Blacktown City Council v Derek Hambly [2023] NSWLEC 75

Land and Environment Court New South Wales

Medium Neutral Citation: Blacktown City Council v Derek Hambly [2023] NSWLEC 75 Hearing dates: 5 and 10 July 2023 Date of orders: 13 July 2023 Decision date: 13 July 2023 Jurisdiction: Class 4 Before: Pepper J Decision: See orders at [53]. Catchwords: CONTEMPT: contempt for non-compliance with orders to remove unauthorised structures from land and to pay costs – proceedings heard ex parte – contempt proven – costs reserved. Legislation Cited: Environmental Planning and Assessment Act 1979, Div 9.3, s 9.45 Land and Environment Court Rules 2007, r 6.3 Supreme Court Rules 1970, Pt 55 Cases Cited: Blacktown City Council v Hambly [2020] NSWLEC 132 Georges River Council v Hamade [2023] NSWLEC 71 Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 Category: Principal judgment Parties: Blacktown City Council (Applicant) Derek Hambly (Respondent) Representation: Counsel: R Coffey (Counsel) (Applicant) No appearance (Respondent)

Solicitors: Bartier Perry (Applicant) No appearance (Respondent) File Number(s): 2019/323765 Publication restriction: Nil

Judgment

Derek Hambly Fails to Comply with Court Orders 1. The respondent, Derek Hambly, is charged with contempt for failing to comply with the following orders made by the Court on 26 August 2020 (Blacktown City Council v Hambly [2020] NSWLEC 132) ("the orders"), in respect of Class 4 civil enforcement proceedings commenced by the applicant, Blacktown City Council ("the Council"): The Court: (1) Declares that, in breach of s 4.3 of the Environmental Planning and Assessment Act 1979 (EPA Act), Mr Derek Hambly has carried out development that is prohibited by erecting or authorising other persons to erect on the following land, being: Lots 1 and 2, Sec. O, DP 1653 Milton Street, Riverstone; Lots 19 and 20, Sec. O, DP 1653, Trafalgar Street, Riverstone; the adjacent unsealed road areas known as Argyle Lane, Milton Street and Trafalgar Street; and neighbouring land including: Lots 3 and 4, Sec. O, DP 1653 Milton Street, Riverstone and Lots 17 and 18, Sec. O, DP 1653, Trafalgar Street, Riverstone, the following unauthorised structures: (a) Three (3) caravans/camp trailers; (b) Three (3) canvas tents; (c) Two (2) camping cubicles; (d) A large structure comprised of multiple temporary shade structures with a tarpaulin roof, located on the southern side of the land; and (e) Other standalone temporary shade structures and various structures made from tarpaulin, poles and rope (the unauthorised structures). (2) Declares that, in breach of s 4.3 of the Environmental Planning and Assessment Act 1979, Mr Derek Hambly has carried out development that is prohibited by occupying and using or authorising other persons to occupy and use the unauthorised structures on the land described in Order 1 for human habitation. (3) Declares that, in breach of s 9.37 of the Environmental Planning and Assessment Act 1979, Mr Derek Hambly has failed to comply with the terms of a development control order dated 10 August 2018 given to him by Blacktown City Council pursuant to Division 9.3 of the Environmental Planning and Assessment Act 1979. (4) Orders Mr Derek Hambly, within 3 months of the date of the Court's orders, to: (a) cease using the unauthorised structures on the land described in Order 1 for the purpose of human habitation; (b) remove all the unauthorised structures from the land described in Order 1; and (c) reinstate the land described in Order 1 to the condition or state it was in immediately before the unauthorised structures were erected on the land described in Order 1. (5) Orders Mr Derek Hambly to pay the Council's costs of the proceedings 1. The statement of charge pleads the following two counts of contempt: Derek Hambly is guilty of contempt of this Court for disobeying or otherwise failing to comply with orders 4 and 5 of the Court's orders made in Land and Environment Court Proceedings 323765 of 2019 on 26 August 2020. 1. Based on the evidence before the Court, the Council has proved beyond reasonable doubt that Hambly is in contempt of order 4, but only with respect to the unauthorised structures remaining on the land referred to in orders 1(d) and (e), and in relation to the non-payment of costs in order 5.