Shoalhaven City Council v Knight - [2019] NSWLEC 138 - NSWLEC 2019 case summary — Zoe

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Shoalhaven City Council v Knight

[2019] NSWLEC 138

Land and Environment Court (NSW)|2019-09-19|Before: Moore J, Mr J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2019-09-19

Before

Moore J, Mr J

Catchwords

[2006] NSWLEC 242 Markarian v The Queen (2005) 228 CLR 357
[2005] HCA 25 Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89

Source

Original judgment source is linked above.

Catchwords

[2006] NSWLEC 242 Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25 Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89

Judgment (35 paragraphs)

[1]

TABLE OF CONTENTS Introduction Service of orders timetable The Consent Orders of 1 September 2014 These contempt proceedings The accumulation of material on the site The hearings Mr Knight's evidence Introduction Mr Knight's evidence on 27 May The adjournment on 27 May Mr Knight's evidence on 19 September Mr Knight's expectations from a possible sale outcome of the site The clean-up of the site Introduction The cost of the clean-up The Council's reimbursement claim Mr Knight's complaint concerning the clean-up Conclusion on clean-up costs Consideration of the appropriate starting penalty for Mr Knight's contempt Introduction The application of the Crimes (Sentencing Procedure) Act 1999 Characterisation of the contempt Sentencing factors Introduction Mr Knight's guilty plea The reasons for Mr Knight's commission of the contempt Contrition and remorse Mr Knight's record Specific deterrence General deterrence and denunciation of the contempt The appropriate starting penalty Mr Knight's capacity to pay Introduction Moderation of penalty Time to pay Costs Orders

[2]

[4]

The Consent Orders of 1 September 2014

The Consent Orders of 1 September 2014 were in the following terms: The Court orders by consent: 1 Without admissions, that the Respondent remove the Dwelling House (identified as 'H' on the attached plan) and all ancillary structures (including the Garden Shed marked 'I', Water tank marked "G', clothes line marked 'J' and cubby house marked 'K' on the attached plan and all wastewater and sewerage systems associated with the Dwelling House) on Lot 57 DP 11629,also known as Lot 57, Invermay Avenue, Tomerong (Land) within 12 months of the date of this order. 2 That pursuant to section 121ZJ of the Environmental Planning & Assessment Act 1979 (EP&A Act), if the Respondent does not comply with Order 1 above, that the Applicant, by its employees, agents or contractors, is entitled to enter the Land and do all necessary things to remove the Dwelling House and ancillary structures on the Land and recover the reasonable costs of doing so from the Respondent as a debt. 3 Without admissions, that the Respondent, and his servants and agents, cease using, or permitting to be used, the Land or any buildings or structures on the Land that were erected without obtaining any necessary consent, approval or certificate under the EP&A Act, after the expiry of 6 months of the date of this order. 4 After the expiry of 6 months, the Respondent, and his servants and agents, take all reasonable steps to prevent the use by any person of the Land or any buildings or structures on the Land (including notifying any successors in title) until the Respondent, or his successors in title, obtain any necessary consent, approval or certificate for the use of the Land in accordance with the EP&A Act. 5 That the Respondent, and his servants and agents, remove from the Land within 6 months of the date of this order the following items identified on the attached plan: (a) Boat marked 'C'. (b) Camper marked 'D'. (c) Ute marked 'E'. (d) 4x4 car marked 'F'. (e) Car trailer marked 'M'. 6 That pursuant to section 121ZJ of the EP&A Act, if the Respondent does not comply with Order 5 above, that the Applicant, by its employees, agents or contractors, is entitled to enter the Land and do all necessary things to remove the identified items from the Land and recover the reasonable costs of doing so from the Respondent as a debt. 7 That the Respondent be permitted to apply to the Court to extend the time periods identified in orders 1, 3 and 5 if: (a) the registration of an easement for the purposes of a fire trail at the rear of the land, identified in Figure 2 of the Jerberra Estate Development Control Plan No 125, is imminent, and (b) the Respondent has obtained development consent or such other approval or permission under the Environment Planning and Assessment Act 1979 for a dwelling on the Land. 8 For the avoidance of doubt, orders: (a) 3, 4, 5 and 6; and (b) 1 (to the extent it requires the removal of the ancillary structures) are discharged if, before the time for compliance with those orders, the Respondent seeks and obtains legal authority under the Environment Planning and Assessment Act 1979 for the relevant use of the Land to which the orders are directed. 9 That each party pay its own costs.
It is not necessary to reproduce the map with annotations of the locations of the various items on the site that the orders obliged Mr Knight to remove. It is simply sufficient to note that the orders required Mr Knight to remove listed elements within six months of the date of the orders and to remove the remaining listed items (particularly the dwelling) within 12 months of the date of the orders.
It is sufficient, for present purposes, to note that, as at 12 November 2018 (being the date of the filing for the Council of the Notice of Motion initiating these contempt proceedings), Mr Knight had not fulfilled any of the obligations placed on him by the terms of the 1 September 2014 Consent Orders.
It is appropriate to note that the rights granted to the Council by the Consent Orders of 1 September 2014 permitted the Council to undertake clean-up activities on the site, in the event that Mr Knight failed to meet his obligations, were not acted upon by the Council until mid-2019 during the course of these proceedings.

