Lake Macquarie City Council v Gordon [2017] NSWLEC 122

Land and Environment Court New South Wales

Medium Neutral Citation: Lake Macquarie City Council v Gordon [2017] NSWLEC 122 Hearing dates: 1 December 2016, 28 February, 1 March, 20 April, 6 July, 29 August and 11 September 2017 Date of orders: 21 September 2017 Decision date: 21 September 2017 Jurisdiction: Class 4 Before: Moore J Decision: Orders at [206] and [207] Catchwords: CONTEMPT - both Respondents - orders made to address unlawful development - orders set timetable for remediation woks and reporting process timetable and reporting process not adhered to - proper foundation for guilty finding on contempt Charge 1 and Charge 2 for both Respondents CONTEMPT - both Respondents - Charge 3 - Second Respondent carried out development in breach of court order and without development consent - First Respondent aware of and had limited involvement in Second Respondent's activities - proper foundation for guilty finding on contempt Charge 1 and Charge 2 for both Respondents CONTEMPT - First Respondent - objective factors of First Respondent - First Respondent dominated by Second Respondent - First Respondent not kept informed by Second Respondent - Second Respondent has strong subjective circumstances - appropriate to find Second Respondent guilty as charged on all charges but not to proceed to conviction CONTEMPT - Second Respondent - Charges 1 and 2 - degree of forbearance by consent authority - charges of lesser seriousness - modest financial penalties appropriate - discount for pleas of guilty - consideration of totality and accumulation - fines of $3,000 and $2,000 imposed CONTEMPT - Second Respondent - Charge 3 - objective factors of offending conduct by Second Respondent - Second Respondent warned that carrying out proposed work would be in breach of court order - Second Respondent carried out work without development consent and in breach of court order - objective circumstances of offending conduct - conduct on Charge 3 clearly in deliberate disregard of requirement of court order and of the need to obtain development consent - contempt wilful and contumacious - consideration of Second Respondent's subjective circumstances - limited material available - no genuine contrition or remorse - Second Respondent showed no insight into the nature of his offending conduct - prior relevant offence - no lesson learnt from prior conviction - significant need for specific deterrence - need for general deterrence - full-time custodial imprisonment appropriate - discount for plea of guilty - three months imprisonment imposed for Charge 3 COSTS - whether costs should be ordered on indemnity basis - contempt charges brought to uphold orders of the Court and to protect the integrity of the planning system - appropriate to order costs against both Respondents on an indemnity basis - appropriate to have regard to significant costs ordered to be paid when considering financial penalties for Second Respondent Legislation Cited: Civil Procedure Act 2005, s 26 Environmental Planning and Assessment Act 1979, ss 76A(1)(b), 121B, 121JK Fines Act 1996, s 6 Local Government Act 1993, s 378 National Parks and Wildlife Act 1974 Threatened Species Conservation Act 1995 Uniform Civil Procedure Rules 2005, Pt 40 r 7(3) Cases Cited: AGL Energy Ltd v Hardy (No 3) [2017] FCA 952 Bentley v Gordon [2005] NSWLEC 69 Canterbury City Council v Ali Ahmed [2016] NSWLEC 160 Council of the City of Sydney v The Owners of Strata Plan 18820 [2017] LEC 81 Cumberland Council v Khoury (2017) 222 LGERA 78; [2017] NSWLEC 14 at [42] EPA v Barnes [2006] NSWCCA 246 Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 Lake Macquarie City Council v Gordon and Anor [2016] NSWLEC 49 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89; [2002] NSWLEC 132 New Century Developments Pty Limited v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154 R v Thompson; R v Houlton 49 NSWLR 383; [2000] NSWCCA 309 Wollongong City Council v Eldridge [2017] NSWLEC 35 Category: Principal judgment Parties: Lake Macquarie City Council (Prosecutor) Diane Joy Gordon (First Respondent) Hugh Charles Gordon (Second Respondent) Representation: Counsel: Mr P McEwen SC/Mr M Seymour, barrister (Prosecutor) Respondents in person