Snowy River Shire Council v O'Neill

Snowy River Shire Council Applicant v Patrick Anthony O'Neill Respondent

HIS HONOUR: Prima facie the circumstances that give rise to a charge of contempt in these proceedings are based upon a simple set of facts. The situation nevertheless is complicated to the extent that not a great deal can be achieved by way of a practical solution to the problems associated with the alleged failure to comply with conditions of consent to development application 77/87 in the absence of an agreement with or further applications to council.

The background history of the matter is adequately set out in a judgment delivered by Lloyd J in this Court on 29 April 1998 following a hearing extending over three days in March of that year. His Honour found that the respondent, Mr O'Neill, was in a situation where he had not complied with any or all of the 43 conditions attached to a consent issued by the council on 22 January 1998 in response to development application 77/87 for the approval of an additional 70 sites on an existing caravan park known as Pat's Patch Caravan Park. The respondent has enjoyed the benefit of two earlier consents in relation to the establishment of the caravan park, firstly in 1978 when 25 sites were approved and subsequently in 1980 when an additional 25 sites were approved.

The proceedings instituted by the council and heard by Lloyd J related only to the alleged failure of the respondent to comply with the conditions of the latest development consent issued on 22 January 1998.

The evidence before me discloses that the respondent is still in default in respect of compliance with the conditions of development consent 77/87. Although it might be argued that in some minor respects there has been a move towards compliance, the Court is satisfied that the position remains much the same as it was when the facts were determined by Lloyd J.

I am satisfied that it is beyond reasonable doubt that the respondent has not complied with conditions 1, 2, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 to 21. The council's evidence, confirmed by the evidence of the respondent himself, is that condition 22 appears to have been complied with. Conditions 23 to 26 have not been complied with. No complaint is made about condition 27 and the Court has no evidence in that respect.

Condition 28 requires the obtaining of a licence from the Department of Water Resources for the purpose of obtaining water from the Mowamba River. There is some independent evidence to suggest that the respondent has applied for a licence under the Water Act but his own evidence in that respect is vague and inconclusive and could not lead the Court to find that such a licence has been obtained. The only evidence is that an advertisement appeared in a local newspaper during 2000. It indicated that the Department of Land and Water Conservation had received an application for a licence. It does not appear to go beyond that.

Conditions 29 to 43 have not been complied with.

In so far as conditions 37 to 42 require a contribution for various community facilities the respondent asserts that following a costs hearing in this Court after the conclusion of the proceedings before Lloyd J his understanding was that an agreement had been reached with the council that the contributions would not be required.

Furthermore, I note that Lloyd J was informed by the respondent that he at some stage had had a conversation with the Shire president to the effect that he was relieved of his obligations to make these contributions. His Honour nevertheless found that the condition had not been complied with in the context that his Honour said he was satisfied that the respondent had not complied with any of the conditions of consent.

The order made by Lloyd J requires the respondent to abstain from using more than 50 sites for the purposes of movable dwellings on the subject land until he has complied with all the conditions attached to the consent to development application No 77/87.

I appreciate that the order does not specifically relate the 50 sites to any particular site on the subject land and that his Honour did not say in terms that the use should be confined to the 50 sites approved in 1978 and 1980 but rather that the totality of the sites used for the purpose of movable dwellings be restricted to 50 in number without specification.

In his evidence Mr O'Neill appeared to take the view that the number of sites that he could use is 120 in total. Furthermore, that as a number of movable dwellings on the site are not occupied he is nevertheless complying with the numbers specified in the consents.

That might be so but the Court is not here dealing with the authority granted by the respective consents and whether or not the current use of the caravan park is in compliance therewith. The subject of these proceedings is an order made by Lloyd J. As I said at the outset, it is a relatively simple exercise to contemplate whether or not the order has been complied with. Either Mr O'Neill has complied with all of the conditions of consent attached to the consent to development application 77/87 in which case the order has no further effect, or if he has not complied with all the conditions of consent, then the use of the site is restricted to 50 sites for the purpose of movable dwellings.

The evidence clearly shows that the conditions of consent have not been complied with. Although Lloyd J postponed the operation of the order for a period of two years, that time has expired. The failure to comply with the conditions of consent has the result that the respondent, Mr O'Neill, cannot use more than 50 sites while ever the conditions of consent have not been satisfied.

Mr O'Neill gave evidence that in his opinion in almost every case the condition of consent was unnecessary. He says commonsense should be applied as opposed to complying with the condition and that in applying commonsense there was no need for the action required by the conditions to be taken. It might be so. Mr O'Neill may well believe that, but it does not alter the fact that the law requires Mr O'Neill to comply with the conditions of consent.

That requirement arises in two contexts. Firstly, the Environmental Planning and Assessment Act 1979 ("the EP&A Act") requires that the use of the land for the purposes of the 50 sites, the subject of development consent 77/87, can only be carried out while the conditions of consent are complied with. Secondly, and quite apart from the EP&A Act the order of Lloyd J has its own and separate effect.

The opinion and views or reasoning of Mr O'Neill in relation to the practicalities of complying with the conditions or whether they are necessary in any event is at this point irrelevant. The Court recognises that there are ways and means for Mr O'Neill to have the conditions of consent reviewed. Whether that be by way of a fresh development application for the whole site or by way of a s 96 application to have one or more of the original consents modified, is not a matter about which the Court is called upon to comment at this point, and specifically I do not. I mention that prospect nevertheless to make it clear to Mr O'Neill that the next step may be in his own hands.

