Land and Environment Court of New South Wales CITATION : Manly Council v Arslan, M [2005] NSWLEC 646 APPLICANT Manly Council PARTIES : RESPONDENT Memet Arslan FILE NUMBER(S) : 40429 of 2004 CORAM: Talbot J KEY ISSUES: Contempt :- consideration of mitigating factors LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s96 CASES CITED: Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 DATES OF HEARING: 14/11/05 EX TEMPORE JUDGMENT DATE : 11/14/2005 APPLICANT Mr T G Howard (Barrister) SOLICITORS Abbott Tout LEGAL REPRESENTATIVES: RESPONDENT Mr M Seymour (Barrister) SOLICITORS White Barnes JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Talbot J 14 November 2005 40429 of 2004 Manly Council v Arslan, M and Anor EX TEMPORE JUDGMENT 1 Talbot J: On 11 May 1993, Manly Council granted development consent for a proposed take-away food shop and refreshment room at 102 The Corso, Manly, including a condition that the hours of operation should not exceed Monday to Sunday, 8am to midnight. At the relevant times for the purpose of these proceedings, the First Respondent was the person who carried out the business with the benefit of that development consent. 2 These proceedings originated in 2004 when the council made an application in the Class 4 jurisdiction of the Court, and sought orders, generally, in relation to alleged breaches of conditions of the consent. The Class 4 proceedings never went to a substantive hearing and were stood over from time to time while the First Respondent was given opportunities to obtain consent in a form that enabled him to trade beyond the hours of operation specified in the 1993 instrument. 3 In the first instance, a development application seeking consent to extended hours of trading was determined by a grant of consent to allow trading to 2am for a trial period of six months. The trial period expired on 12 February 2004. Subsequently, after the commencement of the Class 4 proceedings following the expiration of the trial period, a s 96 application was made to modify the terms of the consent. An appeal was lodged in respect of that s 96 application. 4 By the s 96 application the Respondent was seeking an extension of hours to 2am on a permanent basis. The appeal proceedings were discontinued when a further development application was lodged seeking extended trading hours beyond 2am. Ultimately the new development application was the subject of a further appeal to the Court. That had the result of a consent from the Court whereby opening was permitted to 1.30am for a trial period to March 2006. 5 Pending the outcome of the Class One appeal, in order to meet the concerns of the council in respect of trading in the meantime, the First Respondent gave an undertaking to the Court on 2 August 2005. That undertaking, although to a large extent in general terms, did contain a degree of specificity to the effect that the Respondent undertook to use the premises for the purposes of the business on the basis that the hours of operation would not exceed the hours of operation specified in condition 3, namely being Monday to Sunday, 8am to midnight, pending determination of "The current application (Class 1) filed on my behalf". 6 So that, in effect, the undertaking was given to operate for the period between the date of the undertaking on 2 August and the date of the determination of the Class 1 appeal then pending. 7 The Class 1 appeal was, I am told, determined in the manner that I just described, in October this year. However, the evidence shows that on 6 August 2005 the business was open until at least 3am; on 14 August the business was open until at least 3.15am and that, on 20 August this year, the business was open until at least 2.15pm, notwithstanding that the undertaking to the contrary had been given only a few days before. 8 Mr Seymour appears for the Defendant and makes a number of submissions that need to be dealt with. He brings to the Court's attention a number of matters which, he believes, set a context for the seriousness of the contempt. 9 Firstly, that the Court has since decided that the business may trade to 1.30am for a trial period. 10 Secondly, that the level of concern about the continuing to trade outside the specific hours of operation by the council is reflected in the way in which the Class 4 proceedings have been conducted, in particular that they have been continuously deferred. 11 Thirdly, there is evidence before me that at least by 7 November 2005 the council appears to have resolved to instruct its officers not to pursue late night food outlets in relation to the times of trading while the Courts decide the future of hotel closing times. That may not be an entirely accurate description of what the council resolved. Although I have the resolution before me, it is not so strongly worded that the Court could reach a clear concluded view about what the intention was. The part of the resolution relied upon, I quote, as follows: "That council officers use their discretion regarding late night food outlets while the Courts decide the future of hotel closing times". There are other indications in the same resolution that indicate, although not concisely, that the council is having some re-think about the policy that should be applied in relation to late night food retailing and that some changes may be imminent. 12 Although the latter matters may be an indication that council could in the future come to a conclusion that a food outlet, such as that operated by the First Respondent, be treated more leniently in terms of hours of operation as Mr Howard, for the council, points out that is hardly to the point. It is one thing to be in breach of a development consent and its conditions and thereby exposing the offender to civil proceedings in Class 4 or criminal proceedings in Class 5 - the latter attracting a penalty of over one million dollars - but it is another thing to breach a Court Order. 