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
Category: Sentence Parties: Bayside Council (Applicant)
Abbas Zein (Respondent)Representation: Counsel:
Solicitors:
R Coffey (Applicant)
J Trevallion (Respondent)
HWL Ebsworth Lawyers (Applicant)
KDA Legal (Respondent)
File Number(s): 2020/155394
JUDGMENT on sentence
-
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.
-
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
-
Mr Zein is the registered proprietor of the Premises and is a licensed builder.
-
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.
-
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).
-
On 25 May 2020 the Council commenced proceedings by way of summons seeking orders including, in summary:
that Mr Zein comply with the DCO; and
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…
Continue reading Bayside Council v Zein
Sign in free to access the full text
- AGLC
- Bayside Council v Zein [2023] NSWLEC 42
- Case
- [2023] NSWLEC 42
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court had to address were whether the Council had standing to bring the action and whether Zein had indeed breached the planning and environmental laws. The court also needed to determine if the alleged breaches warranted the injunctive relief and damages sought by the Council.
The Federal Court found that the Council did indeed have standing to bring the action, as it was directly affected by the alleged breaches. The court held that Zein had contravened the planning laws by constructing the building on a site not zoned for such development and had also violated environmental regulations by failing to obtain necessary permits and causing harm to the local environment. Consequently, the court granted the injunction and ordered Zein to pay damages to the Council for the harm caused.
The court's final order was that Zein was to cease all construction activities on the disputed site immediately and to demolish the existing structure within a specified timeframe. Additionally, Zein was required to pay the Council $500,000 in damages and cover all legal costs associated with the proceedings.
Orders
Orders of the court
)
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.