Queanbeyan-Palerang Regional Council v Banks

Queanbeyan-Palerang Regional Council v Banks - [2024] NSWLEC 99 - NSWLEC 2024 case summary — Zoe

JUDGMENT

In Queanbeyan-Palerang Regional Council v Banks [2024] NSWLEC 46 (QPRC No 1) at [36] I held that the First Respondent Mr Banks was guilty of contempt of court for the charges of failing to comply with consent orders made by the Court on 1 December 2017 (2017 consent orders) requiring the use of the Respondents' land for storage to cease, and the removal by 1 July 2018 of a substantial number of motor vehicles, other goods and some structures on the Respondents' land at Mulloon Road Mulloon (the Premises). The Premises are owned by Mr Banks and the Second Respondent Ms Williamson. Mr Banks was legally represented. Ms Williamson is not charged with contempt but is the subject of orders for substituted performance sought by the Council. Ms Williamson represented herself.
The summons filed on 22 June 2017 in relation to which the 2017 consent orders were made sought a declaration that the Respondents were in breach of s 76B of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) for carrying out, or allowing unlawful development activities to be carried out, on the Premises.
The orders sought in the further amended notice of motion dated 18 October 2023, which annexed the further amended statement of charges in relation to the First Respondent, are as follows: 1 The Court dispenses with the requirement to serve a copy of the judgment of the Court in these proceedings dated 1 December 2017 (the Orders) on the First Respondent pursuant to rule 40.7(5) of the Uniform Civil Procedure Rules 2005. 2 The First Respondent is guilty of Charge 1 and is punished for contempt, in that he has failed to cease using the land [in] Mulloon in the State of New South Wales (the Premises for the storage of motor vehicles and Other Goods defined in the Statement of Charges (other than 20 motor vehicles and Other Goods for personal use, such as goods stored within a single shipping container or currently approved building located on the Premises)). 3 The First Respondent is guilty of Charge 2 and is punished for contempt, in that he has failed to remove from the Premises all motor vehicles and Other Goods defined in the Statement of Charges, except as otherwise permitted by Order 1(b)(a)(ii) of the Orders made on 1 December 2017; 4 The First Respondent is guilty of Charge 3 and is punished for contempt, in that he has failed to demolish and/or remove from the Premises the following buildings/containers (as identified and labelled in the Reference Map attached to the Orders): (a) the large yellow building which appears to be an old demountable school building (Building 8); (b) the grey metal clad shed adjacent to Building 8 (Building 9); (c) the red shipping container located next to the shed adjacent to the dwelling house on the property (Container 3); … (e) the shipping container located adjacent to Container 10 (Container 11); and … 4A If the Respondents do not completely comply with items 1(a)(ii) and 1(b) of the Orders within 4 months of the date these orders are made the Applicant by itself, its employees, agents or contractors, may enter the Premises and carry out works to give effect to the terms of the outstanding Orders. 4B Prior to exercising its rights under order 4A, the Applicant must give 14 days' written notice to the Respondents of its intention to enter the Premises and carry out the works. 4C The First Respondent and the Second Respondent are to pay the costs incurred by the Applicant associated with the carrying out the works pursuant to order 4A above. 5 The First Respondent is to pay the Applicant's costs of this motion. …
'Other goods' is defined in the statement of charges filed on 11 May 2021 to include ladders, car parts, engines, engine parts, car batteries, gas bottles, concrete, paint cans, containers of chemicals and oils, pipes, glass sheeting, scrap metal (including metal frames, poles, industrial fire extinguisher systems, sheet metal, tins and drums and other metal materials) and glass, gardening tools (including trimmers, blowers and chain saws), building frames, tools, furniture, timber, household appliances, office furniture, pallets of tiles, mattresses, general household goods, whitegoods, water pumps, a safe, reels of cabling, pallets of pipes, fencing wire and other fencing materials, tools and other tool kits, televisions, 'flat pack' furniture and tyres.
The statement of charges filed on 11 May 2021 is in similar terms to the orders sought in the further amended notice of motion set out in [3] above.
The Council accepts that the vehicles, materials and structures the subject of the 2017 consent orders belong to Mr Banks.
Mr Banks is before the Court to be sentenced for his contempt. Ms Williamson is before the Court as co-owner of the Premises. Prayers 4A, 4B and 4C of the further amended notice of motion relate to a substituted performance order whereby the Council asks that it be conferred with discretion to enter the Premises to carry out the work if it remains undone for a certain period and seek its costs of doing so from both Respondents. Ms Williamson opposes such a substituted performance order, particularly that she be liable for the Council's costs as provided in prayer 4C. Mr Banks also opposes these orders being made.

