Corporation of City of Happy Valley v Skaventzos No. DCCIV-95-1001 Judgment No. D3371

[1996] SADC 3371

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Bowering

Hearing

16/10/95, 04/12/95 to 05/12/95.

Catchwords

CONTEMPT OF COURT Orders of District Court requiring landowner to use land in accordance with conditions imposed in a series of planning approvals - failure of landowner to comply with orders - effect of subsequent approvals on earlier approvals considered - plea of guilty to some breaches not others - landholder guilty of all particulars of contempt alleged.

Representation

Appellant CITY OF HAPPY VALLEY:
Counsel: MICHAEL RODER - Solicitors: NORMAN WATERHOUSE

Respondents THOMAS SKAVENTZOS AND ANASTASIA SKAVENTZOS:
Counsel: ANTHONY CROCKER - Solicitors: WARD &; PARTNERS

DCCIV-95-1001

Judgment No. D3371

15 January 1996

DISTRICT COURT OF SOUTH AUSTRALIA

ALLEGED CONTEMPT OF COURT

BETWEEN:CORPORATION OF CITY OF HAPPY VALLEY

and

SKAVENTZOS & SKAVENTZOS

BEFORE:HH JUDGE BOWERING

JUDGMENT: DELIVERED 15 JANUARY, 1996.

For many years Mrs Anastasia Skaventzos and Mr Thomas Skaventzos have sold fruit and vegetables from an area of land situated on the southeastern side of Main South Road at O'Halloran Hill.Over the passage of the years, the business has grown to such an extent that it now covers four allotments, namely Lots 60, 62, 64 and 66 of Section 456, Hundred of Noarlunga, which allotments I shall refer to collectively as "the land".With the passage of the years has also come a number of planning approvals relating to various parts and activities on the land.The first of such approvals relevant to these proceedings was issued on the 1st May, 1984 - and the last on the 8th November, 1994.All of the approvals were issued subject to conditions.

Regrettably, not all of the conditions have been complied with.The Council of the City Happy Valley resolved to take civil enforcement proceedings in the District Court against Mr and Mrs Skaventzos pursuant to Section 36 of the Planning Act, 1982.A separate action was commenced with respect to each of the four allotments, which actions are numbered 1446, 1447, 1448 and 1449 of 1992.Each action culminated in a consent order made in the District Court on the 20th October, 1993.Although each order was specific with respect to the allotment to which it related and to the breaches alleged with respect to it, the orders were similar in form, the first paragraph of each requiring Mr and Mrs Skaventzos to cease using the land illegally, whilst the second paragraph required them "within twenty eight day of the service of this order upon them to take all necessary steps to revert the land to its lawful use".For the purpose of both those orders and these proceedings I take the 4th January, 1995, as the date of service of those orders upon Mr and Mrs Skaventzos. I do so on the basis of the depositions set out in the affidavit of Sadie Louise Gough dated the 27th July, 1995.

It is alleged by the City of Happy Valley that Mr and Mrs Skaventzos are in breach of each of the orders made by the District Court on the 20th October, 1993, and are thus in contempt of that Court.Accordingly, by application made on the 1st August, 1995, the Council applied for an order pursuant to Rule 93.03 of the District Court Rules directing the Registrar of the Court to issue a summons requiring Mr and Mrs Skaventzos to attend before the Court to answer the charge of contempt.The Court made the order and the summons was duly issued by the Registrar.The summons alleged the following particulars of contempt against Mr Skaventzos:-

"PARTICULARS OF ALLEGED CONTEMPT

THOMAS SKAVENTZOS

1. The said Thomas Skaventzos has failed to comply with order number one and/or order number three of the orders of His Honour Judge Bowering dated 20 October 1993 in District Court Action No 1446 of 1992.

PARTICULARS

He has continued to cause, suffer or permit the land to be used for the display of signs without prior planning authorisation from the relevant planning authority.

2. The said Thomas Skaventzos has failed to comply with order number two and/or number three of the order of His Honour Judge Bowering dated 20 October 1993 in District Court Action No. 1447 of 1992.

