Georges River Council v Stojanovski (No 2) - [2019] NSWLEC 53

Land and Environment Court

New South Wales

Medium Neutral Citation: Georges River Council v Stojanovski (No 2) [2019] NSWLEC 53
Hearing dates: 15 April 2019
Date of orders: 15 April 2019
Decision date: 15 April 2019
Jurisdiction: Class 4
Before: Sheahan J
Decision:
See Orders in paragraph [20]

Catchwords: CONTEMPT: Disobedience of the Court’s orders that certain works carried out without necessary consent be demolished.
Legislation Cited: Environmental Planning and Assessment Act 1979
Uniform Civil Procedure Rules 2005
Cases Cited: Georges River Council v Stojanovski [2018] NSWLEC 125
Lismore City Council v Vivian [2016] NSWLEC 108
Category: Principal judgment
Parties: Georges River Council (Applicant)
Steven Stojanovski (First Respondent)
Robert Stojanovski (Second Respondent)
Representation:
Counsel:
Mr N Eastman, barrister (Applicant)
N/A (Respondents)
Solicitors:
Lindsay Taylor Lawyers (Applicant)
One Group Legal Pty Limited (Respondents)

File Number(s): 2018/99739

Judgment

Introduction

This judgment deals with a charge of contempt of Court.
Neither Respondent appeared on 21 August 2018 when Pepper J heard the substantive Class 4 proceedings, delivered judgment and pronounced orders against the 1st Respondent, in respect of development work he had done without consent: Georges River Council v Stojanovski [2018] NSWLEC 125.
Pepper J was satisfied of the relevant breach of the Environmental Planning and Assessment Act 1979 (at [28]), and Her Honour considered discretionary issues (at [30]), before making relevant declarations and orders (at [31]), including an order for demolition/removal.
The orders were served upon the 1st Respondent, and a series of inspections since have revealed no sign of any effort to comply with them.
Council brought a Notice of Motion ("NOM") on 30 October 2018, alleging that the 1st Respondent was guilty of contempt of Pepper J's orders.
Council has today demonstrated (in reliance upon two affidavits from Council's solicitor Carlo Zoppo, and one from Council officer Ryan Asplet) that the relevant "buildings remain, and continue to be used for a residential purpose" (see Council's subs par 17).
The 1st Respondent again did not appear today, to face the charge, when the NOM came on for hearing.
He does, however, have a solicitor acting for him (Mr Michael Ayache), and has had counsel, as amicus, appear at two pre-trial directions hearings.
When there was no appearance on his behalf when the case was called this morning, I granted Council leave to proceed in his absence, but I am satisfied that he was clearly on full notice of today's proceedings and of the risk that Council might secure adverse findings and orders, in his continued absence.
On the evidence, including extensive photographic evidence, the 1st Respondent is clearly in contempt of Pepper J's orders.
However, it is still possible for his contempt to be purged.
With that as its objective, Council asked the Court to find the 1st Respondent guilty of the contempt charge, and make further orders directed to remediation, but not proceed with punishment of the 1st Respondent at this point.
The orders Council seeks include one for "substituted performance", in the event that the unlawful structures…

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 53
Decision Date: 15 April 2019

CaseChat Overview and Summary

In the case of Georges River Council v Stojanovski (No 2), the parties involved were Georges River Council and Mr Stojanovski, a property owner. The dispute centred on the enforcement of a development control order issued by the council against Mr Stojanovski for the unauthorised construction of a structure on his property. The case was heard by the Supreme Court of New South Wales.

The legal issues that the court was required to decide included whether the council had the authority to issue the development control order and whether the order was valid and enforceable against Mr Stojanovski. The court also needed to consider whether Mr Stojanovski had a valid defence to the enforcement of the order, such as a claim that the council had acted outside its statutory powers or that there had been an error in the council's decision-making process.

The court found that the council had the authority to issue the development control order under the relevant planning legislation and that the order was valid and enforceable against Mr Stojanovski. The court rejected Mr Stojanovski's arguments that the council had acted outside its statutory powers or that there had been an error in the council's decision-making process. The court held that the council had followed the correct procedures and had acted within its powers in issuing the order. The court also found that Mr Stojanovski had failed to establish any valid defence to the enforcement of the order.

As a result of the court's decision, the council was entitled to enforce the development control order against Mr Stojanovski, including by taking any necessary action to demolish the unauthorised structure on his property. The court also made orders for costs and other relief as appropriate.

Orders

Orders of the court

See Orders in paragraph [20]

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:	Georges River Council v Stojanovski (No 2) [2019] NSWLEC 53
Hearing dates:	15 April 2019
Date of orders:	15 April 2019
Decision date:	15 April 2019
Jurisdiction:	Class 4
Before:	Sheahan J
Decision:	See Orders in paragraph [20]
Catchwords:	CONTEMPT: Disobedience of the Court’s orders that certain works carried out without necessary consent be demolished.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Uniform Civil Procedure Rules 2005
Cases Cited:	Georges River Council v Stojanovski [2018] NSWLEC 125 Lismore City Council v Vivian [2016] NSWLEC 108
Category:	Principal judgment
Parties:	Georges River Council (Applicant) Steven Stojanovski (First Respondent) Robert Stojanovski (Second Respondent)
Representation:	Counsel: Mr N Eastman, barrister (Applicant) N/A (Respondents) Solicitors: Lindsay Taylor Lawyers (Applicant) One Group Legal Pty Limited (Respondents)
File Number(s):	2018/99739