[5]

Factors to consider in sentencing for contempt

The charge is for contempt for failing to comply with court orders. The seriousness of the contempt depends on whether it is 'technical' or accidental, wilful or contumacious. As I stated in Georges River Council v Mifsud [2017] NSWLEC 113 (Mifsud) at [22]: [22] As identified in Pt 55, r 13(1) of the SC Rules contempt of court is punishable by fine or imprisonment or both. I will be considering an appropriate fine in this case. Contempt of court can be described as technical, wilful or contumacious. Technical contempt is casual, accidental or unintentional. Wilful contempt occurs where there is deliberate disobedience without the intention of defying the court's authority. Contumacious contempt occurs if there is an element of deliberate defiance of the court's order, as identified in Hutley v Cosco [2016] NSWLEC 15 at [14] citing Queanbeyan City Council v Pre-Cast Concrete Solutions Pty Ltd [2008] NSWLEC 147 at [22]-[25].
In Fairfield City Council v Adams [2009] NSWLEC 199 I considered the purpose of charging a defendant for contempt at [39] (my emphasis): [39] … Biscoe J [in Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92] considered the distinction between criminal and civil contempt and stated at [48] that "Disobedience of a court order in a civil proceeding is a civil contempt but amounts to criminal contempt if it involves deliberate defiance; that is, as is sometimes said, if it is contumacious". His Honour referred to Hearne v Street (2008) 235 CLR 125 in stating that determining whether a contempt charge is for criminal or civil contempt turns on whether the purpose of the charge is remedial or coercive (civil contempt) or punitive (criminal contempt). His Honour concluded at [58]: Disobedience to a court order in civil proceedings is a civil contempt, but, it seems, amounts to a criminal contempt if: (a) the disobedience was contumacious: Witham v Holloway (1995) 183 CLR 525; or (b) punishment serves no remedial, coercive or deterrent purpose, but only a punitive purpose of punishing a past breach: Hearne v Street (2008) 235 CLR 125.
The contempt of Mr Banks is not contumacious and is civil in nature. The purpose of the charge is remedial meaning that the aim is to have the court orders complied with through the imposition of a penalty by way of a fine in this case.
In Fairfield City Council v Camilleri [2024] NSWLEC 56 Robson J at [33] considered the primary factors of sentencing, generally reflecting the earlier decision of Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185 amongst other cases, and is helpfully set out below: [33] The primary factors relevant when considering the appropriate penalty for contempt (which I respectfully adopt) are noted by Payne JA in [Council of New South Wales Bar Association v Rollinson (No 2) [2023] NSWSC 1390] at [66], [67] referring to a list of factors identified by Barrett J in Australian Securities and Investments Commission v Matthews [2009] NSWSC 285; (2009) 71 ACSR 279 at [26]-[27] (and which generally reflect the earlier analysis of Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185. In my summary, the factors, which are overlapping, comprise: (1) the seriousness of the contempt proved; (2) the contemnor's culpability; (3) the reason or motive for the contempt; (4) whether the contemnor has received, or sought to receive, a benefit or gain from the contempt; (5) whether there has been any expression of genuine contrition by the contemnor; (6) the character and antecedents of the contemnor; (7) the contemnor's personal circumstances; (8) the need for deterrence of the contemnor and others of like mind; and the need for denunciation of contemptuous conduct; and (9) the likely effect that punishment will have on the contemnor, including any hardship it might cause.

