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 Boral Resources (Vic) Pty Ltd (2015) 89 ALJR 622
Wollongong City Council v Eldridge [2017] NSWLEC 3
Wood v Staunton (No 5) (1996) 86 A Crim R 183

Texts Cited:
Liverpool Development Control Plan 2008

Category: Principal judgment
Parties: Liverpool City Council (Applicant)
Eyup Tirnova (Respondent)
Representation:
Counsel:
Ms N Hammond, barrister (Applicant)
Mr E Tirnova, self-represented (Respondent) (assisted, by leave, by Ms R Tirnova and Ms G Tirnova)
Solicitors:
Liverpool City Council (Applicant)

File Number(s): 386138 of 2016
Publication restriction: No

TABLE OF CONTENTS

Introduction
Molesworth AJ’s decision provides background to the present proceedings
The Council's contempt proceedings
The necessary amendments to the particulars
The site
Introduction

The Moorebank Voluntary Acquisition Scheme
The hearing
Introduction
Ms Hammond's written submissions on the charge

The evidence
The initial failure to prove service of the October 2017 Orders
The unauthorised development
Consideration of Mr Tirnova’s guilt
Characterisation of the contempt
The extent of Mr Tirnova’s compliance with Order (3)
Introduction
Demolition of the wall
Removal and disposal of the rubble
Conclusion on Order (3)

The extent of compliance with Order (5)
Introduction
The position at the end of the closed charge period
Compliance as at the date of the most recent inspection

A current Building Information Certificate application
The contempt continues
The application of the Crimes (Sentencing Procedure) Act 1999
Consideration of Mr Tirnova's personal circumstances
Introduction
Mr Tirnova’s evidence
Introduction
Mr Tirnova’s evidence concerning Order (5) matters
Mr Tirnova’s evidence concerning his personal circumstances

Mr Tirnova’s subjective factors

Comparability in sentencing outcomes
The appropriate penalty
Consideration of s 6 of the Fines Act
Arrangements to make payment by instalments
Costs
Introduction
The Council seeks its costs on the ordinary basis
Appropriate exclusions from the costs order
Introduction
The matter of compliance with Order (3)
The extent of the unnecessary photocopying in Exhibit A
Lack of proof of awareness of Molesworth AJ’s orders
Ms Hammond's written submissions
The building information certificate submissions and copies of building information certificate application documentation

Orders

Judgment

Introduction

On 13 October 2017, Molesworth AJ handed down his decision (Liverpool City Council v Tirnova [2017] NSWLEC 138) in Class 4 proceedings brought by Liverpool City Council (the Council) against Mr Eyup Tirnova (as First Respondent) and his wife and daughter (as Second and Third Respondents, respectively). His Honour's decision records that his Honour only made orders against Mr Tirnova. The orders that his Honour made were:

The Court:

(1)   Declares that the First Respondent has:
(a)   Carried out development for the purpose of a dwelling house, namely the erection of structures in the form of:
(i)   a single-storey extension adding habitable rooms to the rear of an existing dwelling house;
(ii)   a sea wall at the rear of the premises; and
(iii)   a masonry and cement-rendered boundary fence at the front of the premises,

on land described as Lot 67 DP 657033, known as 40 Newbridge Road, Chipping Norton (the Land), being land within Zone R2 Low Density Residential for the purposes of the Liverpool Local Environmental Plan 2008 and within which zone development for the purposes of dwelling house could only be carried out with development consent; and
(b) breached section 76A(1) of the Environmental Planning and Assessment Act 1979 by carrying out that development on the Land without first obtaining development consent.

(2)   Notes that Liverpool City Council has committed to taking no action with respect to the actions of the First Respondent which have led to the construction and current state of the sea wall at the rear of the premises abutting the Georges River.
(3)   Orders that the First Respondent, within 90 days of the date of these orders, to:
(a)   demolish the masonry and cement-rendered boundary fence at the front of the premises;
(b)   remove from the premises the materials resulting from the demolition of the fence to a lawful waste facility, save for any materials which are able to be reused in the construction of a replacement fence the subject of Note (4) below; and
(c)   provide a receipt to Liverpool City Council confirming that the demolished materials referred to in Order (3)(b) have been disposed of at a lawful waste facility.

(4)   Notes that Liverpool City Council has committed to allowing the Respondents to build with consent, a replacement front fence on the Land that is permeable and allows the unhindered flow of flood waters.
(5)   Orders that the First Respondent, within twelve months of the date of these orders, to:
(a)   demolish the single-storey extension to the existing dwelling house on the land;
(b)   remove from the premises the materials resulting from the demolition of the single-storey extension, together with nay other building materials stored on the premises associated with the original construction of the extension, to an appropriate waste facility, save for any materials which are able to be reused in the reinstatement of the rear to the existing dwelling the subject of Order (5)(d);
(c)   provide receipts to the Liverpool City Council confirming that the demolished materials referred to in Order 5(b) have been disposed of at a lawful waste facility; and
(d)   rebuild an appropriate rear to the existing dwelling, after the demolition of the extension, so that it may be returned to habitable use.

(6) Notes that Liverpool City Council will facilitate the reinstatement of the existing dwelling so as to allow it to return to habitable use.

As can be seen from the terms of Orders (3) and (5), they required demolition of works which had been carried out at the site, a property in Moorebank on the Georges River, where those works had been effected without approval from the Council. The works are later described at [53] to [57].

Molesworth AJ’s decision provides background to the present proceedings

To understand how and why his Honour’s orders were framed as set out above, it is appropriate to provide a deal of background concerning the earlier decision and the significantly confined nature of the matters with which I am required to deal in these proceedings.
There is no doubt that Molesworth AJ had a deal of sympathy for the circumstances in which Mr Tirnova and his wife and daughter found themselves in the proceedings before him. A reading of his judgment from the concluding portion of [129] through to the end of [138] demonstrates this.
In particular, it is apposite to set out, in their entirety, [139] to [142] of his Honour’s judgment in order to have an understanding of the circumstances with which his Honour was then dealing:

A critical material aspect of this matter is the intolerable delay of Liverpool Council in enforcing the law which, not surprisingly, left the First Respondent and his family in a state of uncertainty. Relatively soon after the First Respondent commenced his building works on the Land in 2010, a Council officer attended and photographed the premises in April 2011 and observed the works underway. It was not until 25 months later that another officer of Liverpool Council returned to the Land on 17 May 2013 to conduct a further inspection. With the passage of such an extended period, a property owner not versed in the planning or building system might understandably conclude that all was in order to the satisfaction of Liverpool Council. If such a period passed whilst an apparently more knowledgeable neighbour was concurrently assuring the First Respondent that approvals were not required, the mistaken understanding of the true position would have been compounded.
There can be no doubt that, had Liverpool Council acted expeditiously in April 2011 soon after the initial inspection of the Land - say by serving a stop-work order, or effectively conversing with the First Respondent and his family - the works in question might have ceased at a relatively inexpensive and reversible stage. Instead, by delaying 25 months, Liverpool Council allowed the works to be completed without appropriate warnings and stood by whilst the extension to the dwelling was occupied by a family who unknowingly had committed a breach of both the building and planning laws whilst expending their scarce funds.
It would be consistent with responsible conduct for public authorities, such as municipal councils, to be alert to the danger that inaction in response to a prima facie breach of the law by a citizen might be taken by that citizen as a de facto approval or at least a form of representation by way of acquiescence that all was in order. The avoidance of such situations is necessary. In the multi-cultural society that characterises the modern Australian city, such as Liverpool, there is a heightened duty resting upon the shoulders of those in authority to accommodate the differential understanding of English, as language can present real obstacles in understanding regulatory regimes.
Further, given that many of the citizens of our multi-cultural society come from countries with significantly differing legal and political systems, there is at least a moral obligation, which would be strategically sensible to embrace, for authorities to vigilantly go “the extra distance” to ensure that there is an understanding of the regulatory regime that is relevant to a person’s actions once it is apparent that an irregularity is occurring. With hindsight, a non-confrontational conversation with the Respondents orchestrated by Liverpool Council back in April 2011, in which obligations and rights were clearly explained, might have obviated the need for the proceedings before the Court today. Unfortunately, this Court does not have the benefit of an H.G. Wells time machine to “turn the clock back”.
1. His Honour further explained the issue of delay on behalf of the Council at [144]. This paragraph was in the following terms (emphasis in original):
Compounding the initial 25 month delay, there were a number of other extended periods of delay, as described in the chronology set out at paragraph 16 above. Despite the Respondents lodging both a development application (DA) and a building certificate application (BCA) with Liverpool Council on 12 September 2013, within three weeks of the service of the s 121B orders on each of the Respondents, it was not until six months later (on 26 March 2014) that the DA was refused and a further twenty eight months later on (27 July 2016) that the BCA was refused. Within a month of that refusal, a formal interview of the Respondents was conducted by Council officers as a preliminary step to the proceedings now before the Court, which were commenced on 23 December 2016. In all, five years and eight months had passed since Liverpool Council first inspected the Land in April 2011 and took photographs of the initial works.
1. His Honour engaged with these issues of the Council’s delay as a significant timing factor to be taken into account in exercising his discretion (consistent with the decision in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335) as to how he should craft his orders in response to the circumstances, with respect to which he was faced (circumstances which included him having undertaken a site inspection and observing - as he recorded at [154] of his decision - the flood line on the living room wall of the Respondents’ house and examining the photographs of the flooded interior).
2. As his Honour observed, at [159], it was appropriate to “soften the impact of the orders on the Respondents”. As a consequence, his Honour provided Mr Tirnova three months to demolish the front fence and a more extensive period of time for the demolition of the rear extension to the dwelling (12 months as provided for in Order (5)) rather than the 90 days sought by the Council - see Molesworth AJ's judgment at [159].
3. I set out this context because it is appropriate to record that, during the course of the proceedings before me, matters were raised on behalf of Mr Tirnova by his wife seeking to recanvas matters which had arisen before Molesworth AJ. It was necessary for me to explain to Ms Tirnova that I was not re-engaging with the merit matters that had been dealt with in the earlier proceedings. I explained this to her in the following terms (Transcript, 29 June, page 41 lines 22 to 38):

HIS HONOUR: No, I need to explain to you, Ms Tirnova, that I’m dealing with quite a narrow legal issue. I am not dealing with the merits of your building or otherwise. I am dealing with the question of whether or not your husband should be punished for not obeying the Court’s orders and, if so, what punishment should be given to him. That’s what I’m dealing with. It is a very confined legal issue. I will have regard to all of the material, including your husband’s material that relates his health and finances and I will deal with the material that relates to your having been stood down by the airport because that letter from Ms Wilson to you is in evidence. Do you understand that?

