Wollongong City Council v Hollis

Wollongong City Council v Hollis - [2017] NSWLEC 123 - NSWLEC 2016 case summary — Zoe

[5]

The 2015 Court proceedings

The site is zoned E2 - Environmental Conservation and E3 ‑ Environmental Management under the Wollongong Local Environmental Plan 2009 (the WLEP). "Waste or resource management facility" is a defined term in the WLEP. The Land Use Table in the WLEP makes it clear that use for this defined purpose is prohibited in both the E2 and E3 zones and thus on the site.
On 19 June 2015, the Council commenced Class 4 proceedings seeking orders restraining Mr Hollis from using the site as a waste or resource management facility (this complaint arising from Mr Hollis' transportation to and storing of building materials at the site).
The Council sought orders requiring the removal of the building materials Mr Hollis was storing at various locations on the site.
The Council also sought orders requiring the removal of a number of the elements of the internal fitout of Mr Hollis' shed, with this removal seeking to render it unable to be used as a separate dwelling.
The Council's Class 4 application did not proceed to a contested hearing. On 2 October 2015, I made orders, by consent, intended to resolve the Council's concerns about Mr Hollis' activities on the site.
For the purposes of that with which I am now dealing, it is unnecessary to set out the entirety of those orders. It is, however, appropriate to set out the terms of orders (2) and (4). Those orders were in the following terms: 2. The Respondent remove, or cause to be removed, all Material from the Subject Property within 50 days from the date of these orders. 3. … 4. Within 120 days from the date of these orders the Respondent is to demolish and remove, or cause to be demolished and removed, from the Subject Property the Works from the Shed and, if disposed of, lawfully dispose of them.
Mr Hollis was in Court when those orders were made and, self-evidently, was aware of their terms.
"Material" and "Works" were defined in the orders in the following terms: "Material" means the material located on the Subject Property in the areas marked "Area No. 4", "Area No. 6" and "Area No. 7" on the aerial photograph annexed to these orders. and "Works" mean the timber mezzanine level, the staircase, internal walls and doors, benches, toilet, sinks, bathroom, including bath and shower, external windows and doors, all kitchen and cooking facilities, built-in wardrobes, lighting fixtures and fittings, and the rear timber landing and stairs.

[12]

Mr Hollis' evidence

Before Mr Hollis went into the witness box, I explained to him that I proposed to permit him to give his evidence on a narrative basis, without needing to draw the distinction between what he said which would be evidence and what he said which should be taken as submissions.
I indicated to him that, by permitting him to speak on that basis, I (and Mr O'Gorman-Hughes) would take what he said, which was properly to be regarded as evidence, as being evidence, whilst that which he said, which should properly be regarded as submissions, would be taken as such.
Mr Hollis then gave evidence in that narrative fashion.
Mr Hollis had provided to the Court, on an earlier occasion, a bundle of documents upon which he proposed to rely. Those documents had been filed on 23 August 2017 and were tendered as Exhibit 1 in these contempt proceedings. It is unnecessary, at this stage, to refer to any of the documents contained in them in any detail.
During the course of his evidence, Mr Hollis referred to a number of coloured photographs. As he was self-represented, I invited Mr Hollis (without objection from Mr O'Gorman-Hughes) to:

write an identifying letter on the back of each of the photographs;
describe to me that which was depicted in each of the photographs; and
tender the photographs.

Mr Hollis did so and the Council arranged for additional copies to be made. The photographs were then tendered by Mr Hollis as Exhibit 2.
Mr Hollis' oral evidence dealt with: 1. the nature of the activities that he had undertaken, since the Court's consent orders on 2 October 2015 were made, in removing material from the site that he accepted was waste (and lawfully disposing of it); 2. his tidying up the material that had remained on the site (including moving and stacking materials such as pallets of bricks and Besser blocks); 3. the fact that he had moved some of the material that had been stored in Areas 4, 6 and 7 into space within the shed; 4. the uses to which he had placed some of the material, such as the construction of retaining walls; and 5. his understanding that he believed he was entitled to retain material on the site, provided it was kept located within the building envelope (correctly to be described as a building footprint) identified on his development consent plans.
It is unnecessary, at this point, to reproduce that building envelope diagram but it will be a matter necessary to which further attention is given at the next phase of these proceedings.
Mr O'Gorman-Hughes cross-examined Mr Hollis, concisely, about matters to which it will be necessary to return at the next phase of these proceedings.

[15]

Conclusion on Charge 2

I have earlier explained that Mr Hollis' development consent has been modified so that all of the internal fitout of his shed that was defined as "works" within the meaning of the 2 October 2015 orders has resulted in a number of the elements no longer being required to be removed. The relevant order (order (4)), as earlier set out, required those works to be demolished and removed from the site within 120 days of 2 October 2015.
The "works" as defined in the order were: "Works" mean the timber mezzanine level, the staircase, internal walls and doors, benches, toilet, sinks, bathroom, including bath and shower, external windows and doors, all kitchen and cooking facilities, built-in wardrobes, lighting fixtures and fittings, and the rear timber landing and stairs.
As the Council no longer suggests that all of the items, which were set out in the above definition, now require to be removed as a consequence of Mr Hollis' successful modification application, I will not be in a position to formalise any finding of guilt with respect to Mr Hollis for his failure to comply with order (4) until after the Council provides, and I deal with, the proposed permanent stay of those elements within the works that have now been approved as a result of Mr Hollis' amendment application.
It is therefore not yet appropriate that I make a formal finding of guilt with respect to Charge 2. Although I am unable to make such a formal finding at this time, it is clear that a finding of guilty on the failure to remove those elements of the works (which remain unapproved and have not yet been removed) within the 120-day permitted time for their removal must be made.
However, when the necessary formal process has been completed to effect a permanent stay of those now approved elements, it will then (and only then) be appropriate for me to make a formal finding of guilt on Charge 2, but to do so in the more circumscribed form that will then be appropriate.
Although, technically, Mr Hollis is also guilty of failure to remove those works which have now been approved, it has been my understanding throughout much of the process on the hearing of these charges that either a development application or (as subsequently became the case) a modification application would be pursued and, if approved, that which was no longer objected to by the Council would be outside the scope of any finding which I might make and subsequent penalty which might be imposed.
As a consequence, the formal finding of guilty on Charge 2 is deferred and will be dealt with at the commencement of the necessary sentencing hearing to follow. Mr Hollis' understanding should be that, at the commencement of that sentencing hearing, an appropriate finding of guilty on Charge 2, in the more confined terms, will be made.

At a glance

Court

Decision date

Before

Source

Judgment (17 paragraphs)

Parties

Cited By (1)