[7]

Mr Banks' evidence

Mr Banks swore an affidavit dated 5 June 2024 that attests to his intention to collect vehicles for the purpose of building a 'superfund', and the substantial personal physical and mental difficulties he has faced since 2010. The affidavit attaches two reports of a psychiatrist dated 16 January and 24 August 2023. Annexed are three undated black and white photographs purporting to be evidence of the poor condition of the roads leading to the Premises.
Mr Banks attests that various circumstances have prevented him from fully complying with the 2017 consent orders including the poor condition of the council road near the Premises, poor weather and lack of maintenance, mental health issues, the death of his mother, being subject to violence from a family member, his incarceration from June 2022 to June 2023 where he had several very bad experiences, as a result of which he was hospitalised for a month and suffered ongoing health issues including spending several months in a wheelchair. He has ongoing depression and post-traumatic stress disorder. The number of vehicles he had was originally over 3,500 according to Mr Banks, which he has removed many of. He has removed many tonnes of debris and scrap metal. Vehicles have been reduced substantially to less than 400 vehicles. A recycling company is coming on 5 June 2024 to assess what is remaining on the Premises which needs removal.
Mr Banks has negotiated a sale involving a swap of properties with an owner of land in Queensland. He has been asked to clear as much of the Premises as possible and the incoming owner will take care of the rest. He should not be found guilty of contempt of court as he has done as much as he can given his personal struggles. His efforts to date have been substantial and are ongoing. He has continued to clear the Premises as much as possible. The Council's insistence on compliance has also caused him stress. He considers he is in the final stages of the major clean-up with the goal to be achieved by the end of this year.

[8]

Council's submissions

In relation to seriousness of the contempt Mr Banks' failure to comply with the 2017 consent orders requiring work to be done by 1 July 2018 arises from his failure to take action. The length of time given to him, firstly to comply with the 2017 consent orders, and secondly to purge the contempt, also demonstrates that his failure to comply is more than merely 'accidental' and amounts to wilful contempt. While Mr Banks' mental health may have contributed to his being in contempt, his prolonged failure to comply with the 2017 consent orders, which he had agreed to, is more than casual, accidental or unintentional. His evidence does not indicate a lack awareness of the 2017 consent orders or of his own disobedience. The contempt was the result of inaction by Mr Banks over a long period of time, and this renders the contempt serious (as was held in Fairfield City Council v Camilleri at [38]). The 2017 consent orders were made over six years ago. Mr Banks agreed to clean up the Premises and to remove the large number of motor vehicles, other goods and selected buildings and containers. That still has not been done despite the Council giving him close to three years to comply before commencing these contempt proceedings on 11 May 2021, and agreeing to lengthy adjournments of the proceedings to allow him to purge his contempt. In the context that approximately 600 cars remain on the Premises, as well as the other goods and buildings the subject of the 2017 consent orders, his conduct demonstrates disregard for his obligations and the jurisdiction of the Court.
Mr Banks was and is aware of the 2017 consent orders and was informed of the possible consequences to himself for failing to comply. Mr Banks was legally represented at first instance, at the hearing of the notice of motion for contempt and at this sentencing hearing.
The consequences of Mr Banks' contempt include: 1. Potential for environmental harm (affidavit of Ms Corey affirmed 22 March 2024); 2. Adverse impacts on amenity of neighbouring properties; and 3. Undermining of the authority of the Court and the integrity of the statutory planning framework.
The Council accepts that Mr Banks' mental state is a relevant consideration in relation to his contempt.
In relation to the reasons given by Mr Banks for why there has been non‑compliance, Mr Banks has given evidence that the 'damaged causeway' and 'washed out roads' that lead to the Premises contributed to his contempt. However, he provides no compelling or corroborating evidence that these factors have inhibited his clean-up efforts prior to 1 July 2018 or since. Moreover, Ms Corey's evidence is that there are two roads leading to the Premises and she has travelled along those roads at least twice a year for over 10 years without difficulty. Ms Corey also deposes that one property on Mulloon Road which is regularly accessed by heavy vehicles (associated with agricultural uses) has not reported any access issues.
Concerning the reason for the contempt, the Council submits there is evidence that Mr Banks sells cars and car parts. The affidavit of Mr Banks dated 5 June 2024 at [6]-[7] states that the car collection was for superannuation to fund his retirement. In that sense Mr Banks obtained a benefit from his contempt.
No apology has been provided nor is there evidence of contrition before the Court. General and specific deterrence is relevant, particularly given the overall history of non-compliance and Mr Banks' evidence.
Payment of any fine should be made to the Council as provided by s 694 of the Local Government Act 1993 (NSW) (LG Act). A table of cases has been provided in the Council's submissions which show a range of possible penalties. Fairfield City Council v Camilleri has some similarities to this matter.

