Blacktown City Council v Butler - [2008] NSWLEC 295

Land and Environment Court

of New South Wales

CITATION: Blacktown City Council v Butler & Anor [2008] NSWLEC 295

PARTIES:
APPLICANT
Blacktown City Council
FIRST RESPONDENT
Warwick Kevin Butler
SECOND RESPONDENT
Top Cut Tree Services Pty Ltd

FILE NUMBER(S): 40501 of 2007

CORAM: Sheahan J

KEY ISSUES: Contempt :- breach of undertakings - purged in part - costs

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CASES CITED: Burwood Council v Ruan [2008] NSWLEC 167
Holroyd City Council v Eksiklioglu [2008] NSWLEC 42
Nambucca Shire Council v Mirage Property Group Pty Ltd (No.2) [2008] NSWLEC 136
Owners Strata Plan 37762 v Pham & Ors (No.2) [2007] NSWLEC 306
Queanbeyan City Council v Pre-Cast Concrete Solutions Pty Ltd [2008] NSWLEC 147
Registrar of the Court of Appeal v Maniam (No.2) (1992) 26 NSWLR 309
Wood v Staunton (No.5) (1996) 86 A Crim R 183

DATES OF HEARING: 20 October 2008

EX TEMPORE JUDGMENT DATE: 20 October 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr T O'Connor, solicitor of
Houston Dearn O'Connor
RESPONDENTS
Mr Butler in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Justice Sheahan

20 October 2008

40501 of 2007 Blacktown City Council v Butler & Anor
EXTEMPORE JUDGMENT

1 His Honour: The Defendants – Mr Butler and the company of which he is the sole director – have pleaded guilty to contempt and appear today for sentence.

2 The substantive proceedings were commenced in May 2007 and concern the alleged use of premises at Shanes Park for a landscape supply business and for storage of vehicles, equipment, firewood and mulch without a consent, and/or the development and use of a Rural Shed in breach of the conditions of a consent.

3 On 10 August 2007 Talbot J made consent orders in the proceedings on the basis of a detailed undertaking given by the Defendants on 9 August 2007 (Exhibit C2).

4 In March 2008 the Council brought these contempt proceedings on the basis of claimed breaches of the elements of that August 2007 undertaking.

5 On 4 April 2008 the Defendants entered a plea of guilty to one element of the charge, and not guilty to the others.

6 The hearing of all charges was set down before me for 22-23 September, and voluminous evidence was filed on both sides.

7 When the matter came on for hearing on 22 September the Defendants were represented by counsel, and pleaded guilty to four elements of the charge. Agreement was reached on a Statement of Agreed Facts (Exhibit C1), and the matter was adjourned to today to enable the Defendants to purge their contempt. By consent, and with leave, the prosecuting Council amended its Notice of Motion and Statement of Charge, and elected to not proceed with other elements of the original Statement of Charge, and the Defendants gave a replacement undertaking.

8 The Defendants had instructed solicitors to act for them in the substantive proceedings, and new solicitors were appointed for the contempt proceedings. As I…

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: [2008] NSWLEC 295
Decision Date: 20 October 2008

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Blacktown City Council initiated contempt proceedings against Warwick Kevin Butler and Top Cut Tree Services Pty Ltd (collectively referred to as "Defendants") for breaches of undertakings given in earlier proceedings concerning the use of premises at Shanes Park for a landscape supply business. The substantive proceedings involved allegations of unauthorised use of the premises for storage of vehicles, equipment, firewood, and mulch, as well as the development and use of a Rural Shed without proper consent. In August 2007, consent orders were made based on the Defendants' undertakings, but the Council later brought contempt proceedings in March 2008, claiming further breaches. The Defendants pleaded guilty to certain elements of the charge, and after a series of hearings, the Court was tasked with determining the appropriate penalty.

The central legal issues before the Court were the nature and extent of the contempt, the appropriate penalty for the breaches, and the consideration of any mitigating or aggravating factors. The Court had to determine whether the breaches were wilful and deliberate, assess the seriousness of the contempt, and decide on the appropriate fines and costs to be imposed. The Court also considered the Defendants' attempts to purge the contempt and the need to deter future breaches.

The Court found that the Defendants' breaches, while not deliberately intended to defy the Council or the Court, were serious enough to warrant penalties. The Court acknowledged the Defendants' late realisation of the obligations under the undertakings and the lack of significant financial gain from the breaches. However, the Court emphasised the importance of adhering to legal undertakings and the necessity of sending a deterrent message to the public. The Court decided to impose a fine of $8,000 on each Defendant, applying a 20% discount for the guilty pleas. Additionally, the Defendants were ordered to pay the Council's costs on a party-party basis.

The final orders of the Court were that Warwick Kevin Butler and Top Cut Tree Services Pty Ltd were convicted of the charges of contempt. Each Defendant was fined $8,000. The Defendants were jointly and severally ordered to pay all the Prosecutor’s costs of the contempt proceedings on a party-party basis. The parties were granted liberty to apply in the substantive proceedings on seven days notice. Exhibits C1 and C2 were to remain in the Court file, while all other exhibits could be returned.

Orders