[5]

These contempt proceedings

On 12 November 2018, the Council's solicitors filed a Notice of Motion in the Class 4 proceedings seeking that Mr Knight be punished for contempt, with that contempt arising as a consequence of his failures to meet his obligations imposed by the 2014 Consent Orders. The contempt proceedings were assigned by the Chief Judge to me in my (now) capacity as a Judge of the Court.
The orders sought by the Council in these contempt proceedings are in the following terms: 1 That the Respondent, having failed to remove the Dwelling House and all ancillary structures on Lot 57 DP 11629, also known as Lot 57, Invermay Avenue, Tomerong (Land) within 12 months of the date of the order, that is by 1 September 2015, is in breach of order 1 of the orders made by the Court on 1 September 2014 in these proceedings (the Orders), and is guilty of contempt of Court. 2 That the Respondent, having failed to remove the items identified in the plan attached to the Orders, being (inter alia) the: (a) Boat marked 'C'; (b) Camper marked 'D'; and (c) Ute marked 'E'; within 6 months of the date of the order, that is by 1 March 2015, is in breach of order 5 of the Orders, and is guilty of contempt of Court. 3 The First Respondent be fined an amount that this honourable Court deems fit payable to the Registrar pursuant to the Fines Act 1996, plus a monthly fine in such sum as the Court deems fit payable on the first calendar day of each month after the date of this order, until the works the subject of prayers 1 and 2 above have been completed. 4 That the Respondent pays the Applicant's costs of this Notice of Motion.
As earlier noted, as at the date of commencement by the Council of these contempt proceedings, the Council had not exercised its rights, pursuant to orders (2) or (6) of the 1 September 2014 orders, to enter the site and carry out the necessary removal activities for which it had authority pursuant to the Consent Orders made on 1 September 2014. However, the Council has now done so and the site has been cleaned up.

[9]

Mr Knight's evidence on 27 May 2019

Mr Knight gave evidence and was cross-examined by Mr Lazarus. Mr Knight also pleaded guilty to the contempt with which he was charged.
During the course of his narrative evidence, Mr Knight outlined his present personal circumstances, including the fact that he had recently been able to obtain accommodation in public housing in Nowra. This, he explained, gave him hope that this would be a stabilising position for him and his children. It was his evidence that he was presently unemployed and that his motor vehicle was out of registration, a position which he could not afford to rectify. His sole income was from the Centrelink benefit he was receiving. He testified that he had no other assets, apart from his ownership of the site.
He acknowledged that he was indebted to the Council for a significant sum as a result of his non-payment of rates for a number of years. He expressed the hope that the imminent sale of the site (his hopes for which are separately discussed) would give him a modest capital amount permitting him a clean-sheet start in life.
Mr Knight indicated that he was in the process of selling the site and that it would be necessary for him to clean up the site to a fashion that satisfied the obligations imposed on him by the 1 September 2014 orders before the sale could be effected. This sale expectation is dealt with in more detail in a later section of this judgment.
Mr Lazarus put the proposition to him that he was, in fact, in employment and was working at a location in Port Kembla. Mr Knight explained that he had been attending a location in Port Kembla but it was for the purposes of employment readiness training and that he was not, in fact, employed (at Port Kembla or anywhere else).
Mr Knight agreed with Mr Lazarus when he proposed to Mr Knight the name of the person who the Council considered was potentially the possible purchaser of the site. Mr Knight confirmed that the person advanced by Mr Lazarus was, in fact, the person that he, Mr Knight, contemplated was the possible purchaser of the site.
I allowed time during the course of the proceedings on 27 May 2019 to provide opportunities for the Council to seek to make contact with this identified individual so that the Council might be better informed as to the prospect of such a sale eventuating.
It subsequently became the position that Mr Lazarus advised me, on instructions, that contact had been made with the identified individual. For the purposes of that with which I need to deal, it is sufficient to note that I was advised that Mr Knight's appreciation of the prospect of a sale to the identified individual was significantly more optimistic that a sale would occur than had become the Council's understanding of the position after conversation between the Council's solicitors and the identified individual.