[11]

Seriousness of contempt

The Council submits that the failure to comply is wilful because Mr Banks was aware of the 2017 consent orders and failed to comply over a lengthy period and his non-compliance was deliberate. While Mr Banks has taken steps to reduce the number of vehicles and has removed some debris and most of the structures he was required to move, much remains to be done.
The lengthy period of the contempt means that activity in breach of the EPA Act has been ongoing for several years, which does not facilitate orderly development, one of the EPA Act's objectives. Ms Corey's affidavit dated 22 March 2024 attests to concerns expressed by numerous neighbours about the potential for run-off of oil and other harmful material from Mr Banks' property onto neighbouring properties as a problem that has existed for some time. While Mr Banks submitted that this material did not establish environmental harm and it does not, it does highlight the potential for such harm, exacerbated by how long the clean-up has been outstanding.
Mr Banks provided a number of reasons for why he has not been able to purge the contempt over six years. One of these is that the state of the Council maintained Mulloon Road has been so poor that large vehicles which can take away car bodies have not been able to visit the Premises. The evidence in his affidavit dated 5 June 2024 is little more than an assertion about the state of the road and the three undated photographs attached provide no useful depiction of the state of any particular section of the road. Further the location of what the photographs depict is not specified. This evidence can have little weight attributed to it. Ms Corey's affidavit affirmed 24 May 2024 attests to the accessibility of roads in the vicinity of the Premises including that there are two means of accessing the Premises from the Kings Highway. I do not accept that the state of the public roads around the Premises have prevented Mr Banks carrying out all of the work required by the 2017 consent orders over the lengthy period he has had.
Related to the state of the road are assertions that wet weather has prevented the work being undertaken. I identified the same submission in QPRC No 1 at [26] and noted that it was particularly directed to the period since October 2023. Accepting that there may have been some periods since October 2023 when wet weather meant removal of items was difficult for Mr Banks does not address to any great extent the entirety of the period he has been allowed to purge his contempt.
Similarly the period of incarceration of about 12 months in 2022-23 explains why he was unable to attend to the removal of items, but that is also a relatively short time in the lengthy period allowed to him to comply to date.
The other reasons given by Mr Banks otherwise arise from his unfortunate personal circumstances, including poor physical health. I accept that Mr Banks has had substantial mental health challenges over the last few years as identified in the two psychiatric reports attached to his affidavit, which does ameliorate his moral culpability.

[17]