G TIRNOVA: Yes, yes, your Honour.

HIS HONOUR: Whilst I can understand why these might be emotional times for you and your family, I am obliged to deal with the very narrow legal issues that arise from the proceedings that the council has commenced against your husband and I will do so, as I say, having regard to all of the material that is contained in the white folder.

The Council's contempt proceedings

By Notice of Motion filed on 23 March 2020, the Council commenced contempt proceedings against Mr Tirnova for what the Council said was his failure to comply with what had been required by the elements of Orders (3) and (5) made by Molesworth AJ in October 2017. The terms of the orders sought by the Council in the Notice of Motion were:

The Respondent is guilty of contempt by failing to do the works required by orders 3 and 5 made by this Court in Liverpool City Council v Tirnova [2017] NSWLEC 138 on 13 October 2017, within the time period required by those orders.
The Respondent is punished for contempt by the imposition of a fine.
The Respondent is to pay the Applicant’s costs of this motion for contempt on an indemnity basis or, alternatively, on the ordinary basis.
1. As can be seen, the first proposed order raises a single, rolled-up charge for breaches of the two orders.
2. The Notice of Motion was accompanied by a Statement of Charge, a document which particularised the basis upon which the Council founded the charge laid against Mr Tirnova. The Statement of Charge set out four particulars upon which the Council relied. These particulars were in the following terms:
During the period between 13 October 2017 to 24 June 2019, the Respondent partially, but not completely, demolished the masonry and cement-rendered boundary fence at the front of the premises located on the Land, contrary to Order (3)(a) which requires demolition of the entire masonry and cement-rendered boundary fence at the front of the premises;
During the period between 13 October 2017 and 24 June 2019, the Respondent failed to remove from the Land materials resulting from demolition of the boundary fence at the front of the Premises located on the Land to a lawful waste facility and provide a receipt to the Applicant confirming disposal to a lawful waste facility, being materials that are not able to be reused in the construction of a replacement fence, contrary to Order (3)(b) and (3)(c);
During the period between 13 October 2017 and 24 June 2019, the Respondent failed to demolish the single-storey extension to the existing dwelling house on the Land, and rebuild an appropriate rear to the existing dwelling after demolition of the extension to return it to habitable use, contrary to Order (5)(a) and (d);
During the period between 13 October 2017 and 24 June 2019, the Respondent failed to remove from the premises the materials resulting from demolition of the single-storey extension to an appropriate waste facility and provide a receipt to the Applicant confirming disposal to a lawful facility, being materials that are not able to be reused in the reinstatement of the rear to the exist dwelling, contrary to Order (5)(b) and (c).
1. As can be seen, each particular proposed a closed charge period concluding on 24 June 2019.

The necessary amendments to the particulars

I have earlier set out the orders founding the basis of this single charge laid against Mr Tirnova. As can be seen from those orders, Mr Tirnova was given 90 days within which to comply with the three elements of Order (3) and 12 months to comply with the four elements of Order (5). As can also be seen from the terms of the particulars in the Statement of Charge earlier set out, each of the specific alleged breach periods were particularised as having commenced on 13 October 2017, the date of the making of the Court's orders. Such a proposition was clearly an absurdity - given that Molesworth AJ’s Orders (3) and (5), although differing in the periods of time for compliance, each allowed a nominated period for compliance after the date of the making of the orders on 13 October 2017.

Ms Hammond, barrister for the Council, sought leave to amend the particulars to account for the necessity to reflect these periods allowed for compliance with each of the two orders.
These proposed amendments were not objected to by Mr Tirnova and, therefore, leave was granted to the Council to make them.
As a consequence, the closed charge period in the first and second particulars (relating to Order (3)) was amended to commence from 12 January 2018, whilst that for the two particulars concerning Order (5) was amended so that the closed charge period commenced from 13 October 2018.
These dates were those nominated by Ms Hammond. I note that the amendments to the first and second particulars relating to Order (3) reflected the commencement of the charge period being three months after the making of the Court's orders, rather than the 90 days provided in the orders, but nothing turns on that in these proceedings.
I am, therefore, required to determine, for the first two particulars, what was the extent of satisfaction (or of non‑satisfaction) of each element of Order (3) commencing on 12 January 2018 and concluding on 24 June 2019.
I am also required to determine, for the third and fourth particulars, what was the extent of satisfaction (or of non‑satisfaction) of each element of Order (5) commencing on 13 October 2018 and concluding on 24 June 2019.
However, with respect to Order (5), it is also appropriate to note, as later addressed in more detail, that Mr Tirnova's failure to comply fully with the requirements of that order is continuing. As a consequence, to the extent that he was in breach of that order at the end of the closed charge period, he remains in breach as at this hearing and his contempt to that extent has not been purged.

The site

Introduction

At this point, it is appropriate to set out relevant information concerning the Moorebank property upon which the unauthorised development, the subject of the Class 4 proceedings, had taken place. The site is zoned R2 Low Density Residential. It is identified pursuant to the Liverpool Local Environmental Plan 2008 (the LLEP) as being flood-prone.
As a consequence, special provisions apply in both the LLEP and in the Liverpool Development Control Plan 2008 (the LDCP) regulating development on it and other allotments in the area.
Two further observations are to be made. First, State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 does not apply to the site as it is excluded by cl 3.5 of the policy as a consequence of the land being mapped as flood‑prone. Second, the site is identified as one to be acquired by the Council, pursuant to what is described as the Moorebank Voluntary Acquisition Scheme (the Scheme). This acquisition programme is discussed below as it provides broad context for matters requiring consideration later in this decision.

The Moorebank Voluntary Acquisition Scheme

Although not a matter directly impacting the sentence here to be imposed for Mr Tirnova’s contempt, the Scheme does warrant being explained, and a limited comment made concerning it, as it provides background to the more specific matters following concerning Mr Tirnova’s failure to fulfil the orders of the Court. Mr Tirnova has, without success, sought to sell the property to the Council through the Scheme (as later discussed).
As the name of the Scheme makes clear, it is one which permits the Council, to the extent that funds are available to it for this purpose, to negotiate an agreed price to acquire residential properties, which, as here, fall within the geographic area defined as so significantly flood-prone as to warrant the removal of human habitation from them.
It is not in contest in these proceedings (nor was it in contest in the proceedings before Molesworth AJ) that Mr Tirnova's site is in an area mapped by the Council as being in a flood-planning area (cll 7.8 and 7.8A of the LLEP and Flood Planning Area Map sheet FLD-014 of the LLEP maps). Indeed, although I have not undertaken a site inspection, Molesworth AJ did so during the course of the earlier Class 4 proceedings. What, relevantly, he observed was earlier noted at [7].
It is clear that his Honour assessed, at some considerable length in his judgment, the competing evidence before him about the nature and extent of flooding and flood risk to occupants of the dwelling on Mr Tirnova's site. His Honour also assessed the extent to which such flooding was expected to occur which would then expose not only those occupying the residence (but also those from emergency services who might be called upon to effect rescue of those occupants) to risk of hazard in the event of a significant flood.
It is not necessary (nor would it be appropriate) for me to revisit his Honour's conclusions as to why it was not appropriate, as a matter of discretion, to permit the unapproved additions to the dwelling (additions which his Honour recorded as increasing the floor space of the dwelling by 115%) to remain. As earlier noted, familiarity with the factual matters, and his Honour’s thoughtful and lengthy analysis of matters he needed to take into account in the civil enforcement proceedings before him, is assumed for the purposes of an understanding of this judgment.
As a consequence of the risk of significant flooding within the locality where Mr Tirnova's site is located, the Council has had the Scheme operating. Detailed evidence concerning the operation of, and full extent of the area covered by, the Scheme is not before me. However, the reasonable inference with respect to it is that, in the fullness of time, the Council hopes to acquire all of the properties identified as being inappropriate to be occupied as a consequence of the flooding risk. Evidence concerning the Scheme relevant in the context of these proceedings was given by Mr Milicic, the Council's Manager, Property. Mr Milicic’s affidavit dated 19 May 2020 was at folios 330 to 333 of Exhibit A. His evidence was to the following effect, at Exhibit 2 to his affidavit:

The Moorebank Voluntary Acquisition Scheme (MVAS) commenced in 1984 and is planned acquisition, by voluntary process, of flood affected properties located along the Georges River at Moorebank/Chipping Norton in the vicinity of Newbridge Road, Rickard Road, Davy Robinson Drive and Arthur Street.

