Pittwater Council v Brown Brothers Waste Contractors Pty Limited

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Blacktown City Council v Butler [2008] NSWLEC 295 Burwood Council v Ruan [2008] NSWLEC 167 Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304 Director- General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121 Environment Protection Authority v Ableway Waste Management Pty Limited [2005] NSWLEC 469 Environment Protection Authority v Pannowitz (No 2) (2006) 153 LGERA 126 Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299 EPA v Barnes [2006] NSWCCA 246 EPA v Thaler [2005] NSWLEC 109 Gittany Constructions Pty Limited v Sutherland Shire Council (2006) 145 LGERA 189 CASES CITED: Ku-Ring-Gai Council v Labordus [2009] NSWLEC 30 Liverpool City Council v Palerma Pty Ltd and Panilo (No 2) [2009] NSWLEC 45 Matthews v ASIC [2009] NSWCA 155 Mosman Municipal Council v Kelly (No 3) (2009) 167 LGERA 91 Nambucca Shire Council v Mirage Property Group Pty Ltd [2008] NSWLEC 84 Newcastle City Council v Leaway Pty Limited [2005] NSWLEC 305 Parramatta City Council v Roy DR Services Pty Limited, Ray Yong Xu [2005] NSWLEC 756 Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 Pittwater Council v Brown Brothers Waste Contractors Pty Ltd [2009] NSWLEC 50 Queanbeyan City Council v Pre-Cast Concrete Solutions [2008] NSWLEC 147 Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 Witham v Holloway (1995) 183 CLR 525 Wood v Staunton (No 5) (1996) 86 A Crim R 183

APPLICANT Mr M Leeming SC with Mr T Howard SOLICITORS Mallesons Stephen Jaques LEGAL REPRESENTATIVES: RESPONDENT Mr P Clay SOLICITORS Wilshire Webb Staunton Beattie Lawyers

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40612 of 2007 Pittwater Council v Brown Brothers Waste Contractors Pty Ltd (No 2)

1 HER HONOUR: The respondent, Brown Brothers Waste Contractors Pty Ltd ("BBWC"), pleads guilty to one charge of contempt, namely, that from 28 February 2009 and continuing, it has committed a contempt of court and remains in contempt of court by reason of a contravention of an order made by consent on 9 August 2007 in this Court. 2 The Court order stated as follows ("the Court order"): The respondent be restrained from using the rear of 6 Polo Avenue Mona Vale (the area the subject of consent 95/120 dated 30/06/95 "the Development Consent")("the Premises") for the purpose of a waste management facility or for the storage, sorting or stockpiling of any materials or things other than the storage of trucks and waste containers. 3 This judgment concerns the appropriate penalty to be imposed as a consequence of the guilty plea. For the reasons below BBWC is fined a total of $45,000. The Circumstances Giving Rise to the Contempt Agreed Statement of Facts 4 The parties agreed on the following facts by way of written statement, namely, that: (a) since about 1989 Mr Wayne Brown and Mr Gary Brown (the directors of the respondent) have been carrying on a waste skip business, which involves the delivery of empty skip bins to commercial or domestic properties. The skip bins are collected when they are filled with waste and are transported to waste facilities and disposed of for commercial reward;

(b) Mr Wayne Brown and Mr Gary Brown have at all times since the registration of BBWC on 26 February 1999 been the sole directors and shareholders of that company;

(c) on 30 June 1995, Pittwater Council ("the Council") granted Development Consent for the use of Premises comprising lot 23 in DP 5497, known as 6 Polo Avenue, Mona Vale, as "a depot for the storage of trucks and waste containers". The applicants for the consent were Mr Wayne Brown and Mr Gary Brown;

(d) the Premises is adjoined by various industrial and commercial buildings, some of which are in close proximity to the boundary of the Premises;

(e) since the granting of the Development Consent the Premises have been used as part of the skip bin business;

(f) on 29 June 2007, the Council commenced Class 4 civil enforcement proceedings against BBWC in this Court seeking a declaration that BBWC was carrying out, causing, permitting, authorising or suffering the carrying out of a use of the Premises contrary to the Development Consent and seeking consequential orders that BBWC comply with particular conditions of the Development Consent;

(g) on 3 August 2007, the Council amended its Class 4 application to seek an additional declaration that BBWC was using the Premises for the purpose of a waste management facility and for the storage, sorting and stockpiling of materials for things other than empty skip bins and vehicles without first having obtained development consent and in breach of s 76A(1) of the Environmental Planning and Assessment Act 1979 ("EPAA"). It also sought an order that BBWC be restrained from so using the Premises;

(h) on 9 August 2007, by way of resolution of the Council's claim against BBWC, the Court made orders by consent which included the Court order referred to above (consent order 1). By consent order 2, the Court order was suspended until 28 February 2008. Consent order 8 required BBWC to lodge with the Council a development application for its proposal to use the Premises for the purpose of a waste management facility (together, "the Court orders");

(i) BBWC was at all material times legally represented during the Class 4 proceedings;

(j) during the period in which BBWC has used the Premises as a waste management facility, skip bins of various sizes containing waste were brought onto the Premises;

(k) the type of waste material which was stored and sorted on the Premises comprised demolition waste, excavated materials and general waste from commercial and domestic clean ups;

(l) the approximate quantities of waste material being stored and sorted on the Premises by BBWC during the period it used the Premises for this purpose ranged from 300 to 420 tonnes per week, with the mean weekly tonnage being 355 tonnes;

(m) during the 2008 calendar year in the period after 28 February 2008, BBWC continued to use the Premises for the purpose of a waste management facility and for the storage and sorting of waste materials;

(n) on 20 March 2008, the Council's solicitors sent a letter to BBWC's solicitors noting, amongst other things, that BBWC was continuing to use the Premises for the storage, sorting or stockpiling of material other than the storage of trucks and waste containers. The Council requested that BBWC immediately cease these uses. Significantly, the solicitors put BBWC on notice that it considered the failure of the respondent to comply with the Court's orders amounted to contempt;

(o) on 28 March 2008, BBWC replied through its solicitors that it had complied with all of the consent orders except for order 8 and that an application to the Court would be made to extend the time for compliance with that order. It requested that the Council refrain from taking any contempt proceedings until their motion had been dealt with by the Court;

(p) on 11 April 2008, Mr Wayne Brown attended a meeting with the Council's general manager and manager of environmental compliance. Pursuant to that meeting Mr Brown understood that if a development application was lodged with the Council by 31 May 2008 for the proposed use of the Premises as a waste management facility (being the development application contemplated by order 8 of the consent Court orders), the Council would not enforce the Court orders while the development application was being assessed;

(q) on 3 June 2008, development application N0237/08 (with supporting material) ("the DA") was lodged with the Council. The development application described the intended use as a "waste handling and recycling depot including construction of recycling shed and office and amenities building, driveway and parking area, associated site works, piping of open drainage channel". From 3 June 2008 to 5 February 2009, the assessment of the DA was delayed by Council's request for further information;

(r) there was therefore a period throughout much of 2008 during which BBWC continued its operation in breach of the Court orders but with the knowledge of the Council. However, by letter dated 30 January 2009, the Council made it unequivocally clear that the orders needed to be complied with. The letter noted that BBWC had been in breach of the Court order for approximately 11 months. The letter requested an undertaking from BBWC that it cease the current use of the Premises as a waste management facility within 28 days of the date of the letter. The undertaking was to be provided within seven days otherwise the Council would file a notice of motion for contempt;

(s) on 24 February 2009, BBWC filed a notice of motion seeking to amend consent order 2 in order to suspend the injunction embodied in the Court order until 28 February 2010. At the hearing of the motion, BBWC amended the motion to seek a shorter suspension, namely, until 30 June 2009;

(t) on 26 March 2009, a further report to the development unit of the Council recommended the refusal of the DA. The grounds for refusal stated that the documentation supporting the development application did not clearly describe or illustrate the way that the site would operate in terms of the skip storage, the processing of waste and the vehicle movement paths and that it was considered likely that the use could not be wholly contained within the building and as such would present a significant environmental impact to the locality due to the noise, dust and litter associated with the proposal;

(u) on the same day the Council filed its motion for contempt;

(v) on 2 April 2009, BBWC's notice of motion to extend consent order 2 was heard by Lloyd J of this Court. There was a mention of the Council's contempt motion. Mr Wayne Brown was present in Court throughout;

(x) on 17 April 2009, his Honour dismissed BBWC's notice of motion ( Pittwater Council v Brown Brothers Waste Contractors Pty Ltd [2009] NSWLEC 50). Also on this day BBWC pleaded guilty to the contempt charge; and (y) on 20 April 2009, the DA was refused by the Council. Agreed Use in Contravention of the Court Orders From 28 February 2009 5 It was also agreed between the parties that as at 28 February 2009 BBWC was continuing to use the Premises for: (a) the purposes of a waste management facility in conjunction with its skip bin business; and

(b) the storage, sorting and stockpiling of material other than the storage of trucks and waste containers associated with the carrying on of a skip bin business.