13 The sanctity of the Court's order is idiosyncratic to the Court system of enforcing the law. It is a fundamental concept of the administration of justice that Court Orders are made with the intention and policy that they be obeyed. It is a separate and distinct regime from the control of matters that are within the ambit of a statute relating to some particular aspect of the law. 14 Nevertheless, I accept that the Respondent may have been aware that things were changing and that he might have in his own mind had an expectation that the trading problems - if that's what they were - that he was experiencing may be resolved in another way, either on appeal or by further resolution of council. Even if I do accept that it nevertheless has not been explained in the context of a formally signed undertaking given in writing to the Court not four days before the contemptuous behaviour was first detected. The undertaking has the effect of a Court Order. 15 There is no evidence that the Respondent had a specific intent to defy authority to the extent that the contempt falls into the most serious category of contempt of the three identified by Kirby J in Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 and in particular 484-5. There is no dispute that what was done is wilful. As I have said, the Court must treat compliance with its own orders as a serious matter. 16 Mr Seymour has put a number of matters that he submits should be taken into account by way of mitigation in determining a penalty. Firstly, that the Respondent has accepted responsibility for costs, not only in relation to the Notice of Motion for contempt but also in relation to the conduct of the Class 4 proceedings generally. Secondly he effectively entered a plea of guilty at the first opportunity following the filing of the Notice of Motion. That, in itself, has a utilitarian value to the parties and to the Court in ensuring that no more expense than is necessary is incurred in relation to pursuit of Respondent. The plea, admission of guilt, is also, I accept, a show of remorse. 17 There is nothing been put from the council that would cause me to regard the Respondent as a person who has consistently found himself in this position. Obviously there is some history over the last few years in relation to trading outside the terms of the original conditions of consent. There is some evidence that the Respondent has a health problem and Mr Seymour puts the submission to me that matters of health should be taken into account when sentencing, even in terms of a fine. As I understand the submission that state of health ultimately goes to the means of a respondent. I have some evidence about the health problem. Mr Seymour seeks to take it further from the Bar table. However there is no evidence of the extent to which he is entitled to do that, either on the basis that the Respondent considers himself to be in a worse state of health than his doctor regards it or secondly the effect on his means. 18 Some further submissions were put, again only from the Bar table, regarding the limited prospect of re-offending on the basis there is an opportunity to transfer the business to the Respondent's wife. There is a further submission, which I do not fully understand, that there was no profit from the trading on the particular days in question as the return, such as it was, was used to pay the rent. I think the last submission is a self-evidently futile proposition to be putting. 19 Notwithstanding that it has been shown that the hours of operation were shown to be exceeded on three different days, it is obviously a pattern of behaviour over that period of time and constitutes, at least for present purposes, the one out of contempt consisting of a course of trading over that period. 20 There was some attempt by the council to demonstrate that the environmental consequences of trading outside the hours of operation were associated with social disorder within the vicinity. Following argument, that evidence was rejected on the basis that the relevant connection, so far as the social disorder was concerned on those particular instances, could not be connected directly to the operation of the business. Nevertheless, there is a wider consequence that the Court can take its own notice of, and that is that hours of operation are imposed as conditions of consent generally in order to limit activities to particular hours and that is so that the consequences of those activities, whatever they are, are minimised so far as practicable in the interests of the total community. 21 Looking at the matters overall, and having regard to the fact that the actual breaches of the development consent conditions themselves, are not what anybody could regard as being at any level of major seriousness and notwithstanding what I said earlier that the real test of seriousness is against the breach of a Court Order, and doing the best I can from the evidence that is available to me in terms of mitigation, I am satisfied that a monetary penalty should be imposed over and above the costs that have been incurred. I have not been assisted by the parties to ascertain what the range of the costs might be. Nevertheless, it is my view that the penalty in normal circumstances without any mitigating factors could be as high as twenty thousand dollars ($20,000). 22 I propose to impose a penalty, having regard to the whole circumstances, in the sum of ten thousand dollars ($10,000). I order that the Respondent pay the council's costs. 23 I am now informed that I am invited to discharge the Respondent from any further call in relation to the Class 4 application as the undertaking given has been satisfied by the determination of the Class 1 proceedings and, accordingly, does not need to be dismissed or dealt with in any other formal way. It has been exhausted. 24 Having regard to the conclusion in the Class 1 proceedings the Council does not now seek the continuation of those Class 1 proceedings on the basis that the Respondent pay its costs. There is no opposition from the Respondent in relation to the payment of those costs. 25 Accordingly, the application Class 4 is dismissed. The Respondent is ordered to pay the Council's costs in relation to the Class 4. 26 The exhibits may be returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.