Mr Milicic was not required for cross-examination.
However, it is to be noted that the Council can only make limited budgetary provision for the acquisition of such properties - with few such acquisitions ordinarily being effected each financial year (as shown by the letter at Appendix 21 to the affidavit of Mr Milicic at folio 415). Whilst the State Government may, from time to time, provide funding for such acquisitions, it is clear that such funding is somewhat ad hoc and does not necessarily occur on any predictable recurring basis.
The evidence concerning Mr Tirnova's interaction with the Council seeking that it acquire the site through the Scheme was set out at folios 401 to 415 of Exhibit A. This evidence comprised not only what was set out by him in his affidavit but also in a number of e-mails, copies of which were appended to Mr Milicic’s affidavit.
From this evidence and from what Mr Tirnova said during this hearing, it is clear that, during the past 12 months or so, Mr Tirnova and his family have now come to an acceptance that the desirable outcome for them (and for the Council) is that the site be purchased pursuant to the Scheme. Although the Tirnovas and the Council have engaged in acquisition discussions, it is clear from Mr Tirnova's evidence (and the documents noted above from Exhibit A) that agreement was not able to be reached on an acceptable acquisition price. Clearly, the Tirnovas considered that the price offered by the Council does not reflect the proper value of their property.
It is also clear that the Council, as a responsible governing entity administering public funds, is bound to negotiate in an appropriate, but limited, commercial fashion, having regard to such professional valuation advice as it may have received.
It is not in contest that the rate of purchase of properties pursuant to the Scheme has been steady and has been limited by the ability of the Council to provide funds for such acquisitions in each annual council budget. It was not contested that, during the recently finished 2019/2020 financial year, the Council had acquired few properties pursuant to the Scheme.
As can be seen from the above discussion, negotiations between Mr Tirnova and the Council were unable to reach fruition, as the parties were unable to reach agreement on a price for acquisition.
During the course of the hearing, in light of the evidence given before me concerning Mr Tirnova's financial circumstances (these matters as earlier considered) and they having been discussed before Molesworth AJ (as noted at [131] of his Honour's judgment), it would appear clear that it is likely that, in these harsh economic times brought about by the COVID-19 pandemic when coupled with Mr Tirnova's personal physical circumstances that are continuing, his failure to fulfil all the requirements of Order (5) will continue.
Under those circumstances, it may be that practical resolution to the risks associated with the unlawful dwelling elements constructed of the site will only arise when and if the Council is able to acquire the site through this acquisition scheme.

The hearing

Introduction

The hearing of the Council's contempt motion was undertaken by telephone on 29 June 2020 as a result of the necessary operational constraints on the Court as a result of the COVID-19 pandemic. Although the proceedings had originally been proposed to be held using Microsoft Teams software, Mr Tirnova did not have access to a computer facility to permit him to take part in such a hearing. Under the circumstances, by agreement, the hearing was therefore conducted using the Court’s conference-call facility.
Mr Tirnova appeared in person. However, as Mr Tirnova has difficulty with the English language, his daughter (who had been the Third Respondent in the original proceedings) sought leave to assist him with the proceedings and to supplement such submissions as he might wish to make. This course was not objected to by Ms Hammond and I therefore granted leave for this to occur.
Toward the end of the proceedings, Mr Tirnova's wife (who, although also not the subject of the orders made by Molesworth AJ, had been the Second Respondent in the Class 4 proceedings) sought permission to speak on her husband's behalf. Ms Hammond also consented to the making of such additional submissions by her and this then occurred.

Ms Hammond's written submissions on the charge

Ms Hammond had prepared written submissions in support of the Council’s case and had provided these to my Associate by e-mail at 4.58 pm on Friday 26 June 2020. At the commencement of the hearing on Monday 29 June 2020, I enquired of Ms Hammond whether a copy of those submissions had been served on Mr Tirnova. She advised me that they had not.
As a consequence, in the circumstances where Mr Tirnova was a self‑represented litigant and these proceedings, although civil ones, were being conducted in a fashion analogous in many respects to criminal proceedings, I declined to have regard to those written submissions.

The evidence

The Council had filed a Court Book (in a white folder) on 25 June 2020 and had provided a copy to Mr Tirnova. The Court Book contained a number of documents:

a copy of the Notice of Motion;

a copy of the Statement of Charge; and

four copies of Molesworth AJ's decision of 13 October 2017 (it is appropriate to address later the costs implications of multiple copies of this decision being put in evidence).

The Council’s evidence in the Court Book comprised:

affidavits provided by five officers of the Council, together with material annexed to those affidavits. It has been necessary to refer to, and quote from, various of those affidavits and to refer to elements of the material annexed to them; and

affidavits of service (three) attesting to the fact that documents from the Council (including the various affidavits of the various council officers referred to above) had been served on Mr Tirnova.

Mr Tirnova provided two affidavits and supporting documents. The first of them was undated and it, and its supporting documents, were at folios 423 to 450 of the Court Book. His second affidavit, dated 25 May 2020, and its supporting documents were at folios 451 to 460 of the Court Book.
The Court Book was tendered without objection from Mr Tirnova, with it becoming Exhibit A.
Exhibit B comprised an affidavit of service discussed below, being the affidavit demonstrating the effecting of the service on Mr Tirnova of a sealed copy of the orders made by Molesworth AJ on 13 October 2017.

The initial failure to prove service of the October 2017 Orders

At the commencement of the hearing, I asked Ms Hammond where I would find, in the Court Book, any proof of service of Molesworth AJ's orders on Mr Tirnova or any evidence that he had been in Court at the time that Molesworth AJ had pronounced the orders (one or other of these being necessary to be proved -see the decision of Biscoe J in Mosman Municipal Council v Kelly(No 3) [2009] NSWLEC 92).
Ms Hammond conceded that there was no evidence that demonstrated either of these methods of establishing that the October 2017 Orders had properly come to the attention of Mr Tirnova.
I permitted a short adjournment in order to enable her to seek instructions. A copy of an affidavit was e-mailed to my Associate and to Mr Tirnova. This affidavit established that a sealed copy of the orders and a penal notice pursuant to r 40.7 of the Uniform Civil Procedure Rules 2005 had been served on Mr Tirnova on 4 November 2017. Mr Tirnova did not object to the tender of this affidavit and a copy of the penal notice. They became, as earlier noted, Exhibit B.

The unauthorised development

Two elements of the unauthorised development on the site provided the basis for the orders made by Molesworth AJ in October 2017. The first element was the construction of a masonry panel wall with engaged piers along the street frontage of the site. This masonry wall comprised the structure which resulted in his Honour making the three elements of Order (3) earlier set out. However, with respect to this wall, two additional matters warrant being noted. The first is that, in [13] of his Honour's judgment, his Honour noted:

Whilst the Respondents initially opposed the making of a demolition order with respect to the front fence, the Respondents subsequently withdrew this opposition and agreed to remove the fence. I note that Liverpool Council stated in its closing submissions that “[t]he fence can be replaced with an appropriate fence, such as a pool-style fence with horizontal metal railings that would permit the flood waters to flow through it unimpeded”.
1. The second matter to be noted is that Order (4) made by his Honour comprised a notation responsive to the above quoted paragraph from his Honour's decision.
2. The second element of the unauthorised development on the site was the construction of a rear extension to the existing dwelling - a rear extension comprising a living/dining area; two additional bedrooms (one with an ensuite bathroom); a laundry; and an alfresco external area comprising a covered deck with steps leading to the rear yard of the site.
3. The Council had earlier refused a development application and a building certificate application by which approval for these extensions to the dwelling had been sought (see Molesworth AJ’s decision at [16]). The plans for that refused development were in Exhibit A at folios 317 to 322. Those plans make it possible to establish that the height of the rear deck was approximately 0.7 metres above ground level, a height consistent with a photograph contained in Exhibit A at folio 445. The development, as dealt with by his Honour, had also had the subfloor areas of this unauthorised extension to the dwelling enclosed by a form of cladding.
4. The front fence and the enclosure of the subfloor area were matters of concern to the Council as to the extent to which they would impede the water flow during a flood event affecting the site. The floor level of the dwelling is well below anticipated future (as well as past actual) flood levels.

Consideration of Mr Tirnova’s guilt

Mr Tirnova acknowledged, at the earliest reasonable opportunity, that he had not carried out all of the matters required by Orders (3) and (5) in their entirety within the relevant period set by each order (the amended particularisation as earlier discussed being ameliorative of the extent of the alleged breach of each of the orders). However, it is still necessary that I examine critically the extent to which his guilt is (or is not) established on the evidence adduced by the Council in light of the fashion in which the single charge alleges breaches of both orders and for specified (but different) closed charge periods.
Ordinarily, it might be expected that the extent of any breaches would be self‑evident (and, frequently, demonstrated on the basis of a set of agreed facts which are tendered).
However, for two reasons, it is necessary that I undertake a critical evaluation of the evidence because of the rolled-up nature of the single charge against Mr Tirnova in circumstances where, between them, Orders (3) and (5) contain a series of separate and differing obligations to be satisfied for compliance. This is particularly important in the context where Mr Tirnova is a self‑represented litigant, who required assistance in these proceedings (and in the earlier proceedings before Molesworth AJ) in order to understand fully and respond to the matters being discussed.
As will be seen from my later discussion, Mr Tirnova's acknowledgement of non‑compliance with the two orders, on proper examination of the Council's evidence, is not to be taken, on the basis of that evidence, to be an unqualified admission of guilt. Indeed, guilt must be established by the Council (to the criminal standard of proof) on the evidence as applied to the particulars pleaded by the Council.
At the commencement of the relevant time period as now particularised, complete compliance with all the elements of Order (3) had not been achieved. Nonetheless, Order (3)(a) had, as later explained, been fully satisfied by the time ordered for compliance and Order (3) had been satisfied in its entirety by the conclusion of the relevant closed charge period as particularised.
Although Order (5) had not been satisfied completely as to any of its elements by the conclusion of the relevant time period as particularised (and remains unsatisfied), some limited attempt at compliance with Order (5)(a) had been undertaken - thus giving rise to a position that also requires further examination.