6 In addition, in the period from 28 February 2009 to 1 April 2009 (inclusive) BBWC continued to use the Premises for: (a) the purpose of the storage, sorting and stockpiling of materials other than the storage of truck and waste containers; and

(b) for the purposes of a waste management facility, in conjunction with its skip bin business. The Contempt Proceedings 7 While BBWC pleaded guilty on 17 April 2009, during the course of these proceedings it became apparent that Mr Wayne Brown did not understand that his company was in breach of the Court order by reason of the storage of skip bins containing waste material on the Premises. He gave evidence to this effect notwithstanding that a plea of guilty had been entered in relation to the charge and the charge having been particularised as the storage "of any materials" on the Premises. I shall return to the implications of this belief below.

Additional Agreed Facts 8 The agreed statement of facts was supplemented by affidavit evidence from both parties that was not in dispute. From this evidence it emerges that: (a) because of the nature of the skip bin business, from time to time loose asbestos in addition to packaged asbestos was present in the waste materials brought onto the Premises;

(b) on 2 April 2009, witnesses working at G&Y Collision Repairs Pty Ltd ("G&Y") adjoining the Premises, saw and heard a skip truck on the Premises operate its hydraulic tip mechanism to empty the contents of the skip bin onto the ground. The contents included wood, tin, bricks and plastic. The contents of the building waste from the skip were then scraped up by a bobcat on the site and dropped into another skip bin on the Premises;

(c) in the period 3 to 17 April 2009 inclusive, BBWC continued to use the Premises for the purposes of a waste management facility in conjunction with its skip bin business;

(d) however, after 2 April 2009, the use of the Premises for this purpose was scaled down because BBWC's practice was to bring skip bins containing waste onto the Premises, unload the skip bins, store them on the Premises and then transport the waste to external waste facilities;

(e) in the period since 17 April 2009 to the date of the hearing, BBWC has continued to store waste in skip bins on the Premises. Both a neighbour and Mr Steve Larsen, the Council's Development Compliance Officer and Ranger Team Leader, had observed the continuing practice of skip bins containing waste being unloaded and stored on the Premises before being transported to external waste facilities; and

(f) since 17 April 2009, and including on 11 and 12 June 2009, the shovelling of waste from one skip bin to another on the Premises was observed. 9 The Council accepts that at least on or after 2 April 2009, the conduct of BBWC improved insofar as steps were taken by it to remove loose materials stored on the Premises. However, the Council contends that from 28 February 2008 onwards there was storage of material in skip bins on the Premises in contravention of the Court order. The majority of these bins were not covered. Evidence of the Council 10 Mr Steven Larsen deposed in an affidavit sworn 18 March 2009 that he attended the Premises on 11 March 2008 for an inspection for the purpose of monitoring compliance with the Court orders. 11 During the course of the inspection he observed several skip bins on the premises filled with material and several large and uncovered stockpiles of dirt, broken concrete and other miscellaneous building waste material.

12 Mr Larsen had a conversation with Mr Gary Brown where Mr Larsen informed Mr Brown that he was in breach of the Court orders because no development application had been received to use the Premises as a waste facility. Mr Brown replied by telling him that, "my barrister has requested an extension of time to the Court".

13 Mr Larsen also stated that he and other officers of the Council attended the Premises on a number of occasions between April 2008 and January 2009, after having received several complaints concerning illegal Premises use, noise, dust, water and vibration pollution and the presence of asbestos on the Premises.

14 In a later affidavit sworn 12 June 2009, Mr Larsen stated that he inspected the Premises again on 16 April 2009. During the inspection he observed a number of skip bins on the Premises that were full of what appeared to him to be building waste material. These bins were uncovered. He also observed a number of empty bins on the Premises. He further observed two skip bins containing material encased in orange plastic. In relation to this material, Mr Wayne Brown said to Mr Larsen, "these bins contain asbestos. They are being removed to appropriate waste facilities".

15 Mr Larsen inspected the Premises once more on 5 May 2009. Again he observed several skip bins on the Premises during his inspection. Some were empty while others were filled with building waste and were uncovered.

16 Finally, Mr Larsen inspected the Premises on 29 May 2009 and observed a number of empty skip bins, he similarly observed several skip bins which were filled with various types of building waste and which were uncovered.

17 During oral evidence Mr Larsen stated that BBWC had a permit issued by the Council under the Roads Act 1993 to place bins on any nature strip or road within the Council's boundary. Pursuant to the permit, once a flat fee was paid there was no limit to the number of skips that could be placed on the road.

18 Under cross examination Mr Larsen agreed that at all times Mr Gary Brown and Mr Wayne Brown were cooperative and compliant. He agreed that whilst he was undertaking the inspection at the premises on 5 May 2009 he observed that all of the loose soil and rock which had been present during the site inspection on 16 April 2009 had gone. He also agreed that during his site inspection on 29 May 2009 there was no evidence of any loose material nor evidence of any sorting of materials having taken place.

19 The Council also relied on the evidence of Mr Gary Ellis. Mr Ellis is the director of G&Y. G&Y trade from the property adjacent to the Premises as a panel beating business.

20 Mr Ellis deposed in his affidavit sworn 2 April 2009, that on the morning of 2 April 2009 he and his employee, Mr Nick Birtles, observed a skip truck raising a skip bin on the Premises at such an angle that building waste fell out of it. He then heard the noise of the waste being scraped up by what he assumed was a small bobcat on the site. This assumption was later confirmed by his observations over the top of the adjoining fence where he saw a bobcat shovelling loose waste material from the ground into a smaller skip bin.

21 In a later affidavit sworn 12 June 2009, Mr Ellis detailed his observations of the respondent's Premises from 3 April to 12 June 2009. He stated that he had observed skip bins left empty on the property which were then filled with what appeared to be building waste, dirt and rocks. Most of the skip bins he observed were uncovered, with only one out of ten being covered. Mr Ellis stated that some of the skip bins appeared to have been stored on the Premises for two or three weeks. He also observed the shovelling of waste between skip bins.

22 Under cross examination, however, Mr Ellis stated that as at 20 June 2009, he had observed 21 bins on the site with only one covered. In relation to his observations of the events on 12 June 2009, he confirmed that he had observed the shovelling of material from a skip on a truck to a skip on the ground. He stated that he could see the bottom of the skip on the ground because he was working on the back of the truck and was therefore approximately 10 feet in the air. Mr Ellis stated that he observed shovelling for about 10 to 15 minutes. In relation to the photos that he had taken, Mr Ellis conceded that he had not used a zoom, however, he stated that he could see the waste material that was being shovelled which was dirt and sand. I have no doubt about the accuracy of Mr Ellis' observations.

23 In an affidavit sworn 6 April 2009, Mr Nicholas Birtles, an employee of G&Y, confirmed Mr Ellis' observations concerning the activities witnessed on the respondent's Premises on 2 April 2009. That is to say, he too observed the tipping out of rubbish from a skip bin and heard the sound of a bobcat on the Premises moving building material waste.

24 In a later affidavit sworn 12 June 2009, Mr Birtles stated that from 3 April to 12 June 2009, he observed trucks entering BBWC's property carrying skip bins. This occurred five or six times a day. Some of the skip bins were empty while others were filled with material.

25 Mr Birtles stated that on the morning of 11 June 2009, he heard a loud banging and scraping sound. He could see over the fence into the respondent's Premises and observed a person, who he believed to be Mr Gary Brown, shovelling material from a skip bin positioned on the top of a truck. The material he saw being shovelled was black sand.

