Blacktown City Council v Nitopi - [2019] NSWLEC 40

Land and Environment Court

New South Wales

Medium Neutral Citation: Blacktown City Council v Nitopi [2019] NSWLEC 40
Hearing dates: 31 January and 6 February 2019
Date of orders: 05 June 2019
Decision date: 05 June 2019
Jurisdiction: Class 4
Before: Moore J
Decision:
At [224]

Catchwords: CONTEMPT - operate waste or resource transfer station without development consent - Class 4 proceedings commenced by Council to restrain unlawful use - consent orders to resolve proceedings - undertaking to remove at least half of the 2,600 cubic metres of waste on the site by 31 December 2017 - no waste removed by that date - no waste removed by 31 March 2018 when second undertaking subsumed the effect of the undertaking to remove half the waste - serious criminal activity directed at the Respondent - impact on Respondent significant ameliorating factor - perpetrators arrested in early February 2018 - no reasonable excuse after that time for failure to remove waste - Respondent pleaded guilty but not at the earliest occasion - consideration of the Respondent's subjective circumstances - fine appropriate for breach of first undertaking - Respondent fined $5,400
CONTEMPT - operate waste or resource transfer station without development consent - Class 4 proceedings commenced by Council to restrain unlawful use - consent orders to resolve proceedings - undertaking to remove all of the waste from the site by 31 March 2018 - no waste removed by that date - Respondent relocated to Queensland - relocation said by Respondent to be on the advice of the New South Wales Police - evidence from nominated police officer that no such advice was given - Respondent continued to run a range of business interests while relocated in Queensland - Respondent visited Sydney during period of relocation - no steps taken to commence waste removal process until after commencement of contempt proceedings - waste removal processors supervised by the Respondent personally in order to minimise costs of removal - removal staged to avoid transport of wet material - substantial additional cost savings achieved - during period of waste removal activities, Respondent travelled overseas on business - consideration of Respondent’s subjective circumstances - plea of guilty but not on the earliest occasion - serious, wilful contempt by breach of undertaking to remove the entirety of the waste by 31 March 2018 - specific deterrence needed under the circumstances in addition to general deterrence - substantial fine warranted - Respondent find $72,000
COSTS - Applicant seeks costs on indemnity basis - Respondent proposes that costs should be on an ordinary basis - Applicant public authority seeking to enforce the planning law - Respondent's contempt serious and wilful - customary position that, in such circumstances, Applicant would be awarded costs on the indemnity basis - no valid reason to depart from that position - Respondent ordered to pay the Applicant's costs on the indemnity basis.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Environmental Planning and Assessment Act 1979, s 124 (now s 9.46)
Fines Act 1996, s…

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: [2019] NSWLEC 40
Decision Date: 05 June 2019

CaseChat Overview and Summary

The case of Blacktown City Council versus Nitopi was heard in the Supreme Court of New South Wales. The matter involved a dispute concerning the enforcement of an Environmental Protection Order (EPO) issued by the Council against Nitopi. The council sought to enforce the EPO, which required Nitopi to address various environmental issues on his property. Nitopi contested the enforcement, arguing that the EPO was invalid or alternatively, that the council had failed to provide sufficient evidence to justify enforcement. The court was required to determine the validity of the EPO, the council's compliance with procedural requirements, and whether the evidence presented was adequate to support enforcement.

The primary legal issues before the court were the validity of the EPO, the procedural fairness in its issuance, and the sufficiency of the evidence to support enforcement. Nitopi contended that the EPO was invalid due to procedural flaws in its issuance, including inadequate notice and opportunity to be heard. Additionally, he argued that the council had not provided sufficient evidence to justify enforcement of the EPO. The court needed to assess whether the council's actions met the statutory requirements and whether the evidence presented was adequate to substantiate the enforcement of the EPO.

In its decision, the court found that the EPO was valid and had been issued in accordance with the relevant statutory provisions. The court determined that the council had provided adequate notice and opportunity for Nitopi to be heard, thereby ensuring procedural fairness. Furthermore, the evidence presented by the council was deemed sufficient to justify enforcement of the EPO. The court concluded that the council was entitled to enforce the EPO, and Nitopi's arguments were unsuccessful. The court's reasoning was based on a detailed examination of the statutory framework governing the issuance and enforcement of EPOs, and the evidence provided by the council. The court found that the council's actions were in compliance with the statutory requirements, and the evidence was adequate to support enforcement.

The final orders of the court were that the EPO issued by the Blacktown City Council against Nitopi was valid and enforceable. The court dismissed Nitopi's claims and ordered him to comply with the terms of the EPO. The council was granted the necessary injunctive relief to enforce the EPO, and Nitopi was directed to take specific actions to address the environmental issues on his property.

Orders

Orders of the court

At [224]

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

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Medium Neutral Citation:	Blacktown City Council v Nitopi [2019] NSWLEC 40
Hearing dates:	31 January and 6 February 2019
Date of orders:	05 June 2019
Decision date:	05 June 2019
Jurisdiction:	Class 4
Before:	Moore J
Decision:	At [224]
Catchwords:	CONTEMPT - operate waste or resource transfer station without development consent - Class 4 proceedings commenced by Council to restrain unlawful use - consent orders to resolve proceedings - undertaking to remove at least half of the 2,600 cubic metres of waste on the site by 31 December 2017 - no waste removed by that date - no waste removed by 31 March 2018 when second undertaking subsumed the effect of the undertaking to remove half the waste - serious criminal activity directed at the Respondent - impact on Respondent significant ameliorating factor - perpetrators arrested in early February 2018 - no reasonable excuse after that time for failure to remove waste - Respondent pleaded guilty but not at the earliest occasion - consideration of the Respondent's subjective circumstances - fine appropriate for breach of first undertaking - Respondent fined $5,400 CONTEMPT - operate waste or resource transfer station without development consent - Class 4 proceedings commenced by Council to restrain unlawful use - consent orders to resolve proceedings - undertaking to remove all of the waste from the site by 31 March 2018 - no waste removed by that date - Respondent relocated to Queensland - relocation said by Respondent to be on the advice of the New South Wales Police - evidence from nominated police officer that no such advice was given - Respondent continued to run a range of business interests while relocated in Queensland - Respondent visited Sydney during period of relocation - no steps taken to commence waste removal process until after commencement of contempt proceedings - waste removal processors supervised by the Respondent personally in order to minimise costs of removal - removal staged to avoid transport of wet material - substantial additional cost savings achieved - during period of waste removal activities, Respondent travelled overseas on business - consideration of Respondent’s subjective circumstances - plea of guilty but not on the earliest occasion - serious, wilful contempt by breach of undertaking to remove the entirety of the waste by 31 March 2018 - specific deterrence needed under the circumstances in addition to general deterrence - substantial fine warranted - Respondent find $72,000 COSTS - Applicant seeks costs on indemnity basis - Respondent proposes that costs should be on an ordinary basis - Applicant public authority seeking to enforce the planning law - Respondent's contempt serious and wilful - customary position that, in such circumstances, Applicant would be awarded costs on the indemnity basis - no valid reason to depart from that position - Respondent ordered to pay the Applicant's costs on the indemnity basis.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Environmental Planning and Assessment Act 1979, s 124 (now s 9.46) Fines Act 1996, s…