Characterisation of the contempt

Contempt can be characterised in various different ways depending on, relevantly for these proceedings, the reasons why there has not been fulfilment of the obligations imposed by the orders made by Molesworth AJ in October 2017. The two classes of contempt potentially engaged in these proceedings are contumacious contempt and wilful contempt.
Contumacious contempt is where there is a specific intention to disobey a Court order or undertaking to the Court which evidences a conscious defiance of the Court's authority. In Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309, at 315, Kirby P said:

This class of contempt (contumacious) is reserved to cases where the behaviour of the contemnor has been shown to be aimed at the integrity of the courts and designed to degrade the administration of justice, as distinguished from a simple interference with property rights manifested by a court order. (citations omitted)

Wilful contempt is where the disobedience is more than casual, accidental or unintentional, but is not contumacious.
Ms Hammond made no oral submission as to whether Mr Tirnova’s contempt in this case was to be regarded as contumacious or whether it was to be regarded as wilful. No submission was made as to whether or not the facts did disclose an element of deliberate defiance of the orders made by Molesworth AJ.
I have concluded on the evidence before me that, to the extent that Mr Tirnova’s contempt is actually proved by the Council in the fashion particularised, the contempt is to be regarded as wilful.

The extent of Mr Tirnova’s compliance with Order (3)

Introduction

In order to reach a conclusion concerning the extent to which the first element of the rolled-up charge (relating to Order (3)) is established, it is necessary to consider:

The extent to which Mr Tirnova had not complied with the various elements of Order (3) as at the commencement of the charge period (12 January 2018); and

The extent (if any) to which Mr Tirnova remained in breach of any of the elements of Order (3) on 24 June 2019 (being the date at the end of the particularised closed charge period).

As can be seen from the terms of Order (3) as earlier set out, Mr Tirnova was required to have carried out three quite separate actions in order to fulfil the terms of this order in its entirety.
First, he was obliged to demolish the masonry wall at the street frontage of the site and, second and third, he was required to demonstrate to the Council that the rubble resulting from such demolition had been removed from the site and disposed of in an appropriate fashion.
Only if the Council was able to establish, beyond reasonable doubt, that Mr Tirnova had not satisfied each of these elements could it be said that Mr Tirnova was, overall, in breach of Order (3) as charged. I therefore turn to consider each of the mandated elements.

Demolition of the wall

It is to be remembered that, on the amended particularisation earlier discussed, the Council alleges that Mr Tirnova had not complied with the terms of Order (3)(a) (the demolition requirement) by 12 January 2018 and that he remained in breach as at 24 June 2019.
For the purpose of this allegation, the Council relied on an affidavit of Ms Rosalie Jones, an Investigation Officer employed by the Council. Her evidence, relevant for the purposes of this point, was in an affidavit dated 20 March 2020. This affidavit and its annexures were contained in Exhibit A, at folios 68 to 168. Ms Jones was not required for cross-examination.
In his first, undated affidavit, Mr Tirnova said (Exhibit A, folio 423) on the topic of Order (3)(a):

I have demolished the front fence after the orders were served. I was given a timeframe of three months to complete this order. Complying with this order, I did demolished the front fence leaving the piers so I could put fool [sic] fence in between them, so in the event of a flood water will flow freely. I then e-mailed Rosalie Jones explaining to her that I had demolished the front fence. She responded on 16 May, outlining the orders again.

Ms Jones dealt, relevantly, with the state of the wall as at an inspection by her on 12 January 2018 at paragraph 7 of this affidavit. The relevant part of that paragraph was in the following terms:

… While there I observed the following:

(a)   The cement rendered masonry fence at the front of the property had not been fully demolished.
(b)   Part of the cement rendered masonry fence had been removed.
(c)   ...
(d)   Building materials from the partial demolition were being stored in the front yard of the premises.

Annexed to her affidavit, relevant to this point, was a photograph of the state of the wall at the street frontage of the site as at 12 January 2018. That photograph was at folio 128 of Exhibit A.
As can be seen from the photograph (particularly when examined in conjunction with the photograph at folio 126), all that remains of the street-frontage wall is a low pediment together with five piers.
It is to be taken from this photograph that those piers constitute the engaged piers that would, necessarily, have been required for structural support of the masonry infill panels between them. A copy of that photograph is reproduced below.

A second affidavit from a council officer is also relevant to the question of compliance with Order (3)(a). This affidavit, dated 20 May 2020, set out the evidence of Mr Hossain, an officer of the Council whose role is Coordinator Floodplain and Water Management. Mr Hossain’s evidence was given on the basis that he was qualified to give expert evidence on flooding‑related matters and his affidavit (appearing at folios 213 to 216 of Exhibit A) included, at paragraphs 2 to 4, the necessary attestation of his acceptance of his obligations to the Court in the giving of expert evidence. It is to be observed that Mr Hossain was not required for cross-examination.
At paragraphs 10 and 11 of his affidavit, Mr Hossain dealt with the state of the front wall of the site in the following terms:

I have reviewed the Respondent’s documentation, including the photograph of the portion of the front fence that remains standing. I understand that the Respondent seeks to retain the masonry fence columns and footings and to construct pool fence - type fencing in between those piers.
In my opinion, the proposed “pool type fence” between the existing columns is acceptable to Council subject to the following requirements being satisfied:
(a)   Fencing posts (typically made of aluminium or steel) to be installed between the masonry columns shall be limited to permeable open type fencing with a gap of at least 100 mm between the posts;
(b)   Fencing shall be constructed in a manner that does not obstruct the flow of floodwaters so as to have an adverse impact on flooding and
(c)   Fencing shall be constructed to withstand the force of floodwaters or collapse in a controlled manner so as not to obstruct the flow of water, become unsafe during times of flood or become moving debris.
1. It is not contested that the state of the wall, as shown in the photograph from Ms Jones’ evidence (reproduced at [79]), remains the position of that wall as at the date of my hearing of these proceedings on the Council’s single, rolled-up contempt charge.
2. During the course of Ms Hammond's submissions, I drew her attention to the above paragraphs from Mr Hossain's affidavit. I enquired of her whether it was the Council's position that, if Mr Hossain was to be required to give oral evidence, that evidence would necessarily be that his expert conclusion, as at 12 January 2018 (had he been required to express such a conclusion), would have been in the same terms as the conclusion which he expressed concerning the current state of the wall of the street frontage of the site. Ms Hammond indicated, quite reasonably, that she would need to seek instructions on that point.
3. I was subsequently advised by her that the Council accepted that, if he had been required to give it, Mr Hossain's evidence concerning the state of the fence as at 12 January 2018 would have been in the same terms as he had, in fact, given concerning the state of the fence as it currently is (Transcript, 29 June 2020, page 33 lines 13 to 20):

HIS HONOUR: Do you concede for the purposes of these proceedings that it is appropriate for me to draw the inference that the opinion expressed in paras 10 and 11 would have been the opinion expressed by Mr Hossain on 12 January 2018 if he had been provided with the photograph appended to Ms Jones’ evidence of the state of the fence as at that date, which remains the state of the fence as it is now?

HAMMOND: Yes, I do, your Honour.

That concession was entirely properly made, given that there has been no change to the state of the fence, as depicted at [79], and its current state (the subject of the paragraphs set out from Mr Hossain's affidavit).
Ms Hammond, however, submitted that the present state of the fence demonstrated that it had not been demolished entirely and that, therefore, Mr Tirnova remained in breach of Order (3)(a).
She also submitted that it was appropriate that I have regard to the fact that Mr Tirnova had not yet submitted a development application for the erection of new fence elements that would comply with the design elements discussed in Mr Hossain's affidavit (being elements which reflected Order (4) of the decision of Molesworth AJ of 13 October 2017). Ms Hammond’s submission and my response are set out below (Transcript, 29 June 2020, page 32 lines 26 to 47):

HAMMOND: The council’s position on the fence and the orders it seeks in relation to the front boundary fence, although everything your Honour has said in terms of the planning and flood expert opinions about the feasibility or acceptability of a development consent should one be sought, that the council wishes to press the orders that it seeks on the basis that the orders that the court made required the entirety of the fence to be removed and it was not. The evidence before the Court about the council being prepared to accept the remaining portions of the fence to remain goes more to the council’s obligations under order 4 which was that council facilitate a new fence being, and I note a replacement fence, being constructed. So that’s all I can say about that, your Honour. Those are my clear instructions, that the evidence in relation to the acceptability of a development application in the manner suggested by Mr Tirnova is certainly relevant to the council’s obligation because, you know, it has addressed that because it understands that it had obligations to assist the respondent but at the end of the day the respondent needed and still needs to put in a development application—

HIS HONOUR: But you missed the point, Ms Hammond. The question of a development application to the council is made quite clear with respect to para 12 on folio 215 as to adding material to the existing piers for the purposes of creating a fence. It does not address in terms the necessity for demolishing the piers.

The submission advanced on behalf of the Council concerning the failure of Mr Tirnova to lodge a development application for a new fence is, in the context of the allegation of non-compliance with Order (3)(a), a complete irrelevance. There is nothing in the terms of this element of Order (3) requiring Mr Tirnova to lodge a development application for any further works to the elements of the fence which presently remain on the site. Such an application would only be necessary if Mr Tirnova proposed to re-establish a front fence consistent with the approach dealt with by Molesworth AJ as earlier discussed at [53] and [54].
I therefore reject this submission that the absence of making any application to re-establish the front fence has any role to play in these proceedings.
It also necessarily follows from Mr Hossain's evidence (and the concession made with respect to it) that, as at 12 January 2018, Mr Tirnova had, to the satisfaction of the Council's relevant expert, sufficiently complied with Order (3)(a). Given the earlier recorded concession based on the uncontested expert evidence on behalf of the Council, it is not open to the Council in these proceedings to complain that Mr Tirnova remains in breach of that element of Order (3).

Removal and disposal of the rubble

On 26 April 2019, Mr Tirnova hired a nine-cubic-metre skip bin from Skips On Site. The bin was used for the removal of the masonry rubble resulting from the demolition of the masonry panels between the engaged piers of the street-frontage wall on the site.
A further Council inspection was undertaken on 16 May 2019 - a date a little over a month prior to the expiry of the end date particularised for the closed charge period. Ms Jones’ affidavit of 20 March 2020 records that, as at the date of that inspection, the rubble from demolition of the fence panels had been removed (at (19)(b) of her affidavit - folio 74 of Exhibit A).
The Council accepts not only that the rubble has been removed (thus satisfying Order (3)(b)) but that the receipt from the skip-bin operator (appended to Mr Tirnova's first, undated affidavit and reproduced at folio 427 of Exhibit A) also demonstrates satisfaction of Order (3)(c) of the Court's orders.
It follows that Mr Tirnova had, by the end of the particularised charge period (24 June 2019), fully complied with all three elements of Order (3).