26 Under cross examination Mr Birtles conceded that he could not properly see what the material was being shovelled into. He stated that Mr Brown appeared to be shovelling for 10 to 15 minutes.

27 The Council relied on a report on the BBWC site by Mr Maurice Pignatelli of GHD, prepared in March 2009. Mr Pignatelli was engaged by the Council to assess the current use of the site as a waste management facility. In Mr Pignatelli's report (attached to his affidavit sworn 12 March 2009) he stated that he visited the site on 20 February 2009 and observed the following: (a) used tyres, clay bricks, computer equipment, aluminium and metal were stockpiled on the Premises;

(b) approximately 15 skips were on the Premises, which were not covered and which contained mixed waste;

(c) an estimated 120m3 of soil stockpiled in the northeast corner of the site, together with large concrete blocks used to retain the soil stockpile;

(d) a stockpile of soil containing residual waste such as steel, plastic, concrete, plaster and bricks;

(e) asbestos fragments within one of the stockpiles; and

(f) skips and bags designated for segregated waste which were located along the western boundary of the site. These included designated skips for metal, concrete, cement, plaster and timber and designated bags for copper, aluminium cans, wire and lead. A skip containing synthetic mineral fibre insulation was also observed. 28 Based on his observations of the material and equipment on the site, it was apparent to Mr Pignatelli that waste material was being brought onto the site in waste skips and that full skips containing this waste material were generally stored on the Premises for the purpose of sorting. The contents of the skips were emptied onto the concrete pavement and then sorted manually or mechanically to segregate the waste types. Segregated waste was loaded into designated skips and bags for recycling or disposal off site. Material that appeared to be virgin excavated natural material was stockpiled on the site. Soil stockpiles containing residual waste that were contaminated with what appeared to be asbestos fragments, were kept on the Premises. Other material, such as used tyres, clay bricks, computer equipment, aluminium and metal, was also kept on the Premises. 29 Consequently, Mr Pignatelli had no hesitation in concluding that the Premises was being used for the storage of trucks and waste containers, as well as the storage, sorting and stockpiling of waste materials.

30 Mr Pignatelli stated that the environmental impacts of the current operations of the site included potential water pollution, potential air pollution, potential wind blown litter and potential noise and vibration pollution.

31 Mr Pignatelli also stated that because hazardous building materials were observed on the Premises, including asbestos fragments and synthetic mineral fibres, this presented a potential risk to the health of site employees working in the vicinity of the materials. Whilst bins located on the Premises had signs saying "no asbestos", in Mr Pignatelli's view, this would be difficult to enforce in practice. This was because common building materials such as asbestos containing flat fibre cement sheeting and SMF insulation batts were likely to periodically contaminate mixed construction and demolition waste brought onto the Premises.

32 Under cross examination Mr Pignatelli accepted that procedures and protocols were in place at BBWC to enable a driver to refuse to take a bin if it was identified as containing asbestos. However, as Mr Pignatelli noted, it would be more likely that asbestos would be contained below the surface of the building material and would therefore not be readily identifiable.

33 Mr Pignatelli further stated that transportation was likely to release any asbestos fibres if they were loose and on the top of the transported material and that there was also a potential for fibres to be released when the bin was emptied. However, Mr Pignatelli agreed that if the asbestos was buried, it presented a "negligible" risk. Asbestos left on the Premises on the surface was, however, in his opinion, a risk insofar as it could create wind blown fibres.

34 The Council also relied on a report by Mr Paul Gorman of Geotechnique Pty Limited ("Geotechnique") dated 22 May 2008. Geotechnique were engaged to ascertain whether the site was likely to present a risk of harm to human health and/or the environment arising from past or present activities within the site.

35 In a section of their report entitled "Potential for Contamination" Geotechnique stated that: Various streams of waste are brought to the site in skips and subsequently sorted. There is a potential for contaminated soils and asbestos to be included in the waste even if not permitted. There is also potential for contaminants to leach from the soils into the site soils in non-hard surface areas and through concrete joints. 36 Geotechnique therefore concluded that the subject site had a potential for contamination. 37 Finally, the Council relied on BBWC's management plan which outlined a procedure for handling asbestos and the Council tendered an application to it from BBWC for a permit to stand skip bins and building waste containers from 1 July 2008 to 30 June 2009. The permit was for unlimited placements. The permit was granted by the Council on 27 July 2008.

Evidence of Respondent 38 Mr Wayne Brown gave evidence on behalf of BBWC. The co-director of the company, Mr Gary Brown, did not. 39 In his first affidavit sworn 23 February 2009, Mr Brown stated that at the time the 1995 consent was granted the primary business of the company was the collection of waste using skip bins. The bins were filled with waste and were picked up and brought back to the Premises or taken directly to a waste disposal facility. The company also operated a few waste removal trucks. Over the last decade, however, the business changed to include the sorting and recycling of the waste brought onto the Premises.

40 In relation to the Court orders requiring the lodgement of a development application by 9 December 2007 in order to regularise the company's ongoing use of the site as a waste management facility, Mr Brown stated that on 9 August 2007 when the company entered into the Court orders, it was anticipated that the DA would be finalised by 9 December 2007. Unfortunately, "with the benefit of hindsight the time estimates by the company were unrealistic" and it was not lodged until 3 June 2008.

41 At a meeting at the Council attended by the General Manager and the Manager for Environmental Compliance on 11 April 2008, Mr Brown acknowledged that he had had a conversation with Council officers wherein they had stated that the company could have until 31 May 2008 to lodge the DA and that provided this deadline was met no action would be taken by the Council in relation to the breach of the Court orders.

42 In his second affidavit of 2 April 2009, Mr Brown deposed to the activities on the premises as at 1 April 2009. In particular, Mr Brown stated that the tipping and sorting of waste had ceased as at the close of business on that day and that all the existing tip and other loose waste would be removed from the premises and disposed of by 18 April 2009. Mr Brown stated that the company had approximately 250 skip bins and that in his estimate the average number of skips containing waste the company was moving each day was approximately 40 to 50.

43 According to Mr Brown, when the waste in these bins was not being tipped and sorted, the most economical movement of each bin was from the site where the waste has been originally placed straight to the tip. This was because to bring containers of waste onto the Premises, to store that waste (usually overnight) and to then deliver the full container to the tip the next day added to the cost of the company's operation.

44 However, he acknowledged that "almost every day" customers would ring up in the late afternoon and request that full skip bins be removed that day. Mr Brown stated that this was a very important component of BBWC's service and that if the company could not remove bins when requested by customers, the customers were likely to employ another waste contractor which would have a serious impact on the company's profitability. In circumstances where this type of pickup was the last pickup for a driver the driver would, if there were a number of pickups for the drivers after the tips had closed, bring the container with waste back to the Premises for storage. 45 Mr Brown stated that in his estimate there were usually between 3 to 12 containers with waste in them on the Premises at any one time. Mr Brown stated that "skips with waste that arrive on Monday, Tuesday, Wednesday and Thursday would be taken to the tip on the next day. Skips that arrive on Friday or Saturday would be taken to the tip the following Monday". Mr Brown further said that, "as each waste container is unloaded off the truck and placed on the site it will be covered with shade cloth. This cover would be removed when that waste container is taken from the Premises".

46 In a third affidavit, filed on the day of the hearing, Mr Brown stated that he was "surprised" when his solicitors received the letter from the Council's solicitors dated 30 January 2009 threatening contempt proceedings. This was because he believed the arrangement agreed to between himself and the Council on 11 April 2008 was still in place as at 30 January 2009, given that the development application was still being assessed at that time. Mr Brown also stated that BBWC had sought legal advice from his solicitors as to how to deal with the 30 January 2009 letter and that it was decided that the company would "try and extend the time for compliance with the Court orders filed in the Court on 10 August 2007…until after the development application had been assessed".

47 He further stated that from about 2 April 2009, BBWC began making alternative arrangements for the operation of its skip bin business which involved the cessation of all tipping and sorting activities on the Premises. Consequently, tipping and sorting of new waste stopped between 1 April and 18 April 2009. The company had not tipped or sorted waste on the Premises since, at the very latest, 18 April 2009.