PARTICULARS

The said Thomas Skaventzos has failed to comply with condition (f) of the planning authorisation referred to therein, in that he has caused, suffered or permitted the presentation and/or display and/or retailing of goods associated with the development to take place outside of the confines of the shop area (including the verandah area) on the said land;

Further and/or in the alternative, the said Thomas Skaventzos has failed to comply with condition (h) of the said planning authorisation in that he has caused suffered or permitted the areas referred to therein to be used for the display and retail of goods.

3. The said Thomas Skaventzos has failed to comply with order number one and/or order number three of the order of His Honour Judge Bowering dated 20 October 1993 in District Court Action No 1448 of 1992.

PARTICULARS

He has continued to cause suffer or permit the land to be used for the purpose of the display of signs without prior planning authorisation from the relevant planning authority.

4. The said Thomas Skaventzos has failed to comply with order number one of the order of His Honour Judge Bowering dated 20 October 1993 in District Court Action No.1449 of 1992.

PARTICULARS

He has continued to cause suffer or permit the land to be used for the display of signs without prior planning authorisation from the relevant planning authority.

5. The said Thomas Skaventzos has failed to comply with order number one of the order of His Honour Judge Bowering dated 20 October 1993 in District Court Action No1449 of 1992.

PARTICULARS

He has continued to cause suffer or permit the land to be used for the purposes of a cool room."

The particulars above quoted include the amendments allowed on the 4th December, 1995.

Upon the summons coming on for hearing, Mr Roder appeared for the City of Happy Valley and Mr Crocker for Mr and Mrs Skaventzos.Mr and Mrs Skaventzos both pleaded "not guilty" to the alleged contempt.Mr Roder's case consisted of the affidavits of the 28th July and 9th October, 1995, of Mr Christopher Willard, and the affidavits of Philip Brunning, Theo Sartzidis, Dennis Carapetis, Kym Tredrea, Sadie Gough, Geoffrey Illingworth and Paul Stevens and of other documents.Mr Crocker did not seek to cross examine any of the deponents, nor did he lead any evidence disputing the facts so deposed to, and accordingly I accept the facts set out in the affidavits to which I have referred as proved beyond reasonable doubt.However, in accord with Mr Crocker's objection, I disregard those portions of the affidavits wherein the deponents expressed opinions, particularly opinions as to the law.My findings are based purely on the facts as set out in those affidavits.The other documents tendered by Mr Roder were not contentious and I have regarded the various facts set out in them as being accepted by all parties.

Upon Mr Roder closing the Council's case, Mr Crocker advised that Mr Skaventzos wished to plead again to the charge.Accordingly, the charge was read to him afresh and he entered a plea of "guilty".However, Mr Crocker made it clear that Mr Skaventzos, when pleading "guilty" to the charge of contempt, was not admitting that he was in breach of all the particulars of contempt as alleged against him in the summons.In particular, Mr Crocker disputed that Mr Skaventzos is guilty of failing to comply with the second of the acts of contempt alleged against him, namely that he has not failed to comply with orders numbered 2 and 3 in the order made on the 20th October, 1993 in action numbered 1447 of 1992.By those orders, Mr and Mrs Skaventzos were required to:-

"2. That subject to paragraph 3 herein, the first and second named respondents comply with conditions (a), (d), (f), (g), (h), (x) and (y) of the planning authorization in respect of Development Application No.140/7007/84.

3. That the first and second named respondents within twenty eight days of the service of this order upon them take all necessary steps to revert the land to its lawful use including the removal of outdoor display areas for goods and the removal of signs being displayed without planning authorization from the relevant planning authority subject to being permitted for up to sixty days after the service of this order upon them to have no more than twenty outdoor display bins each no greater than 16 square feet in area immediately outside and as close as possible to the eastern side of the shop on the land. Thereafter no goods are to be displayed other than inside the said shop."

Development Application 140/7007/84 was made on the 9th February, 1984, and related to a development described as being a "shop and carparking" to be undertaken on lots 62 and 64 of the land.The application was accompanied by various plans which were also dated the 9th February, 1984.The application was approved by the Council, its approval being set out in a planning decision notification dated 1st May, 1984, which notification set out the numerous conditions imposed by the Council as part of its approval.As far as these proceedings are concerned, the contentious conditions are conditions (f) and (h) as set out in that planning decision notification.The terms of those conditions are as follows:-

"(f) That the presentation, display and retailing of all goods and services associated with this proposed development is to be undertaken solely within the confines of the shop area (including the verandah area), and cool rooms as designated on the plans submitted to Council and dated 9.2.84, and is not to take place anywhere else on the subject land.

