Liverpool Plains Shire Council v Rumble (No 2) [2014] NSWLEC 13

Land and Environment Court New South Wales

Medium Neutral Citation: Liverpool Plains Shire Council v Rumble (No 2) [2014] NSWLEC 13 Hearing dates: 19 February 2014 Decision date: 19 February 2014 Jurisdiction: Class 4 Before: Pain J Decision: See paragraph 21 Catchwords: CONTEMPT - failure to comply with court order in civil enforcement proceedings established beyond reasonable doubt Legislation Cited: Land and Environment Court Rules 2007 Pt 6 r 6.3(1) Liverpool Plains Local Environmental Plan 2011 Supreme Court Rules 1970 Pt 55 Cases Cited: Gerondal v Eurobodalla Shire Council (No 5) [2011] NSWLEC 104 Liverpool Plains Shire Council v Rumble [2013] NSWLEC 118 Category: Principal judgment Parties: Liverpool Plains Shire Council (Applicant) Robert George Rumble (First Respondent) Lee Rumble (Second Respondent) Representation: Mr M Fraser (Applicant) No appearance (First Respondent) No appearance (Second Respondent) Moray & Agnew (Applicant) File Number(s): 40202 of 2013

EX TEMPORE Judgment

Notice of Motion for Contempt

Background 1The Respondents, Mr and Mrs Rumble, own and occupy a property in South St Quirindi NSW. The Respondents had for a number of years used the land and the adjacent road reserve for storage of motor vehicles inter alia. The property is zoned for residential use under the Liverpool Plains Local Environmental Plan 2011 (LEP 2011). 2The Applicant Liverpool Plains Shire Council (the Council) commenced proceedings seeking orders to remedy and restrain the Respondents from using and occupying their land and the adjacent road reserve for unlawful purposes under the LEP 2011. 3On 25 July 2013 the matter was heard by Biscoe J. There was no appearance for the Respondents. In an ex tempore judgment Liverpool Plains Shire Council v Rumble [2013] NSWLEC 118 his Honour: (a)made relevant findings of fact as are recorded at [3]; (b)noted the environmental harm caused at [4], (c)made relevant findings of fact as to the Council's efforts prior to these proceedings to obtain from the Respondents a cessation of the prohibited development and to correct the environmental harm at [5]. 4In consequence the orders made by the Court on 25 July 2013 were: (1) The respondents are to remove or cause to be removed all vehicles (including vehicles partly or wholly disassembled and all vehicles components) from: (a) Lots 8 & 9 Section 30 DP 758863 known as 69 South Street Quirindi NSW ("the premises"), and (b) the road reserve adjacent to and nearby the premises (other than those roadworthy and registered in NSW in the names of residents of the premises and used for their personal purposes) by 5.00pm on 30 August 2013. (2) The respondents are restrained from using the premises in any way that: (a) falls within the definition of "commercial premises", "transport depots", "vehicle body repair workshops", "vehicle repair stations" and/or "waste or resource management facilities" as defined in the Liverpool Plains Local Environment Plan 2011, or (b) is not in conformity with the zoning of the premises "R1 General Residential" pursuant to the provisions of the Liverpool Plains Local Environment Plan 2011, as and from 5.00 pm on 30 August 2013. ... 5Procedures for the commencement and prosecution of contempt proceedings are specified in Pt 55 of the Supreme Court Rules 1970 which are adopted in this Court by virtue of the Land and Environment Court Rules 2007 Pt 6 r 6.3(1). Part 55 of the Supreme Court Rules states in part: 7 Statement of charge A statement of charge, that is, a statement specifying the contempt of which the contemnor is alleged to be guilty, shall be subscribed to, or filed with, the notice of motion or summons.... 9 Service The notice of motion or summons, the statement of charge, and the affidavits shall be served personally on the contemnor.... 13 Punishment (1) Where the contemnor is not a corporation, the Court may punish contempt by committal to a correctional centre or fine or both.... (3) The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security. 6The Council filed a Notice of Motion dated 20 November 2013 seeking orders that the Respondents be punished for contempt of court in accordance with the Statement of Charge filed with the motion. At the hearing before me the Council pressed only par 1 of the Statement of Charge which states: 1. The respondents are guilty of contempt of court in that he/she failed to comply with Order (1) of the orders made by Biscoe J on 25 July 2013 in these proceedings. Particulars (a) The respondent failed to remove or cause to be removed all vehicles (including vehicles partly or wholly disassembled and all vehicle components) from the premises specified in the order and the road reserve adjacent to a nearby the premises [sic] by 5 PM 30 August 2013. (b) From about 30 August 2013 the respondents reintroduced onto the premises vehicles and has continued to introduce vehicles to the premises notwithstanding Order 1.