Queanbeyan City Council v Sun [2013] NSWLEC 6

Land and Environment Court New South Wales

Medium Neutral Citation: Queanbeyan City Council v Sun [2013] NSWLEC 6 Decision date: 31 January 2013 Jurisdiction: Class 4 Before: Biscoe J Decision: (1) The respondent is guilty of contempt of court as charged. (2) The respondent is to pay the applicant's costs to date of the applicant's notice of motion filed on 27 November 2012. (3) The notice of motion is listed for further directions on Friday 1 March 2013 before Biscoe J in relation to a sentencing hearing. Catchwords: CONTEMPT - Respondent failed to comply with orders in civil enforcement proceedings requiring him to comply with conditions of development consents. Cases Cited: Queanbeyan City Council v Sun [2012] NSWLEC 70 Category: Principal judgment Parties: Queanbeyan City Council (Applicant) Kuan Ren Sun (Respondent) Representation: COUNSEL: Mr T To (Applicant) N/A (Respondent) SOLICITORS: Herring & Associates (Applicant) Zone Legal (Respondent) File Number(s): 41226/11

EX TEMPORE Judgment 1The applicant, Queanbeyan City Council, moves for orders that the respondent, Kuan Ren Sun, be found guilty of contempt of court for failing to comply with orders 4 and 5 made by the Court on 2 April 2012, and be punished by way of fine for disobeying those orders. Those orders require him to comply within 90 days with conditions of development consents that certain works be carried out on land owned by him at 28 Aurora Avenue, Queanbeyan, to which the consents relate. A few days before the hearing of the charge today the respondent indicated that he pleaded guilty. At the same time, to purge his contempt, he proffered a timetable for the carrying out of works required by the conditions. He has however, not appeared at the hearing today. The plea of guilty has been entered. 2On 2 April 2012 in Queanbeyan City Council v Sun [2012] NSWLEC 70 Lloyd AJ made the following orders in these undefended proceedings: The Court: 1. Declares that the respondent has breached, and is in breach of section 76A(1) of the Environmental Planning and Assessment Act 1979 ("the Act") by carrying out development not in accordance with development consent no. 17-2003, as modified on 14 July 2004 ("the Modified Consent"), in respect of the land described as Lot 138 in Deposited Plan 8732 and known as 28 Aurora Place [sic], Queanbeyan ("the Premises"). 2. Declares that the respondent has breached, and is in breach of section 76A(1) of the Act by carrying out development not in accordance with development consent no. 463-2004 ("the Second Consent") in respect of the Premises. 3. Orders the respondent to comply with: 3.1. condition 2 of the Modified Consent (so far as it relates to matters of fire safety); and 3.2. condition 2 (so far as it relates to matters of fire safety), and conditions 35-38 of the Second Consent, within 14 days of the date of this order. 4. Orders the respondent to comply with conditions 1, 2, 3, 4, 5-9, 20, 21, 23, 26, 30, 31, 32-34, 38, 39, 43 and 44 of the Modified Consent, within 90 days of the date of this order. 5. Orders the respondent to comply with conditions 2, 3, 17, 18, 19, 20, 23, 24, 26, 35, 36-38, 39 and 41 of the 'Second Consent, within 90 days of the date of this order. 3His Honour at [3] - [7] of his reasons for judgment described the relevant facts as follows: 3 The relevant facts may be briefly described. The evidence shows that the respondent, Kuan Ren Sun, is the owner of a property known as 28 Aurora Avenue Queanbeyan. A certificate issued under s 149 of the Act shows that the premises are located within 4A Industrial Zone A under the Queanbeyan Local Environmental Plan 1998. Under that instrument it is clear that consent is required for what the respondent is doing on the land. On 18 January 2003 the respondent by his architect lodged with the Council a development application to erect a new industrial building on the land. That application was approved on 13 June 2003. 4 On 28 May 2004 the respondent applied to modify the consent and the Council approved that application with conditions on 14 July 2004. On 29 September 2004 the respondent applied to the Council for approval to erect an extension to the building and to use those premises for structural steel fabrication. The Council approved that application with conditions on 23 November 2004. 5 Since 30 November 2009 Mr Peter Reynders of the Council has conducted a number of inspections of the property and found that the premises are being used and that a number of conditions are not being complied with, in particular, a number of conditions related to fire safety within the premises. As a result of these observations, on 4 January 2010 the Council issued the respondent with a notice of proposed order, under s 121H of the Act. On 9 April 2010 the Council withdrew the notice of proposed order and issued a further notice of proposed order under s 121H of the Act. 6 The Council did not receive any correspondence from the respondent in response and on 5 May 2010 it issued the respondent with an order under s 121B of the Act. That order has not been complied with. 7 Further inspections by Mr Reynders disclose that a large number of conditions of both the modified consent and the second consent have not been complied with. On 5 March 2012, in particular, a joint inspection was carried out of the premises by Mr Reynders and Mr Phillip Coman, the Council's building surveyor, which disclosed that a large number of matters specified in the order under s 121B had not been complied with. In addition to the failure to carry out the required physical work on the premises, the evidence satisfies me that the respondent has also not made payments to the Council of contributions payable under s 94 of the Act, has not submitted to the Council a waste management plan as required by condition 38 of the modified consent, has not submitted a final fire safety certificate to the Council as required by condition 37 of the consent, and has not submitted to the Council any annual fire safety statements as required by condition 38 of the second consent. 