Brokers Property Holdings Pty Ltd v MidCoast Council

Evidence

1. In support of its motion, Council read the affidavit of its solicitor, Mark Andrew Cottom, affirmed 3 September 2024, which annexed the various correspondence between the parties and Ms Iwaszkiewicz.
2. In opposing the relief sought in the motion, Brokers Property read the affidavit of Nicholas Kalantzis affirmed 15 October 2024. Mr Kalantzis detailed the background as noted above. Under the heading "Grounds relied on for severity Appeal", Mr Kalantzis detailed the nature and extent of the work undertaken which had triggered the "penalty notice", annexed correspondence and documents leading up to, and subsequent to, the issuance of the original "penalty notice" issued by Council which imposed the $3,000 penalty that was affirmed by the Local Court (see [3], [4] above).
3. Mr Kalantzis appeared before me on behalf of Brokers Property and made submissions without legal representation. Although not strictly relevant, I read the detailed background to the matter including the material attached to the affidavit of Mr Kalantzis and the complete file which had been transferred to this Court by the District and/or Local Court, as well as the transcript of the hearing before the Local Court on 13 May 2024, including his Honour's ex tempore judgment.
4. Mr Kalantzis made short submissions from the bar table. He maintained, as he had done before the Local Court, that the retaining wall the subject of the PIN, although not an insignificant structure and which required development consent under the EPA Act, had been constructed with some urgency because of anticipated weather events which was likely to affect the foundations of a related property. The photographs in the material clearly show the nature and extent of the work that was undertaken.
5. Mr Kalantzis also noted that subsequent to the Local Court hearing, Council had issued a certificate in relation to the adequacy, structural or otherwise, of the retaining wall.

Consideration

1. The primary proceedings before this Court are brought pursuant to the CAR Act. For present purposes, the relevant provisions are: 31 Appeals as of right (1) Any person who has been convicted or sentenced by the Local Court with respect to an environmental offence may appeal to the Land and Environment Court against the conviction or sentence. … (2) An appeal must be made - (a) within 28 days after sentence is imposed, or … 33 Late applications for leave to appeal (1) An appeal to the Land and Environment Court may be made - (a) by any person by whom an appeal could be made under section 31, but for section 31 (2), and … but only by leave of the Land and Environment Court. (2) An application for leave to appeal must be made within 3 months after the relevant conviction, sentence or order is made or imposed. 34 Lodgment of appeals and applications for leave to appeal … (3) An application for leave to appeal under section 32 or 33 is to be made by lodging a written application for leave to appeal, together with a written notice of appeal, with - (a) the Registrar of the Land and Environment Court, or … (4) An application for leave to appeal must state the general grounds of the application and, in the case of an application under section 33, must state the reasons why an appeal or an application for leave to appeal was not made within the time allowed by section 31 or 32, as the case may be. ... 36 Determination of applications for leave to appeal … (2) Leave to appeal must not be granted in relation to an application under section 33 unless the Land and Environment Court is satisfied that it is in the interests of justice that leave be granted. (3) If the Land and Environment Court dismisses an application for leave to appeal, it may make such order as to the costs to be paid by the appellant as it thinks just. …
2. The proceedings in this Court were commenced by Brokers Property in Class 6 of the Court's jurisdiction on 15 August 2024, which was outside the 28 days permitted under s 31 of the CAR Act for an appeal. Section 33 provides for late applications for leave to appeal but only by leave of the Court if the application for leave to appeal is made within three months after the relevant order is made. As the Local Court made orders on 13 May 2024, the application in this Court was not filed within the three month period permitted by s 33(2).
3. While the effect of the above is unfortunate for Brokers Property, the evident purpose of the statutory provisions in the CAR Act is to ensure that following a conviction and sentence imposed in a Local Court, there is a time-limited right to appeal from such orders in order to bring finality to the proceedings. That purpose is reflected in the initial limitation of 28 days to appeal as of right and thereafter the requirement for leave to be obtained for a late application for leave to appeal be made within three months from the date of the conviction. If an appeal as of right or the process of seeking leave has not been exercised within the periods set out, the penalty imposed by the Local Court must stand: Hussain v Liverpool City Council [2014] NSWLEC 45 ('Hussain') at [23].
4. As has been recorded in earlier judgments of this Court, any sympathy that a court may have for Brokers Property's position cannot result in a court purporting to exercise any jurisdiction it does not have. It is my view that s 33(2) of the CAR Act denies the power of this Court to entertain the application for leave to appeal as it is entirely out of time.
5. The above approach has been consistently adopted in this Court: Fletcher v Byron Shire Council [2010] NSWLEC 185 at [11]; Hussain at [22]-[25]; Thaler v Cooma Monaro Shire Council [2015] NSWLEC 119 at [12], [15]; Carroll v Byron Shire Council [2019] NSWLEC 52 at [23]-[26]; Cmunt, Jiri v New South Wales Commissioner of Police; Cmunt, Marie v New South Wales Commissioner of Police [2019] NSWCCA 177 at [16].
6. For the reasons above, I find that Council is entitled to the relief sought in the notice of motion and the proceedings should be dismissed.

Costs

1. Council sought an order that Brokers Property pay its costs of the appeal pursuant to s 49(4) of the CAR Act. That section permits the Court to make such order as to costs be paid by either party as it thinks fit.
2. I consider that it is just in the circumstances for Brokers Property to be ordered to pay Council's costs of the appeal as Council should be compensated for its costs in successfully defending the appeal brought by Brokers Property. There is no disentitling conduct on behalf of Council either in this Court or at the hearing in the Court below.
3. Although Brokers Property conducted the appeal without representation, it had received certain legal advice and for some time had a solicitor acting for it. Despite this, the evidence before the Court is that on a number of occasions Council's solicitors brought to Mr Kalantzis' attention its concerns as to the power of this Court to entertain Brokers Property's appeal (and the requirements for leave to appeal) and, as I have noted in the background above, despite being informed that the application for leave to appeal must be made to the Land and Environment Court by 13 August 2024 (and being recommended to take further legal advice) Mr Kalantzis, as director and sole shareholder of Brokers Property, indicated that he had taken legal advice. Further, the view of Council's solicitors was also conveyed by email of 23 July 2024 to the solicitor then acting for Brokers Property, who responded that that message would be forwarded to Mr Kalantzis.
4. Further, even after the expiry of the date for the commencement of proceedings seeking leave to appeal, when informed in further correspondence on 22 and 23 August 2024 from Council's solicitors that Council would, if the appeal was not withdrawn, seek the dismissal of the proceedings, Mr Kalantzis indicated that "we should leave it up to the court to decide" and that the Court "does have discretion in deciding the circumstances that led to the appeal".
5. In accordance with s 36(3) of the CAR Act, I consider it appropriate to make an order dismissing the application and that it is just to order that Brokers Property pay Council's costs.

Orders

1. The orders of the Court are: 1. Summons filed by Brokers Property Holdings Pty Ltd on 15 August 2024 seeking leave to appeal a decision of the Local Court is dismissed. 2. Brokers Property Holdings Pty Ltd is to pay MidCoast Council's costs of these proceedings, as agreed or assessed, with such costs to be paid within 28 days after agreement as to the amount of the costs has been made or the issue of a certificate of assessment of any such costs, whichever is earlier.

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