their progress; (k) a daily enrichment program for every dog which includes food, toys, training and enclosure enrichment must be initiated and written records kept so that the manager can ensure that all dogs have appropriate enrichment; (l) all dogs must receive a minimum of 15 to 20 minutes of varied individual attention every day. This should include a walk, some training and a passive activity (grooming, stroking, or massage); (m) Ms Rogers must actively recruit new foster carers to reduce the number of dogs held at the facility; (n) an education program must be initiated for volunteers and foster carers, incorporating information on the care and management of dogs and particularly the care and management of "special needs" dogs; (o) dogs which have been held at the shelter or in foster care for two months must be re-evaluated for suitability for re-homing; and (p) no bitch with unweaned puppies (under eight weeks old) is permitted to be kept at Happy Paws and Ms Rogers must remove any bitch and her unweaned puppies from the property to a foster carer until such time as the puppies are eight weeks or older; (9) no later than six months from the date of these orders Ms Rogers shall have caused to be implemented all measures specified in orders 1 to 8 above, at which time Ms Rogers must notify council in writing as soon as practicable of having done so; (10) within 28 days of the notification referred to above in order (9), Mr Gross must, to the extent he has not already done so in his Third Acoustic Report, comply with order 18 of the consent orders made on 29 October 2012; (11) if within six months from the date of these orders Ms Rogers has not caused to be effected the necessary changes to Happy Paws, including modification of the sheds/enclosures and dividing fences, so as to enable her to house dogs in a manner which is compliant with the orders above, she must as soon as practicable remove a sufficient number of dogs from Happy Paws in order to effect compliance; (12) at the expiry of six months from the date of the making of these orders, dogs other than Ms Rogers' personal dogs are to be registered in the name of "Happy Paws Haven" in accordance with these orders; (13) as soon as practicable at the expiry of nine months from the making of these orders, Ms Rogers must provide in writing to the council evidence of the following: (a) the names and microchip details of all dogs housed at Happy Paws; (b) behaviour records and modification plans for all dogs housed at Happy Paws; and (c) records of behavioural testing for any new dog accepted for housing at Happy Paws; (14) at the expiry of nine months from the date of these orders, the council shall be entitled to inspect the property by appointment only for the purpose of verifying the extent of Ms Rogers' compliance with these orders; (15) order 1(a) of the orders made by Pepper J on 21 August 2012 stating that "the applicant is to have no more than 32 adult dogs (that is, dogs older than six months old) on the property the subject of these proceedings at any one time" is vacated; (16) the parties have liberty to apply on three days' written notice to vary these orders provided sufficient cause is demonstrated; (17) the cost of the First, Second and Third Gross Acoustic Reports, the Noise Management Plan and the ANMP is to be shared equally by the parties and, to the extent that they have not already done so, the parties shall make such payment to Mr Gross and Dr Perry within 30 days, or such further period as the experts may allow, of any invoice being issued by either expert; and (18) the exhibits are to be returned. 12Ms Rogers now seeks an additional three months to complete the matters referred to in those orders. Thus the orders that need to be completed within six months of the date of the judgment (that is to say, by 14 May 2014), would now need to be completed by 14 August 2014 and the orders that need to be completed within nine months of the date of the judgment, would now need to be completed by 14 November 2014. 13The council opposes any extension on the basis that, first, sufficient time has already been given to Ms Rogers to comply with the orders as reflected by the time frames given in the orders. And second, in light of the considerable delay to date by Ms Rogers in these proceedings, the Court can have no confidence that even if the extension were granted that the orders would be complied with. The Application is an Appropriate Exercise of the Liberty to Apply 14The extension of time is sought pursuant to the liberty to apply in order 16 of the orders made on 14 November 2013 (quoted above). 15In Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 8) [2013] NSWLEC 168, the Court stated the following (at [4]-[5]): 4 The making of such an order in Class 4 civil enforcement proceedings is not novel. For example, in Director-General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118, Preston J made a similar order in Class 4 civil enforcement proceedings (at [348(13)]): 13. An order reserving liberty to the parties to apply on 5 days' notice for any further or other orders (including orders revoking or varying or supplementing or replacing these orders in whole or part upon sufficient cause, such as unforseen or changed circumstances, being shown). 