Conclusion on Order (3)

In summary, the position with Order (3) is that, by 12 January 2018, the mandated time for compliance with Order (3)(a), that element of the order had been sufficiently completed to the satisfaction of the Council (see [84] above).
With respect to Order (3)(b) and (c), the Skips On Site receipt dated 26 April 2019 (Exhibit A folio 427) demonstrates that there had been compliance with the remainder of the requirements of Order (3) by that date. It is therefore to be observed that Order 3 was completely complied with before the amended particularised end date of 24 June 2019.
The consequence of this is that, to the extent that Mr Tirnova failed to comply with the entirety of what was required of him by Order (3), that partial non‑compliance relating to Order (3)(b) and (c) commenced on 12 January 2018 and was for the period between that date and 26 April 2019. This partial non-compliance was, therefore, for a period of 469 days.
As a consequence of his complete fulfilment of Order (3) by the end of April 2019, I conclude that the element of the charge concerning Order (3) as set out in the first and second particulars earlier reproduced has been established only to the limited extent set out above.
As it is necessary for me to make specific and separate findings with respect to the alleged breaches of Order (3) and Order (5), it follows that, although the Council has established Mr Tirnova was guilty of a breach of Order (3), there was no breach as at the end of the closed charge period.
He is, therefore, to be convicted of that element of the contempt charge but, under the circumstances, I am satisfied that only a modest penalty warrants being included in the overall total penalty for the breaches of Order (3).

The extent of compliance with Order (5)

Introduction

In order to reach a conclusion concerning the extent to which the second element of the charge (relating to Order (5)) is established, it is necessary to set out:

The extent to which Mr Tirnova had not complied with the various elements of Order (5) as at the commencement of the charge period (13 October 2018); and

The extent to which Mr Tirnova remained in breach of any of the elements of Order (5) on 24 June 2019 (being the date at the end of the particularised closed charge period).

Order (5) comprised four separate elements. The primary element, the demolition of the unauthorised extension constructed at the rear of the dwelling was a condition precedent to the ability of Mr Tirnova to fulfil the other elements of this order. It is also to be remembered that the contempt charge against Mr Tirnova, on the basis of its amended particularisation, pleaded that, as at 24 June 2019, some eight months after the expiry of the 12-month period for compliance with Order (5), Mr Tirnova had not fulfilled the all obligations imposed on him by Order (5).

The position at the end of the closed charge period

As earlier noted, the amended particularised charge period was a closed one, with the extent of the non-compliance with Order (5) requiring to be understood as at 24 June 2019.
Although Ms Jones’ inspection of 16 May 2019 was relevant to obtaining an understanding of the fact that Mr Tirnova had complied with Order (3), it is not relevant to an understanding of the extent to which Mr Tirnova might have complied with Order (5). This position arises because her observations made on 16 May 2019 concerning the rear extension to the dwelling took place a little over a month earlier than the cut-off date for the closed charge period as particularised.
It therefore means that, for the purposes of assessing the state of compliance by Mr Tirnova with Order (5) at the end of the closed charge period, it is necessary to have regard to her evidence concerning her inspection on 11 December 2019, this being the first inspection undertaken by her after the expiry of the charge period (affidavit of 20 March 2020 at Exhibit A, folio 75). Her evidence in this regard, was in paragraph 24(c) on folio 75 of Exhibit A. Ms Jones deposed that:

On 11 December 2019 an inspection of the property was conducted from the Street and adjacent parklands. I did not speak to the owners the property during the inspection. I observed the following:

•   …;
•   …;
•   The single storey extension to the rear of the dwelling house with attached awning had not been demolished.

She deposed to the taking of a number of photographs on 11 December 2019 (at paragraph 25 of this affidavit). The photographs at folios 163 and 164 of Exhibit A (part of the list of photographs in paragraph 25 of her affidavit) clearly show that the flat-roofed extension at the rear of the dwelling remained in place as at the date of that inspection.
Ms Jones deposed a further affidavit dated 19 May 2020. It was an affidavit responsive to Mr Tirnova's first, undated affidavit in these proceedings. This affidavit set out her response to the material provided by Mr Tirnova concerning the state of the unauthorised extension at the rear of the dwelling on the site as shown in his photographs at folios 199 to 204 of Exhibit A. Her response, in paragraphs 15 to 17 of this affidavit (Exhibit A at folios (175-176)), was in the following terms (emphasis in original):

Order 5(a) requires that the single-storey extension to the existing dwelling house on the Land is to be demolished. The extension is described in Paragraph 130 of the Judgment as comprising “a new lounge area, a third bedroom, a fourth bedroom with ensuite, a laundry and an alfresco area opening to a small rear deck”. Plans showing which parts of the building were to be removed that were before the Court during the hearing are attached as Annexure C.
I have viewed the photographs in the document titled ‘Photo evidences of demolition’. The photographs show that the timber stairs leading from the rear deck area have been removed, and timber beams enclosing the deck sub floor area have been removed.
The photographs do not demonstrate compliance with the orders 5(a), (b), (c), or (d) as the parts of the building as listed above have not been demolished.

Compliance as at the date of the most recent inspection

The extent of Mr Tirnova's compliance with the requirement to demolish the unauthorised rear extension of the dwelling as at 11 December 2019 (being the date of Ms Jones’ most recent inspection) was set out in her affidavit as noted above.
This position can clearly be seen from photographs taken by Ms Jones on that occasion, photographs which were taken from an adjoining property. Those photographs were annexed to her affidavit of 20 March 2020 and appeared at folios 162 to 165 of Exhibit A. It is sufficient for present purposes to reproduce the photograph at folio 164 showing the continued presence of the primary rear extension to the dwelling.

However, it is to be observed that in Mr Tirnova's affidavit, commencing at folio 423 of Exhibit A, Mr Tirnova said, at folio 424:

I Erol Tirnova, in December 2019, I demolished decking, stairs, rails and awning to follow through with the court orders. Please see attached photographs of demolition.

These photographs were reproduced at folios 445 to 447 and 449. To give some understanding of the work undertaken by Mr Tirnova, it is appropriate to reproduce the photographs shown at folios 446 and 447. These appear below:

It is to be observed that, unlike the position earlier discussed with respect to the removal of the rubble from the demolished elements of the masonry fence at the street frontage of the site, no evidence has been provided by Mr Tirnova concerning the timing and manner of disposal of the limited demolition materials resulting from the partial compliance with Order (5)(a) as described above.

Mr Tirnova was not required for cross-examination and his evidence on this point is, therefore, uncontested.

A current Building Information Certificate application

Toward the end of the hearing, I was advised by Mr Tirnova's wife (Transcript, 29 June 2020, page 41 lines 44 and 45) that a fresh application had been lodged with the Council (on Friday 26 June 2020) seeking a Building Information Certificate for the rear extension to the house in its present state. Such a Building Information Certificate, if issued pursuant to s 6.25 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) would have the effect of precluding for seven years any further action by the Council in reliance on Order (5)(a).
If this Building Information Certificate application is refused, Mr Tirnova will have the right to make a merit appeal to this Court against that refusal (s 8.25 of the EP&A Act).
Such a Building Information Certificate, if given, would also have the effect of purging his contempt in this regard as it would amount to an acceptance by the Council that it was no longer appropriate to require the demolition of the presently remaining structures in the rear extension of the dwelling on the site.
As this application had been made on the Friday before the hearing, which took place the following Monday, it is understandable that, first, no documentation concerning this application had been filed and, second, Ms Hammond was unaware of the application and had certainly not been briefed with any of the documentation relating to it. The relevant extract for the transcript dealing with this was in the following terms (Transcript, 29 June 2020, page 44 line 14 to page 46 line 2):

HIS HONOUR: On the assumption, for the purposes of what I’m about to ask you, make the assumption that there was such a building information certificate application made. What do you say I should--

HAMMOND: For what--

HIS HONOUR: What do you say I--

HAMMOND: For what though, your Honour? I don't know what the building information certificate is in respect of.

R TIRNOVA: It’s a certificate obtained for unlawful works which the council issue for seven years.

HIS HONOUR: Yes, I understand what it is. So Ms Tirnova, you tell me that it is for everything at the rear of the old house that remains there, is that correct?

R TIRNOVA: That’s correct, your Honour.

HIS HONOUR: So I want you to make that assumption, Ms Hammond, and if it turns out not to be the case that such a certificate application has been lodged then, in the interests of finishing the matter now, you can have leave to send a confirmatory or otherwise e-mail to my associate, provided it’s copied to the Tirnovas.

HAMMOND: Yes. Your Honour, I draw attention to the judgment at para 3 on folio 8 which the Court noted that the council had refused a DA but also a building certificate application which sought to regularise the unauthorised development on the land. So my submission, assuming that the building information certificate is then the same for the earlier, that the--

HIS HONOUR: But it’s clearly not, is it? For two reasons. The fence is not there - three reasons. The fence is not there, the alfresco area is not there and at least, as I recollect what was said in--

HAMMOND: The sea wall.

HIS HONOUR: No. Somewhere in the evidence the infill underneath the unlawful extension that might have had the potentiality for blocking floodwaters has been removed.

HAMMOND: Your Honour, in terms of the judgment and the way that the evidence came out in terms of the doubling of the size of the dwelling, so I understand what your Honour is saying in terms of those differences but my view would be, taking on board the approach taken by the Court, the concern the Court had about the more than doubling in size of the property, the concerns about safety of the occupants given that double the number of people could now reside in the property as had resided before but, importantly, the undermining of the regulatory system and proper planning in the floodway in terms of encouraging the unauthorised developments of this nature, the council would not approve for similar reasons a building information certificate.

