Nambucca Shire Council v Mirage Property Group Pty Ltd (No.2)

[2008] NSWLEC 136

Land and Environment Court

of New South Wales

CITATION:

Nambucca Shire Council v Mirage Property Group Pty Ltd (No.2) [2008] NSWLEC 136

PARTIES:

APPLICANT
Nambucca Shire Council
RESPONDENT
Mirage Property Group Pty Ltd

FILE NUMBER(S):

40870 of 2007

CORAM:

Sheahan J

KEY ISSUES:

Contempt :- penalty

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act 1999, ss.3A and 21A

CASES CITED:

Nambucca Shire Council v Mirage Property Group Pty Ltd [2008] NSWLEC 84

DATES OF HEARING:

9 April 2008

EX TEMPORE JUDGMENT DATE:

9 April 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Wright
SOLICITORS
Deacons

RESPONDENT
Mr W van Ede, Solicitor of
E H Tebbutt and Sons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Justice Sheahan

9 April 2008

40870 of 2007

NAMBUCCA SHIRE COUNCIL v MIRAGE PROPERTY GROUP PTY LTD (No.2)

EXTEMPORE JUDGMENT

1 His Honour: On 22 February 2008 I found the Respondent Company guilty of contempt, despite its plea of “not guilty”. See my judgment at [2008] NSWLEC 84. As agreed on that occasion I adjourned the matter for further hearing on the question of penalty and that hearing has been conducted today.

2 The contempt is of Orders I made by consent on 4 December 2007. These Class 4 proceedings had been on foot since 6 September 2007, following concerns in the Council as to the management by the respondent company of its subdivision development on the subject site, which is proximate to Beer Creek in the Nambucca River area. The purpose of the Orders was to minimise environmental harm and the respondent company admitted at the earlier hearing that some such harm had occurred between the making of the orders and that hearing.

3 The subdivision was approved by Council in 1993 and the property was bought by the respondent company sometime after April 2005. Construction commenced in accordance with the consent on 15 August 2006.

4 An Erosion and Sediment Control Plan was required by Condition 11 of the consent. As I noted in pars 3-6 of my earlier judgment, the consent orders of December 2007 sought to enforce that plan, and secure weekly reporting on its implementation, which was to have expert supervision.

5 The supervisor was required by the consent orders to also prepare a Flocculation and Sediment Treatment Plan and include data on sediment monitoring in the weekly reports. The Flocculation and Sediment Treatment Plan was to be submitted to Council by 18 December 2007.

6 These contempt proceedings concern the orders for submission of the Flocculation plan and the weekly reporting.

7 I was satisfied beyond reasonable doubt that these two somewhat “technical” breaches of the Orders amounted to contempt, albeit not a contumacious contempt, and the separation of the liability hearing from the penalty hearing provided a six week window of opportunity for the respondent company to improve its compliance with the Orders to which it had consented.

8 A plan was received by Council at Court on 22 February (Exhibit M2), but the respondent company had asserted it was submitted to Council by email on 5 February and in person on 14 February. As at 22 February the Council was of the opinion that, in any event, it did not comply appropriately with the Orders. A further plan was delivered to Council on 6 March 2008, and the parties have since been negotiating its “improvement” in terms of interpretation (specifically as to location of dams) and in terms of testing for total solids. The respondent company has implemented Council’s suggestions.

9 As at 22 February there was evidence of reporting, but not the weekly reporting, as required by the Orders. The evidence before me today suggests marked improvement in compliance since, especially regularity, but Council is not completely happy with the new format.

10 Three Council officers have sworn affidavits, which have been admitted without objection. None of the deponents was required for cross-examination by the Respondent.

11 Rhys Edwards relies on official Bureau of Meteorology records to dispute the Respondent’s claims about rainfall at the relevant time (claims to which I referred in pars 12 and 20 of my earlier judgment). While those records come from a site considered quite close to the Respondent’s property (12km away), the evidence of Mr Johnson (the company’s guiding mind) is of measurements taken actually on the property.

12 Mr Edwards deposes to his reservations about the Flocculation Plan in Exhibit M2 (see par 14 of his affidavit 3 April 2008), to his receipt of the March 2008 version, and his continuing reservations about its “open-endedness” (pars 15-18). He also denies some of the Respondent’s evidence that he personally attended the subject site.

13 Kylie Ferguson deposes that she took delivery of a video from Mr Johnson on 14 February, but no plan or other document.

14 Phillip Gall deposes to formal notification having been given to Mr Johnson on 14 December 2007 regarding his need to comply with the Consent Orders. He refutes some of Mr Johnson’s evidence regarding conversations and attendances and supports his own version of events with official Council records. Council extended the time for compliance with the Consent Orders to 2pm Friday 21 December 2007.

15 It is clear from Mr Wright’s cross-examination of Mr Johnson that the Council expects more expert presence and direct involvement on site as envisaged by the Consent Orders.

16 Contempt proceedings are to be seen as criminal in nature, and the normal sentencing principles are to apply, albeit there is no maximum penalty from which to scale the appropriate punishment to impose in a particular case. I have had regard to the various authorities to which the Prosecutor referred, and to all the considerations in ss.3A and 21A of the Crimes (Sentencing Procedure) Act 1999.

17 The only aggravating factor arising from the evidence is the Respondent’s admitted failure to prevent sediment flowing into the waterway. Had the conditions of development consent and the terms of the Consent Orders been followed with more care, concern and expedition, that environmental harm would have been mitigated, if not avoided.

18 The only mitigating factors arising from the evidence are the Respondent’s expressions of contrition in Mr Johnson’s affidavits of 14 March (par 79) and 8 April (par 26), and the company’s apparent effort to improve compliance with the Orders since my judgment on 22 February 2008.

19 The fact remains, however, that, at best, the Respondent almost reached on 6 March 2008 a position the Court prescribed for it to reach completely by 18 December, and the Council allowed it to reach by 21 December 2007.

20 As I noted in the hearing on 22 February, the company did not take the orders seriously enough to seek some relaxation of them when difficulties arose, and responded only when the contempt charge was brought. That response is still, on the evidence, less than perfect.

21 The company was entitled to defend the charge, and, having been convicted, has at least begun to get its affairs into some sort of order. I strongly urge its guiding mind to pay the closest attention to the Court’s orders and the Council’s reasonable and legal requirements in the future.

22 I note that the financial position of the company is, as the Respondent contends, somewhat “fragile”, and that the company’s project is, as a result, under stress.

23 I note also that, while the Respondent company has previously incurred some Council-imposed penalties, apparently in reference to this project, it cannot be said to have a relevant “bad record” of any type.

24 I accept the company’s assurance, given through its solicitor, that it takes this matter very seriously, and is prepared to face a financial penalty of some sort.

25 For now, I have determined that on this occasion neither a daily penalty nor an order for indemnity costs is appropriate.

26 However, nothing short of scrupulous obedience to Court orders, whether made by consent or otherwise, is acceptable in our society.

27 Having on the last occasion convicted the Respondent company of contempt of Court as charged in the statement of charge, I now impose a fine of $50,000, and order the Respondent company also to pay the Council’s costs of the contempt proceedings.

28 All the Exhibits may now be returned.