Hunters Hill Council v Hakim

[2010] NSWLEC 62

Land and Environment Court

of New South Wales

CITATION:

Hunters Hill Council v Hakim & Anor [2010] NSWLEC 62

PARTIES:

PROSECUTOR
Hunters Hill Council

DEFENDANTS
Mick Hakim and Yvonne Hakim

FILE NUMBER(S):

40507 of 2008

CORAM:

Sheahan J

KEY ISSUES:

CONTEMPT :- consent orders requiring total removal of a fence; only parts removed; development consent and building certificate refused; pleas of guilty entered on the day; fines and daily penalties; indemnity costs

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act 1999
Hunters Hill Local Environmental Plan No.1

CASES CITED:

Environment Protection Authority v Pannowitz (No.2) [2006] NSWLEC 797; 153 LGERA 126
Mosman Municipal Council v Kelly (No.6) [2010] NSWLEC 20
Nambucca Shire Council v Mirage Property Group Pty Ltd (No.2) [2008] NSWLEC 136
Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435
Wood v Staunton (No.5) (1996) 86 A Crim R 183

DATES OF HEARING:

28 April 2010

EX TEMPORE JUDGMENT DATE:

28 April 2010

LEGAL REPRESENTATIVES:

PROSECUTOR
Ms M Carpenter
SOLICITORS
HWL Ebsworth Lawyers

DEFENDANTS
Mr P Clay
SOLICITORS
John B Hajje & Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

28 April 2010

40507 of 2008 HUNTERS HILL COUNCIL v HAKIM & ANOR

EXTEMPORE JUDGMENT

Introduction

1 His Honour: In this matter the two defendants Mr & Mrs Hakim have been charged with contempt of orders of the court, made by consent in resolution of their dispute with Council over the construction in February 2008 of a brushwood fence some 18m in length, and 3m high, without the necessary consent under Hunters Hill Local Environmental Plan No.1.

2 Both defendants have today pleaded guilty, and this judgment concerns the penalty to be imposed.

3 The class 4 proceedings were commenced on 28 May 2008, and the relevant orders were made on 19 February 2009, but Mr Hakim admits in his affidavit that he received a letter dated 11 March 2008 from the Council’s solicitors complaining about (1) the construction of the fence without consent, and (2) the failure of the fence to comply with the consent already granted for the construction of the house with a “palisade” fence.

4 On the advice of his solicitor, Mr Hajje, Mr Hakim responded to the letter by lodging a building certificate application, which was dated 25 March 2008, but not received by Council until 18 April 2008.

5 The 11 March 2008 letter asserts that Council, on 4 February 2008, issued a notice of intention to issue an order concerning the fence. Mr Hakim does not recall receiving any such notice, and adheres to his sworn statement that the 11 March letter was “the first time … it was suggested to [him] that the work was unlawful”.

6 The consent Orders made by Pain J on 19 February 2009 were in the following terms:

“ The Court:
1. declares that the Respondents, by themselves, their servants or agents, carried out development being the construction of a brushwood fence [‘Brushwood Fence’] along the eastern elevation of lot 102 DP 1067017, also known as 1 Angelo Street, Hunters Hill without development consent in breach of the Environmental Planning and Assessment Act.
2. orders that the Respondents, by themselves, their servants or agents, are to remove the Brushwood Fence within 28 days .
3. further orders that if an appeal is lodged to the Court against the applicant’s actual or deemed refusal of the Respondents’ building certificate application 4024477 received 18 April 2008 within 28 days, order 2 is suspended until 28 days after the date of determination of that application by the Court.
4. grants the Respondents liberty to apply in respect of order 2 in the event that a building certificate is granted in relation to the Brushwood Fence at which time the parties shall request that the Court vacate order 2.
5. orders that the Respondents pay the Applicant’s costs as agreed or assessed.” (emphasis added)

7 Those orders were formally entered on 25 February 2009, but Mr Hakim says he cannot recall receiving a copy of them, and Mrs Hakim says only that she did not realise until this charge that they had failed to comply with orders.

Compliance and Contempt

8 On 2 June 2009, Council’s solicitors wrote to the defendants noting that the fence had not been removed, asserting that the defendants were in contempt of court, and urging them to purge that contempt by satisfying the removal order by 23 June 2009.

9 On 5 June 2009, their solicitor, Mr Hajje, replied, relying on Council’s failure to determine a development application the defendants had lodged on 18 February 2009, the day before the consent orders were made, seeking approval for the fence. It is to be noted that the orders make no reference at all to any development application, only to a/the building certificate application. Mr Hajje deposes now (1) to his having misunderstood Order 3, and (2) to the defendants’ reliance upon his advice, and he apologises to the court.

