Lismore County Council v Pagura

[2000] NSWLEC 47

Land and Environment Court

of New South Wales

CITATION:

Lismore County Council v Pagura [2000] NSWLEC 47

PARTIES:

APPLICANT
Lismore County Council

RESPONDENT
Pagura

FILE NUMBER(S):

40032A of 1999

CORAM:

Cowdroy J

KEY ISSUES:

Contempt - Costs :- Respondent failed to comply with Court's orders - contrition demonstrated - no further penalty required

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

CASES CITED:

DATES OF HEARING:

15/12/99

EX TEMPORE
JUDGMENT DATE :

12/15/1999

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Atkin (Solicitor)

SOLICITORS
Walters Solicitors
RESPONDENT
Mr J Robson (Barrister)

SOLICITORS
Deacons Graham & James

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 40032A
CORAM: Cowdroy J
DECISION DATE: 15/12/99

Lismore County Council

Applicant

v

Pagura

Respondent

EX TEMPORE JUDGMENT

1. In this matter the respondent was ordered on 12 April 1999 to demolish an illegal structure at a residence at 15 Julie Crescent Goonellabah in the State of New South Wales. The respondent failed to comply with the Court's orders. Accordingly an application was made by the applicant, that is the council of the City of Lismore, by way of notice of motion and a statement of charge that the respondent was guilty of contempt by virtue of the failure to comply with the Court's orders made on 12 April 1999.

2. Mr Robson has appeared for the respondent when the matter first came before the Court upon the first return day in relation to the contempt proceedings and has appeared again today.

3. It appears that the respondent Mr Pagura, had endeavoured to obtain legal advice from an organisation which ultimately found itself unable to assist him. The respondent thereafter obtained the advice of a solicitor and in consequence thereof counsel's advice was obtained. From that point the proceedings have taken a different course.

4. The evidence discloses that the respondent originally considered that he was able to defy the council and not to comply with their requirements nor with the order of the Court. That thought process was a mistake. The Court's order cannot be ignored for to do results in the possibility of gaol or fine for contempt of court.

5. The respondent has now complied with the order. The respondent is a gentleman of 60 years of age whose skills are those of a manual labourer. He constructed the house which is the subject of these proceedings. It is unfortunate that the matter has come before the Court in this way but I am satisfied that the respondent considered that his extension to the house might just have been possible, that is he believed that the council may have overlooked it. That has proved not to be the case. The respondent must understand that the council is a public body whose existence is to ensure that local planning rules and regulations are maintained. If it did not pursue that course then it would be in breach of their duty to the public.

6. This matter has caused the respondent considerable expense. Not only have the building costs of the extension to the house been wasted but he has also incurred legal costs. In addition the council seeks costs of the proceedings, but does not, in view of the rectification of the work, now seek any further order. The presence in court of the respondent and his co-operation in meeting the council's requirements to my mind demonstrates appropriate contrition. In these circumstances the council's costs are paid and the Court considers that no further penalty is required.

7. Accordingly the Court finds the contempt proved. The Court makes no order for any penalty. The Court orders that the respondent pay the council's costs of this motion.