Land and Environment Court of New South Wales CITATION : Campbelltown City Council v Toth [2005] NSWLEC 186 Campbelltown City Council PARTIES : Tim Toth FILE NUMBER(S) : 41179 of 2004 CORAM: Cowdroy J KEY ISSUES: Contempt :- Penalty - Use of premises contrary to Court Order Land and Environment Court Act 1979 s 67 Local Government Act 1993 s 694 Local Government Amendment (Miscellaneous) Act 2002 LEGISLATION CITED: Land and Environment Court Rules 1996 Pt 6 r 1, Pt 17 r 2 Supreme Court Rules 1970 Pt 55 r 13 Campbelltown (Urban Area) Local Environmental Plan 2002 Australasian Meat Industry Employees' Union and Ors v Mudginberri Station Proprietary Limited (1986) 161 CLR 98; Australian Competition and Consumer Commission v Hughes [2001] FCA 38; Campbelltown City Council v Toth [2005] NSWLEC 89; CASES CITED: Hawkesbury City Council v Foster and Mushroom Composters Pty Ltd (1997) 97 LGERA 12; Hawkesbury City Council v Mushroom Composters Pty Limited [1995] NSWLEC 124; Tzavellas v Canterbury City Council (1999) 105 LGERA 262 DATES OF HEARING: 09/03/2005 EX TEMPORE JUDGMENT DATE : 03/09/2005 APPLICANT A M Pickles SOLICITORS Abbott Tout LEGAL REPRESENTATIVES: RESPONDENT J Soothill (solicitor) SOLICITORS Hancocks Solicitors JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Cowdroy J 9 March 2005 41179 of 2004 CAMPBELLTOWN CITY COUNCIL Applicant TIM TOTH Respondent JUDGMENT 1 Cowdroy J: The Court delivered judgment on 14 February 2005 in Campbelltown City Council v Toth [2005] NSWLEC 89. The Court found the respondent guilty of contempt of the Court's Orders of 14 October 2004 ("the Orders") by using premises at Unit 1, 55 Blaxland Road Campbelltown ("the premises") as "restricted premises" as defined under the Campbelltown (Urban Area) Local Environmental Plan 2002 ("the LEP"). The Court is now required to determine the appropriate penalty. Facts 2 Originally the respondent conducted "restricted premises" at Queen Street, Campbelltown. On 22 June 2004 in proceedings 40476 of 2003 Lloyd J ordered that the respondent's use of those premises as "restricted premises" cease. Such restraint was postponed for a period of three months. 3 On 21 June 2004 the respondent made a development application (D/A E41/2004) to Campbelltown City Council ("the Council") to use the premises as "restricted premises". The LEP prohibited such use at that time. In September 2004, the respondent commenced to use the premises as "restricted premises" without development consent. 4 Amendment No 5 to the LEP was gazetted on 15 December 2004. The effect of the amendment was to render the use of the premises as "restricted premises" lawful with Council consent. On 20 January 2005 the Council granted approval to D/A E41/2004. As a consequence such use became lawful on that date. It follows that the maximum period of unlawful use of the premises by the respondent was between 14 October 2004 and 20 January 2005. 5 The respondent submits that the Council could have approved the application at an earlier date which would have reduced the period during which he traded contrary to the Order. The respondent said that he was aware of the proposed introduction of Amendment No 5 to the LEP and knew that when gazetted, the use of the premises as "restricted premises" would be permissible with consent. The respondent submits that the maximum period for which he should be liable is the period between the date of the Order and the date of the gazettal of Amendment No 5, namely 15 December 2004. The respondent said that he was anxious not to breach the Orders. Findings 6 Section 67 of the Land and Environment Court Act 1979 provides as follows: The Court shall have and may exercise the functions vested in the Supreme Court in respect to the following matters: … (d) the apprehension, detention and punishment of persons guilty of contempt or of disobedience to any order made by the Court or of any process issuing out of the Court. Part 55 r 13 of the Supreme Court Rules 1970 which applies in this Court by virtue of Pt 6 r 1 of the Land and Environment Court Rules 1996 provides that the punishment may be, amongst other things, by way of fine. In this case the prosecution seeks the imposition of a fine and does not seek imprisonment. 7 The Court is satisfied that the circumstances of the breach do not justify a custodial sentence. However, a penalty is to be imposed to reflect the seriousness of the breach of the Order. The penalty must be adequate to deter others who may be tempted to breach the planning law: see Hawkesbury City Council v Mushroom Composters Pty Limited [1995] NSWLEC 124; see also Australasian Meat Industry Employees' Union and Ors v Mudginberri Station Proprietary Limited (1986) 161 CLR 98 at 114. 8 The Court finds that the offence was committed by the respondent, as set out in the Court's judgment delivered on 14 February 2005. The Court also finds that the respondent sought to conduct the business through the medium of an ineffectual sale. The respondent has profited by such trading and prima facie the respondent has been guilty of a wilful contempt of court. In Australian Competition and Consumer Commission v Hughes [2001] FCA 38 Tamblyn J at [17] said: The general rule is that it is the duty of those who are subject to an order of a court to strictly observe the terms of the order. See also Borrie and Lowe, The Law of Contempt , 3rd edition, 1996 at 559-560; Arlidge, Eady & Smith On Contempt , 2nd edition, 1999 at 189. 9 The Court accepts that the respondent was concerned not to breach the Orders and hoped that the purported sale to his partner would be effective to prevent such breach. The Court finds that the respondent knowingly traded at the premises contrary to the Orders. The respondent also knew that the Council had no power to grant consent until Amendment No 5 was gazetted. 10 The Court rejects the respondent's submission that the unlawful activity should be restricted to the period until 15 December 2004. The Court is not satisfied that the Council should have approved the use on the day of the gazettal as submitted by the respondent. However the additional period between 15 December 2004 and 20 January 2005 is insignificant in the Court's determination of penalty. 11 The respondent has no prior convictions for any offence other than a minor traffic matter. The Court accepts the respondent's submission that he has no risk of re-offending and that no environmental harm has resulted from the continued trading. 12 The respondent acknowledged that he will be liable to pay the costs of the proceedings which are estimated to be $17,000. There is no evidence of impecuniosity on the part of the respondent and in any event impecuniosity is no reason for the Court not to make an order for costs: see Tzavellas v Canterbury City Council (1999) 105 LGERA 262. 13 The Court takes into consideration the short period in which the breach occurred, the submissions made by the respondent and the costs. In these circumstances, the Court considers that only a moderate penalty is appropriate and imposes a fine of $7500. 14 During the hearing the Council raised the question of whether an application could be made under s 694 of the Local Government Act 1993. Part 17 r 2 of the Land and Environment Court Rules 1996 makes provision for the payment of any fine by the Registrar of the Court to a statutory body such as the Council. In Hawkesbury City Council v Foster and Mushroom Composters Pty Ltd (1997) 97 LGERA 12 the Court of Appeal decided that a fine imposed in proceedings for contempt was not a fine imposed "under" an Act for the purposes of s 694(1) of the Local Government Act 1993. Since that decision s 694 has been amended and now specifically authorises payment to a statutory body of a fine or penalty imposed by the Court for contempt: see Local Government Amendment (Miscellaneous) Act 2002. By virtue of Pt 17 of the Land and Environment Court Rules it is unnecessary for any order to be made. Orders 15 The orders of the Court are as follows: 1. The respondent is to pay a fine of $7500 in respect of the breach of the Court Order of 14 October 2004. 2. The respondent is to pay the Council's costs of the proceedings. 3. The exhibits 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.