48 Mr Brown apologised on behalf of the company for the breach of the Court order and stated that he "now understands the effect of the Mallesons letter was to require compliance with order 1 of the Court orders by 28 February 2009". Mr Brown stated that the company was sorry that it had not complied with the 30 January 2009 letter and that it had never been the company's intention to deliberately disobey the law. Mr Brown stated that the company "now understands" that by not complying with the letter that it has been in contempt and it "regrets" being in that position. Mr Brown stated that the company had tried at all times to comply with the Court orders but accepts that BBWC "should have made sure" that it had complied with the Court orders from 28 February 2009. Mr Brown stated that "it will not happen again".

49 However, Mr Brown went on to admit in his affidavit that "full bins stayed overnight on the Property during this period because the company believed and still believes that its able to store full bins on the Property" (emphasis added). Mr Brown also admitted that some of the full bins were stored on the Premises without cover during this period as the company "was not aware it had to cover full bins and is still not aware of any such requirement".

50 In the affidavit, Mr Brown reiterated that the full bins which had been stored on the Premises from and including 20 April 2009, had generally arrived at the end of the day. This was due to customer requests to have the full bins collected that afternoon. Mr Brown again emphasised that to refuse these requests would be financially detrimental to the company and because the waste disposal facilities were often closed by the time the bins were picked up, "my experience tells me" that storing the bins on site was the best way to deal with the situation. This was so notwithstanding that the company had a permit with the Council to store bins on the street throughout the Pittwater local government area.

51 Mr Brown took issue with the evidence of Mr Gary Ellis insofar as he disagreed that all the skip bins left on the Premises were filled with waste. However, Mr Brown generally did not dispute the evidence given by Mr Birtles in his affidavit. He stated that the skip bins which got stored on the Premises "stay anywhere from 10 minutes up to 7 days" and that it was on occasion necessary to clean out the bottom of a particular skip bin where waste had adhered to the bottom.

52 With respect to the written evidence of Mr Larsen, Mr Brown was in general agreement with it. However, he stated that the two bins containing asbestos referred to by Mr Larsen had been removed from the site by 17 April 2009. He further stated that prior to 28 February 2009 and up to the date of the swearing of the affidavit on 22 June 2009, any waste containing asbestos arrived at the Premises already wrapped and sealed in plastic in accordance with WorkCover requirements. The asbestos which was on the Premises was disposed of at an appropriate facility generally within a day, however, this could sometimes take longer after rain as the waste facilities did not accept asbestos until the ground has dried out.

53 Giving oral evidence, Mr Brown told the Court that whilst BBWC no longer sorted any material on site and that 90 per cent of the bins went straight to the tip, 10 per cent of the bins were continuing to come to the yard full of material. Mr Brown also stated that sometimes bins had residual debris in them when they returned to the Premises which needed to be scraped out manually into another bin, either on the truck or on the ground. The length of time taken to scrape out what remained in the bin depended on what the material was. Mr Brown stated that he had never known this to take 10 to 15 minutes, rather it usually took 2 to 5 minutes.

54 In cross examination several inconsistencies in Mr Brown's evidence were revealed: (a) first, in his oral evidence to the Court Mr Brown was adamant that skip bins full of waste were not left on the Premises for up to a week. By contrast in his third affidavit he had deposed that bins were stored on the Premises anywhere from "10 minutes up to 7 days"; and

(b) second, Mr Brown conceded that the statement made by him in his third affidavit that he had not seen anyone shovelling waste between skip bins during the relevant period other than on one occasion involving his brother, Mr Gary Brown, was incorrect. In fact this cleaning out procedure occurred every two to three days. 55 Mr Brown further conceded that the evidence given in his second affidavit was also incorrect to the extent that he had deposed: (a) that the skips arriving on Monday, Tuesday, Wednesday and Thursday with waste were taken to the tip the next day and that skips arriving on the Friday or Saturday were taken to the tip on the following Monday. Mr Brown agreed that this was not what was occurring "at the moment" because it did not suit the company's commercial operations;

(b) that as each waste container was unloaded off the truck and placed on the site it would be covered with a shade cloth. Mr Brown agreed that this was not always the case; and (c) the tipping and sorting of waste on the Premises ceased on 2 April 2009 when it had not. 56 While Mr Brown had earlier conceded that 10 per cent of the bins were returning to the Premises full (some of which were covered, some of which were not), he refused to admit that the reason why bins were still being received onto the Premises with waste in them was financial. Rather, Mr Brown stated that it was about "customer service" although Mr Brown agreed that enhancing the reputation of the company by providing a particular service increased the business of the company and thereby generated increased profits for its shareholders. 57 As referred to above, Mr Brown confessed that until the date of the hearing, he believed that he could lawfully bring full bins of waste onto the Premises. That is to say, it was his view that he was, and always had been, permitted to store bins full of waste material on the Premises. He stated that this belief came from ambiguity with the terms the original DA and the Court order.

58 Mr Brown stated that he had only briefly read the Court orders "sometime ago" but that his interpretation of the orders was that BBWC could store containers with waste on the Premises for an unlimited period of time.

59 Mr Brown went on to claim that he did not understand the letter received from Council at the end of March to mean that the Council was of the view that BBWC could not bring back full skips of material onto the Premises. It was not until sometime subsequent to this letter that he became aware of Council's position. 60 According to Mr Brown, it was his solicitor who told him that pursuant to the Development Consent BBWC could store containers on site with waste in them. Mr Brown stated that his solicitors told him that the order was ambiguous inasmuch as it was not clear whether or not the prohibition against the storage of containers applied to empty or full containers. Mr Brown was unable to give any further details of the advice provided nor identify which solicitor had given this advice. He stated that the advice had been given either immediately after the hearing on 2 April 2009 or the following working day.

61 Mr Brown conceded that notwithstanding that he was aware, contrary to his interpretation of the Court order, of the Council's view that BBWC was operating in breach of the order, he nevertheless continued to bring full containers of waste back to the Premises.

62 Mr Brown stated that when he deposed in his affidavit that the company was sorry for being in breach of the Court orders, the apology was genuine even though he did not believe that he continued to be in breach at the time it was given. Mr Brown accepted that he should have taken more steps to ensure compliance with the Court order. Nevertheless he stated that the company took the orders "seriously" and that he would not store any further material on site.

63 Thus Mr Brown stated that from the date of the hearing all bins full of material that were not able to be taken to the tip immediately would be stored outside the Premises on the road as permitted by the Council, and that to the extent that skip bins were being removed from other localities, the skip bin would remain outside the customer's property if it could not be taken to the tip immediately.

64 Mr Brown said that although it would be difficult to change his business plan, because he and his brother were "100 per cent in control" of the company they could quickly and easily implement instructions to stop full bins being stored on site.

65 Finally, Mr Brown stated that notwithstanding that the company had an estimated annual turnover of $2 million in this financial year, it was estimated that due to the global financial crisis the company would post a loss of around $100,000 this financial year. No documentary evidence was tendered in support of this estimate. Findings Made in Relation to Mr Brown's Evidence 66 Overall, I did not find Mr Brown's evidence to be satisfactory. Not only did his oral testimony contradict, in part, evidence contained in his written affidavits, Mr Brown was also largely unresponsive in relation to the questions asked of him in cross examination and was reluctant to make obvious concessions. 67 I do not accept that his solicitors gave him the advice that he claims to have received, namely, that the terms of the Court order were ambiguous. The details given by Mr Brown of this very important piece of evidence were too vague for it to be credible. Rather, I find beyond reasonable doubt that any ambiguity in the order was the exclusive product of Mr Brown's state of mind, which he then sought to take advantage of. 68 Had this advice been given, it is unbelievable that in the face of potential contempt proceedings Mr Brown would not have done more to clarify the ambiguity with his legal representatives and would not have sought to err on the side of caution by ensuring compliance with the orders. 69 I find beyond reasonable doubt that Mr Brown chose to continue to receive full skip bins and to store them on the Premises if they could not be taken to the tip the same day with the knowledge that he was possibly breaching the Court order and with the knowledge that the Council was of the view that he was breaching the Court order. 70 I also find beyond reasonable doubt that this decision was taken purely for financial gain. I regard as spurious the distinction between acts of the company motivated by the desire to offer good service and acts of the company motivated by a desire to maintain or increase its business, and therefore, revenue. They are, in my view, one and the same. Possible Adjournment to Purge Contempt 71 After the evidence had concluded but prior to submissions, it was faintly put forward by counsel for the respondent that in light of the fact that the contempt was ongoing an adjournment ought to be granted so that the contempt could be purged. However, no application was made to the Court in this regard. Submissions of the Council 72 The Council submissions may be summarised as: (a) this was not a contumacious contempt, but it was wilful, in the sense of not casual, accidental or unintentional. The contempt was at the serious end of the scale given the length of time during which the contempt had been ongoing, namely, from 28 February 2008 to the date of the hearing, 22 June 2009;

