Auburn Council v Zizikas and Anor

Land and Environment Court Act 1979 s 20(2) LEGISLATION CITED: Land and Environment Court Rules 1996 Pt 6 r 1 Supreme Court Rules 1970 Pt 55

DATE OF JUDGMENT DELIVERY: 07/13/1999

APPLICANT Mr A Hawkes (Solicitor)

SOLICITORS Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT Mr P McEwen SC

SOLICITORS Heidtman & Co

This is an application by Auburn Council ("the council") for declarations that the respondents have breached orders made by the court on 22 January 1998 ("the orders"). The statement of charge filed by the council against the respondent makes it apparent that the proceedings seek penalties for contempt of the orders. This Court has power to enforce its orders pursuant to s 20(2) of the Land and Environment Court Act 1979, and Pt 6 r 1 of the Land and Environment Court Rules 1996 which adopt Pt 55 of the Supreme Court Rules dealing with contempt.

The orders relate to land known as Lot 2 in deposited plan 810420 ("the land") which has frontage to Arthur St, Lidcombe. The land is owned by the first respondents and is used as a depot for building waste and excavated fill by the second respondents. It is situated adjacent to Lot 1 in the same deposited plan which is owned by the State Rail Authority of NSW ("SRA").

On 11 January 1994 a development application was lodged by Mr Harry Zizikas the first named respondent in respect of the land. The application which sought consent to use the land for the purpose of storage of plant, materials and equipment was refused. On 5 August 1994 an appeal was instituted in this Court from such refusal. On 22 December 1994 the council commenced class four proceedings to restrain the unauthorised use. On 19 May 1995 this Court in proceedings no 10140/95 granted development consent to the use of Lot 2 for storage of plant, equipment and excavated materials subject to numerous conditions. No approval was given for a concrete crushing facility nor any reprocessing or recycling activities. On 8 August 1996 council issued a notice requiring cessation of recycling of building materials which the respondents were carrying out on the land. On 1 August 1997 class four proceedings were issued alleging breach of the development conditions. Thereafter, on 28 October 1997 the respondents lodged development application no 274/97 seeking permission to use Lot 2 as a solid waste recycling facility.

On 22 January 1998 the court by consent made orders pursuant to which the respondents were restrained from using Lot 1 and the aforesaid Lot 2 otherwise than in accordance with several conditions.

On 17 April 1998 the development application no 274/97 was refused by the council and an appeal was lodged (appeal no 10281/98) to this Court against such determination. Finally, on 14 July 1998 the notice of motion alleging contempt of the courts orders was issued.

On 1 March 1999 the hearing of the notice of motion alleging contempt commenced. However, on the same day two judgments of the court were delivered by Commissioner Bly which are relevant to the contempt proceedings. Firstly, with respect to proceedings no 10140/1995 the court upheld an appeal against certain of the development conditions. The court ordered certain conditions be deleted or substituted with fresh conditions. Secondly, in proceedings no 10750 of 1998 the court upheld the appeal against the refusal of council to grant development application no 274/97. Accordingly development consent was granted for a solid waste recycling facility on Lot 2, subject to numerous conditions.

The recent decisions of Commissioner Bly have a bearing upon the matters which the court is required to consider in relation to the notice of motion for contempt. Commissioner Bly's decision has removed certain of those conditions which were alleged to have been breached and in respect of which there was evidence of continuing breaches. Accordingly in the deliberation of the present hearing, the court is required to assess the impact of Commissioner Bly's decisions.

Each of the respondents in a document entitled "Formal Answer to Statement of Charge" have pleaded guilty to the charges as set out in the statement dated 14 July 1998, namely that they did use Lot 1 and Lot 2 for the purpose of storage of plant and equipment and excavated materials in breach of the conditions of consent granted on 19 May 1995 and used Lot 1 for the purpose of manoeuvring vehicles without having obtained consent. However the respondents, in mitigation of penalty dispute the fact that they have been in breach of all of the alleged conditions.