(h) That the area located in front of (the western side) and to the sides of (northern and southern sides) the proposed shop, the existing dwelling and car parking area cannot be used at any time for the unloading and loading, display, retailing or storage of any goods, services, vehicles or any other materials in any way associated with the proposed development."

In due course, the development so approved was undertaken.However, as I have said, the land has been the subject of a number of planning approvals.As far as both these proceedings and lot 62 is concerned, the next relevant approval was issued as a consequence of a development application made on the 29th July, 1993, which application described the proposed development as being "new canopy/verandah, carparking, signage, landscaping, fencing and ancillary works to existing fruit and vegetable shop".That application was approved on the 28th September, 1993, the approval being set out in a decision notification issued by the Council on the 5th October, 1993, which notification set out the fifteen conditions imposed, by the Council, as part of its approval.Two of the conditions so set out, namely conditions numbered 1 and 8, are relevant to these proceedings.The terms of those conditions are as follows:-

"1. That the proposed development and use be undertaken in accordance with Drawing No-9229-SK2C and other supporting information submitted to Council as part of the application, except as modified by the following conditions of this approval, and such development and use shall be undertaken in its entirety prior to the occupation of, and operation of the business from, the proposed building addition.

8. That no goods sold from the premises shall at any time be displayed for sale or otherwise on any part of the land beyond the confines of the fruit and vegetable shop to the satisfaction of the Council."

I pause to note that the canopy referred to in the 1993 approval is not the verahdah area referred to in the 1984 approval.The 1993 approval authorized an extension to the shop and verandah constructed as a consequence of the 1984 approval.The area of the canopy to be constructed pursuant to the 1993 approval abuts but lies outside of the area described in paragraph (f) of the 1984 approval as being "the confines of the shop area (including the verandah area)".

The principle relevance of this is that the 1993 approval was issued on the 5th October, 1993, whereas the orders in respect of which it is alleged that Mr Skaventzos is in contempt were made on the 20th October, 1993, some fifteen days later.It is well accepted that the terms and conditions of a planning approval can be varied by a subsequent approval relating to the same land. Thus it was submitted by Mr Crocker that the obligations and limitations imposed upon Mr Skaventzos by the 1984 approval must be read in the light of the 1993 approval - insofar as the 1993 approval related to one of the buildings approved by the 1984 approval - namely the fruit and vegetable shop (including the verandah) - the obligations imposed upon Mr Skaventzos by the 1984 approval were varied, in a way material to these proceedings, by the 1993 approval.

As already stated, paragraph (f) of the 1984 approval restricted the display and retailing of goods to "within the confines of the shop area (including the verandah area)".The 1993 approval approved the extension of the shop (including the verandah area) to include the area under the canopy the construction of which was portion of the 1993 approval.The proposed canopy will constitute a substantial expansion of the existing shop, namely an expansion of the total area of the shop by approximately 100% or more. However, the work approved in October, 1993, although commenced, is far from complete.The canopy has not been commenced, let alone completed.However, some of the work relating to the canopy area has been undertaken - it is proposed that the floor of the area under the canopy be formed by a poured concrete slab.Portion of this slab has been poured.Some of the other works approved in the 1993 approval have also been either commenced or completed. Assuming that the work to which the 1993 approval relates has been substantially commenced (and there is no evidence to suggest that it has not), Regulation 45 of the Development Control Regulations 1992 gives to Mr Skaventzos until October, 1996, to complete the work.Thus the October, 1993, approval is still in force and has been, as far as these proceedings are concerned, at all relevant times.