10 On 18 June 2009, the development application was refused by Council.

11 On 8 July 2009, the solicitors for the Council filed the present Notice of Motion and Statement of Charge, seeking that the respondents be found guilty of contempt for failing to remove the fence within the 28 days specified in the consent orders.

12 On 7 August 2009, a class 1 appeal was filed in respect of the refusal of the development application (matter 09/10535). Those class 1 proceedings did not involve the building certificate application referred to in Order 3 of Pain J’s orders.

13 These contempt proceedings were not fixed for hearing until after the class 1 appeal had been determined. It was heard by Commissioner Pearson on 22 October, 17 November and 27 November, and the learned Commissioner handed down her decision on 31 December 2009, refusing consent for the fence. No appeal has been lodged against the learned Commissioner’s decision.

The Evidence and the History in more detail

14 The defendant Yvonne Hakim is a joint owner of the subject property. She is not named as an applicant in the development application, but she signed it both as owner and applicant.

15 She was unable to attend court for cross-examination today due to illness of both herself and her 14 year old daughter overnight and this morning, but in her affidavit of 31 March 2010 says that she “left all the dealings about the brushwood fence to [her] husband, including all dealings with the solicitor and the Council”. She says that she did not have any knowledge of the details of the “battle” they were having with the Council, and that she “had no idea that [they] had failed to comply with Orders of the Court until [she] received the Statement of Charge”. In pars 6 and 7 of her affidavit she says: “I am embarrassed about this and never intended to breach an order or to be in contempt of court. I sincerely apologise to the court”.

16 The defendant Mick Hakim corroborates his wife’s having left to him all their dealings with the Council and their solicitor. He says he made her only “generally aware” that he was arguing with Council over the fence.

17 The defendants have been married for 27 years and have four children aged 14 to 23 who all live at home. Three are students and only the eldest has full-time employment. Mr Hakim lost his business not long ago, and moved out of 1 Angelo Street, Woolwich, into rented premises at 50 Woolwich Road (at a rent of $1200 a week). The rent he receives on the subject property does not cover the mortgage on it. He has recently lost a job in which he earned $80,000pa, but is presently confident he will secure a position in Brisbane involving a package of $100,000pa, including accommodation in that city during the working week. He is relying on his brother for financial support with his commitments.

18 In response to the charge against him, Mr Hakim deposes that: “the fence was erected as the result of the concerns [he] had in an attempt to separate the uses and users of the public reserve from [the] property and to prevent litter coming onto [the] property”, and that the contractor who quoted for the erection of the fence “indicated to [him] that [he] did not need a development consent for the brushwood fence”.

19 He asserts that he telephoned Hunters Hill Council in early 2008 and had a conversation with Mr Steve Kourepis, who gave him certain advice, relevantly that consent was not required if the fence did not exceed 1.7m and did not encroach on his neighbours. Mr Kourepis has given sworn evidence denying any such conversation, and both gentlemen when cross-examined maintained their respective positions.

20 As the court’s primary concern today is not what occurred before the erection of the fence, but what did or did not occur after the court made the relevant consent orders, I have reached no concluded view about the alleged conversation one way or the other.

21 In any event the Hakims’ building certificate application was dated 25 March 2008, lodged in April 2008, and the class 4 proceedings were commenced on 22 May 2008.

22 Mr Hakim also deposes that during settlement discussions on or about 12 September 2008, he indicated his preparedness “to make modifications to the fence to deal with Council’s concerns”, which he says were put to him at the meeting as revolving around the brushwood blocking the view from the street to the water.

23 During the preparation for the class 4 hearing scheduled for 19 February 2009, Mr Hakim obtained and acted upon advice that he should also lodge a development application. The development application lodged on 18 February 2009 is annexed to Mr Hajje’s affidavit, and the court notes that it is twice dated “18.9.08”.

24 In par 14 of his affidavit Mr Hakim deposes that he “accepted that consent was required for the brushwood fence and instructed [his] attorneys, in general terms, that if council refused the applications and [he] lost any appeals, the brushwood fence would have to be removed”. He believes the consent orders reflected those instructions, but he does not recall ever receiving a copy of the orders, and (par 15) “relied on [his] Solicitor to take any necessary action, including the lodgement of any appeal at the appropriate time, and to keep [him] informed”.