4The modified consent referred to in the orders authorised the erection of an industrial building and the use of the premises for industrial engineering purposes. The second consent referred to in the orders authorised the demolition of an existing building on the premises, an extension to a factory building on the premises and rearrangement of parking arrangements at the rear of the premises. 5I am satisfied on the uncontested affidavit evidence of a council officer, Mr Phillip Gerard Coman, that although the respondent made some progress towards compliance with orders 4 and 5, he has failed to comply with them in the respects alleged in the statement of charge and set forth in paragraphs 11 and 12 of Mr Coman's affidavit of 7 November 2012, as follows: The Respondent's compliance with Order 4 of the Court's orders made on 2 April 2012 ... 11. In relation to each of the conditions of the Modified Consent the subject of Order 4 of the Court's orders made on 2 April 2012: (a) Condition 1 - I observed during my August 2012 Inspection that: (i) wire security fencing has not been erected around the entire perimeter of the Premises. There has been a wire fence erected on part of the Western boundary to the premises (photos 11 and 12) and an existing wire fence remains on that boundary towards the rear of the block (photo 19). However, on the Eastern boundary a timber fence remains erected towards the rear of the Premises (photos 23, 24, and 30) and there is no fence on that boundary towards the front of the Premises (photo 61); (ii) the front façade had not been painted and remained raw concrete (photo 1); (iii) the Premises had not been landscaped in accordance with the approved plans, which require plantings at the front of the erected building and at the rear of the Premises. No vegetation had been planted (Tab 10 of exhibit PGC-1 and photos 7, 9, 52, 54, 58 and 62); (iv) the disabled access ramp, as shown on the approved plans, had however been erected (photos 7, 51, 52 and 53); (b) Condition 2 - I observed during my August 2012 Inspection that: (i) grab rails in the disabled sanitary facility had not been installed as is required by clause F2.4 of the Building Code of Australia (BCA); (ii) the sanitary compartment doors did not have removable hinges installed as is required by clause F2.5 of the BCA; (iii) the temperature of the hot water supply to the hand basins and showers installed on the Premises had however been rectified so as to be less than the required maximum of 50 degrees Celsius, in compliance with clause 1.9.2 of the BCA; (c) Condition 3 - as referred to in paragraph 9(a)(ii) above, I observed during my August 2012 Inspection that the front façade has not been painted and remains raw concrete (photo 1); (d) Condition 4 - I observed during my August 2012 Inspection that the retaining wall along the western boundary towards the rear of the Premises remained lower than was required to support the fill placed at that location; (e) Condition 5 to 9 (inclusive) - On 4 September 2012 a search of Council's records was conducted by a staff member within my team at my request to determine whether the contributions referred to in these conditions had been paid. That search revealed no record of the contributions imposed by those conditions having ever been paid. Annexed hereto and marked "B" is a copy of the results of the search conducted at my request, being a print out from Council's electronic contributions register, printed on 4 September 2012. The Council's usual practice is for staff to enter into the register payments at the time they are made, the amount(s) paid and the receipt number(s) issued to the payer. The print out in annexure B shows the current amount of the contributions imposed and that no payments have been received by Council. ... (f) Condition 20 - I observed during my August 2012 Inspection that the sign required by this condition, namely a small sign indicating that parking is available at the rear of the Premises, was not erected at the gate to the Premises (photos 8 and 60); (g) Condition 21 - I observed during my August 2012 Inspection that there were no markings on the ground on either side of the front roller door to the building erected on the Premises to indicate that an area had been designated as a "loading bay" and that such an area should be kept clear at all times (photos 3 and 5); (h) Condition 23 - I observed during my August 2012 Inspection that no parking spaces had been marked out as required, in the areas designated in the approved plans for parking, or at all (photos 13 - 29 inclusive); (i) Condition 30 - I observed during my August 2012 Inspection that the areas designated in the approved plans as parking