Liverpool City Council v Tirnova [2020] NSWLEC 110

Land and Environment Court New South Wales

Medium Neutral Citation: Liverpool City Council v Tirnova [2020] NSWLEC 110 Hearing dates: 29 June 2020 Date of orders: 11 August 2020 Decision date: 11 August 2020 Jurisdiction: Class 4 Before: Moore J Decision: See orders at [194] Catchwords: CONTEMPT - orders made in Class 4 proceedings requiring removal of unauthorised development on flood-prone land - orders required removal of masonry front fence (Order (3)) and removal of substantial additions to dwelling house (Order (5)) - three months allowed for compliance with Order (3) and 12 months for compliance with Order (5) - single rolled-up charge laid by Council for non-compliance with Orders (3) and (5) - failure to achieve full compliance with Order (3) within the time allowed by the order but significant compliance achieved - complete compliance with Order (3) achieved by commencement of contempt proceedings - limited compliance with Order (5) by the commencement of these contempt proceedings - consideration of circumstances of Respondent in assessment of appropriate starting penalty - discount for earliest reasonable acknowledgment of guilt - appropriate penalty before consideration of s 6 of the Fines Act 1996 matters found to be $12,000 - consideration of capacity to pay (s 6(a)) and other relevant personal circumstance (s 6(b)) mandates significant moderation of penalty to be imposed - respondent convicted of contempt and fined $3,000 COSTS - Council seeks its costs on the ordinary basis - part of time of hearing wasted as a consequence of Council having failed to provide proof that the orders had been brought to the Respondent's attention - part of proceedings concerning Order (3) lacking in proper evidentiary foundation - excessive photocopying - provision of material to the Court but not to the Respondent - provision of unnecessary material to the Court - Council's costs to be discounted to reflect inappropriate matters Legislation Cited: Crimes (Sentencing Procedure) Act 1999, s 22A Environmental Planning and Assessment Act 1979, ss 6.25 and 8.25 Fines Act 1996, ss 6 and 100 Liverpool Local Environmental Plan 2008, cll 7.8 and 7.8A, Flood Planning Area Map sheet FLD-014 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Uniform Civil Procedure Rules 2005, r 40.7 Cases Cited: AGL Energy Ltd v Hardy (No 3) [2017] FCA 952 Dowling v Prothonotary of the Supreme Court of New South Wales [2018] NSWCA 340 Blacktown City Council v Everson [2019] NSWLEC 4 Canterbury City Council v Ali Ahmed [2016] NSWLEC 160 Liverpool City Council v Tirnova [2017] NSWLEC 138 Markarian v The Queen (2005) 228 CLR 357 Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92 Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 R v Thompson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 Shoalhaven City Council v Knight [2019] NSWLEC 138 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Witham v Holloway (1995) 183 CLR 525 at 534 Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 89 ALJR 622 Wollongong City Council v Eldridge [2017] NSWLEC 3 Wood v Staunton (No 5) (1996) 86 A Crim R 183 Texts Cited: Liverpool Development Control Plan 2008 Category: Principal judgment Parties: Liverpool City Council (Applicant) Eyup Tirnova (Respondent) Representation: Counsel: Ms N Hammond, barrister (Applicant) Mr E Tirnova, self-represented (Respondent) (assisted, by leave, by Ms R Tirnova and Ms G Tirnova)