Randwick City Council v Arxidia Pty Ltd [2021] NSWLEC 105

Land and Environment Court New South Wales

Medium Neutral Citation: Randwick City Council v Arxidia Pty Ltd [2021] NSWLEC 105 Hearing dates: 18 August 2021 Date of orders: 30 September 2021 Decision date: 30 September 2021 Jurisdiction: Class 4 Before: Duggan J Decision: See paragraphs 95 to 97 Catchwords: CONTEMPT – sentencing for contempt – breach of court orders – appropriate penalty – guilty plea – seriousness of contempt – wilful conduct – fine imposed Legislation Cited: Fines Act 1996 (NSW) Corporations Act 2001 (Cth) Cases Cited: Burwood Council v Ruan [2008] NSWLEC 167 Environment Protection Authority v Pannowitz (No 2) (2006) 153 LGERA 126 Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 Witham v Holloway (1995) 183 CLR 525 Wood v Staunton (No 5) (1996) 86 A Crim R 183 Category: Principal judgment Parties: Randwick City Council (Applicant on the Notice of Motion) Arxidia Pty Ltd (Respondent on the Notice of Motion) Representation: Counsel: Ms J Reid (Applicant) Mr J Doyle (Respondent)

Solicitors: Wilshire Webb Staunton Beattie Lawyers (Applicant on the Notice of Motion) Connor & Co Lawyers (Respondent on the Notice of Motion) File Number(s): 2016/314834 Publication restriction: No

Judgment

Nature of proceedings 1. By Notice of Motion filed 21 August 2020 the Applicant (the Council) seeks orders that the First Respondent, Arxidia Pty Ltd (Arxidia), be found guilty of contempt by its failure to comply with Order 4 made by this Court in proceedings 2016/00314834 made and entered by the Court on 8 July 2017 (the Court Order) and be punished for that contempt. The nature of the asserted conduct was particularised in Charge 1 of the Statement of Charge (Charge 1) which provides: Charge 1 In breach of order 4 of the orders made by the Land and Environment Court in the proceedings No 2016/00314834 on 8 June 2017 (and entered on 8 June 2017 – "the Orders") the First Respondent Arxidia Pty Ltd did, on 20 June 2020, cause, permit and allow the land in lot 2 DP 939299 known as 23 Harbourne Street Kingsford ("the Land") to be used for a purpose for which development consent was required ("the Uses") when: a. no development consent had been obtained for the Uses on the Land (including any structures on the Land), and b. no occupation certificate had been issued for the occupation of all buildings and structures on the Land in association with the Uses. Particulars (a) Order 4 of the Orders is in the following terms: The respondents (and their servants, agents and contractors) be restrained from using, or causing, permitting or allowing the use of, the Land for any purpose for which development consent is required unless and until: a) that development consent (including a complying development certificate) has been obtained for the Land (including any structures to be erected on the Land), b) all the approved building works have been carried out in accordance with that development consent and in accordance with all necessary construction certificates, and c) all final occupation certificates have been issued for the occupation of all of the buildings and structures on the Land. (b) Complying Development Certificate No. MSA0362AC-CDC1 dated 22 February 2013 was issued by Matt Shuter and Complying Development Certificate No. MSA0362AC-CDC2 dated 22 March 2013 issued by Matt Shuter (collectively referred to as 'the Shuter CDCs'). (c) Final Occupation Certificate No. MSA 0362AC-OC1a dated 26 July 2013 was issued by Matt Shuter for the Shuter CDCs ('the Shuter OC'). (d) On 6 August 2017 Jon Hall certifier issued complying development certificate No CDC 23/2017 for "Internal works and alterations Existing dwellings" for the Land ('the Hall CDC'). (e) On 9 August 2017 Jon Hall certifier issued a final occupation certificate No 23/2017 for the Hall CDC ('the Hall OC'). (f) The Shuter CDCs and the Hall CDC were together a development consent for the purposes of Order 4(a) of the Orders which approved the use of the Land for the purposes of a single dwelling house ('the Approved Single Dwelling House'). (g) The Shuter OC and the Hall OC were together final occupation certificates for the Approved Single Dwelling House for the purposes of Order 4(c) of the orders. (h) The Approved Single Dwelling House was a different dwelling house to the dwelling house approved by the Shuter CDC as referred to in order 3(a) of the Orders. (i) On 20 June 2020 the ground floor of the front main building on the land contained two separate dwelling areas ('D1' and 'D2') and the rear smaller building contained one dwelling area ('D3'). (j) On 20 June 202 [sic] each of the dwelling areas D1, D2, and D3 contained their own separate ground floor entry/exit, kitchen, bathroom, living, bedrooms. The occupants of the dwellings shared the laundry area and facilities between the main building and the rear building. (k) Each of the dwelling areas D1, D2, and D3 were set up as separate and distinct dwellings. (l) On 20 June 2020 thirteen (13) persons were occupying, living in and residing in the buildings on the Land. (m) On 20 June 2020 three (3) persons were occupying, living in and residing in D1. (n) On 20 June 2020 three (3) persons were occupying, living in and residing in D2. (o) On 20 June 2020 seven (7) persons were occupying, living in and residing in D3. (p) The occupation and use of the Land identified in paragraphs (k)-(o) above was not for the purpose of the Approved Single Dwelling House or for the purpose of Shuter CDCs. (q) The occupation and use of the land identified in paragraphs (k)-(o) above was for the purposes of a boarding house, or multi dwelling housing as defined in Randwick Local Environment Plan ("RLEP"). (r) Since 8 June 2017 the Land has been and continues to be zoned R3 Medium Density under RLEP. (s) The Uses are permissible on the Land with development consent under the Environmental Planning and Assessment Act 1979 and RLEP. (t) No development consent has been obtained or granted for the Uses. (u) No final occupation certificate had or has been issued for the occupation of the buildings on the land in association with the Uses. (v) Other than the Shuter CDC's and the Hall CDC, there are no development consents or complying development certificates for the Land. 1. Arxidia has pleaded guilty to Charge 1 and that plea has been accepted.