25 In pars 16-17 he deposes:

“ In about mid July 2009 I received a Statement of Charge. On reading the charge I immediately became aware of the terms of the Orders, and in particular that an appeal should have been lodged against the deemed refusal of the building certificate application by 19 March 2009. In my mind, not having been reminded of anything to the contrary, I had been waiting for the Council to determine one or other of the applications.
I was very annoyed with my solicitor that he had not advised me that an appeal had to be lodged, and therefore that my wife and I had failed to comply with the Orders. I immediately instructed my solicitor to lodge an appeal against the deemed refusal of the development application, which was the only appeal then open to me, as I was told that time for lodging the appeal on the building certificate application had expired.”

26 In approximately late September 2009 he made “certain modifications to the fence”, reducing its height to 1.5m when measured from the public domain, and “remov[ing] a part of it by reducing its northern extent by 12m” (par 19).

27 He further says (par 20) that in the last week of February 2010 he caused the removal of the whole of the fence “but for some small sections adjacent to two trees”. He says, “I left those sections there rather than run the real risk of damaging the trees as those parts were difficult to remove. I do not believe this causes any obstruction to the outlook by those parts remaining”.

28 In par 21 he apologises to the court for breaching the orders. He realises he should have commenced, within 28 days of 19 February 2009, an appeal against the failure of Council to grant him a building certificate. In par 23 he says:

“I did not deliberately intend to disobey a Court Order and always accepted that, if after a merits appeal, this Court determined that the brush fence was not acceptable, I would take it down. I am extremely embarrassed at being in contempt of this Honourable Court. I sincerely apologise to the court and to the Council for the breach of the Orders ”.

29 In his oral evidence today he assured the court that if advised by Mr Hajje to lodge the appeal, early after the orders, against the (deemed) refusal of the application for building certificate, he would have done so.

30 He sought advice in January 2010, about an appeal against Commissioner Pearson’s decision, and commenced in late January 2010 making arrangements for the removal of the fence.

31 The relevant Council Manager, Steve Kourepis, has sworn two affidavits in the proceedings and gave oral evidence today regarding his inspections and photographs, on 22 February 2010 and 20 April 2010. As at his inspection on 20 April 2010, only “parts of the Brushwood Fence had been removed”, and other “parts … remain in place …”. The photographs assist the court in understanding Council’s concern about the brushwood fence, or any remnant of it, given the beautiful and environmentally sensitive location of the subject property as depicted in them.

Consideration

32 It is to be noted that the orders made by the court, contempt of which is alleged in these proceedings, were made by consent, and clearly require the removal of the fence, not only parts of it. It is also to be noted that the council and the court have declined to grant consent to any part of the fence.

33 The evidence establishes that Mr Hakim (if not Mrs Hakim as well) were clearly informed in March 2008 (and possibly as early as February 2008) that the fence he/they erected did not conform to the local planning instruments or to the terms of their development consent.

34 Despite their lodgement of a building certificate application, they knew from as early as 28 May 2008 that Council was prepared to pursue civil enforcement proceedings for injunctive relief to have the fence removed.

35 In September 2008 the Council declined at a settlement conference to accept “modifications” to the fence, rather than its removal as sought in those proceedings.

36 Eventually on 18 February 2009, Mr & Mrs Hakim made a development application to obtain approval for the fence, but, on the very next day, consented to court orders requiring its removal within 28 days.

37 Those orders did not mention the development application or a possible appeal against its refusal, nor any stay associated with Council’s or the court’s consideration of it, and still no action was taken to remove the fence.

38 When the Council threatened “contempt of court” proceedings on 2 June 2009, their solicitor’s misunderstanding of what he had committed them to in the consent orders was revealed, but no effort was made to purge the contempt.

39 Mr Hakim’s only relevant action in June 2009 was to instruct his solicitor to commence the class 1 proceedings against the refusal of the development application. Minds may well differ on the merits of such a fence, and before me Mr Hakim relies on the supportive expert opinions he obtained for those proceedings.

40 Council, commendably, allowed those proceedings to run their course. They were not commenced until 2 September 2009, but no action followed, on the Hakims’ part, the filing of the charge on 8 July 2009.

41 In September 2009, Mr Hakim made some modifications to the fence “in the hope that it would alleviate councils (sic) concerns”. Council maintained its opposition, the class 1 appeal was dismissed on 31 December 2009, and further modifications to the fence finally occurred only at the end of February 2010.