[12]

Mr Knight's expectations from a possible sale outcome of the site

It was Mr Knight's expectation that the site was worth approximately $180,000 in a cleaned-up and unencumbered state. To enable some understanding of what his expectation would be if such a sale was effected, he gave evidence that he had debts to the Council for unpaid rates covering a number of rating years. It was his understanding that the total of those outstanding rates was of the order of $37,000. Mr Lazarus confirmed that this was an accurate estimate of the position.
I have earlier, briefly, discussed the personal circumstances in which Mr Knight presently finds himself. It is unnecessary to deal with them in any significant extent. It is, however, appropriate to note that it was Mr Knight's estimate, on 27 May 2019, that, if he was able to sell the site in a cleaned-up and unencumbered state (that is, discharging his outstanding rates to the Council as part of the settlement process, it is to be inferred), he would receive, perhaps, $80,000, after making modest provision for his future social necessities such as a registered motor vehicle (to be inferred from his evidence as being a modest conveyance).
This estimate as to his post sale financial circumstances, if realised in the optimistic fashion about which he gave evidence, made no allowance for any potential financial penalty arising out of these contempt proceedings or any debts being imposed upon Mr Knight if a costs order was to be made against him arising out of these proceedings (both these being outcomes proposed for the Council as being appropriate to follow as a consequence of my determination of the Council's contempt motion).
I deal later, separately, with the question of the Council's costs. For the present purposes, it is sufficient to observe that, if I adopt the position advanced for the Council as the appropriate outcome of these proceedings, such an outcome would entirely consume (and more) any potential financial benefit which might otherwise flow to Mr Knight if his hoped-for sale of the site was to eventuate.
Indeed, as advanced to me (that a substantial financial penalty should be imposed on Mr Knight and that he should be ordered to pay the Council's costs on the indemnity basis), not only would the entirety of any potential net proceeds from the sale of the site in Mr Knight's hands be consumed as a consequence of such outcome, but Mr Knight would be left significantly in debt. Such a debt, for reasons discussed in the "Costs" section of this judgment, would be in excess of $50,000 to the Council if I made the proposed costs order that the whole of the net proceeds from sale of the site were to be applied for that purpose and Mr Knight would still owe the total sum of any penalty I might determine was appropriate to be imposed.
Given what Mr Knight had told me during the course of his giving of his narrative evidence concerning how the vicissitudes of life have played out on him over recent years, I have little doubt that the outcome of imposing a significant penalty would put a potentially crushing financial burden on Mr Knight.
In making these observations, I am not to be taken to be suggesting that these matters could play any part in these proceedings other than those which are properly required to be taken into account pursuant to s 6 of the Fines Act 1996 (the Fines Act). It is necessary for me to have regard to the financial means of a person upon whom it is appropriate to impose a financial penalty.

