Baulkham Hills Shire Council v Naklicki

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40870 of 2002 Baulkham Hills Shire Council v Naklicki

EXTEMPORE JUDGMENT 1 His Honour: These class 4 proceedings have an interesting history. They concern the filling and/or the landscaping of the respondent's property at 36 Pitt Town Road, Kenthurst. Last Friday 30 May 2008 I granted the council an interlocutory injunction until 5pm tonight restraining the respondent from undertaking any landfill works. 2 That interlocutory proceeding was conducted ex parte against the background that today I was rostered to hear evidence and submissions on the respondent's plea of Not Guilty to a charge of contempt of court. 3 The orders of 30 May 2008 gave Mr Naklicki the opportunity to purge his contempt. He did not do so, and today he maintained his denial of the allegations underpinning the charge of contempt. He represented himself and indicated experience of this court's procedures. 4 He produced nothing in response to the council's notice to produce calling for any records for the period 30 April 2004 to 3 June 2008 relating to delivery of any soil material (topsoil or fill) to Mr Naklicki's property, or to the excavation, filling, grading or spreading of any soil material (topsoil or fill) on the property by any person or entity for or on behalf of Mr Naklicki. He tendered no documentary evidence, but sought the opportunity to explain his position to the court and did so on oath realising he could be cross-examined. He admitted having some records which would satisfy the notice to produce. 5 The charge concerns the alleged breach of orders made by Bignold J on 30 April 2004, which restrained Mr Naklicki "permanently from depositing fill (or permitting or suffering the depositing of fill)" on his land without the consent of the council where consent is required by any statute or planning instrument. The charge specified the date "on or about 15 November 2007" as the date of the breach. 6 These class 4 proceedings were commenced on 7 November 2002 when interlocutory orders were made by Cowdroy J restraining Mr Naklicki's filling of his land. Further orders were made on 11 July 2003. He lodged a development application for filling works on 15 August 2003. It was refused on 11 September 2003 for lack of information. On 8 January 2004, Commissioner Watts dismissed an appeal against that refusal, but council officers had observed further filling operations between 27 October and 6 November 2003 without development consent. 7 On 15 March 2004, Bignold J found Mr Naklicki to be in contempt of the interlocutory orders but deferred questions of penalty and costs to allow resolution of the class 4 proceedings along the lines of some directions that His Honour made. 8 Orders were made by Bignold J with Mr Naklicki's consent on 21 April 2004 and the matter was sent off for mediation. Final orders were made on 30 April 2004 as already noted, including a "permanent restraint" of filling works without consent. Mr Naklicki was ordered to pay costs. 9 Mr Naklicki lodged a further development application on 23 September 2005, but again inadequate information was provided and it was refused. 10 In November 2007, council received and followed up an anonymous complaint of unauthorised land filling. In January 2008 he was asked to remove that fill and did not. He did not respond to a draft cleanup notice. 11 All these events are covered in depth in the affidavit material placed before the court by the council without any objection from Mr Naklicki. The court has now seen all the material tendered in the proceedings before Bignold J (Exhibit C2) and his Honour's extempore judgment of 15 March 2004 together with the material filed in support of the present charge, and of last Friday's proceedings. 12 Mr Naklicki came to court today on clear notice that imprisonment was an option he faced, but he does not seem in any way perturbed by his position. In an effort to defend the charge, he gave an account of his actions which included clear admissions of his guilt. 13 Extensive fill material has been delivered to the site and moved around without either consent or any certainty of its quality. He contends that of an uncertain total volume only 12-15 loads required consent, and that the council has been obstructive and unreasonable at every stage. Materials which he says are either "clean" road base or "clean" topsoil - and he has no relevant expertise in this area - should not require consent, nor do they in his eyes breach Bignold J's orders. Landscaping works do not or should not require consent. 14 However, the provisions of the local environmental plan (Exhibit C1) are clear - and most if not all the materials and operations pictured in the sworn evidence of the council witnesses clearly require consent. 15 There is no evidence of appropriate sediment controls, and clear evidence of probable environmental harm from at least the recent rainfall. 16 The construction waste shown in the photos was placed there by a previous owner, and only recently upturned by Mr Naklicki. Some of the alleged road base, and, it would appear, other material as well, was brought on site since 11 April, when Mr Naklicki appeared before Jagot J, and pleaded Not Guilty to this contempt charge. These operations occurred despite a warning on that day from council's solicitor that he not do so. 17 Even on what Mr Naklicki himself has told the court, his is a very serious breach of the orders made with his consent by Bignold J on 30 April 2004. 18 Mr Naklicki has consistently asked council officers and the court the question "what am I supposed to do?" There are many relevant answers to that question, including "get consent" and "obey the court's orders". 19 The current law of contempt is fulsomely and accurately set out in Mr Miller's written submissions and, as Mr Naklicki has been considering them for some hours, I will not repeat it now. 20 I have no alternative on the evidence before me. I find beyond reasonable doubt that Mr Naklicki has been and remains today in serious and wilful contempt of this court's orders. 21 His constantly repeated respect for Bignold J barely saves him from a formal finding today of "contumacious" contempt. His eventual expression of contrition after 2pm today has only just spared him from a term of imprisonment being imposed at this time. The orders Mr Miller has suggested give him the opportunity to avoid that fate. 22 I am adjourning the proceedings for four weeks to give him an opportunity to purge his contempt to some extent before I pass sentence. Imprisonment is still a definite possibility if he does not avail himself of this opportunity. I strongly advise him to obtain legal advice and arrange representation for his next appearance before me, on Monday 7 July 2008 at 9.30am, when I will hear further submissions on penalty from both parties. 23 In the meantime the Orders of the court are: 1. The respondent is convicted of the charge of contempt of court in the statement of charge dated 27 March 2008. 2. The imposition of penalty is adjourned, and set down for hearing at 9.30am on Monday 7 July 2008. 3. The orders of the court made on 30 April 2004 are confirmed and continued. 4. The injunction of 30 May 2008 is extended to 5pm Monday 7 July 2008. 5. Mr Naklicki is ordered to pay the applicant's costs of these class 4 proceedings up to and including 6 June 2008, as agreed or assessed. 6. The respondent is ordered to pay the applicant's costs of these contempt proceedings up to and including 6 June 2008, on an indemnity basis, as agreed or assessed. 7. The class 4 proceedings (No.40870 of 2002) are stood over to Monday 7 July 2008 at 9.30am for further hearing as to any further or final remedial orders appropriate to remediate the property and where possible or necessary, remove all unauthorised landfill. 8. The respondent is to provide the applicant, its servants and agents, unimpeded access to the property between 9am and 5pm on weekdays to enable the carrying out of investigations and surveys for the purpose of drafting the remedial orders in order 7. 9. The respondent is by 4pm on Tuesday 10 June 2008 to provide to the applicant originals or copies of all records in his possession or control recording or describing all fill, soil, topsoil or other material (" fill ") imported onto and deposited on the property since 30 April 2004, and supply all records since 30 April 2004, (including, but not limited to, invoices, orders, delivery notes, purchase orders, delivery receipts and tax invoices) with respect to recording, or in connection with the supply and/or delivery of that fill. 10. The respondent shall not, without the prior order of this court, or without the prior written consent of the applicant, spread, deal with, or move any of the fill presently on the property save to remove it, and even then, only with prior written consent of the applicant or an order of this court.

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