42 In the result, a fair amount of the brushwood was removed between Mr Kourepis’s photos of 22 February 2010, and those of 20 April 2010. However, some of the contentious fence remains in place today.

43 There is certainly no evidence of any alacrity or haste in the defendants’ attending to the obligations they voluntarily accepted when entering into consent orders to resolve these civil enforcement proceedings.

44 Mr Hakim appears to have acted on the assumption that it would not be considered “reasonable” for anybody, including the Council, to oppose a well-constructed brushwood screen.

45 He and his wife were not charged with the offence of building it without consent, but Council threatened and then took action to have them remove it expeditiously. They agreed to orders to that effect and took no action at all for some seven months. They took advantage of Council’s tolerance of some inaction on their part.

46 Nonetheless, Mr Hakim accepted in the witness box today that the orders required complete removal, and that the remaining brushwood sections on the palisade fence would be removed, now at last, and that a daily penalty might be imposed and suspended to ensure that occurs in a timely fashion.

47 The principles the court must apply are well established and often repeated. They are those laid down by Dunford J in Wood v Staunton (No.5) (1996) 86 A Crim R 183, and by Kirby J in Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435, and they are often applied in this court (eg Environment Protection Authority v Pannowitz (No.2) [2006] NSWLEC 797; 153 LGERA 126).

48 The correct approach has been conveniently summarised by Biscoe J in Mosman Municipal Council v Kelly (No.6) (“Kelly”) [2010] NSWLEC 20 at [6]-[9]. I need not repeat these principles now. They include attention to the requirements of the Crimes (Sentencing Procedure) Act 1999 ss 3A and 21A.

49 The laws governing development control serve an acknowledged and legitimate public purpose. The actions of Councils in restricting development are often not appreciated, but compliance is not optional, no matter what advice one receives, nor how much one likes or needs an offending structure.

50 When restrictive attitudes find their way into court orders, the courts will not hesitate to act firmly to enforce “scrupulous obedience” of them, and so protect the courts’ integrity in upholding the law and its valid application. (Nambucca Shire Council v Mirage Property Group Pty Ltd (No.2) [2008] NSWLEC 136 at [26], Kelly at [16]).

51 As Ms Carpenter submits, these defendants did “too little too late” to obey the orders to which they submitted. Those orders left no scope for them to choose which parts of the orders they would obey, or which parts of the fence they would remove.

52 They have, as the Prosecutor submits (her written submissions pars 26 and 38), “enjoyed the deliberate, unlawful and continuous use of the brushwood fence on the subject property for over two years…”, for their own “convenience and amenity”, and they only reluctantly come now to compliance and to expressions of contrition.

53 Nonetheless, the court takes their contrition and their pleas of guilty into account.

54 Their contempt is serious, in general terms continuous, and of long standing, but there is no harm to the environment, apart from the harm to the planning regime. Punishment is appropriate, and both general and specific deterrence required.

Conclusion and Penalty

55 The prosecutor has sought for substantial fines to be imposed, and for its costs to be paid on an indemnity basis. The court has been told those costs are in the order of $23,000.

56 Mrs Hakim has no relevant prior convictions for environmental offences, but Mr Hakim was before this court (Cowdroy J) in 2005 for excavating protected land (not the subject site) without a relevant permit. He was convicted and fined a total of $40,000 on two counts, but successfully appealed one matter to the Court of Criminal Appeal. As Mr Clay observes, there was no “deliberate” element in the conviction which survived that appeal.

57 Mr Hakim accepts the primary role and responsibility in this matter. There are no aggravating factors, and some mitigating factors.

58 I also take into account the current financial problems of this couple and their family, and their acceptance of the liability for a substantial amount by way of the prosecutor’s costs.

59 In all the circumstances, in Mr Hakim’s case I believe the appropriate fine is $15,000, less a discount of 20% (i.e. $12,000), and in Mrs Hakim’s case $3,000, less a discount of 20% (i.e. $2,400).

Orders

60 The court makes the following orders:

1. Each defendant is convicted of contempt of court as charged in the Statement of Charge dated 8 July 2009.
2. The defendant Mick Hakim is fined $12,000.
3. The defendant Yvonne Hakim is fined $2,400.
4. Each defendant is ordered to pay a daily penalty of $1,000 per day.
5. Order 4 is suspended until 31 May 2010 to enable the purging of the defendants’ contempt by completion of the removal of the brushwood fence referred to in the Statement of Charge.
6. The defendants are jointly and severally ordered to pay the applicant Council’s costs on and from 8 July 2009 on an indemnity basis as agreed or assessed.