5 The rationale for making such an order was expressed by Preston J in Director-General, Department of Environment, Climate Change and Water v Venn (No 3) [2012] NSWLEC 31 to be (at [20]): 20 The applicant also sought that the orders made should be final and bring the proceedings to a close. I agree. However, the nature of the work required by the orders and the period over which the work will be required to be undertaken makes it desirable to leave some capacity for the parties to seek, and the Court to make, variation to the orders if unforeseen events were to occur. For example, severe natural events, such as storms, flooding or fire, could adversely affect restoration work and require alternative work to be done. It is appropriate, therefore, to grant liberty to the parties to seek further or other orders. 16These comments are equally apposite to proceedings instituted in Class 2 of the Court's jurisdiction. 17The scope of liberty to apply was discussed in Foxman (No 8) (at [29]-[38]). In short, the reservation of liberty to parties to apply is a provision enabling further orders to be made for the purpose of working out the order granting the principal relief already pronounced. In my opinion, this includes the granting of an extension of time within which final orders are to be complied with, assuming of course that Ms Rogers is able to demonstrate that there is sufficient cause warranting an extension. Ms Rogers Demonstrates Sufficient Cause Warranting the Extension of Time 18Ms Rogers relied on an affidavit affirmed by her on 12 May 2014 in support of her application for an extension of time. 19In her affidavit she deposed to the following salient facts: (a)that Happy Paws Haven ("Happy Paws") remains a not-for-profit animal shelter which is wholly self-funded and which is wholly reliant on donations and volunteers; (b)that Happy Paws has raised $30,000 in order to comply with the orders, but, by Ms Rogers' estimate, requires another $12,000 to complete them, while still caring for the animals at the shelter; (c)the work is largely being carried out by volunteers, some of whom did not work over the Christmas 2013 holiday period; (d)since January 2014, over 40 days have been lost due to rain; (e)that as funds become available, the work necessary to complete the measures ordered by the Court is continuing; and (f)significant progress has been made in complying with the orders. 20Photos were attached to her affidavit demonstrating the works undertaken as at the date of the affidavit. 21During the hearing of her application, she further stated that: (a)further progress has been made since the affirming of her affidavit insofar as shutters have now been installed on the kennels and exhaust fans have been ordered and are due for delivery in two weeks. She indicated that she has given priority to the completion of the building works; (b)she is continuing to raise funds to successful effect; (c)she has obtained the support of the Animal Welfare League for the operation of the shelter; (d)she is reducing the number of dogs housed on the premises in compliance with the final orders but, as she candidly admitted, she is "not there yet"; (e)she is intending to install a computerised shelter management program for the on-going record keeping of the operation of the shelter; and (f)she is confident that all of the final orders can be complied with if the three month extension is granted. 22The council offered no evidence of any prejudice to either itself or any of the resident objectors who initially gave evidence in the proceedings, were the extension of time to be granted by the Court. Nor did it cross-examine Ms Rogers on the contents of her affidavit. 23In my opinion, having regard to the material contained in her affidavit and the matters referred to by her during the hearing, Ms Rogers has demonstrated sufficient cause to warrant the extension of time that she seeks in her notice of motion. I am satisfied that she has not been idle since the final orders were made and that considerable progress has been made by her towards complete compliance with the final orders made by the Court on 14 November 2013. 24Accordingly, when regard is had to the overriding purpose contained in s 56 of the CPA, it is plain that the extension should be granted. 25Having said this, it should be noted by Ms Rogers that any further application for an additional extension of time within which to comply with the final orders is likely to be viewed with some scepticism by the Court given the delays by her to date in the prosecution and finalisation of the proceedings. Orders 26The Court orders that the time within which Ms Rogers must comply with the Court's orders made on 14 November 2013, is extended by three months. ********** 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: 23 May 2014