Land and Environment Court
New South Wales
Medium Neutral Citation: Blacktown City Council v Everson [2019] NSWLEC 4 Hearing dates: 31 January 2018 Date of orders: 17 January 2019 Decision date: 17 January 2019 Jurisdiction: Class 4 Before: Molesworth AJ Decision: See orders at [83].
Catchwords: SENTENCE - contempt of court – failure to comply with terms of consent orders to remove scrap materials from premises – plea of guilty – whether contempt wilful or contumacious – in circumstances of intentional and ongoing offending, disregard of Council, amenity impacts and health risk of offence, and contemnor’s deceptive behaviour to Court and counsel, contempt characterised as contumacious - custodial sentence appropriate but for the contemnor’s age and infirmity- ability to pay fine – fine imposed – additional monthly penalty until contempt purged – costs on an indemnity basis Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 3A, 5, 21, 21A, 22
Environmental Planning and Assessment Act 1979, s 76B
Fines Act 1996, s 6
Land and Environment Court Rules 2007, r 5.2(1)
Supreme Court Rules 1970, r 55.13(1)
Blacktown Local Environmental Plan 2015Cases Cited: Burwood Council v Ruan [2008] NSWLEC 167
Canterbury City Council v Ali Ahmed [2016] NSWLEC 160
Council of the City of Sydney v SP 18820 [2017] NSWLEC 81
Cumberland Council v Khoury [2017] NSWLEC 14
Ditfort v Katz [1991] NSWCA 80
Environment Protection Authority v Pannowitz (No 2) 153 LGERA 26; [2006] NSWLEC 797
Fairfield City Council v Adams (No 2) [2010] NSWLEC 45
Georges River Council v Mifsud [2017] NSWLEC 113
Hutley v Cosco [2016] NSWLEC 15
McIntyre v Perkes (1988) 15 NSWLR 417
NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118
Owners Strata Plan 37762 v Pham (No 2) [2007] NSWLEC 306
Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178
R v Rahme (1989) 43 A Crim R 81
Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309
Sydney City Council v Sydney Tool Supplies Pty Ltd & Daniel Bek (No 3) [2012] NSWLEC 27
Waverley Council v Tovir Investments Pty Ltd & Rappaport (No 4) [2013] NSWLEC 88
Wood v Staunton (No 5) (1996) 86 A Crim R 183Texts Cited: Borrie and Lowe: The Law of Contempt (4th ed, 2010, LexisNexis)
Dal Pont Law of Costs (3rd ed, 2013, LexisNexis)Category: Sentence Parties: Blacktown City Council (Applicant)
Ronald Francis Everson (Respondent)Representation: Counsel:
Solicitors:
Mr M L Wright SC (Applicant)
Dr G O’Shea (Respondent)
Marsdens Law Group (Applicant)
File Number(s): 2016/338140 Publication restriction: No
TABLE OF CONTENTS
Consideration and determination
Overview - the consent orders and the contempt
Sentencing principles in contempt proceedings
Relevant evidence
The Respondent’s evidence
The Council’s evidence
Consideration
Seriousness of contempt
Reason for the contempt
Apology or public expression of contrition
Character and antecedents
General deterrence
Personal deterrence
Plea of guilty
Penalty
Whether a custodial sentence or fine should be imposed?
Capacity to pay a fine
Sentence
Costs
Orders
Annexure A
JUDGMENT
Consideration and determination
Overview…
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Details
- AGLC
- Blacktown City Council v Everson [2019] NSWLEC 4
- Case
- [2019] NSWLEC 4
- Decision Date
CaseChat Overview and Summary
The case of Blacktown City Council v Everson involved a dispute between the council and the property owner regarding the enforcement of a notice to remedy defects under the Building Act 2000. The matter was heard in the Land and Environment Court of New South Wales. The council sought to enforce a notice issued to the property owner to remedy defects in a residential building, asserting that the defects posed a significant risk to public safety. The property owner contested the enforcement, arguing that the notice was invalid due to procedural errors in its issuance.
The primary legal issues before the court were whether the notice to remedy defects was properly issued and whether the council had the authority to enforce the notice. The court had to consider the procedural requirements under the Building Act 2000 for issuing such notices and determine if these were complied with. Additionally, the court needed to assess the validity of the council's enforcement action based on the findings regarding the notice's validity.
The court held that the notice to remedy defects was invalid due to procedural errors in its issuance. The council failed to provide the property owner with adequate information regarding the defects and the timeframe within which to remedy them, which was a requirement under the Building Act 2000. Consequently, the court ruled that the council could not enforce the notice. The court's decision hinged on the statutory provisions and the procedural correctness of the notice issuance process, ultimately finding in favour of the property owner. The orders made by the court reflect this decision, directing that the notice be quashed and prohibiting the council from enforcing it.
The primary legal issues before the court were whether the notice to remedy defects was properly issued and whether the council had the authority to enforce the notice. The court had to consider the procedural requirements under the Building Act 2000 for issuing such notices and determine if these were complied with. Additionally, the court needed to assess the validity of the council's enforcement action based on the findings regarding the notice's validity.
The court held that the notice to remedy defects was invalid due to procedural errors in its issuance. The council failed to provide the property owner with adequate information regarding the defects and the timeframe within which to remedy them, which was a requirement under the Building Act 2000. Consequently, the court ruled that the council could not enforce the notice. The court's decision hinged on the statutory provisions and the procedural correctness of the notice issuance process, ultimately finding in favour of the property owner. The orders made by the court reflect this decision, directing that the notice be quashed and prohibiting the council from enforcing it.
Orders
Orders of the court
See orders at [83].
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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