But, your Honour, I will - depending on my instructions and the nature of the building information certificate, I hear your Honour in terms of the opportunity to come back to you if I consider there’s anything that would change that submission, obviously copying in the--

HIS HONOUR: No, I’m not - unless anything you were going to come back to me with was ameliorative as far as the submissions are put with respect to

Mr Tirnova, then I don't need to hear from you further and--

HAMMOND: I understand.

HIS HONOUR: --I’m proceeding on the assumption that you will at least check whether there is a building information certificate application, as I have been told, that encompasses the entirety of the present remaining building elements at the rear of the house in their present state with the three alterations that I presently understand to be the position. It may also cover the piers of the front fence but it seems to me that that is a matter of minor consequence under the present circumstances.

R TIRNOVA: Your Honour, if it helps, I’m happy to give them the receipt number that we’ve received for them to go through their files that we did lodge this information certificate application.

HIS HONOUR: Can I suggest that you e-mail that detail? It’s not something I need to deal with now. You can e-mail that information to whoever forwarded you the copy of the affidavits earlier or for any other person that may be appropriate, but I don't need to have the receipt number at this time. Ms Hammond will certainly get instructions as to whether there is such an application and she will advise my associate but, more importantly, at the same time she will have that advice conveyed to you as well.

If there’s nothing further, Ms Hammond, I reserve my decision.

HAMMOND: Your Honour, I just had a text message from my instructing solicitor confirming that a building information certificate application was lodged on Friday but that council hasn’t had time to process or assess yet.

HIS HONOUR: I wouldn’t have expected that it would have, merely that I note that the council accepts that it has been lodged.

The following day, Ms Louise Steer, an in-house solicitor at the Council, e‑mailed to my Associate a copy of the Building Information Certificate application lodged with the Council on 26 June 2020, together with all the supporting documentation lodged with the Council in support of it. The terms of the e-mail were:

Due to the late information received from the respondent during yesterday's hearing that they had lodged a Building Information Certificate Application on 26 June, the applicant is of the view that some brief submissions about that application should be made for completeness. Note that the size of the attachment is due to the size of the BIC application.

Those submissions with the BIC application attached have been filed and are respectfully submitted for his Honour's consideration. We do not object to allowing the respondent the same opportunity for submissions on this point and include them in the copy line of this e-mail, along with Alvin Morales, the applicant's Acting Deputy General Counsel and barrister Natasha Hammond.

This concludes the applicant's case.

This material totalled 16 pages. This material was accompanied by short written submissions from Ms Hammond addressing the history of the material attached to this Building Information Certificate application and making submissions as to what regard I might have to it, particularly what, she submitted, I should anticipate was the likely outcome of this application.
My immediate reaction was to ensure that Mr Tirnova (who had been copied into the e-mail sent to my Associate) had an opportunity to respond to the material and the submissions made by Ms Hammond. My Associate sent an e-mail to Mr Tirnova in the following terms:

His Honour has asked whether you have any further submissions you wish to make in response to the Council’s final submissions filed today. These submissions were copied to you but, for your information, I have attached them to this e-mail also.

If you do not have anything further to add, would you please advise by return e-mail. If you do have further submissions you wish to make, would you please provide said further submissions to me by 5.00 pm Friday 10 July 2020.

I look forward to receiving your response.

On reflection overnight after the receipt of this material, I concluded that it was entirely inappropriate that I have regard to anything other than the fact that the Building Information Certificate application had been lodged on Friday 26 June 2020 and that it remained undetermined. That information was what had already been confirmed to me as can be seen from the earlier concluding lines of the transcript extract I have quoted.
As a consequence, I caused my Associate to send a further e-mail to Mr Tirnova (copied to Ms Hammond's instructing solicitor) on the morning of Wednesday 1 July 2020 explaining the conclusion I had reached overnight and indicating that there was no need for Mr Tirnova to make any submissions concerning the material. The terms of that e-mail were:

There is no need for you to reply to Ms Hammond’s submissions concerning the Building Information Certificate. His Honour has asked me to explain why.

His Honour has considered, further, the material provided to him yesterday concerning the Building Information Certificate application lodged with the Council on Friday 26 June 2020. It was appropriate that he be provided with confirmation that such a Building Information Certificate application had been made. His Honour did not give permission for Ms Hammond to make written submissions concerning the Building Information Certificate application.

Although his Honour had me advise you yesterday that you had until Friday 10 July 2020 to respond to Ms Hammond's submissions, after considering the matter further overnight, his Honour has concluded that the appropriate course of action is to reject the submissions and the Building Information Certificate application documents in their entirety, simply treating the e-mail from Ms Steer as acknowledging the fact that a Building Information Certificate application had been made to the Council as his Honour had been advised during the course of the hearing.

It is, therefore, unnecessary for you to make any submissions in reply to Ms Hammond's comments or to any of the documents provided to his Honour.

The contempt continues

As can be seen from the terms of the particulars earlier set out and as amended during the course of the hearing, the contempt alleged against Mr Tirnova for his alleged failure to fulfil the full terms of Orders (3) and (5) is based on a closed charge period as particularised, finishing on 24 June 2019.
The Council has adduced evidence demonstrating, through the affidavit of Ms Jones of 20 March 2020, for reasons earlier explained, that Order (3) had been satisfied as at the closing date of the period particularised. However, her evidence also addressed the state of the site as at her most recent inspection on 11 December 2019. That evidence discloses that Order (5) has only been satisfied to the limited extent earlier described.
Although the particularised charge laid against Mr Tirnova does not allege that Mr Tirnova continues to be in contempt, it is clear that, with respect to that which was required by Order (5), he remains in breach and his contempt has not been purged.
This position does require to be considered in this sentencing process despite the closed nature of the periods particularised in support of the charge. The fact that Mr Tirnova remains in breach of those elements of Order (5) that remain unfulfilled warrants being taken into account in determining what penalty is appropriate to be imposed on him as a result of his failure to carry out the entirety of that which was ordered by Molesworth AJ in Order (5).

The application of the Crimes (Sentencing Procedure) Act 1999

The Council is required to prove the elements of the charge beyond reasonable doubt (Witham v Holloway (1995) 183 CLR 525 at 534; Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 89 ALJR 622 at [42]).
In Dowling v Prothonotary of the Supreme Court of New South Wales [2018] NSWCA 340, at [33] to [39], Basten JA explained (Meagher JA agreeing) why the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) was not applicable to punishment of a contemnor. This decision arose in the context of the setting of the length of a custodial sentence having regard to the provisions of this legislation. This decision makes it clear that any formal application of the Sentencing Procedure Act would be an error of law.
The range of factors relevant to sentencing for contempt were identified by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 (Wood v Staunton) at 185. It is not necessary to set them out for the purposes of addressing Mr Tirnova’s contempt.
However, although the Sentencing Procedure Act does not apply to sentencing for contempt, it does provide, by analogy, a useful framework for consideration of the objective and subjective factors to which it would be otherwise mandated to have regard had the Sentencing Procedure Act in fact applied (see Canterbury City Council v Ali Ahmed [2016] NSWLEC 160 at [19] and Blacktown City Council v Everson [2019] NSWLEC 4 at [17]).
At this point, it is appropriate to note that no submission is made by the Council that any aggravating factor of the nature set out in s 21A(2) of the Sentencing Procedure Act is engaged in these proceedings.

Consideration of Mr Tirnova's personal circumstances

Introduction

There are two different contexts within which Mr Tirnova's personal circumstances require to be considered. The first of these, encompassing consideration of not only his financial circumstances, but also his physical health, arises in the context of the extent to which they provide any exculpatory explanation for his failure to comply fully with all the elements of Order (5). The second context arises in my consideration, pursuant to s 6 of the Fines Act 1996 (the Fines Act), as to whether his financial circumstances warrant any amelioration of the penalty otherwise appropriate to be imposed on him.
For these purposes, it is appropriate to set out such information as I have available to me concerning Mr Tirnova's position. In doing so, it is appropriate to note that, during the course the hearing, I observed to Mr Tirnova that Ms Hammond had not indicated that she wished to cross-examine him concerning his affidavits and supporting documents in evidence as part of the Court Book (Transcript, 29 June 2020, page 35 lines 26 to 29).
Second, Ms Hammond also indicated that she did not wish to make any submissions concerning Mr Tirnova’s personal circumstances, observing (Transcript, 29 June 2020, page 43 lines 12 to 15):

Your Honour has said that you will have regard to the health and finances. That’s evidence that’s before the Court. I don't have anything further to say about that but obviously understand that, in sentencing, those subjective matters are of relevance to the Court.

These positions adopted by the Council were entirely understandable in the context of both Mr Tirnova being self-represented and the hearing being conducted in less than ideal circumstances as a consequence of the COVID‑19 pandemic. This is to be contrasted with other cases in my experience, such as Wollongong City Council v Eldridge [2017] NSWLEC 35, where financial capacity to pay a fine has needed to be considered as a consequence of that council actively investigating Mr Eldridge’s financial circumstances and subjecting him to rigorous cross-examination as to the adequacy and accuracy of his disclosures. In noting this, I am not to be taken to be being critical of the Council’s position in these proceedings.
However, the result is that I am left to address both aspects on the basis of such limited evidence as I have from Mr Tirnova's affidavits and their attached documentation together with the submissions that were made by him or on his behalf by his wife and daughter.

Mr Tirnova’s evidence

Introduction

Mr Tirnova’s two documents (in evidence as noted at [47]) have been treated during the hearing as affidavits although lacking the attestation which would ordinarily be required to establish their proper evidentiary basis. In addition, the first of them was undated. No objection was taken by Ms Hammond and he was not required for cross-examination.

Mr Tirnova’s evidence concerning Order (5) matters

I have earlier described the limited extent of Mr Tirnova's demolition of the rear extension to the dwelling as described in his evidence at folio 424. Mr Tirnova then continued in this affidavit, after referencing the photographs discussed earlier, that:

In February 2020, due to major big flooding, I had to stop demolition.