From the 22 January 1998 until the date of the filing of the notice of motion alleging contempt, each of the respondents appears to have been unconcerned to observe the conditions which formed an essential part of the consent. It was only following the filing of such notice of motion that the respondents filed their applications class one, class two and class three against the refusal of council to grant consent to development application no 274/97. It was not until 15 January 1999 that the first named respondent moved the court in proceedings no 10140 of 1995 to seek modification of the conditions which have been imposed as part of the development consent contained in the orders of 19 May 1995.

As a consequence, it is apparent that the respondents were, at least from the 22 January 1998 until the 1 March 1999, conducting their activities in breach of conditions 2, 5, 7, 9, 14, 15, 23, 24 and 27 to the orders. There is a dispute between the parties concerning compliance with condition 8 and 17. It is unnecessary to set out these conditions, other than the two important conditions set out hereunder.

Many of the conditions referred to are of a minor nature and relate to such matters as parking and manoeuvring of vehicles on site, erection of fences, and storage of material. However, there are more serious matters for consideration which the parties acknowledge remain unfulfilled such as condition 24 and condition 27. Condition 24 provides:- All storm water run off shall be discharged from the land and into Council's existing drainage system to the satisfaction of the Council. In this regard, a detailed engineering storm water drainage plan shall be submitted for the approval of Council prior to the commencement of development including the submission of the detailed storm water drainage plan of the land as per Condition 23 of this consent. Condition 27 provides:- The applicant to produce written documentation that satisfactory arrangements have been made with Sydney Water for the provision of water and sewerage services on the subject land. Such documentation to be produced prior to release of building permits.

Evidence has been adduced from a civil engineer employed by the respondents namely Robert Burroughs. Mr Burroughs has provided three affidavits in which he has described the attempts to address the issues which are the subject of these proceedings. In some cases it is apparent the attempts have been quite inadequate. For example, in relation to fencing and landscaping required by conditions 7, 8,and 9 a fence has been erected. However it was erected without council approval and in a manner that was clearly contrary to council's requirements. Initially no attempt had been made to provide landscaping. Such defect was substantially rectified between the first hearing date and the final hearing date.

Although it is asserted that the respondents had complied with other conditions such as the parking of vehicles on site as provided by condition 11, there was evidence that this condition had been breached.

As at the 2 July 1999, there were certain conditions to the orders which remained unfulfilled by the respondents. Provision of stormwater run-off (referred to in conditions 24,25 and 26) is now being attended to, but the necessary involvement of the SRA is resulting in delay in the finalisation of this matter. A plan now prepared requires drainage into land of that authority and its approval is required. Once obtained, it is expected that the proposal will be considered by council.

The disposal of sewerage from the land, as required by conditions 27 of the orders, remains an unsatisfied and vexatious issue. The respondents are required to produce written documentation that satisfactory arrangements have been made with Sydney Water for the provision of water and sewerage services on the land. No facilities presently exist. The respondents have proposed a pump-out system to remove sewerage, but Sydney Water has responded stating that it has no objection to the proposal provided the council does not object. Council however has a firm policy against such systems and requires discharge of sewerage directly to a sewer line. The parties are therefore in a position of stalemate. It can only be resolved by an application to the court. In the meantime, the respondents remain in breach of the condition.

There are other issues which are now in the course of finalisation, such as completion of landscaping. These outstanding matters are of minimal significance.

At the hearing on the 1 March 1999, senior counsel for the respondents requested the opportunity to consider the reasons for judgment of Commissioner Bly in order to prepare final submissions. The court also considered that an adjournment was essential to enable the respondents to demonstrate their ability during the period of adjournment to comply with the remaining conditions or to demonstrate their ability to satisfy the council's reasonable requirements. For this reason the matter was adjourned to a date to be fixed. The second day of hearing took place on 2 July 1999.

The court takes into consideration the fact that the first respondents have attempted and are making genuine attempts to comply with the outstanding conditions. The court also takes into consideration the fact that the respondents breached numerous conditions and that important conditions are yet to be satisfied.

In respect of these breaches the court makes the following declarations and orders;

1. A declaration that each of the respondents is guilty of contempt of the orders of the court made on 22 January 1998.
2. Order that a penalty of $2000 be imposed on each of the three first named respondents and upon the second respondent. Such sums are to be paid to the Registrar within 28 days.
3. Order that each of the respondent's pay the applicant's costs of these proceedings.
4. Order that the exhibits be returned.

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