Blacktown City Council v Nitopi [2019] NSWLEC 40

Land and Environment Court New South Wales

Medium Neutral Citation: Blacktown City Council v Nitopi [2019] NSWLEC 40 Hearing dates: 31 January and 6 February 2019 Date of orders: 05 June 2019 Decision date: 05 June 2019 Jurisdiction: Class 4 Before: Moore J Decision: At [224] Catchwords: CONTEMPT - operate waste or resource transfer station without development consent - Class 4 proceedings commenced by Council to restrain unlawful use - consent orders to resolve proceedings - undertaking to remove at least half of the 2,600 cubic metres of waste on the site by 31 December 2017 - no waste removed by that date - no waste removed by 31 March 2018 when second undertaking subsumed the effect of the undertaking to remove half the waste - serious criminal activity directed at the Respondent - impact on Respondent significant ameliorating factor - perpetrators arrested in early February 2018 - no reasonable excuse after that time for failure to remove waste - Respondent pleaded guilty but not at the earliest occasion - consideration of the Respondent's subjective circumstances - fine appropriate for breach of first undertaking - Respondent fined $5,400 CONTEMPT - operate waste or resource transfer station without development consent - Class 4 proceedings commenced by Council to restrain unlawful use - consent orders to resolve proceedings - undertaking to remove all of the waste from the site by 31 March 2018 - no waste removed by that date - Respondent relocated to Queensland - relocation said by Respondent to be on the advice of the New South Wales Police - evidence from nominated police officer that no such advice was given - Respondent continued to run a range of business interests while relocated in Queensland - Respondent visited Sydney during period of relocation - no steps taken to commence waste removal process until after commencement of contempt proceedings - waste removal processors supervised by the Respondent personally in order to minimise costs of removal - removal staged to avoid transport of wet material - substantial additional cost savings achieved - during period of waste removal activities, Respondent travelled overseas on business - consideration of Respondent's subjective circumstances - plea of guilty but not on the earliest occasion - serious, wilful contempt by breach of undertaking to remove the entirety of the waste by 31 March 2018 - specific deterrence needed under the circumstances in addition to general deterrence - substantial fine warranted - Respondent find $72,000 COSTS - Applicant seeks costs on indemnity basis - Respondent proposes that costs should be on an ordinary basis - Applicant public authority seeking to enforce the planning law - Respondent's contempt serious and wilful - customary position that, in such circumstances, Applicant would be awarded costs on the indemnity basis - no valid reason to depart from that position - Respondent ordered to pay the Applicant's costs on the indemnity basis. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Environmental Planning and Assessment Act 1979, s 124 (now s 9.46) Fines Act 1996, s 6 Uniform Civil Procedure Rules 2005, r 40.7(3) Cases Cited: AGL Energy Ltd v Hardy (No 3) [2017] FCA 952 Blacktown City Council v Everson [2019] NSWLEC 4 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Canterbury City Council v Ali Ahmed [2016] NSWLEC 160 Cumberland Council v Khoury (2017) 222 LGERA 78; [2017] NSWLEC 14 Dowling v Prothonotary of the Supreme Court of New South Wales [2018] NSWCA 340 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Lake Macquarie City Council v Gordon (2017) 228 LGERA 123; [2017] NSWLEC 122 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 R v Thomson; R v Houlton 49 NSWLR 383; [2000] NSWCCA 309 Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 Wood v Staunton (No 5) (1996) 86 A Crim R 183 Category: Principal judgment Parties: Blacktown City Council (Applicant) Giuseppe Nitopi (Respondent) Representation: Counsel: Mr P Boncardo, barrister (Applicant) Mr J Doyle and Ms A Garsia, barristers (Respondent)