Mr Tirnova's evidence in this regard is uncontradicted as, in her affidavit of 19 May 2020 - where Ms Jones responds to this affidavit from Mr Tirnova - she says (folio 176 of Exhibit A):

I have viewed the photographs in the document titled photo evidences of demolition. The photographs showed that the timber stairs leading from the rear deck area have been removed, and timber beams enclosing the deck subfloor area have been removed.
1. In paragraph 17, she expresses the opinion that that demolition does not demonstrate compliance with Orders (5)(a), (b), (c), or (d), as the entirety of the area mandated to be demolished by Molesworth AJ's orders of October 2017 had not been removed.
2. At paragraphs 18 and 19, Ms Jones addresses matters in the paragraph of this affidavit from Mr Tirnova that commences with the quoted remarks above concerning the cessation of demolition in February 2020. She does so without responding to his proposition concerning flooding earlier this year. The matters to which she does respond are those contained in the remainder of that paragraph - ones generally concerning matters which had been put to Molesworth AJ.

Mr Tirnova’s evidence concerning his personal circumstances

In his first, undated affidavit, Mr Tirnova said (folio 224 of Exhibit A):

Also, meanwhile, during this stressful period, I had a heart attack and had two stents placed in my heart. Amongst all this 22nd of August I lost an immediate family member. I have been having injections into my left [eye] due to glaucoma.

With respect to these matters, Mr Tirnova provided a copy of a death certificate (folio 426) of his wife's brother (Transcript, 29 June 2020, page 18 lines 21 to 23). He also provided a medical certificate (folio 432) attesting to the extent of his own medical issues.
Later, in his first, undated affidavit (at folio 424), Mr Tirnova said:

During the 11 years of this matter, this has had a major effect on my health. The ongoing stress this has caused has affected my mental well-being, my health is deteriorating and financially struggling as I cannot work.

Mr Tirnova also provided a second affidavit, dated 25 May 2020, in which he gave further evidence concerning his and his wife's financial circumstances. Relevantly, the affidavit says:

As previously emphasised, I am extremely stressed predominantly due to the emotional toll of this matter and my deteriorating health and financial well-being. The COVID-19 global pandemic has worsened this situation further. I am still unemployed due to my back injury and my partner has now been stood down and her superannuation balance has reduced significantly. Please refer to evidence one (stood down) of her being stood down.
Unfortunately I still have a mortgage on this property and the future is extremely concerning for me as I no longer have any funds remaining in my superannuation account (evidence two - superannuation funds). I applied for financial hardship in 2017 due to my unemployment and to finance Council matters. I am not sure if I can bear this situation any further and want to sell this property as soon as possible.
1. As the first annexure to this second affidavit, Mr Tirnova appended a letter from his wife's employer indicating that, as a consequence of the pandemic, she had been stood down from her employment. Mr Tirnova also appended copies of superannuation statements from September 2018 (difficult to read in their photocopied form but unchallenged by the Council) that show a negligible balance in his superannuation account.
2. These financial circumstances are merely the present manifestation of similar poor financial circumstances that were accepted as being the position in 2017 by Molesworth AJ (see his Honour's judgment at [131] and [132]).
3. This evidence concerning his financial circumstances requires further consideration in my assessment of what moderation of the appropriate penalty, if any, I should make as a consequence of engagement of the s 6 of the Fines Act.
4. However, his straightened financial circumstances and poor health do provide an explanation as to why he cannot afford to have the demolition undertaken by contractors and why he has personally been unable to carry out more than the limited demolition already effected.

Mr Tirnova’s subjective factors

Only a very limited number of the matters set out in Wood v Staunton are relevant in the circumstances of this case. They are also factors which find parallels in the relevant provisions of s 21A of the Sentencing Procedure Act. In particular, it is appropriate to have regard to Mr Tirnova's personal circumstances in the broad context of appropriate and relevant matters contained in s 21A(3) of the Sentencing Procedure Act.
Only two matters of those broadly arising from s 21A(3) of the Sentencing Procedure Act require for immediate consideration. Others of Mr Tirnova's subjective factors concerning his personal health position and his and his wife's financial position arise for consideration in the context of s 6 of the Fines Act - a provision to which I will need to return in the context of determining the extent of the appropriate penalty to be imposed on Mr Tirnova.
However, for present purposes, it is sufficient to note that Mr Tirnova has no convictions for any offences relevant to these proceedings and the Council does not suggest that there are any.
In the context of assessing whether or not Mr Tirnova has expressed contrition and remorse for his failure to comply completely with the terms of Order (3) within the time ordered for that and his continuing failure to comply completely with Order (5)(a), or at all with the remaining elements of Order (5), I draw the inference from the submissions made by Mr Tirnova, his daughter and his wife during the course of the hearing (submissions that were, at times, quite emotional) that Mr Tirnova is, at least to some extent, regretful of not having complied with the orders.
This regret, however, is to be understood in the context of my earlier discussion of the unsuccessful negotiation which has taken place between Mr Tirnova and the Council seeking to have the site acquired pursuant to the Scheme.
The lodgement of the Building Information Certificate on Friday 26 June 2020 also evidences a lack of complete acceptance on Mr Tirnova's behalf of the necessity to comply in its entirety with Order (5) made by Molesworth AJ. It is to be observed that this limited conclusion is the only inference to be drawn from the making of this Building Information Certificate application.
To the extent that the above two factors weigh in Mr Tirnova’s favour in my sentencing determination, I have taken them into account.

Comparability in sentencing outcomes

For the purposes of determining what might be an appropriate starting penalty to be imposed for the contempt as is here engaged, it might ordinarily be expected that a prosecutor would provide material concerning outcomes in potentially comparable cases to give assistance in understanding whereabouts within what might be a broadly relevant range the penalty for the offending conduct might fall. No such material has been provided by the Council in these proceedings.
From my own experience (and after a necessarily brief search by me for other cases from which some guidance might be drawn), the only relevant case I have found (but one of comparatively limited utility) is my own decision in Shoalhaven City Council v Knight [2019] NSWLEC 138.
In those proceedings, I determined that the failure of Mr Knight to remove the unauthorised dwelling erected on his property (together with a range of other assorted detritus) in circumstances where he had been ordered by this Court to do so warranted the imposition of a starting penalty (before consideration of Mr Knight's financial circumstances) of $15,000. That case provides some general assistance in my assessment of the appropriate starting penalty for Mr Tirnova.

The appropriate penalty

For the purposes of concluding what should be the appropriate starting penalty for Mr Tirnova, it is necessary to undertake an instinctive synthesis of all of the relevant objective factors concerning Mr Tirnova’s offending conduct and all of his relevant personal factors (Markarian v The Queen (2005) 228 CLR 357).
Mr Tirnova's contempt is, in the context of matters discussed by Molesworth AJ, one of some significance given the flood risk at the site (a risk which is turned to actuality from time to time as noted by his Honour), and where the element of the illegal construction remaining at the site effectively permits a doubling of the residential capability of the dwelling. This effectively increases the number of residents and, potentially, emergency services’ rescuers exposed to the flood risk. As a consequence, Order (5) is to be seen as not only one made for the purposes of protecting the integrity of the planning system but also for lessening the risk to residents of the dwelling or members of the emergency services, risks called into play when there are significant flood events affecting the site.
Undertaking this process, I am satisfied that the appropriate starting penalty for Mr Tirnova should be $16,000.
It is to be observed that, at [100], I indicated that it was appropriate to impose a modest penalty on Mr Tirnova for his failure to satisfy completely the terms of Order (3) by 24 June 2019. As the charge which has been laid against Mr Tirnova in these proceedings is a single, rolled-up one encompassing his conduct involving non-compliance with both Orders (3) and (5), I record that, in my instinctive synthesis in determining the starting penalty set out above, I have incorporated a modest punitive element for his non-compliance with elements of Order (3) for the period of 469 days.
However, as I earlier noted at [58], Mr Tirnova acknowledged his guilt at the earliest reasonable opportunity. For this he is to be allowed the maximum discount of 25% (R v Thompson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309). The appropriate post discount penalty is therefore a fine of $12,000.
However, consideration must also be given as to what extent, if any, s 6 of the Fines Act should operate to moderate this amount.

Consideration of s 6 of the Fines Act

The Fines Act, by s 6, gives a sentencing court the power to exercise discretion as to whether or not the otherwise applicable penalty should be moderated. This provision is in the following terms:

Consideration of accused’s means to pay
In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider—
(a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and
(b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.
1. As can be seen from the above statutory provision, s 6(a) engages my consideration of such knowledge as I have of Mr Tirnova's financial position and his ability to pay any penalty which might be imposed. However, in addition, s 6(b) enables me to have regard to a wider range of factors, provided that I am satisfied that those factors are relevant to the fixing of the amount of penalty to be imposed. I now turn to my consideration of each of these matters.
2. I have earlier set out such information as is in evidence that I have concerning Mr Tirnova's financial circumstances. In summary, they are that he has no significant assets other than his share of the three-way ownership of the site and that he is unemployed (and has no reasonable prospects because of his health of ceasing to be unemployed in the near future). This position is sufficient to warrant moderation of the discounted starting penalty that I have otherwise determined is appropriate.
3. Second, considering matters appropriate to be taken into account for the purposes of s 6(b), I am satisfied that there are a number of them. They do not need to be set out in comprehensive detail, but it is appropriate that I list them:
- first, there is the general communitywide adverse economic impacts of the COVID-19 pandemic, a pandemic which would adversely impact any minor prospect as Mr Tirnova might have of returning to employment at any time in the foreseeable future;
- second, although these proceedings have been brought against Mr Tirnova, I am satisfied that it is appropriate to have regard to his broader familial financial circumstances brought about by the impact of the pandemic. These adverse impacts were demonstrated by the letter from Mr Tirnova's wife's employer terminating her services as a consequence of the pandemic. Given the state of the economy as at the date I finalise this decision, it is reasonable to assume that there is no realistic prospect, in the immediately foreseeable future, that Ms Tirnova will return to her employment. It is appropriate to take this adverse familial financial consequence into account in determining the extent to which the penalty to be imposed on Mr Tirnova should otherwise be moderated;
- third, the draining of his superannuation account, as shown at folios 454 and 455 of Exhibit A, is also a relevant factor in this consideration as this impacts not only on his immediate financial position but also on his longer term financial outlook; and
- finally, Mr Tirnova's health circumstances, although relevant to his prospects of returning to employment, are also more generally relevant, I am satisfied, to the question of whether or not the appropriate discounted starting penalty I have earlier set out should be moderated.
1. On the basis of my consideration of the factors that I have set out above arising from both s 6(a) and s 6(b) of the Fines Act, I am satisfied that a very significant reduction in the penalty which would otherwise fall to be imposed should be effected.
2. Doing as best I can with all the information available to me (noting that counsel for the Council did not wish to cross-examine Mr Tirnova concerning any of the material I have set out above), I am satisfied that the penalty to be imposed on Mr Tirnova for his failure to give full effect to the orders of Molesworth AJ of 13 October 2017 should be $3,000.

