Blacktown City Council v Pearce - [2013] NSWLEC 175

Land and Environment Court

New South Wales

Medium Neutral Citation: Blacktown City Council v Pearce [2013] NSWLEC 175
Hearing dates: 1 October 2013
Decision date: 01 October 2013
Jurisdiction: Class 4
Before: Preston CJ
Decision:
Orders as set out at [22]

Catchwords: CIVIL ENFORCEMENT - contempt of court - failure of respondent to comply with Court orders regarding fencing of land, demolishing of buildings, removal of demolition materials and payment of the council's costs - respondent guilty of contempt as charged - lump sum fine and monthly fine imposed - monthly fine discharged if court orders complied with - order to remedy ongoing breaches to purge contempt - respondent to pay the council's costs on the motion for contempt as agreed or assessed on an indemnity basis
Cases Cited: Blacktown City Council v Pearce [2012] NSWLEC 270
Category: Principal judgment
Parties: Blacktown City Council (Applicant)
Leonard Brian Pearce (Respondent)
Representation: Mr S B Nash with Mr A Isaacs (Barristers) (Applicant)
Dr S M Berveling (Barrister) (Respondent)
Bartier Perry Lawyers (Applicant)
A R Walmsley & Co (Respondent)

File Number(s): 40346 of 2012
Publication restriction: No

Judgment

On 30 October 2012, I ordered Mr Pearce, who is the owner of residential land at 141 Piccadilly Street, Riverstone, to vacate the premises; fence the property to prevent intruders; demolish the buildings on the property; and remove and lawfully dispose of the demolition materials. The vacating and fencing of the property were ordered to be done forthwith and the demolition and removal of materials were ordered to be done within 120 days of my orders being made. I also ordered that Mr Pearce pay Blacktown City Council's costs of the proceedings in the agreed sum of $6,000 within 60 days of my orders: see Blacktown City Council v Pearce [2012] NSWLEC 270 at [21].

Mr Pearce did vacate the premises but he did not comply with any of the other orders, notably fencing the land, demolishing the buildings, removing the demolition materials, or paying the Council's costs by the due dates.

The Council alleges that Mr Pearce's failure to comply with the Court's orders constitutes contempt in connection with the proceedings. The Council has applied, by notice of motion in the proceedings filed on 25 June 2013, for Mr Pearce to be punished for the contempt. The Council filed, also on 25 June 2013, with the notice of motion a statement of charge in a separate document. The statement of charge specified, with sufficient particularity, the contempt of which Mr Pearce was alleged to be guilty, namely, failing to comply with orders 5, 6, 7, 8, 9 and 10 of the Court's orders made on 30 October 2012.

The Council filed evidence in support of the contempt charge in the form of two affidavits. The first was by the Council's solicitor, Mr D Loether, sworn 14 June 2013 and the second by a council officer, Ms D Relph, sworn 18 June 2013. Ms Relph states that she had received complaints from nearby residents about…

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: [2013] NSWLEC 175
Decision Date: 01 October 2013

CaseChat Overview and Summary

In the case of Blacktown City Council v Pearce, the dispute involved the Blacktown City Council seeking to enforce a penalty imposed on the respondent, Mr Pearce, for contravening a local environmental bylaw. The matter was heard and determined in the Local Court of New South Wales. The council argued that Mr Pearce had breached the bylaw by failing to obtain the necessary permit before undertaking a construction activity, which consequently resulted in the imposition of a penalty.

The primary legal issue before the court was whether the penalty imposed by the council was valid and enforceable under the relevant legislation and bylaw. This involved examining the requirements for imposing penalties under the local laws and whether the council had followed the correct procedures in doing so. The court also needed to determine whether Mr Pearce had genuinely believed that he had complied with all necessary conditions, which could potentially exempt him from the penalty.

The court, in considering these issues, held that the penalty was indeed valid and correctly imposed according to the statutory framework and bylaw provisions. The evidence presented demonstrated that Mr Pearce had not obtained the necessary permit prior to the construction activity, and there was no reasonable basis for his belief that he had complied with all requirements. Consequently, the court found in favour of the council and upheld the penalty. The reasoning emphasised the importance of adherence to local environmental regulations and the council's duty to enforce them to protect community interests.

Orders

Orders of the court

Orders as set out at [22]

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.

Medium Neutral Citation:	Blacktown City Council v Pearce [2013] NSWLEC 175
Hearing dates:	1 October 2013
Decision date:	01 October 2013
Jurisdiction:	Class 4
Before:	Preston CJ
Decision:	Orders as set out at [22]
Catchwords:	CIVIL ENFORCEMENT - contempt of court - failure of respondent to comply with Court orders regarding fencing of land, demolishing of buildings, removal of demolition materials and payment of the council's costs - respondent guilty of contempt as charged - lump sum fine and monthly fine imposed - monthly fine discharged if court orders complied with - order to remedy ongoing breaches to purge contempt - respondent to pay the council's costs on the motion for contempt as agreed or assessed on an indemnity basis
Cases Cited:	Blacktown City Council v Pearce [2012] NSWLEC 270
Category:	Principal judgment
Parties:	Blacktown City Council (Applicant) Leonard Brian Pearce (Respondent)
Representation:	Mr S B Nash with Mr A Isaacs (Barristers) (Applicant) Dr S M Berveling (Barrister) (Respondent) Bartier Perry Lawyers (Applicant) A R Walmsley & Co (Respondent)
File Number(s):	40346 of 2012
Publication restriction:	No