Auburn Council v Zizikas - [1999] NSWLEC 155

Land and Environment Court

of New South Wales

CITATION:

Auburn Council v Zizikas and Anor [1999] NSWLEC 155

PARTIES

APPLICANT
Auburn Council

RESPONDENTS
Zizikas and Anor

NUMBER:

40182 of 1997

CORAM:

COWDROY J

KEY ISSUES:

Orders :- Contempt of court orders - non-compliance - plea of guilty - plea in mitigation - respondents endeavouring to comply with orders - penalty imposed reflecting failure of respondents to act promptly to comply with conditions or to seek variation of conditions

LEGISLATION CITED:

Land and Environment Court Act 1979 s 20(2)
Land and Environment Court Rules 1996 Pt 6 r 1
Supreme Court Rules 1970 Pt 55

DATES OF HEARING:

03/01/1999; 07/02/1999

DATE OF JUDGMENT DELIVERY:

07/13/1999

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Hawkes (Solicitor)
SOLICITORS
Pike Pike & Fenwick
RESPONDENT
Mr P McEwen SC
SOLICITORS
Heidtman & Co

JUDGMENT:

Background

1. This is an application by Auburn Council (“the council”) for declarations that the respondents have breached orders made by the court on 22 January 1998 (“the orders”). The statement of charge filed by the council against the respondent makes it apparent that the proceedings seek penalties for contempt of the orders. This Court has power to enforce its orders pursuant to s 20(2) of the Land and Environment Court Act 1979, and Pt 6 r 1 of the Land and Environment Court Rules 1996 which adopt Pt 55 of the Supreme Court Rules dealing with contempt.

2. The orders relate to land known as Lot 2 in deposited plan 810420 (“the land”) which has frontage to Arthur St, Lidcombe. The land is owned by the first respondents and is used as a depot for building waste and excavated fill by the second respondents. It is situated adjacent to Lot 1 in the same deposited plan which is owned by the State Rail Authority of NSW (“SRA”).

3. On 11 January 1994 a development application was lodged by Mr Harry Zizikas the first named respondent in respect of the land. The application which sought consent to use the land for the purpose of storage of plant, materials and equipment was refused. On 5 August 1994 an appeal was instituted in this Court from such refusal. On 22 December 1994 the council commenced class four proceedings to restrain the unauthorised use. On 19 May 1995 this Court in proceedings no 10140/95 granted development consent to the use of Lot 2 for storage of plant, equipment and excavated materials subject to numerous conditions. No approval was given for a concrete crushing facility nor any reprocessing or recycling activities. On 8 August 1996 council issued a notice requiring cessation of recycling of building materials which the respondents were carrying out on the land. On 1 August 1997 class four proceedings were issued alleging breach of the development conditions. Thereafter, on 28 October 1997 the respondents lodged development application no 274/97 seeking permission to use Lot 2 as a solid waste recycling facility.

4. On 22 January 1998 the court by consent made orders pursuant to which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] NSWLEC 155
Decision Date: 13/07/1999

CaseChat Overview and Summary

Auburn Council brought proceedings against Zizikas and another respondent before the Land and Environment Court of New South Wales, alleging that the respondents had breached court orders made on 22 January 1998. The council sought penalties for contempt of the orders, citing non-compliance with conditions attached to a development consent granted for the use of Lot 2 in deposited plan 810420 for storage of plant, materials and equipment. The case involved complex legal issues, particularly the interpretation and enforcement of the orders and the respondents' attempts to comply with them. The court had to consider whether the respondents had genuinely attempted to comply with the orders and whether the penalty imposed should reflect their failure to act promptly or seek variations to the conditions.

The key legal issues included the interpretation of the court orders and the respondents' compliance with them, the effect of subsequent decisions by the court on the orders, and the appropriate penalty for the respondents' breaches. The court had to assess the respondents' efforts to comply with the conditions and whether their actions constituted a genuine attempt to adhere to the orders. Additionally, the court had to consider the impact of recent decisions that modified some of the conditions on the contempt proceedings. The penalty imposed needed to balance the respondents' breaches against their efforts to comply and their plea of guilty.

The court found that the respondents had pleaded guilty to the charges of contempt but disputed the extent of their breaches. It was noted that the respondents had made attempts to comply with the conditions, but many remained unfulfilled, particularly conditions related to stormwater runoff and sewerage disposal. The court acknowledged the respondents' efforts to comply but also highlighted their failure to act promptly and their ongoing breaches of important conditions. The penalty imposed on the respondents was $2000 each, reflecting their breaches and the need for deterrence, while also considering their genuine attempts to comply. The court ordered the respondents to pay the applicant's costs and directed the return of exhibits.

Orders