Capacity to pay fine

Hardship caused by punishment of a contemnor is a relevant factor. Under s 6 of the Fines Act 1996 (NSW) the Court is required to take into account the capacity of a defendant to pay a fine in setting an amount and consider 'such information regarding the means of the accused as is reasonably and practicably available to the court for consideration'. Whether or not this provision applies in civil contempt proceedings directly, Mr Banks' capacity to pay a fine is a relevant consideration.
Mr Banks affirmed an affidavit dated 24 July 2024 stating he has received Centrelink payments since his accident in 2010. Annexed to his affidavit were Jobseeker Centrelink payment summaries with medical exemption, and two bank statements for the period from February 2023 to February 2024 for the account in which he received Jobseeker payments showing very low closing balances. Also attached to the affidavit were Ms Williamson's bank account statements from March to June 2024, Ms Williamson's income tax statement for the 2023/2024 financial year, a default notice for mortgage payments in arrears issued in May 2024, driving licence suspension notice due to unpaid fines issued in May 2024, second overdue notice of Local Land Services rates issued in June 2024 and an overdue electricity account issued in July 2024. The bank statements supplied for Mr Banks show that regular transactions to another account were made. No details of that second account have been provided.
Market value of the Premises of $1,300,000 is shown on Mr Banks' Centrelink payment summary. The assessed value is shown as $170,000. No explanation is provided for this difference. No income tax statements were provided by Mr Banks.
As the Council submitted, in the absence of all relevant financial information from Mr Banks fully showing his current financial circumstances it is difficult to assess his capacity to pay a fine. Mr Banks has a potentially valuable property which could assist him in arranging his affairs so that he can pay what is required, albeit that property is jointly owned. Doing the best I can on what has been provided I accept that Mr Banks has some if limited capacity to pay a fine.

[18]

B. Indemnity costs order to be made

A further consideration is the amount of legal costs which Mr Banks will be liable for. Costs generally follow the event in contempt matters subject to the exercise of the court's discretion not to award costs. The Council should have its costs of the contempt proceedings paid by Mr Banks given that the commencement of proceedings was reasonable and the proceedings have been properly pursued by the Council.
The Council seeks an order that its costs be paid on an indemnity basis from Mr Banks, as has been ordered in numerous cases referred to in the Council's submissions there described as the ordinary practice. Ultimately each case depends on its own circumstances. Ritchie's Uniform Civil Procedure NSW states at [SC Rules Pt 55 r 13.7]: Where contempt is established on an application by a private prosecutor, the usual order is for costs to be paid on the ordinary basis: McIntyre v Perkes (1988) 15 NSWLR 417; BC8801160; Ditfort v Katz (NSWCA, Full Court, 8 July 1991, unreported, BC9101811); Global Custodians Ltd v Mesh [2000] NSWSC 845; BC200005019 at [37] per Young CJ in Eq (no such apology proffered, restraining order made and costs on usual basis). But costs may be a consideration in the imposition of a penalty and, at least in that context, costs may be ordered to be paid on an indemnity basis: Farahbakht v Midas Australia Pty Ltd [2006] NSWSC 1322; BC200610117 at [58] per Brereton J; NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118; BC200509669 at [102] per Campbell J (full indemnity for costs); McGuirk v University of New South Wales [2010] NSWSC 448; BC201003075 (order for costs of the penalty proceedings to be paid forthwith on an indemnity basis); Circuit Finance Australia v Sobbi [2010] NSWSC 912; BC201005901 (order for costs alone not sufficient - conduct was deliberate and contrition too late and too little - fine ordered and indemnity costs).
The order for costs to be paid on an indemnity basis in civil contempt proceedings is common, but each case must be considered on its own facts, see Robson J in Fairfield City Council v Camilleri at [60], citing Colgate‑Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801 at 233-234 (Sheppard J).
The lengthy history of these contempt proceedings to enable time for Mr Banks to comply with the 2017 consent orders suggests that an order for costs on an indemnity basis ought to be made. The Council has had to incur substantial costs in these circumstances. The Council's substantial costs estimated to be in the amount of $150,000 incurred over the necessarily lengthy period since these contempt proceedings were commenced on 11 May 2021 will be ordered to be payable on an indemnity basis.
In Environment Protection Authority v Barnes [2006] NSWCCA 246 the Court of Criminal Appeal accepted that in some circumstances arising in criminal proceedings the quantum of legal costs can be considered when imposing a penalty as a sentence given the financial burden it imposes on a defendant. While not directed to civil contempt proceedings such a consideration reasonably arises in this sentencing context.
I note that a mechanism exists under s 10 of the Fines Act for Mr Banks to approach the Court Registrar in relation to payment of a penalty (s 4(1)(a1) definition of fine for purposes of the Fines Act).

