Bayside Council v Zein

[2023] NSWLEC 42

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bayside Council v Zein [2023] NSWLEC 42

Hearing dates:

3 April 2023

Date of orders:

14 April 2023

Decision date:

14 April 2023

Jurisdiction:

Class 4

Before:

Pain J

Decision:

See below in [55]

Catchwords:

CONTEMPT OF COURT – sentence – plea of guilty- wilful contempt in failing to comply with development control order over lengthy period – contrition and remorse accepted – fine imposed – imposition of periodic fine suspended to provide final opportunity to purge contempt

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), s 9.34

Civil Procedure Act2005 (NSW), s 26

Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Local Government Act1993 (NSW), s 694

Uniform Civil Procedure Rules 2005 (NSW), r 23.8

Cases Cited:

Blacktown City Council v Jason Gabriel Saker (No 3) [2021] NSWLEC 148

Blacktown City Council v Jason Gabriel Saker (No 4) [2022] NSWLEC 80

Environment Protection Authority v Hanna [2013] NSWLEC 41

Georges River Council v Mifsud [2017] NSWLEC 113

Malass v Strathfield Municipal Council [2022] NSWLEC 131

PalerangCouncil v Banfield (No 2) [2012] NSWLEC 158

Category:

Sentence

Parties:

Bayside Council (Applicant)
Abbas Zein (Respondent)

Representation:

Counsel:
R Coffey (Applicant)
J Trevallion (Respondent)

Solicitors:
HWL Ebsworth Lawyers (Applicant)
KDA Legal (Respondent)

File Number(s):

2020/155394

JUDGMENT on sentence

1. Bayside Council (the Council) has filed a notice of motion dated 21 July 2022 seeking an order that the Respondent Mr Zein be punished for contempt of court by way of conviction and fine.

2. The notice of motion and statement of charge relate to consent orders made on 4 March 2021 by the Court (Orders). The Orders concern Lots A and B in DP 316147, at 10 Oswell Street, Rockdale (Premises) which belong to Mr Zein. The Orders required certain works to be undertaken by specified dates, as addressed in detail below. Not all the works the subject of the Orders have been undertaken.

Background

3. Mr Zein is the registered proprietor of the Premises and is a licensed builder.

4. On 24 December 2015 complying development certificate no. 150105/01 was issued by Scott Hackett of Hackett Certification and Fire Consulting (CDC) to Mr Zein for the construction of a new two storey dwelling house and granny flat on the Premises.

5. The Council formed the view that work beyond that in the CDC had been carried out by Mr Zein and on 29 April 2019 it issued a development control order no. 3, 10 and 11 under Part 9 Division 9.3 s 9.34(1) of the Environmental Planning and Assessment Act 1979 (DCO).

6. On 25 May 2020 the Council commenced proceedings by way of summons seeking orders including, in summary:

1. that Mr Zein comply with the DCO; and

2. that Mr Zein carry out works sufficient to demolish all parts of the buildings at the Premises that had not been erected in accordance with the CDC and then carry out works so as to cause the buildings to comply so far as practicable with the…