Campbelltown City Council v Toth - [2005] NSWLEC 186

Land and Environment Court

of New South Wales

CITATION:
Campbelltown City Council v Toth [2005] NSWLEC 186

PARTIES:
Campbelltown City Council
Tim Toth

FILE NUMBER(S):
41179 of 2004

CORAM:
Cowdroy J

KEY ISSUES:
Contempt :- Penalty - Use of premises contrary to Court Order

LEGISLATION CITED:
Land and Environment Court Act 1979 s 67
Local Government Act 1993 s 694
Local Government Amendment (Miscellaneous) Act 2002
Land and Environment Court Rules 1996 Pt 6 r 1, Pt 17 r 2
Supreme Court Rules 1970 Pt 55 r 13
Campbelltown (Urban Area) Local Environmental Plan 2002

CASES CITED:
Australasian Meat Industry Employees' Union and Ors v Mudginberri Station Proprietary Limited (1986) 161 CLR 98;
Australian Competition and Consumer Commission v Hughes [2001] FCA 38;
Campbelltown City Council v Toth [2005] NSWLEC 89;
Hawkesbury City Council v Foster and Mushroom Composters Pty Ltd (1997) 97 LGERA 12;
Hawkesbury City Council v Mushroom Composters Pty Limited [1995] NSWLEC 124;
Tzavellas v Canterbury City Council (1999) 105 LGERA 262

DATES OF HEARING: 09/03/2005

EX TEMPORE JUDGMENT DATE:
03/09/2005

LEGAL REPRESENTATIVES:
APPLICANT
A M Pickles
SOLICITORS
Abbott Tout
RESPONDENT
J Soothill (solicitor)
SOLICITORS
Hancocks Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Cowdroy J

9 March 2005

41179 of 2004

CAMPBELLTOWN CITY COUNCIL
Applicant

TIM TOTH
Respondent
JUDGMENT

1 Cowdroy J: The Court delivered judgment on 14 February 2005 in Campbelltown City Council v Toth [2005] NSWLEC 89. The Court found the respondent guilty of contempt of the Court’s Orders of 14 October 2004 (“the Orders”) by using premises at Unit 1, 55 Blaxland Road Campbelltown (“the premises”) as “restricted premises” as defined under the Campbelltown (Urban Area) Local Environmental Plan 2002 (“the LEP”). The Court is now required to determine the appropriate penalty.

Facts

2 Originally the respondent conducted “restricted premises” at Queen Street, Campbelltown. On 22 June 2004 in proceedings 40476 of 2003 Lloyd J ordered that the respondent’s use of those premises as “restricted premises” cease. Such restraint was postponed for a period of three months.

3 On 21 June 2004 the respondent made a development application (D/A E41/2004) to Campbelltown City Council (“the Council”) to use the premises as “restricted premises”. The LEP prohibited such use at that time. In September 2004, the respondent commenced to use the premises as “restricted premises” without development consent.

4 Amendment No 5 to the LEP was gazetted on 15 December 2004. The effect of the amendment was to render the use of the premises as “restricted premises” lawful with Council consent. On 20 January 2005 the Council granted approval to D/A E41/2004. As a consequence such use became lawful on that date. It follows that the maximum period of unlawful use of the premises by the respondent was between 14 October 2004 and 20 January 2005.

5 The respondent submits that the Council could have approved the application at an earlier date which would have reduced the period during which he traded contrary to…

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.

Keep reading for free

Create a free CaseChat account to read Campbelltown City Council v Toth and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] NSWLEC 186
Decision Date: 03/09/2005

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Campbelltown City Council took legal action against Tim Toth for contempt of court orders that prohibited Toth from using certain premises as "restricted premises" in violation of the Campbelltown (Urban Area) Local Environmental Plan 2002. The case, Campbelltown City Council v Toth, involved determining the appropriate penalty for Toth's actions, as the court had previously found him guilty of contempt for using the premises as "restricted premises" without proper consent.

The legal issues before the court included the appropriate duration of Toth's unlawful use of the premises, the adequacy of the penalty to deter future breaches of planning laws, and the applicability of section 694 of the Local Government Act 1993 regarding the payment of fines to statutory bodies. The court needed to balance the seriousness of the contempt with Toth's submissions about his intentions and the potential for environmental harm.

The court held that the contempt was serious enough to warrant a penalty but not severe enough to justify imprisonment. It imposed a fine of $7500, considering factors such as the short period of the breach, Toth's lack of prior convictions, and the costs incurred by the Council. The court also addressed the issue of fines payable to statutory bodies, confirming that under amended legislation, fines imposed for contempt could be paid to the Council.

The final orders included a fine of $7500 for Toth, a requirement for him to pay the Council's costs of the proceedings, and the return of the exhibits.

Orders