Baulkham Hills Shire Council v Naklicki (No.2) [2008] NSWLEC 317

Land and Environment Court of New South Wales

CITATION : Baulkham Hills Shire Council v Naklicki (No.2) [2008] NSWLEC 317

APPLICANT Baulkham Hills Shire Council PARTIES : RESPONDENT Peter Naklicki

FILE NUMBER(S) : 40870 of 2002

CORAM: Sheahan J

KEY ISSUES: Contempt :- penalty; fine; costs; remediation order

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

Baulkham Hills Shire Council v Naklicki [2008] NSWLEC 316 CASES CITED: Environment Protection Authority v Waight [2003] NSWLEC 124 Regina v Fahda [1999] NSWCCA 267

DATES OF HEARING: 26 and 28 November 2008

EX TEMPORE JUDGMENT DATE : 28 November 2008

APPLICANT Mr D Miller with Mr T To SOLICITORS LEGAL REPRESENTATIVES: DLA Phillips Fox

RESPONDENT Mr C Gough, solicitor of Storey & Gough

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Sheahan J

28 November 2008

40870 of 2002 Baulkham Hills Shire Council v Naklicki (No.2)

EXTEMPORE JUDGMENT Background 1 His Honour: On 6 June 2008 I convicted Mr Naklicki of a contempt of court I found to be "wilful", bordering on "contumacious". This judgment deals with the issues of penalty and remediation. Second offence 2 In my extempore judgment delivered on 6 June, but only recently published ([2008] NSWLEC 316), I set out some of this matter's "interesting history", and I will not repeat it today. He unwisely appeared for himself on that occasion, but since 11 July 2008 he has been represented by Mr Christopher Gough, a solicitor who appears regularly in this court, and had represented Mr Naklicki at earlier stages of the matter. 3 On 15 March 2004 Bignold J convicted Mr Naklicki of a similar contempt in this matter, original interlocutory orders having been made against him by Cowdroy J on 7 November 2002 and 11 July 2003. Rather than proceed to impose a penalty on Mr Naklicki, Bignold J pronounced final orders, to which Mr Naklicki had agreed, on 30 April 2004, restraining the filling of the subject land (at 36 Pitt Town Road, Kenthurst), without development consent, and requiring Mr Naklicki to pay Council's costs. 4 It is those orders made by Bignold J on 30 April 2004 which are at the centre of the case run before me. The current contempt charge was laid on 28 March 2008, and Mr Naklicki entered a plea of Not Guilty before Jagot J on 11 April. He filed no evidence in his defence but gave oral evidence on the day. Site Investigation 5 On 6 June 2008 Mr Naklicki clearly undertook in open court (see T 70 ff) to comply with the series of orders I made on that day in addition to entering the conviction. Compliance with those orders would have taken him some way towards purging his contempt, so I stood the question of penalty over until 7 July to allow the Council an opportunity to investigate the offending fill, and fashion appropriate remediation orders for the court to consider. 6 The Council's site investigation report was prepared after an inspection on 24 June by Mr Daniel Saunders of Sydney Environmental and Soil Laboratory, and filed and served on 4 July. The Council's Mr Meader deposes that Mr Naklicki showed some lack of cooperation regarding access to his land for the inspection, despite what he had said to me on 6 June. 7 The Defendant later engaged Dr Martens as his expert, but his report was not served on Council until the beginning of this week's hearing. It has now been tendered before me (Exhibit D4) and I have perused it cursorily. I accept what has been said from the bar table this afternoon about the constructive role Dr Martens has played this week on the remediation issues.