Land and Environment Court of New South Wales CITATION : Nambucca Shire Council v Mirage Property Group Pty Ltd [2008] NSWLEC 84 APPLICANT PARTIES : Nambucca Shire Council RESPONDENT Mirage Property Group Pty Ltd FILE NUMBER(S) : 40870 of 2007 CORAM: Sheahan J KEY ISSUES: Contempt :- plea of not guilty CASES CITED: Blue Mountains City Council v Fowler [2007] NSWLEC 476 Greater Hume Shire Council v J and L Cauchi Civil Contracting Pty Ltd [2006] NSWLEC 738 DATES OF HEARING: 22 February 2008 EX TEMPORE JUDGMENT DATE : 22 February 2008 APPLICANT Mr M Wright (Barrister) SOLICITORS LEGAL REPRESENTATIVES: Deacons RESPONDENT Mr W van Ede, Solicitor of EH Tebbutt and Sons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Sheahan J 22 February 2007 40870 of 2007 Nambucca Shire Council v Mirage Property Group Pty Ltd EXTEMPORE JUDGMENT 1 His Honour : The substantive proceedings in this matter were commenced on 6 September 2007; they were listed before me for hearing (at least on interim relief) on 4 December 2007, and the parties reached agreement on some orders to be made by consent. 2 I duly made those orders, and today I have heard a Notice of Motion by the Applicant Council charging the Respondent with contempt of them, specifically contempt of Orders 3 and 4. I am, however, not asked to impose a penalty today if I proceed to convict the Respondent. 3 The proceedings concern a subdivision in Nambucca Heads approved by Council in 1993. Condition 11 of the relevant 1993 Development Consent calls for implementation of an Erosion and Sediment Control Plan dated November 2007, in evidence before me today as Exhibit C1. 4 That plan is quite clear, detailed and specific, and consent order No.1 of 4 December 2007 requires the Respondent to comply with it. 5 Order 2 requires the engagement of an appropriate supervisor for the implementation of the Plan within seven days of the Order. 6 Order 3 requires that, within seven days of that engagement, the Respondent commence detailed weekly reporting on progress with actions pursuant to the Plan. 7 Order 4 required submission to the Applicant Council, by 18 December, of a Flocculation and Sediment Treatment Plan as prepared by the supervisor, and inclusion in the weekly reports of data from the monitoring of the sediment ponds. 8 Order 5 required the Applicant's costs to be paid within fourteen days of assessment or agreement. 9 Orders 6 and 7 facilitated intervention by the Applicant in the event of the Respondent's failure to comply, and Order 8 allowed for the Court to make further or other orders, which I did not do. 10 Neither party asked me to grant any liberty to apply. 11 The Respondent is a company controlled by Mr Stephen Johnson, who lives next to the subject site and supervises the project. His and its solicitor, Mr van Ede, pleaded Not Guilty on the company's behalf, but factually they do not really contest the evidence presented by the Prosecutor regarding the Respondent's non-compliance with the consent orders. 12 Essentially the Respondent says that it knowingly consented to the orders, having consulted with relevant experts in the run-up to the hearing on 4 December, only to find thereafter that the appropriate assistance in complying with the orders was not forthcoming, and the holiday season made it hard to obtain labour. The Court also notes the extraordinary rainfall at the relevant time. 13 The Respondent further contends that it complied with Order 4, albeit approximately 6-7 weeks after 18 December, by submitting a Flocculation Plan (Exhibit M2). The Applicant denies receiving it until today, and expresses, at least preliminary, dissatisfaction with it as appropriately complying with the Order, so the Respondent possibly remains in, at least, "technical" breach of Order 4. 14 There are before Council (and the Court) now two relevant reports, one dated 1 February (in the affidavit material) and a second dated 11 February (Exhibit M1). There is no evidence of weekly reporting, as required by Order 3, beyond those two reports, so the Respondent remains also in at least "technical" breach of that Order. 15 In all these circumstances, the Court has to decide if it is satisfied beyond reasonable doubt that these "technical" breaches amount to contempt. 16 Faced with an apparently clear appreciation that his company was in breach of the orders, Mr Johnson's evidence is that he continued to seek expert assistance, and mentioned his difficulty, but really only in passing, to a senior Council officer when he called him on another specific issue. 17 No formal approach was made to either the Council or this Court, but I accept he is frank in making the apology in both his affidavit and the witness box, and in his acceptance that there have been incidents of sediment escaping into waterways, especially Beer Creek. 18 Clearly compliance with the orders is necessary to minimise, if not preclude, (possibly serious) environmental harm. 19 Correspondence from the solicitor for the Applicant Council to the Respondent's solicitor on 16 January (and again on 22 and 25 January) was clearly designed to get the Respondent's attention on apparent breaches of the consent orders. The response of the Respondent's solicitor on 22 January was clearly inadequate attention to the real problems at hand. 20 Any orders made by this Court deserve close attention. When a party specifically consents to them the Court is entitled to expect compliance. I accept that substantial works have been done in what the Respondent saw as compliance with the Orders, but there is clear non-compliance with their very specific terms. I also accept that rainfall and the holiday season complicated the Respondent's position, and that recollections of conversations can differ, but the Orders are very clear. 21 The judgments of Biscoe J in Greater Hume Shire Council v J and L Cauchi Civil Contracting Pty Ltd [2006] NSWLEC 738 and Jagot J in Blue Mountains City Council v Fowler [2007] NSWLEC 476 ("Fowler") collect and summarise the principles I must apply to the evidence before me. 22 It is not necessary for me to be satisfied there is contumacious contempt, as in brazen defiance of the Court's Orders, in order to convict the Respondent (see par 16 of Fowler). The company's conduct in this case, like Fowler, was "relevantly wilful". 23 On the evidence before me today I am satisfied beyond reasonable doubt that the Respondent is and remains in contempt of Orders 3 and 4 made by this Court on 4 December 2007, and I convict the company accordingly of contempt of court as charged in the Statement of Charge. 24 I stand the matter over to a date to be fixed for a hearing on penalty, and I direct the parties to see the Listings Manager before 4.30pm today to set that hearing down. 25 The Exhibits will remain with the Court file until the penalty hearing. 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.