(b) whilst there had been no actual environmental harm caused by the contempt there was nevertheless a potential risk of harm;

(c) in relation to the factors to be taken into account under s 21A of the Crimes (Sentencing Procedure) Act 1999 ("the CSPA"), the Council emphasised that neither Mr Brown nor the company had criminal records and that there was evidence as to the good character of both. However, the Council urged caution in relation to the testimonial evidence because as at the date they were written BBWC remained in contravention of the Court order;

(d) the Council also submitted that, in particular, s 21A(2)(i) and (o) of the CSPA were relevant; (e) with respect to the contrition expressed by BBWC through Mr Wayne Brown, the statement of remorse could not be accorded full weight because, first, when on 2 April 2009 Mr Brown stated that the offending activity would cease, it in fact continued, and second, because of Mr Brown's acknowledgement at the hearing that he did not consider that he had breached the Court order by simply storing full bins of waste on the Premises notwithstanding that the Council had notified him of its view to the contrary; (f) there was a plea of guilty at the earliest possible time and that therefore a 20 to 25 per cent discount was appropriate. The Council stated that whilst the plea of guilty was to the entirety of the charge, the respondent had in reality only accepted his guilt very late in relation to the contempt due to the continued storage of full bins on the Premises. This had a bearing on the amount of discount the respondent was entitled to for its plea of guilty; (g) whilst there may have been a negligible risk of environmental harm after 28 February 2008, this could not be said of the company's conduct prior to 28 February 2008;

(h) that the application by the respondent to modify the Court orders was irrelevant and ought not to be taken into account by the Court. This was because BBWC would have still been in contempt even if the orders had been modified; and (i) with respect to the purported ambiguity contended for in relation to the Court order, the Council submitted that this was a factor that the Court should have regard to in relation to deterrence. The fact remains that the appropriate step was for BBWC to take further advice from its lawyers in respect of the ambiguity and to err on the side of caution. It did neither. Submissions of the Respondent 73 The respondent examined the contemptuous conduct of the company over three phases: (a) first, from 28 February - 2 April 2009: when, it submitted, the company had made an application to modify the orders previously made by the Court in order to keep the business afloat;

(b) second, from 2 April - 18 April 2009: when the company was engaged in a phasing down and cleaning up period. That is to say, the company dealt with all aspects of the offending conduct except for the 10 per cent of full bins coming onto and being stored on site. This was supported by the evidence of Mr Steve Larsen of the Council that during his site inspection on 16 April 2009 he had observed that the clean up at the site was almost complete; and

(c) third, from 18 April - 22 June 2009: when 10 per cent of the skip bins were being stored on site with material in them but with an average turn around of two to three days. The photos taken during the site inspection of 5 May 2009 by Mr Larsen were consistent with Mr Brown's estimate that only 10 per cent of the bins being stored on site had material in them. The respondent emphasised that at this site inspection Mr Larsen concluded that no further action was required. The site inspection of 29 May 2009 yielded a similar result. 74 Thus the respondent submitted that during the first period a genuine attempt had been made by BBWC to remedy the situation and it was a procedural or "legal failure" that caused BBWC to be in default of the Court orders. 75 During the second period BBWC had attempted to deal with the outcome of the failed attempt to modify the Court orders. There was significantly less contravening activity on the Premises, a fact accepted by Council, and but for the storage of material and bins on the Premises, BBWC was otherwise in compliance with the orders. 76 The respondent emphasised that during the third period there was no evidence of any actual environmental harm and the risk of harm was negligible. Whilst it acknowledged that there was asbestos on the Premises, BBWC submitted that it was dealt with in the appropriate way when it was able to be identified. The respondent submitted that this had been accepted by Mr Larsen. 77 The respondent acknowledged that this was more than a mere technical contempt. It acknowledged that the matter was serious but submitted that it was at the low end of the scale in terms of its impact. Further, it emphasised that the duration of time in which the respondent was in contempt was relatively short (four months given the time period specified in the change) and that BBWC had genuinely attempted to regularise its conduct. 78 In relation to the relevant factors to take into account in determining the appropriate penalty, the respondent made the following submissions: (a) that the contempt proved was serious;

(b) that the contemnor was aware of the consequences to itself of what it did;

(c) that the actual consequences of the contempt were that no actual environmental harm had been caused;

(d) that the reason for the contempt was because BBWC wanted to provide a good service to its customers without disruption. Thus while there was a commercial gain from BBWC's conduct it was limited to the provision of good service;

(e) that there had been an apology and public expression of contrition. Mr Brown had said in evidence that he was sorry on behalf of BBWC. There was no need for all of the directors to give evidence because it was sufficient that Mr Wayne Brown spoke on behalf of the company. Mr Brown was not standing behind faceless representatives but had appeared in Court as a director of BBWC;

(f) that the character of the directors standing behind BBWC and the company itself was good and that there were no antecedents by either the directors of BBWC or BBWC itself;

(g) that in relation to general and personal deterrence, the respondent submitted that there was no need for any specific personal deterrence as this had been an expensive lesson for the company and its director. The respondent further submitted with respect to deterrence that the ambiguity of the Court order and the original Development Consent, together with the failure of the respondent to clarify this ambiguity, was not a matter that went to deterrence but rather was a matter that went to the wilfulness and seriousness of the contempt; (h) that with respect to the factors in s 21A of the CSPA, the respondent submitted that in relation to the aggravating factors there was negligible risk of any environmental harm occurring as a result of the contempt. In relation to factors in mitigation, s 21A(3) (e), (f), (g), (h), (i), (k), (l) and (m) were relevant; (i) that BBWC had cooperated at all times with the Council and that the late provision of affidavits did not in reality hinder the prosecution and ought not be considered; (j) rather, that when regard was had to the cooperation afforded by BBWC, the short period of time over which the contempt took place, the early plea of guilty, the fact that no real environmental harm was likely to have ever resulted, even with asbestos present on the site, and the fact that the contempt was at the lower end of the scale, a minimal penalty was warranted; and (k) that the Court ought to consider the likely high burden of the costs that the respondent would have to pay. Consideration Sentencing Principles for Contempt 79 The Council submitted that notwithstanding these are Class 4 proceedings they were criminal in nature. 80 I did not take this submission to mean that the contempt in question was a criminal, rather than civil, contempt. This is because, as appears from the decision in Witham v Holloway (1995) 183 CLR 525, disobedience of a court order in civil proceedings is a civil contempt, but will amount to a criminal contempt if it involves deliberate defiance, or as is sometimes described, it is contumacious (Witham v Holloway at 530 and see also 538-539). In the present case the contempt cannot be so classified. 81 In Mosman Municipal Council v Kelly (No 3) (2009) 167 LGERA 91, after consideration of the existing authorities, Biscoe J concluded (at [58]): 58 Thus, disobedience to a court order in civil proceedings is a civil contempt, but, it seems, amounts to a criminal contempt if: (a) the disobedience was contumacious: Witham v Holloway ; or