At the conclusion of the evidence yesterday I asked the parties whether there was a prospect of reaching a consensus in regard to the future conduct of a caravan park on this site. If such a consensus can be achieved then this Court may be able to facilitate the enforcement of any agreement between the parties. Notwithstanding the opportunity to discuss such a prospect overnight a result did not materialise and accordingly I am required to deal with the matter in the absence of any material understanding of how matters might be dealt with in the future.

Mr O'Neill has told the Court that he believes conditions requiring re-vegetation of the site have been satisfied. This morning he indicated to the Court that he was prepared to take some steps to negotiate for relevant licences regarding sewerage reticulation, pump out systems, garbage removals and the like, and that consideration would be given to providing further fire taps in additional locations. Mr O'Neill appears to recognise the fact that there is now a necessity to meet with the Shire Council officers in an attempt to resolve the difficulties and indicated that he will request a meeting in that respect. Furthermore, he indicated to the Court that he is prepared to consider constructing a two way entrance to the site as required by the conditions. Notwithstanding his opinion that dirt roads are preferred, having regard to the climatic conditions in the regions he will nevertheless proceed to have road surfaces tarred throughout the park.

If nothing else, his statement to the Court this morning at least shows that he is beginning to grasp the fact that something has to be done. The consequences of leaving matters the way they are can only be described from Mr O'Neill's point of view as very serious.

I am in no doubt that the council has proved that the orders made by Lloyd J on 29 April 1998 have not been complied with. Accordingly, the respondent is to be found in contempt of the Court's orders. That is serious enough in itself. The council does not seek the imposition of a penalty beyond a monetary penalty. Mr Bradbury has suggested that after an appropriate period of time a daily penalty should be incurred. The solution to the past offence lies only in the Court finding the contempt proved. In the circumstances there is no doubt that the imposition of a monetary penalty is justified in respect of the contempt which has occurred since 29 April 2000 as charged.

The problem I have with the further imposition of a monetary penalty on a daily basis after the expiration of an appropriate period of time to allow compliance is that I am not altogether satisfied that will be an adequate sanction. As I have said, Mr O'Neill this morning at last appeared to show some understanding that the time has arrived whereby this caravan park has to be placed in order. That can only be done by either reducing the number of sites used to 50 or complying with the conditions of consent.

Mr O'Neill clearly has a reluctance philosophically and for practical reasons to comply with the conditions of consent. All of the conditions of consent must be complied with. There is no selection involved, it is all or nothing so far as the orders of Lloyd J are concerned. If all of the conditions of consent are not complied with then the use must be restricted to 50 sites unless of course in the meantime an application is made to council. That is, a formal application, not some informal discussion. A formal application could be made to council in an attempt to bring about a set of regulations for the site which can be managed to the satisfaction of both parties. Until that happens the contempt of the Court's orders will continue if the use is not limited to 50 sites.

It would be a very serious situation if that did occur. The Court has the power to send Mr O'Neill to gaol while ever Lloyd J's orders are not complied with. Not just for a fixed period of time but until such time as the orders are complied with. Such is the power of the Court. Mr O'Neill needs to understand that ultimately, if something is not done about this, he runs the risk of going to gaol until such time as he complies with the letter of the orders.

I will impose a monetary penalty today for the contempt up to this date. I propose to allow Mr O'Neill time in order to seriously consider his situation, after listening to these reasons, and to take the appropriate action so that by whatever means the continuing contempt is terminated.

I am not prepared at this stage to impose a monetary penalty on a daily basis after a fixed period of time because the Court wants the opportunity to deal with Mr O'Neill's contempt if it continues in the future having regard to the circumstances as they are then found to be.

I cannot issue a warning in sterner terms, Mr O'Neill. If you are brought back before this Court for continuing to disobey the order made by Lloyd J on 29 April 1998 then I cannot say to you the Court will be inclined to treat you sympathetically. You have a choice. Either you vacate the sites over 50 if you cannot comply with the conditions of consent or alternatively, you comply with the conditions of consent as they now stand or as they might be varied in the meantime.

There is no reason given to me which persuades me that you cannot make the necessary commercial and practical decisions and take the physical action required to demonstrate your bona fides within a period of six months. Now, there is nothing magic about that six months. I am not going to make any orders in those terms. I am merely indicating that as things stand at the moment, if you have not placed this caravan park in such a state that it complies with the orders of Lloyd J within a period of six months then you can expect no further lenient consideration from this Court. If the council after that period of time elects to bring you back with a further charge of contempt and it satisfies the Court that you are still in contempt at that time it will not be a question of excuses. If you have not complied with the conditions of consent by then, then remove the dwellings that are in excess of 50. Take them off the site.

In order to make it plain that the Court considers the contempt up until now serious I propose a monetary penalty in the sum of $10,000.

I find the charge proved. I find that the respondent is guilty of contempt of the Court's orders by failing to comply with orders made by Lloyd J on 29 April 1998.

32. The respondent is ordered to pay the costs of the council in respect of the notice of motion.

33. How long do you want to pay $10,000 Mr O'Neill?

35. HIS HONOUR: Yes. I allow three months to pay. Exhibits may be returned.

36. BRADBURY: Your Honour, could I just clarify with the costs, there were costs reserved on the last occasion yet your Honour's order …

37. HIS HONOUR: Well all costs. The costs order I make now covers the whole of the proceedings for contempt.

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