areas were being used for the storage of materials (photos 13 - 29 inclusive); (j) Condition 31 - I observed during my August 2012 Inspection that the area designated in the approved plans as a disabled car parking space had not been delineated and marked in accordance with the BCA and clause 2.4.5 of Australian Standard AS 2890.1; (k) Condition 32 - as referred to in paragraph 9(a)(i) above, during my August 2012 Inspection I observed that wire security fencing has not been erected around the entire perimeter of the Premises. There has been a wire fence erected on part of the Western boundary to the premises (photos 11 and 12) and an existing wire fence remains on that boundary towards the rear of the block (photo 19). However, on the Eastern boundary a timber fence remains erected towards the rear of the Premises (photos 23, 24 and 30) and there is no fence on that boundary towards the front of the Premises (photo 61); (l) Condition 33 and 34 - as refer [sic] to in paragraph 9(a)(iii) above, during my August 2012 Inspection I observed that the Premises had not been landscaped in accordance with the approved plans, which require plantings at the front of the erected building and at the rear of the Premises. No vegetation had been planted, including grass that was required to be planted on the footpath area to the kerb (Tab 10 of exhibit PGC-1 and photos 7, 9, 52, 54, 58 and 62); (m) Condition 44 - during my August 2012 Inspection I observed that no drainage infrastructure had been installed to trap and pipe stormwater that would flow across the rear yard of the Premises. The Respondent's compliance with Order 5 of the Court's orders made on 2 April 2012 12. In relation to each of the condition of the 2nd Consent the subject of Order 5 of the Court's orders made on 2 April 2012: (a) Condition 2 - as referred to in paragraph 9(b) above, I observed during my August 2012 Inspection that: (i) grab rails in the disabled sanitary facility had not been installed as is required by clause F2.4 of the BCA; (ii) the sanitary compartment doors did not have removable hinges installed as is required by clause F2.5 of the BCA; (iii) the temperature of the hot water supply to the hand basins and showers installed on the Premises had however been rectified so as to be less than the required maximum of 50 degrees Celsius, in compliance with clause 1.9.2 of the BCA (b) Condition 3 - as referred to in paragraph 9(d) above, I observed during my August 2012 Inspection that the retaining wall along the western boundary towards the rear of the Premises remained lower than was required to support the fill placed at that location; (c) Condition 17 - during my August 2012 Inspection, I observed that the hard-stand paving of the car parking area and access aisle to the rear of the premises had not been installed and the area for car parking had not been arranged and marked as required by the approved plans (photos 13 to 29 inclusive); (d) Condition 18 - during my August 2012 Inspection I observed that the "GI Shed" was being used for the purposes of spray painting and not only for the storage of materials. Further, no parking space had been delineated for the parking of a vehicle (photos 35 and 37); (e) Condition 20 - as referred to in paragraph 9(f) above, I observed during my August 2012 Inspection that the sign required by this condition, namely a small sign indicating that parking is available at the rear of the Premises, was not erected at the gate to the Premises (photos 8 and 60); (f) Condition 23 - as referred to in paragraph 9(h) above, I observed during my August 2012 Inspection that no parking spaces had been marked out as required and no sealing had been undertaken to the driveway and parking areas in the areas designated in the approved plans (photos 13 - 29 inclusive); (g) Condition 24 - as refer [sic] to in paragraph 9(i) above, I observed during my August 2012 Inspection that some of the areas designated in the approved plans as parking areas were being used for the storage of materials (photos 13 - 29 inclusive); (h) Condition 26 - as referred to in paragraph 9(d) and 10(b) above, I observed during my August 2012 Inspection that no retaining wall had been erected on the western boundary towards the rear of the Premises; (i) Condition 37 - on 25 June 2012 Council received a "Final/Interim Fire Safety Statement" from the Respondent which addressed the required matters pursuant to clauses 171 and 174 of the Environment Planning & Assessment Regulation 2000. Accordingly, Council was satisfied that the certificate required by this condition had been submitted. However during my August 2012 Inspection I did not observe that certificate being displayed at the Premises; (j) Condition 39 - as referred to in paragraph 9(m) above, during my August 2012 Inspection I observed that no drainage infrastructure had been installed to trap and pipe stormwater that would flow across the rear yard of the Premises. 6I propose, consistently with the Council's submission, to list the Council's contempt notice of motion for directions in relation to sentencing on Friday 1 March 2013 before me. That date is chosen in order to assess the progress, if any, that the respondent has made in carrying out works to purge his contempt. On that occasion, I anticipate that a hearing date for sentencing will be fixed, and directions made for evidence and submissions relating to sentencing.