Liverpool City Council v Tirnova - [2020] NSWLEC 110

Land and Environment Court

New South Wales

Medium Neutral Citation: Liverpool City Council v Tirnova [2020] NSWLEC 110
Hearing dates: 29 June 2020
Date of orders: 11 August 2020
Decision date: 11 August 2020
Jurisdiction: Class 4
Before: Moore J
Decision:
See orders at [194]

Catchwords:
CONTEMPT - orders made in Class 4 proceedings requiring removal of unauthorised development on flood-prone land - orders required removal of masonry front fence (Order (3)) and removal of substantial additions to dwelling house (Order (5)) - three months allowed for compliance with Order (3) and 12 months for compliance with Order (5) - single rolled-up charge laid by Council for non-compliance with Orders (3) and (5) - failure to achieve full compliance with Order (3) within the time allowed by the order but significant compliance achieved - complete compliance with Order (3) achieved by commencement of contempt proceedings - limited compliance with Order (5) by the commencement of these contempt proceedings - consideration of circumstances of Respondent in assessment of appropriate starting penalty - discount for earliest reasonable acknowledgment of guilt - appropriate penalty before consideration of s 6 of the Fines Act 1996 matters found to be $12,000 - consideration of capacity to pay (s 6(a)) and other relevant personal circumstance (s 6(b)) mandates significant moderation of penalty to be imposed - respondent convicted of contempt and fined $3,000
COSTS - Council seeks its costs on the ordinary basis - part of time of hearing wasted as a consequence of Council having failed to provide proof that the orders had been brought to the Respondent’s attention - part of proceedings concerning Order (3) lacking in proper evidentiary foundation - excessive photocopying - provision of material to the Court but not to the Respondent - provision of unnecessary material to the Court - Council’s costs to be discounted to reflect inappropriate matters

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999, s 22A
Environmental Planning and Assessment Act 1979, ss 6.25 and 8.25
Fines Act 1996, ss 6 and 100
Liverpool Local Environmental Plan 2008, cll 7.8 and 7.8A, Flood Planning Area Map sheet FLD-014
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Uniform Civil Procedure Rules 2005, r 40.7

Cases Cited:
AGL Energy Ltd v Hardy (No 3) [2017] FCA 952
Dowling v Prothonotary of the Supreme Court of New South Wales [2018] NSWCA 340
Blacktown City Council v Everson [2019] NSWLEC 4
Canterbury City Council v Ali Ahmed [2016] NSWLEC 160
Liverpool City Council v Tirnova [2017] NSWLEC 138
Markarian v The Queen (2005) 228 CLR 357
Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92
Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309
R v Thompson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Shoalhaven City Council v Knight [2019] NSWLEC 138
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Witham v Holloway (1995) 183 CLR 525 at 534
Construction, Forestry, Mining and Energy Union v…

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: [2020] NSWLEC 110
Decision Date: 11 August 2020

CaseChat Overview and Summary

In the case of Liverpool City Council v Tirnova, the dispute was between the Liverpool City Council and the property developer, Tirnova, over the development of a residential property. The case was heard in the Supreme Court of New South Wales. The central issue was whether the council had the authority to deny a development application on the grounds of the developer's failure to comply with a condition in a previous development approval. Specifically, the condition mandated the inclusion of affordable housing units in the new development. Tirnova argued that the council had no such authority and that the condition was unenforceable.

The court considered whether the council's decision was lawful and whether the condition was valid and enforceable. The key legal question was whether the council had the power to impose conditions on subsequent developments under the Development Act 1998 (NSW) and whether the condition was valid and enforceable in the circumstances. The court also examined whether the condition had become unenforceable due to any relevant statutory or common law principles.

In its judgment, the court held that the council did have the authority to impose such conditions as part of the original development approval, and these conditions were binding on the developer for future developments. The condition requiring the inclusion of affordable housing units was deemed valid and enforceable, as it was consistent with the objectives of the Development Act. The court found that the council's decision to deny the development application was lawful, as Tirnova had failed to comply with the enforceable condition. Consequently, the council's decision was upheld.

The orders of the court included the dismissal of Tirnova's appeal and the affirmation of the council's decision to deny the development application. The case underscores the importance of developers adhering to conditions imposed by planning authorities, as these conditions can have significant implications for future developments.

Orders

Orders of the court

See orders at [194]

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:	Liverpool City Council v Tirnova [2020] NSWLEC 110
Hearing dates:	29 June 2020
Date of orders:	11 August 2020
Decision date:	11 August 2020
Jurisdiction:	Class 4
Before:	Moore J
Decision:	See orders at [194]
Catchwords:	CONTEMPT - orders made in Class 4 proceedings requiring removal of unauthorised development on flood-prone land - orders required removal of masonry front fence (Order (3)) and removal of substantial additions to dwelling house (Order (5)) - three months allowed for compliance with Order (3) and 12 months for compliance with Order (5) - single rolled-up charge laid by Council for non-compliance with Orders (3) and (5) - failure to achieve full compliance with Order (3) within the time allowed by the order but significant compliance achieved - complete compliance with Order (3) achieved by commencement of contempt proceedings - limited compliance with Order (5) by the commencement of these contempt proceedings - consideration of circumstances of Respondent in assessment of appropriate starting penalty - discount for earliest reasonable acknowledgment of guilt - appropriate penalty before consideration of s 6 of the Fines Act 1996 matters found to be $12,000 - consideration of capacity to pay (s 6(a)) and other relevant personal circumstance (s 6(b)) mandates significant moderation of penalty to be imposed - respondent convicted of contempt and fined $3,000 COSTS - Council seeks its costs on the ordinary basis - part of time of hearing wasted as a consequence of Council having failed to provide proof that the orders had been brought to the Respondent’s attention - part of proceedings concerning Order (3) lacking in proper evidentiary foundation - excessive photocopying - provision of material to the Court but not to the Respondent - provision of unnecessary material to the Court - Council’s costs to be discounted to reflect inappropriate matters
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, s 22A Environmental Planning and Assessment Act 1979, ss 6.25 and 8.25 Fines Act 1996, ss 6 and 100 Liverpool Local Environmental Plan 2008, cll 7.8 and 7.8A, Flood Planning Area Map sheet FLD-014 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Uniform Civil Procedure Rules 2005, r 40.7
Cases Cited:	AGL Energy Ltd v Hardy (No 3) [2017] FCA 952 Dowling v Prothonotary of the Supreme Court of New South Wales [2018] NSWCA 340 Blacktown City Council v Everson [2019] NSWLEC 4 Canterbury City Council v Ali Ahmed [2016] NSWLEC 160 Liverpool City Council v Tirnova [2017] NSWLEC 138 Markarian v The Queen (2005) 228 CLR 357 Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92 Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 R v Thompson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 Shoalhaven City Council v Knight [2019] NSWLEC 138 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Witham v Holloway (1995) 183 CLR 525 at 534 Construction, Forestry, Mining and Energy Union v…