[13]

Introduction

Following the hearing on 27 May 2019, the Council arranged for the clean-up of the site.
Evidence of the clean-up process and its costs were set out in a further affidavit deposed by Mr Staples dated 19 August 2019 and, at least initially, read without objection from Mr Knight. It is necessary to discuss, later, an objection raised by Mr Knight to one aspect of the clean-up process.
The clean-up operation comprised three separate phases. The first of those phases involved the Council engaging a consultancy to undertake an assessment of environmental risks associated, potentially, with undertaking the clean-up activity. Such an assessment was appropriate in circumstances where there was a risk of the presence of asbestos on the site and where there had also been at least one vehicle fire on the site (on Mr Knight's own evidence) which could have had the potential to cause other forms of contamination.
The second phase of the clean-up comprised what is to be regarded as the substantive operational phase during which the majority of the material on the site that required to be removed from it was collected by a contractor and taken away.
The final phase of the clean-up involved the removal, by a subsequent and different contractor, of two large items, these being a vehicle-mountable camper and a boat.
The contractor engaged by the Council to undertake the first operative phase of the clean-up effected this on 25 July 2019. The second phase, involving a separate contractor, took place on 2 August 2019.
Following completion of these clean-up activities, I am satisfied that, on the basis of the relevant elements of Mr Staples' most recent evidence, the site is now in a state which satisfies the clean-up requirements mandated by the Consent Orders made in September 2014. Although the clean-up was not conducted by Mr Knight, the Council's clean-up activities have had the effect of purging Mr Knight's contempt and no further site clean-up activities are required.

[20]

The application of the Crimes (Sentencing Procedure) Act 1999

In Dowling v Prothonotary of the Supreme Court of New South Wales [2018] NSWCA 340, at [33] to [39], Basten JA explained (Meagher JA agreeing) why the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) was not applicable to punishment of a contemnor. This decision arose in the context of the setting of the length of a custodial sentence having regard to the provisions of this legislation. This decision makes it clear that any formal application of the Sentencing Procedure Act would be an error of law.
The following 10 factors relevant to sentencing for contempt were identified by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 (Wood v Staunton), at 185: (1) the seriousness of the contempt proved; (2) whether the contemnor was aware of the consequences to himself or herself of what he or she did; (3) the actual consequences of the contempt on the relevant trial or inquiry; (4) whether the contempt was committed in the context of serious crime; (5) the reason for the contempt; (6) whether the contemnor has received any benefit by indicating an intention to give evidence; (7) whether there has been any apology or public expression of contrition; (8) the character and antecedents of the contemnor; (9) general and personal deterrence; and (10) denunciation of the contempt.
However, for the reasons I explained in Cumberland Council v Khoury [2017] NSWLEC 14, at [42], although the Sentencing Procedure Act does not apply to sentencing for contempt, it does provide, by analogy, a useful framework for consideration of the objective and subjective factors to which it would be otherwise mandated to have regard had the Sentencing Procedure Act in fact applied (see also Canterbury City Council v Ali Ahmed [2016] NSWLEC 160, at [19], and Blacktown City Council v Everson [2019] NSWLEC 4, at [17]).
Only a limited number of the matters set out in Wood v Staunton are relevant in the circumstances of these contempts. Those noted in (1), (5) and (7) to (10) are relevant. They are also factors which find parallels in the relevant provisions of s 21A of the Sentencing Procedure Act. As a consequence, I do not perceive any tension between the guidance given in Wood v Staunton and my having regard to the various relevant provisions of the Sentencing Procedure Act as providing a framework for dealing with these two acts of contempt.
It is in the context of the provision of an appropriate framework for analysis that I adopt, as a guide, the structure of the terms of s 21A of the Sentencing Procedure Act as providing a basis for my consideration of all the factors engaged in sentencing Mr Knight for this charge of contempt.

[31]

