Tweed Shire Council v Sikiric

Introduction 1The defendant Sikiric has pleaded guilty to a charge by the applicant Council that he is in contempt of orders made by the Court in conjunction with my written judgment of 9 December 2011 Tweed Shire Council v Sikiric [2011] NSWLEC 240. 2I will not repeat all the detail in that judgment, but will summarise it as follows: Mr Sikiric appears to have had a history of some difficulties in his dealings with the Council. The Council planning evidence before the Court at the November/December hearing was much to be preferred to the non-expert evidence on planning matters given on the defendants behalf. Despite a series of promises to lodge a Development Application (DA), the evidence before me then indicated that one had not been even drafted. The Court felt the need to balance any hardship occasioned to the defendant against the need to defend the integrity of the planning system. He had been unable to explain away his failure to take advice from the Council officers some 12 months earlier that consent would likely be required for at least part of his project. His assertion about information upon which he relied from the Council was specifically denied by the officer concerned. I found that he actively pursued his commercial objectives and was inattentive to the question of regularising his planning situation. He appeared to be in receipt of defective advice in a number of aspects of the matter, and did not consult a planner until October 2011, when he engaged Mr Pratt whose evidence was inferior to that given on the Council's behalf. I noted in par [88] that there had been assertions that the respondent had suffered from depression, but I remained concerned with the obvious errors and inconsistencies in his evidence, and about his limited knowledge of the regimes, guidelines etc relevant to a chicken farming operation. My conclusion was that the Council was entitled to the relief it sought generally in the terms it had put to the Court. As the Council had been entirely successful I also ordered the respondent to pay its costs. The key orders were order (3) restraining the defendant from using the land for keeping poultry without development consent (DC), (4) that he remove all poultry within 21 days (i.e. by 1 January), (5) that the poultry sheds be demolished within 40 days (i.e. by 20 January), and (6) that he pay the costs of the proceedings. I also ordered (7) that all building materials used in the construction of the existing 2 poultry sheds were not to be stored on the land unless more than 50m from the southern boundary and 100m from any waterbody. 3I believe a lot of latitude was extended to Mr Sikiric and his counsel in the defence of those proceedings and again today. 4The chronology of events since 31 December 2011 is important to assessing the seriousness of the admitted contempt. 5The Court file contains an email communication from the defendant dated 4 January pleading for an extension of time. In reply the court officers told him he needed to file a Notice of Motion ('NOM'), pay a fee etc. He was also advised of his appeal rights, and on 6 January he filed in the Court of Appeal a Notice of Intention to Appeal. He has not pursued that appeal, and has never sought from this Court any extension of time for compliance with its orders. 6On 9 January (Exhibit C1, fol 28), Council extended until 23 January, the time for an application to be made for a stay. The defendant's solicitors on 23 July (fol 39) sought an extension of time for enforcement of the orders until 15 February 2012, subject to weather conditions and availability of tradespeople. Council agreed to hold off until 15 February (fol 79), but on 10 February (fol 83) sought details of measures taken to comply with the orders. The defendant's solicitors responded on 13 February (fol 85-86) - he was holding his DA back pending compliance, but would need more time, due to difficulties they enumerated. On 13 February Council's solicitors (fol 88-9) identified the irony of the explanation of delay being based on a watercourse, the existence of which the defendant denied at the substantive hearing, and indicated that Council would reconsider its instructions at its meeting on 21 February. On 20 February (fol 91) Council's solicitors invited a submission from the defendant for the meeting. The dialogue between solicitors continued until 16 March, on which date Council's solicitors advised (fol 139) that the defendant was at liberty to apply for a DC at any time. 7After review of conditions at the property on 16 March 2012, the Council filed a NOM and Statement of Charge for contempt on 29 March. The defendant now asserts that all chickens had been removed by last night, and that the offending use has, therefore, ceased, subject to removal of the sheds. 8The NOM seeks orders in respect of breaches by the defendant of orders no 4 & 5, including imposition of a fine for breaches to date, and the imposition of a weekly fine until the defendant has complied completely with them. Prayer 4 envisages that the Court will allow a period to enable compliance. The Council also seeks its costs on an indemnity basis.