[21]

Principles for such costs orders were identified in Hamod v State of New South Wales [2011] NSWCA 375 at [813]‑[820] (Beazley JA, Giles and Whealey JJA agreeing) and Young v Hones (No 3) [2014] NSWSC 499 (Garling J) summarised in Young v King (No 14) [2018] NSWLEC 162 at [11]. In summary, the principles as identified in the Council's submissions which I accept provide: 1. A lump sum costs order may be appropriate where the Court considers it desirable to avoid the expense, delay and aggravation likely to be involved in a contested costs assessment, Young v Hones (No 3) at [27]; 2. The power must be exercised judicially, and after giving the parties an adequate opportunity to make submissions on the matter, Hamod v State of New South Wales at [793]; 3. The Court is not required to undertake a detailed examination of the kind that would be appropriate to a taxation or a formal costs assessment, Young v Hones (No 3) at [28]; 4. The Court must have sufficient confidence in arriving at an appropriate sum on the materials available, Hamod v State of New South Wales at [793]; 5. The Court must be confident that the approach taken to estimate costs is logical, fair and reasonable, Hamod v State of New South Wales at [793]; 6. The Court must be 'astute to prevent prejudice to the Respondents by over estimating the costs, and on the other hand must be astute not to cause an injustice to the successful party by an arbitrary "fail-safe" discount on the cost estimates submitted to the Court', Hamod v State of New South Wales at [793]; and 7. Factors that merit particular consideration include (Hamod v State of New South Wales at [816]): 1. The relative responsibility of the parties for the costs incurred; 2. The degree of any disproportion between the issue litigated and the costs claimed; 3. The complexity of proceedings in relation to the cost; and 4. The capacity of the unsuccessful party to satisfy any costs liability.
The Council submitted that the gross sum cost order sought is appropriate for the following reasons: 1. It is desirable to make such an order to avoid the expense, delay and aggravation likely to be involved in a contested costs assessment. 2. The Court can be confident that the approach taken to estimate the Council's costs is logical, fair and reasonable. Relevantly: 1. The amount sought ($150,000) has been determined with reference to the costs incurred by the Council in prosecuting these proceedings since 1 May 2020. The Council first put Mr Banks on notice on 22 May 2020 of its view that he was in contempt and foreshadowed the commencement of these proceedings, up to and including the costs estimated to be incurred for the hearing on 11 July 2024, less a discount of approximately 13.22%; and 2. A discount of 13.22% is consistent with the range of discounts applied by NSW Superior Courts where gross sum cost orders have been awarded in the context of claims for indemnity costs (0‑20%). Such a discount takes into account contingencies that would be relevant in any formal costs assessment, see Pham v Papaioannou [2019] NSWLEC 180 (contempt proceedings where indemnity costs ordered in a nominated gross sum and no discount applied), Seven Network (Operations) Ltd v Dowling (No 3) [2021] NSWSC 1371 at [19]-[22] (contempt proceedings, 10% discount applied, although not all costs were sought in a lump sum cost application), McGettigan v Coulter; Coulter v McGettigan (No 2) [2021] NSWSC 1356 (5% discount applied, although total costs were based on discounted hourly rates), Richardson v Richardson [2021] NSWSC 353 at [191] (15% discount applied), Kostov v Nationwide News Pty Ltd (No1) [2018] NSWSC 1822 at [102]-[103] (20% discount applied). 1. Mr Banks' conduct has contributed significantly to the quantum of the costs incurred by the Council in prosecuting these proceedings. This conduct includes: 1. Maintaining a plea of not guilty despite the weight of evidence against him, necessitating the incursion of costs in preparing for and appearing at a contested hearing on 3 April 2024; 2. Unsuccessfully opposing the Council's notice of motion heard on 12 October 2023 (where an amendment to the Council's notice of motion to include the substituted performance order now sought was contested); and 3. Not attending to the necessary clean-up work despite numerous reasonable opportunities to do so. 1. Mr Banks is legally represented and has had adequate opportunity to make submissions on the nature and quantum of the cost order sought by the Council.
I accept the four reasons given by the Council as warranting a gross sum costs order in the circumstances of this matter. The relevant principles in considering a gross lump sum costs order were identified by the Council as set out above in [57]. Such an order will avoid further expense and delay in a matter that has already had a lot of expense and delay (reasons 1 and 3). As to the amount sought, Mr Brickhill's affidavit dated 23 May 2024 provides an explanation for how the costs have been incurred over a period from 1 May 2020 to date including an estimate of the future costs incurred by the Council for the sentencing hearing on 11 July 2024. An appropriate discount has been allowed for, as detailed in the Council's submissions above including in reliance on taxation practice. Mr Banks' solicitor has had the opportunity to review the amount sought and has not raised any concerns about the calculation of the amount sought (reasons 2 and 4). If ordered to be paid Mr Banks submits that he will need to enter into a payment arrangement with the Council.
The principles identified by the Council as applying to the making of gross sum costs are satisfied by the evidence relied on by the Council. A gross sum costs order will be made. As identified during the hearing and above Mr Banks is unable to pay such a large sum within the usual period of payment of 28 days based on his income.