Moderation of penalty

I am obliged by the terms of s 6 of the Fines Act to have regard to Mr Knight's personal financial circumstances in determining what is the appropriate penalty to be imposed on him to punish him for his contempt. The statutory provision is in the following terms: 6 Consideration of accused's means to pay In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.
In addressing the requirements of this provision, it is appropriate to note that Mr Lazarus acknowledged that the Council accepted that Mr Knight was in what might correctly be described as "straitened financial circumstances". It is unnecessary to set these matters out with any precision. It is sufficient to note that Mr Knight is on Centrelink benefits, paying a high proportion of them in rent in order to have accommodation available for his children, when they are permitted to visit him. He is unemployed and, I am satisfied, for various reasons which do not require to be detailed, his present employment prognosis is poor.
As earlier detailed, Mr Knight's sole asset is the site, the state of which has given rise to these proceedings. It was his evidence that he anticipated being able to sell the site to the owner of other properties in the vicinity. As earlier noted, representatives of the Council have had contact with that developer and, although there is no contract for sale or, indeed, what I might regard as a sufficiently definite intention to purchase to be able to forecast when crystallisation of a sale might take place, I am satisfied that there is genuine interest in the site that has a deal of potential to give rise to Mr Knight being able to realise that asset (although not in the very immediate future).
However, it is also clear that such amount as might realistically be expected to result from such a sale will not result in any of the sale price remaining with Mr Knight in other than a transitory sense. This arises as a consequence of the fact that, after finalisation of these proceedings, Mr Knight will not only owe the Council in excess of $37,000 in back rates but will also owe the Council more than $17,000 for the costs of the clean-up of the site and nearly $160,000 in legal costs (these latter two sums arising as a consequence of the orders to be made in these proceedings). As can be seen, that total indebtedness will inevitably exceed the total realisation from the sale of the site. In reaching that conclusion, it is also to be acknowledged that some modest sale transaction costs are also likely to be incurred.
These are classic circumstances that engage the consideration mandated by s 6 of the Fines Act. I have earlier explained why the appropriate starting penalty, without moderation as a consequence of this statutory provision, would be $12,750. However, under the circumstances, I am satisfied that the fine should be significantly reduced to pay appropriate regard to Mr Knight's immediate financial circumstances and the fact that there is no realistic prospect, in my assessment, that they will improve in any significant fashion. Certainly, in the short-, and probably not in the medium-, term. It is also appropriate to have regard to the financial burden that the costs order to be made in these proceedings will impose on Mr Knight (Environment Protection Authority v Barnes (2006) NSWCCA 246).
As consequence, the appropriate fine to impose on Mr Knight, having regard to all the circumstances, is $1,000.

[32]

Time to pay

In the draft orders which the Council proposed that I should make, the Council proposed than I should mandate that any fine that I imposed, the amount specified in the order to reimburse the Council for its clean-up costs of the site, and the amount of the Council's costs should all be mandated to be paid within 28 days. I consider it is appropriate, in the overall circumstances, to consider whether these timeframes are appropriate.
I turn, first, to the time within which it is proposed that I should specify to be imposed on Mr Knight to pay the fine imposed. As the Council has not sought that it be paid a moiety of the fine (pursuant to s 122 of the Fines Act), I am satisfied that the appropriate course to follow is to leave the question of collection of the fine to the relevant statutory authority rather than me making a specific time-limiting order. As I indicated to Mr Knight during the course of the hearing on 19 September 2019, any question of payment by instalments, or the like, was a matter for him to address with the Office of State Revenue and was not a matter that fell within my competence.
Next, in circumstances as here, where the Council seeks its clean-up reimbursement and legal costs orders in a fashion proposing a common, single time period for payment of 28 days, it is not a matter for me to address whether there might be some arrangement made with the Council concerning the scheduling of repayment. That is a matter entirely between Mr Knight and the Council.
However, it is appropriate that I consider what would be the proper time within which I should specify that Mr Knight must pay these amounts to the Council. I am not satisfied that the 28 days proposed by the Council is appropriate. I reached this conclusion after having regard to the fact that it will be necessary for Mr Knight to sell the site in order to discharge (at least the majority of) his indebtedness to the Council. I have earlier described my assessment, on the evidence, of the potential for such a sale.
It seems to me, in the circumstances, it is appropriate to allow Mr Knight a sufficient period within which to negotiate such a sale with the potential purchaser and for settlement of that sale to take place. However, I do not propose to allow a very lengthy period for this to occur, and Mr Knight will need to take prompt steps in order to seek to sell the site. Given that there is a single purchaser identified, and that the conventional post contract settlement is 42 days, it seems to me that it would be reasonable to allow Mr Knight 90 days within which to discharge his reimbursement and costs' debts to the Council.

Shoalhaven City Council v Knight

At a glance

Court

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Catchwords

Source

Catchwords

Judgment (35 paragraphs)

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Cases Cited (12)

Cited By (2)