(b) punishment serves no remedial, coercive or deterrent purpose, but only a punitive purpose of punishing a past breach: Hearne v Street . 82 His Honour, however, did not have the benefit of the recent decision in Matthews v ASIC [2009] NSWCA 155 wherein Campbell JA expressed doubts that the basis upon which civil and criminal contempts could be distinguished was settled. Campbell JA stated (at [197]): 197 I do not read the decision in Hearne v Street as resolving any general question about the basis on which one distinguishes civil contempts from criminal contempts. At [130] Hayne, Heydon and Crennan JJ referred to some remarks of Ipp JA in which his Honour identified circumstances that would "prima facie" be regarded as a civil contempt, or that would "tend to show" that the contempt is civil, but at [131] Hayne, Heydon and Crennan JJ declined to decide the correctness of those remarks. In any event, the remarks of Ipp JA do not purport to be a definitive statement of where the difference between civil and criminal contempt lies. The reasoning of the High Court majority in Hearne v Street at [135]-[140] as to why the contempt involved in the case before them was civil, was closely tied to the facts of the case… 83 In Kelly (No 3) the question of whether or not the contempt was criminal or civil was relevant to the issue of whether or not the statement of charge was defective because the contempt was criminal and the charge did not allege contumacious conduct or disobedience. 84 In this case no such issue arises and, in any event, the distinction ultimately does not matter because it is well established that all proceedings for contempt, whether they be classified civil or criminal in nature, are treated as criminal insofar as all charges of contempt must be proven beyond reasonable doubt (Witham v Holloway at 534 and Matthews v ASIC at [27] and [154]). This is no doubt because while civil contempt is not a criminal proceeding, it may result in the imprisonment of the contemnor (Matthews v ASIC at [161]). 85 It was common ground between the parties that the relevant class of contempt was that of wilful contempt in the sense referred to by Kirby J in Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 (at [147]) (see also Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309). I agree. 86 A contempt will be seen as wilful if there is evidence of "deliberate conduct but without specific intent to defy judicial authority" (Parramatta City Council v Roy DR Services Pty Limited, Ray Yong Xu [2005] NSWLEC 756, Queanbeyan City Council v Pre-Cast Concrete Solutions [2008] NSWLEC 147 at [24] and Blacktown City Council v Butler [2008] NSWLEC 295 at [17]). Thus wilful contempt is disobedience that is more than casual, accidental or unintentional, but which falls short of a specific attempt to defy the authority of the Court. 87 In the present case the contempt was wilful in the sense that it did not reveal a specific intent to defy the authority of the Court. Put another way, the conduct of BBWC was not casual, accidental or unintentional, but constituted a sustained course of conduct over a specific period of time. The fact that the Council came to an arrangement with BBWC on 11 April 2008 that it would not take steps to enforce the Court orders as long as the DA was prosecuted did not render the conduct by BBWC anything other than wilful. Likewise, the fact that BBWC had filed an application to vary the Court orders did not transform the character of the contempt. In any event, there could be no doubt after the Council's letter of 30 January 2009 that it considered the conduct to be prohibited. The respondent understood this as at early April 2009 but continued up to the date of the hearing to contravene the Court order. 88 The legal principles governing charges of a contempt have been well traversed and are not repeated here. There was no dispute between the parties as to their content or application. These principles have been usefully summarised in a number of recent judgments of this Court (see Nambucca Shire Council v Mirage Property Group Pty Ltd [2008] NSWLEC 84, Burwood Council v Ruan [2008] NSWLEC 167 at [7]-[15], Kelly (No 3) at [71]-[82] and Environment Protection Authority v Pannowitz (No 2) (2006) 153 LGERA 126 at [20]-[24]). 89 In Pannowitz (No 2) Lloyd J stated the following proposition (at [20]-[23]): [20] The underlying purpose of the exercise of the power of the court to punish for contempt is to protect the effective administration of justice by demonstrating that the court's order will be enforced: Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106-107. In Mudginberri (at 107) the High Court referred to Borrie and Lowe's Law of Contempt (2nd ed, 1983), p 3: If a court lacks the means to enforce its orders, if its orders could be disobeyed with impunity, not only would individual litigants suffer, the whole administration of justice would be brought into disrepute. [21] The function of punishment for contempt serves two purposes: the enforcement of the process and order of the court and punishment as vindication of the authority of the court: Mudginberri at 108. Thus, in addition to its coercive purpose punishment also serves the purpose of deterring both the contemnor and others who might be so minded from flouting the authority of the court.

[22] Non-compliance with an order or a judgment of the court necessarily constitutes an interference with the administration of justice: Witham v Holloway (1995) 183 CLR 525 at 533-534. Any punishment must therefore show that obedience to a court's order is important and should reflect its gravity.

[23] Finally on the question of the nature and purpose of a penalty for contempt it is worth noting the judgment of Kirby J in Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at [149]: Unless courts are seen to respond firmly to deliberate defiance of their orders, their effectiveness in the authoritative determination of disputes of law would be undermined. And if they were not effective, "serious and lasting damage to the fabric of the law may result". [ Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 115]. Obviously, the culpability of the contemnor is relevant to the order which must be made [ Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741] The contemnor must then be punished in an emphatic way. He or she must be deterred effectively from any temptation to re-offend. However, the focus of attention is not solely on the contemnor. It is also addressed to the community at large and to any others who might consider acting in a similar manner. 90 This is because "all breaches of court orders are serious" (Liverpool City Council v Palerma Pty Ltd and Panilo (No 2) [2009] NSWLEC 45 at [6] citing Witham v Holloway at 533-534). Thus in Maniam [No 2] at 314 Kirby J said: A conviction of contempt of court is a conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and orderly administration of justice in the courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately emphatic way … Sentencing Factors 91 I accept the parties' submissions that the appropriate penalty is a fine. 92 The general approach for sentencing for contempt has been articulated in a number of cases (Maniam [No 2] at 314 per Kirby P and Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185 per Dunford J). In Matthews v ASIC the Court of Appeal (at [129]) endorsed the factors listed by Dunford J in Wood v Staunton (No 5) (also endorsed in this Court in Ruan at [18]-[19] and Palerma Pty Ltd and Panilo (No 2) at [7]). 93 Having regard to those factors, and the matters set out in ss 3A and 21A of the CSPA (that Act applies to the sentencing of contemnors: Environment Protection Authority v Ableway Waste Management Pty Limited [2005] NSWLEC 469 at [47]), the following considerations are relevant to the determination of an appropriate penalty in this case: (a) the seriousness of the contempt proved;

(b) whether the contemnor was aware of the consequences to itself of its conduct;

(e) whether the contemnor has received, or sought to receive, a benefit or gain from the contempt;

(f) whether there has been an expression of genuine contrition or an apology by the contemnor;

(g) the character and antecedents of the contemnor;

(i) the need for deterrence, both general and specific, from similar disobedience;

(j) the need for denunciation of the contemptuous conduct;

(k) any matters in aggravation under s 21A(2) of the CSPA;

(l) any matters in mitigation under s 21A(3) of the CSPA; and

(m) the capacity to pay any fine imposed if the imposition of a fine is a suitable penalty (s 6 of the Fines Act 1996). The Contempt Was Serious 94 By far the most important factor in sentencing is the objective gravity or seriousness of the offence (Ableway at [53]). This includes both the actual or likely consequences of the contempt (Ableway at [53]). 95 In my view, while not at the worst end of the scale, the present contempt was nevertheless serious. This conclusion is based principally on the fact that: (a) although the charge period did not commence until 28 February 2009, in effect there was non-compliance with the Court order from 28 February 2008 until the date of the hearing. That pursuant to the meeting on 11 April 2008, the Council elected not to enforce the non-compliance until the letter of 30 January 2009, does not alter the fact that the respondent had in fact been in breach of the order for almost one and a half years;

(b) the volume of material stored on the Premises during the charge period was not, at least according to the evidence of Mr Pignatelli, insubstantial, even though it must be acknowledged that after April 2009, only 10 per cent of the bins being stored on the Premises contained waste material;

(c) this waste material included, tyres, bricks, timber, metal, synthetic fibre insulation, plaster, cement and, more importantly, asbestos. Even though the respondent had a management plan in place to minimise the handling of asbestos, this could not be totally effective in ensuring that no asbestos was stored on the site and that asbestos fibres were not released if the asbestos was loose and on top of the transported material, because the asbestos was not always readily identifiable;

(d) although no actual environmental harm resulted, the environmental impact of the breach included potential air, water, soil, noise and vibration pollution; and

(e) the commission of the offence took place in circumstances where little, if any, in my view, regard was had to public safety (s 21A(2)(i) of the CSPA).

96 Whilst it is accepted that compared with cases where there has been multiple or serial offending or where there has been actual environmental harm the actions of the respondent in the present proceedings may appear reasonably trivial, the contempt has continued until the day of the hearing and continued in circumstances where the respondent was clearly put on notice on several occasions of the Council's view that his actions amounted to a contravention of the Court order.