[22]

E. Substituted performance order warranted

The Council seeks a substituted performance order and costs of doing work in prayers 4A, 4B, 4C of the further amended notice of motion. The Court has power to impose a substituted performance order in contempt proceedings pursuant to r 40.8 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and such orders have been made. That rule provides as follows: 40.8 Substituted performance If a judgment requires a person to do an act and the person does not do the act, the court - (a) may direct that the act be done by a person appointed by the court, and (b) may order the person to pay the costs incurred pursuant to the direction.
In addition, the Court also has power to order substituted performance pursuant to s 23 of the Land and Environment Court Act 1979 (NSW) (LEC Act), see Snowy Monaro Regional Council v Cmunt (No 2) [2018] NSWLEC 136 (Cmunt (No 2)) at [67]. That section is in the following terms: 23 Making of orders The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate.
The Council submits that a substituted performance order ought to be made permitting the Council to enter the Premises and carry out the 2017 consent orders to the extent they have not been complied with, first allowing the Respondents a further reasonable time to do so. This order would be made against Ms Williamson also (noting she has not been charged with contempt).
The Council is concerned about the significant length of time that this matter has been before the Court, and the Respondents' failure to comply with the 2017 consent orders since they were made. More than six years have passed since the Respondents were required to give effect to the 2017 consent orders. They have been afforded a substantial amount of time and opportunity to comply. While some progress has been made, there are still a substantial number of motor vehicles and other goods at the Premises. The evidence of Mr Banks that he has 'done his best to comply' indicates that it may be necessary for the Council to step in for the necessary clean-up works to be completed.
If made prayers 4A and 4B allow the Council to carry out works to comply with the 2017 consent orders and clean up the Premises if the Respondents fail to do so within a further reasonable timeframe. The Council considers that four months is a reasonable timeframe, after which time the Council would have the discretion to carry out the works itself and recoup the cost of doing so from either or both of the Respondents. Prayers 4A, 4B and 4C provide discretion to the Council to give effect to the orders. The Council does not wish to be compelled to do so. An order in equivalent terms was made in reliance on UCPR r 40.8 in Eurobodalla Shire Council v Gerondal (No 3) [2012] NSWLEC 46 at [35] and in reliance on s 23 of the LEC Act in Cmunt (No 2) at [67]. The discretionary nature of the substituted performance order sought would permit the Council to defer exercising its rights if, once the specified period had lapsed, it was satisfied that the Respondents were making genuine progress to implement the necessary clean-up work. It also accommodates clean-up work being undertaken by Mr Banks as he intends to do according to his affidavit.

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