The evidence shows and I find that, after the period of sixty days from the service of the Order of the District Court made on the 20th October, 1993, upon him, Mr Skaventzos used the area abutting but beyond "the confines of the shop area (including the verandah area)", as that term is used in condition (f) of the 1984 approval, for the display of goods.In other words, I find that, on the face of the order, Mr Skaventzos was in breach of paragraphs 2 and 3 of the order made by the District Court on the 20th October, 1993, in Action 1447 of 1992.However, Mr Crocker submits that, whilst this may be so on the face of the order, it was not in fact so because the 1984 order has been varied by the order of October 1993.It has been varied, he said, to permit the display and retailing of goods beyond "the confines of the shop area (including the verandah area)".

I find the facts to be as follows: A shop and verandah were constructed pursuant to the 1984 approval.Extensions to that building as constructed were approved by the 1993 approval, which extensions consisted of a fairly substantial canopy.The plans show that the perimeter of the canopy is to be enclosed with roller shutters.It is to have a concrete floor, portion of which had been poured at the time at which this matter went to trial.Little, if any, further work relating to the construction of the canopy appears to have been undertaken.It is the area to be covered by the canopy on or in which Mr Skaventzos has been displaying goods for sale.It is this area which lies beyond "the confines of the shop area (including the verandah area)" as referred to in the 1984 approval.It is Mr Crocker's submission that the effect of the 1993 approval is to extend the confines of the shop as defined by the 1984 approval in such a way as to include the area to be covered by the canopy, ie, to include the area in which Mr Skaventzos is currently displaying produce for sale.If this be so, Mr Skaventzos is not displaying produce beyond the confines of the shop and is not guilty of an offence against the relevant portion of the Court order in Action 1447 of 1992.

In support of this submission, Mr Crocker points to condition 8 of the 1993 approval, which condition is in the following terms:-

"8. That no goods sold from the premises at any time be displayed for sale or otherwise on any part of the land beyond the confines of the fruit and vegetable shop to the satisfaction of the Council".

The confines of the fruit and vegetable shop as referred to in condition 8 includes the canopy area.Thus Mr Crocker submitted that the effect of this condition is to extend the area in which Mr Skaventzos may display goods for sale beyond the area defined in the 1984 approval so as to include the area in which Mr Skaventzos has, in fact, being displaying produce.However, I am unable to accept Mr Crocker's submission for, in my view, it is based on the assumption that the confines of the shop (including the verandah) as approved in 1984 were extended at the time when the 1993 approval was issued, that is, on the 5th October, 1993.However, reading the approval as a whole, I do not think that that is the situation.The first condition of that approval is set out earlier in this judjement - it provides, in part, that the development approved "shall be undertaken in its entirety prior to the occupation of, and operation of the business from, the proposed building addition".As I have said, the building addition then approved is far from complete.In my view, the condition makes it clear that Mr Skaventzos is not authorised to use the canopy area for the display for sale of produce until the proposed building alteration - the canopy - has been "undertaken in its entirety".Insofar as he has so used that area, he is in breach of the terms of the order made by the District Court on the 20th October, 1993, in Action 1447 of 1992.It is only when Mr skaventzos has undertaken the approved development in its entirety that the confines of the shop and verandah area approved in 1984 will be extended to include the canopy area and may be used for the display of goods.

In so saying, I have not overlooked the fact that the orders concerned were not served upon Mr and Mrs Skaventzos until the 5th January, 1995, nor have I have overlooked the further approval granted by the Council to Mr Skaventzos on the 8th November, 1994, which approval, if I construe it correctly, takes the matter no further - it is the provisional building rules consent relating to the approval granted by the Council on the 5th October, 1993.

On the affidavits filed in this matter, namely on the affidavits of Christopher Willard, James Brunning, Theo Sartzidis, Dennis Carapetis, Kym Tredrea, Sadie Gough, Geoff Illingworth and Paul Stevens, and the other exhibits which have been placed before me, and on the basis of the plea of guilty which Mr Skaventzos has entered with respect to some of the particulars of contempt alleged against him, I find Mr Thomas Skaventzos to be guilty of contempt of the orders of the District Court in accordance with all of the particulars of contempt alleged him (as amended by order made by me on the 4th December, 1995), as set out in the Summons by which these proceeding were commenced.

The findings which I thus record apply to Mr Skaventzos only, and not to Mrs Skaventzos, who has been jointly charged with him.

I adjourn this matter for further consideration to 10.30 am. on Wednesday 24th January, 1996.