There Was Awareness of the Consequences 97 I find beyond reasonable doubt that the contemnor was aware of the consequences to itself of its conduct. By entry into the consent Court order BBWC had agreed not to engage in certain activity. The respondent was specifically put on notice of the possible serious consequences of disobedience not only through the correspondence sent to its solicitors from the Council, but also as a consequence of the proceedings before Lloyd J. Notwithstanding this notice, the respondent continued to engage in the conduct prohibited by the Court order.

98 Even accepting the respondent's belief that the order was ambiguous, the contemnor did not seek to clarify the ambiguity or take steps to ensure, given the very serious consequences of potential contempt, compliance with the order. The respondent was instead content to run the risk of non-compliance. 99 Either way, it was aware that a consequence of its conduct was the commission of a contempt.

100 This factor has been, in part, dealt with above. In short, while there was no actual harm to the environment, there was the potential for harm both to the environment and to human safety.

101 I reject the description by the respondent that the risk of environmental harm was "negligible". The risk of harm caused by the potential release of asbestos fibres cannot be described as minimal or "negligible". It was acknowledged by the respondent, through Mr Brown, that both wrapped and loose asbestos were present during the contempt period. Furthermore, the use of the Premises in contravention of the Court order had an impact on the occupants of adjoining premises by reason of the generation of dust and noise emissions.

102 In determining the appropriate penalty to be imposed it is therefore proper to bear in mind the potentially serious consequences of the contempt (Ableway at [56]).

The Motive and Reason for the Contempt Was Financial 103 The respondent's motive was made clear by Mr Wayne Brown's oral evidence during the hearing. Notwithstanding what Mr Brown stated to be the motive of the company, namely, to ensure the very best service to its customers, the reality was, and I have so found, that the overwhelming motive for the contempt was that of financial gain. Mr Brown conceded as much when he stated in evidence that to leave skip bins that were full outside a customer's property in the afternoon when it was not possible to deliver them straight to the tip would result in a loss of business. Thus there was a clear commercial imperative to the respondent's conduct.

104 That the conduct took place as part of BBWC's commercial activities and was directed, in large measure, to enhancing the revenue and minimising the costs of the business is an aggravating feature of the contempt (see s 21A(2)(o) of the CSPA and Pre-Cast Concrete at [44]).

105 As stated above, the respondent gained, albeit indirectly, from the contempt insofar as it did not lose any business by refusing to remove bins from customers that could not be taken immediately to the tip. Contrition 106 While the respondent through Mr Wayne Brown (I did not, contrary to the submissions of the Council, consider the absence of Mr Gary Brown to be material) expressed remorse, less than full weight can be given to the company's statement of contrition in light of the apparent belief, held until the day of the hearing, that it was not guilty of contempt in relation to the Court order because that order permitted it to store skip bins with waste on the Premises.

107 Furthermore, the genuineness of the expression must be doubted given the respondent's statement on 2 April 2009 that the contemptuous conduct would stop, but by its own admission it proceeded to nevertheless continue to breach the Court order. Good Character 108 Neither the directors of the company nor the company itself have any antecedents. 109 A number of testimonials were handed up at the hearing to the effect that Mr Brown was a man of good character. However, full weight cannot be accorded to them because the authors did not appear to have been provided with the full facts at the time they were written. In particular, the fact of BBWC's plea of guilty and the fact that BBWC continued to be in breach of the Court orders, do not appear to have been furnished. 110 Otherwise, apart from the events giving rise to the commission of the contempt, I find the respondent to be of good character. Personal Circumstances 111 Apart from Mr Brown's oral evidence (unsupported by any documentation such as financial statements or company returns) that due to the global financial crisis it was estimated that the company would make a $100,000 loss this financial year, there were no other personal circumstances relevant to the determination of penalty put forward by the parties. Specific Deterrence 112 I do not agree with the submissions made on behalf of the respondent that there was no need for specific deterrence in relation to the imposition of the penalty. The contempt has been ongoing since at least 28 February 2009. It continued up to the date of the hearing. Significantly, the contempt occurred in circumstances where the Council sought to come to an understanding with the respondent in order to resolve the matter and where the respondent was clearly put on notice of the Council's view that it was in contempt of the Court order. 113 Even accepting the respondent's evidence that it believed that the Court order was ambiguous, it sought to exploit the ambiguity and simply ignored the potentially serious consequences both to itself and to the environment of being in breach of the order rather than seek clarification. 114 In summary, there was a breach of a Court order over approximately a four month period in circumstances where the respondent was, at the very least, aware of the very real possibility that it was in breach of the order and where it "must have been aware that [its] activities were causing difficulties, inconvenience and serious intrusion into the amenity of some of [its] neighbours" (Newcastle City Council v Leaway Pty Limited [2005] NSWLEC 305 at [5] and [12]-[15]), but it continued in a mode the Council correctly described as "business as usual". It is conduct that cannot be tolerated. This indicates a strong need for specific deterrence.

115 As to the likelihood of the respondent re-offending, this cannot be completely discounted given that the offending conduct continued after 2 April 2009 when Mr Brown asserted it would cease, continued after the decision of Lloyd J and continued notwithstanding notification by the Council that in its view the respondent's activities amounted to contempt.

116 In all the circumstances specific deterrence is therefore warranted.

117 General deterrence and denunciation of the conduct concerned is a significant consideration in the imposition of a penalty for contempt (Ableway at [56] and the authorities cited thereat). As Kirby J indicated in Pelechowski (at [148]), courts must respond firmly and be seen to be responding firmly to any deliberate defiance of their orders less the authority of their determinations be undermined and the justice system be imperilled. 118 In Nambucca Shire Council v Mirage Sheahan J observed at [26] that "nothing short of scrupulous obedience to Court orders, whether made by consent or otherwise is acceptable in our society".

119 Thus in addition to specific deterrence, an appropriate penalty must include a component of general deterrence in relation to other waste removal companies who may be tempted to ignore court orders thereby creating a potential environmental hazard, whether it be for a commercial or other imperative.

Aggravating Factors 120 These have relevantly been referred to above.

Mitigating Factors 121 The mitigating factors referred to in s 21A(3) (a), (e), (f), (g) and (i) of the CSPA are all relevant matters to be considered in determining penalty and have been discussed above.

122 In addition, three further matters in mitigation must be considered. First, apart from some dilatory conduct in the preparation of these proceedings, the respondent cooperated at all times with the Council in the prosecution of the contempt charge (ss 21A(3)(m) and 23(1) of the CSPA). This cooperation commenced at an early point in time and culminated with the filing in Court of the agreed statement of facts (see generally Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299 at [216]-[223]).

123 Second, on 26 March 2009 the notice of motion for contempt was filed and on 17 April 2009 BBWC pleaded guilty. A guilty plea entitles the defendant to a discount in the penalty of up to 25 per cent (ss 21A(3)(k) and 22 of the CSPA). In these proceedings the guilty plea was entered very early in the proceedings but not at the first available opportunity (this would have been on 2 April 2009 when the matter was mentioned before the Court). A slight reduction of the discount is therefore necessary (see Director- General of the Department of Environment and Climate Change v Rae (2009) 168 LGERA 121 at [58]-[64] and the authorities cited at [61]). A further reduction to the discount must be made given that the respondent was still in breach of the Court order up to the date of the hearing notwithstanding the earlier guilty plea. A discount of 20 per cent is therefore warranted in all the circumstances.

124 Third, the respondent has agreed to pay the costs of the Council. The payment of these costs is an aspect of its punishment (EPA v Barnes [2006] NSWCCA 246 at [78]).

Capacity to Pay Fines 125 Turning to the financial position of the respondent, I find that, notwithstanding the unsupported oral evidence of Mr Brown that the company this year may post a $100,000 loss, given the earning capacity of the company based on previous financial turnover it has the capacity to pay any fine imposed on it by way of penalty (see s 6 of the Fines Act 1996). 126 To the extent that Talbot J came to a different conclusion about the application of this Act in cases concerning the imposition of a fine where a court is exercising its power to punish for contempt (EPA v Thaler [2005] NSWLEC 109 at [15]), I respectfully decline to follow his Honour as he is, in my view, incorrect. I see no reason why the Fines Act cannot apply. The definition of "fine" in ss 4 and 5 of that Act does not preclude a fine imposed as a penalty for contempt (see Palerma Pty Ltd and Parilo (No 2) at [45] and Ableway at [59], where the Court applied the Act). Consistency in Sentencing 127 A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by the courts for offences such as the offence in question (Gittany Constructions Pty Limited v Sutherland Shire Council (2006) 145 LGERA 189 at [179]-[183]). Of course care must be taken because each case is different and a sentence in one case does not demonstrate the limits of a sentencing judge's discretion (Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 at 365 and Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304 at 312).