Arrangements to make payment by instalments

Although Mr Tirnova may be able to arrange to pay by instalments the penalty which I have imposed, that is not a matter which is dealt with by this Court. He will need to make application to the Commissioner for Fines Administration if he wishes to seek to enter into an instalment plan for the discharge of the debt to the State arising from the penalty which I am to impose (see s 100 of the Fines Act).

Costs

Introduction

In the ordinary course, the full costs incurred by a prosecutor in contempt proceedings might be expected to be ordered to be paid by a convicted contemnor on the indemnity basis (see AGL Energy Ltd v Hardy (No 3) [2017] FCA 952, at [8] and [9], O’Callaghan J).
For the purposes of these proceedings, however, there are a number of factors which mandate that that position not apply.

The Council seeks its costs on the ordinary basis

The first (and determinative) basis for departing from that position is that I have been advised that the Council seeks only that its costs be paid on the ordinary basis. I therefore proceed to consider the issue of costs with that position adopted by the Council as my starting point.

Appropriate exclusions from the costs order

Introduction

However, there are a number of other matters to which it is appropriate I have regard in order to determine the extent to which it would be appropriate that I order that Mr Tirnova pay the Council’s costs on the ordinary basis. I am satisfied that there are a number of factors that require me to order reductions of costs in this regard.

The matter of compliance with Order (3)

The first (and most important) of these factors is the extent to which preparation and hearing time were unnecessarily engaged as a consequence of the Council not considering, at an early stage, the question of whether or not Mr Tirnova had sufficiently complied with Order (3)(a) as at the expiry date set by Molesworth AJ for Mr Tirnova's compliance with it.
In my view, had an early and appropriately framed enquiry been made of Mr Hossain, those considering the commencement of these contempt proceedings would have concluded that Mr Tirnova had sufficiently complied with Order (3)(a) to have satisfied the Council that further compliance was unnecessary.
Although further issues of failure to comply with Order (3)(b) and (c) are properly engaged, compliance with Order (3)(a) should never have become an issue in these proceedings at any point after Ms Jones’ inspection of 12 January 2018 had proper enquiry been made internally at the Council.
Doing the best I am able to in light of the extent of the material in evidence concerning Mr Tirnova's activities in compliance of Order (3)(a) and the amount of time needed during the course of the hearing to address this topic, I can only make an estimation as to what portion of the Council’s costs should be regarded as being incurred in addressing this element of the matters with which I am required to deal.
However, I am satisfied that it is appropriate that I do make such an estimate for the purposes of excluding that element of the Council’s costs from the costs orders to be made in these proceedings. Doing so, I am satisfied, is appropriate in order to avoid the potential for further costs being incurred in costs’ disputation.
On the limited material before me, I have concluded that 15% should be discounted from the Council’s otherwise permitted total costs to make appropriate allowance for this.

The extent of the unnecessary photocopying in Exhibit A

I had observed, during my examination of Exhibit A, that Molesworth AJ's decision had been included at four separate locations in this white folder. The four copies of his decision comprised 193 folios of the 460 folio Exhibit A. Each of the copies took up a different number of pages due to the differing electronic bases upon which they have been obtained. The shortest version comprised only 32 folios. The longest was of 61 folios.
Only one copy of the decision was necessary and, if attention had to be drawn to it again, a single sheet cross-referencing to the initial insertion would have been appropriate.
The way Exhibit A has been prepared, however, making an allowance for a single copy of Molesworth AJ's decision being incorporated, meant that approximately 35% of the exhibit comprised entirely unnecessary photocopying. During the course of the hearing, I expressed my concern at this to Ms Hammond and she indicated that she accepted that it would not be appropriate to require Mr Tirnova to meet the costs that might be charged for the preparation and copying of the superfluous copies of the decision.
As a consequence, I have incorporated such an exclusion in the costs order I later make to give effect to my overall conclusions in these proceedings.

Lack of proof of awareness of Molesworth AJ’s orders

At the commencement of the hearing on 29 June 2020, I enquired of Ms Hammond where, in any of the material being put before me, did I find proof that the orders of the Court had been made known to Mr Tirnova in a fashion which provided a proper foundation for these contempt proceedings. I made this enquiry as there was no affidavit of service of those orders in any of the material contained in the Court Book.
Provision of proof of Mr Tirnova's awareness of the orders could have been effected either by evidence being adduced by the Council that Mr Tirnova had been in court at the time of Molesworth AJ making the orders or by proof of service of those orders on Mr Tirnova. At the time of commencement of the hearing, there was no proof of his awareness on either basis.
As earlier noted, Ms Hammond sought the opportunity to provide appropriate proof. After the short morning adjournment (during which a number of affidavits of service were e-mailed to my Associate), the transcript records Ms Hammond as telling me (Transcript, 29 June 2020, page 7 lines 38 to 46):

HAMMOND: Your Honour will have seen an e-mail come through and also an e-mail served on the respondent, an affidavit of service of Justin Veitch sworn 9 November 2017 and council seeks leave to file in court that affidavit and to read that affidavit. I note that you've been provided three affidavits evidencing service of the field orders on each of the three respondents but obviously the council is only relying on the affidavit of Mr Veitch as it relates to Eyup Tirnova who is the first respondent in the proceedings and the only respondent in the contempt proceedings because, as your Honour noted, the orders made were directed only to him.

I do not consider that it is appropriate to burden Mr Tirnova with the costs of the hearing from its commencement on 29 June 2020 until after proof of service of the orders made by Molesworth AJ on Mr Tirnova. As a consequence, it seems to me, also doing the best I can, on the basis of the amount of time taken up by the hearing, 25% of the costs of the hearing on 29 June 2020 should be discounted from the Council’s costs of the proceedings.

Ms Hammond's written submissions

I have earlier set out, at [43] and [44], my rejection of Ms Hammond's written submissions in support of the Council’s case as those written submissions had not been provided to Mr Tirnova. The costs associated with the preparation of those submissions should not be paid by Mr Tirnova.

The building information certificate submissions and copies of building information certificate application documentation

I have set out, at [118] to [122], the transmission to me and my rejection of submissions and photocopied material concerning the building information certificate application lodged with the Council on 26 June 2020. Given the transcript extract set out at [117], there was no need for there to be any further communication with me concerning the building certificate application, nor was it appropriate for there to be any submissions made to me concerning it.
As I have earlier observed, it was sufficient that I had had confirmed to me the fact that such an application had been lodged with the Council. As can be seen from the concluding lines of the transcript extract quoted above, this had taken place prior to the conclusion of the hearing. Costs of preparation of the building information certificate submissions to me and any costs associated with their transmission or the transmission of the accompanying documents are not appropriate to be borne by Mr Tirnova.

Orders

It follows from what I have set out above that the orders of the Court are:

Mr Tirnova - the Respondent to these contempt proceedings (the Respondent) is convicted of contempt of court in that he had failed to comply, fully, with Order (3) of the orders of the Court made on 13 October 2017 (the 2017 Orders) by the time specified in the order (but noting that he had compiled fully by 26 April 2019, this date being prior to the end of the particularised charge period of 24 June 2019) and that he failed to comply, fully, with Order (5) of the 2017 Orders by the time specified in the order or by the end of the particularised charge period being 24 June 2019 (but noting that he has partially complied with Order (5)(a) as at the date of these orders);

The Respondent is fined $3,000 for his failure to comply with Orders (3) and (5) of the 2017 Orders by the time specified in each order;

The Respondent is to pay 85% of the Applicant's costs on the ordinary basis calculated after deduction of the amounts arising from (a) to (d) set out below:

35% of the preparation and photocopying costs of copies of the Court Book;

25% of the costs of the hearing on 29 June 2020;

all costs associated with the preparation, transmission and copying of Ms Hammond's written submissions in support of the Applicant's case; and

all costs of preparation of the submissions concerning the building information certificate application of 26 June 2020 and the copying and transmission of those submissions and their accompanying documents to the Court and to the Respondent; and

The exhibits are returned.

**********

Decision last updated: 11 August 2020

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 Boral Resources (Vic) Pty Ltd (2015) 89 ALJR 622 Wollongong City Council v Eldridge [2017] NSWLEC 3 Wood v Staunton (No 5) (1996) 86 A Crim R 183
Texts Cited:	Liverpool Development Control Plan 2008
Category:	Principal judgment
Parties:	Liverpool City Council (Applicant) Eyup Tirnova (Respondent)
Representation:	Counsel: Ms N Hammond, barrister (Applicant) Mr E Tirnova, self-represented (Respondent) (assisted, by leave, by Ms R Tirnova and Ms G Tirnova) Solicitors: Liverpool City Council (Applicant)
File Number(s):	386138 of 2016
Publication restriction:	No