128 For the purpose of providing a comparative basis for arriving at an appropriate sentence in the present proceedings, I had regard to the sentences imposed in cases concerning contempt by reason of disobedience of Court orders which were usefully collected by Biscoe J in Ruan (at [27] and [28]): 27 The following cases of wilful contempt involved environmental harm or the risk of environmental harm, and tended to attract higher fines:

(a) In Newcastle City Council v Leaway Pty Limited [2005] NSWLEC 305 the contempt concerned use of Premises as a waste transfer station which caused offensive odours and noise to neighbours. A fine of $50,000 was imposed.

(b) In EPA v Thaler [2005] NSWLEC 109 the contempt concerned the management of a waste disposal business dealing primarily in motor vehicle batteries. A fine of $50,000 was imposed although there was no actual environmental harm.

(c) In Environment Protection Authority v Ableway Waste Management Pty Limited [2005] NSWLEC 469 the contempt concerned stockpiling of tyres in breach of orders, which presented a serious fire risk. A fine of $50,000 was considered appropriate but was reduced by 30 percent to take into account all mitigating factors.

(d) In Environment Protection Authority v Waight [2003] NSWLEC 124 remediation orders designed to restore environmental damage caused by the commission of offences were disobeyed. A fine of $15,000 was imposed. However a factor taken into account was that fines of $150,000 had been imposed on the respondent in connection with the original offence.

28 The following were cases of wilful contempts involving departures from lawful use as permitted by development consents but not involving environmental harm, and tended to attract lower fines: (a) In Manly Council v Arslan [2005] NSWLEC 646 a fine of $10,000 was imposed, which took into account mitigating circumstances. The Court indicated that otherwise the penalty could have been as high as $20,000.

(b) In Campbelltown City Council v Toth [2005] NSWLEC 186 a fine of $7,500 was imposed.

(c) In Parramatta City Council v Roy D R Services Pty Limited [2005] NSWLEC 756 the contempt was concerned with an order to cease the use of the premises as a brothel. Preston CJ found three instances of sexual intercourse for reward. A fine of $7,500 was imposed. There was taken into account that the contemnor had put in place arrangements to sell the business and transfer the lease although those arrangements had not been finalised for reasons not within the contemnor's control. 129 Ruan itself concerned a breach of a consent order prohibiting use of the premises as a brothel. The respondents were taken to be aware of the serious consequences of the contempt. It was inferred that the reason for the contempt was financial. The respondents had expressed contrition, had no prior convictions and had pleaded guilty. There were no aggravating factors. The Court therefore imposed a fine of $10,000 and the respondents were ordered to pay the applicant's costs.

130 In Ku-Ring-Gai Council v Labordus [2009] NSWLEC 30, the Court found that it was a sufficient penalty for the defendant to pay the applicant's costs of the contempt proceedings on an indemnity basis. In that case, the defendant had failed to comply with consent orders requiring her to demolish and remove a failed retaining wall on the boundary between her property and a neighbouring property. The contempt proceedings were coercive rather than punitive. The defendant was impecunious, in poor health, was let down by a number of contractors engaged to do the work and there were substantial delays due to the weather. The defendant was of good character and the need for general and specific deterrence was low.

131 The Council relied on two authorities, in particular, first, Newcastle City Council v Leaway Pty Ltd [2005] NSWLEC 305, and second, Queanbeyan City Council v Pre-Cast Concrete Solutions Pty Ltd [2008] NSWLEC 147. 132 The decision of Pre-Cast, the Council submitted, contained facts analogous to those in the present proceedings. That case concerned the breach of consent orders prohibiting the use of the premises as a concrete works for a period of several months. Similar to facts of this case, in Pre-Cast: (a) there was no actual harm but only a risk of harm; (b) an injunction was in place that had been breached by the contemnor; and (c) the financial interests of the contemnor had been put before its legal obligations. 133 In Pre-Cast the Court found that the contempt was "very serious indeed" although it fell just short of being contumacious (at [27] and [37]). The Court fined the contemnor company $80,000 in respect of the first charge and $48,000 in respect of the second charge, together with a daily penalty for each charge. The company was also ordered to pay costs. The penalty reflected the fact that there was only some evidence of remorse and contrition, the contempts continued and the efforts to comply did not "noticeably increase", although pleas of guilty were entered (at [41]). There were also antecedents and a lack of cooperation by the respondent. No substantial or actual environmental harm, however, flowed from the contempts.

134 In Leaway the Court imposed a fine of $50,000 on the contemnor. In that case the breach was serious and continued over a material period of time in circumstances where the respondents must have known that their activities were causing an impact upon the amenity of their neighbours by way of odour emissions and vibrations. 135 The Council also referred the Court to decisions of Thaler (where the fine was imposed in circumstances where a late plea of guilty was entered and where no actual harm occurred although the contempt was described as serious) and Ableway (where a fine of $35,000 was imposed on the director of the respondent company in circumstances where the company was insolvent, where there was an early plea of guilty and where there was little need for specific deterrence), but cautioned that although comparable, these decisions were earlier in time.

136 As a consequence of these decisions, and in light of the facts peculiar to the proceedings, the Council submitted that the appropriate quantum of any fine the Court should impose was in the order of $50,000. 137 The respondent distinguished Leaway on the basis that the case originally concerned a contested contempt charge, and moreover, that there was a serious intrusion into the amenity of the neighbours. With respect to Pre-Cast, the respondent submitted that the high penalty imposed in that case reflected the virtually contumacious and lengthy nature of the contempt. Thus the respondent submitted that the present proceedings were a long way removed from both Pre-Cast and Leaway.

138 By contrast, the respondent submitted that the present case was much more analogous to that of Ruan, having regard to the fact that there was no actual environmental harm, the risk of environmental harm was minimal and the respondent had made considerable attempts to minimise the activity giving rise to the contempt. Accordingly, the respondent submitted that a fine in the order of $10,000 would be more appropriate.

139 I do not agree. In Ruan, the Court was influenced by, amongst other things, the fact that the use constituting the contempt comprised only one incident and the fact that the respondents had belatedly sought development consent to authorise the brothel use, and in addition, had given an undertaking to cease the use of the premises pending the resolution of an appeal to the Court, such use including the lawful use of the premises. These factors are not present in this case. Here the conduct constituting the contempt took place over a sustained period of time and, despite efforts being made by the respondent to minimise the unlawful conduct after 1 April 2009, the contemptuous activity continued on the Premises up to the date of the hearing.

Penalty to be Imposed 140 Taking into account all of the circumstances identified above and the penalties imposed in the decisions referred to and considered by me, I am of the view that a penalty of $60,000, discounted by a total of 25 per cent is appropriate in light of the respondent's early guilty plea and the other aggravating and mitigating factors that I have had regard to. This results in a total fine of $45,000. Costs 141 The Council submitted that the costs should be paid by the respondent on an indemnity basis due to their delay in the timely preparation of their defence. The respondent resisted costs being paid on this basis because the contempt was not contumacious and whilst the service of affidavits had been late, this had not significantly impacted upon the conduct of the proceedings or hearing. 142 While both the Council and Court were inconvenienced by the late service of additional affidavits by the respondent, and whilst I accept that had the respondent's evidence been served in a more timely manner that greater agreement would in all likelihood have been reached prior to the day of the hearing on many of the factual and legal issues that had previously been in dispute, I nevertheless do not think that the respondent's conduct has been sufficiently dilatory to warrant the payment of costs on an indemnity basis. I therefore decline to make that order. Orders 143 The orders of the Court are as follows: (1) the respondent is convicted of the charge of contempt of Court as particularised in the statement of charge;

(3) the respondent is ordered to pay the applicant's costs of the contempt proceedings up to and including 22 June 2009, as agreed or assessed;

(4) the exhibits are to be returned. **********

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