Pittwater Council v Csanyi

[2001] NSWLEC 17

Land and Environment Court

of New South Wales

CITATION:

Pittwater Council v Csanyi and Another [2001] NSWLEC 17

PARTIES:

APPLICANT:
Pittwater Council
RESPONDENTS:
Michael Csanyi and Kay Csanyi

FILE NUMBER(S):

40189 of 1995

CORAM:

Talbot J

KEY ISSUES:

Contempt :- contempt proved - conviction and sentence deferred to permit compliance in the meantime

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING:

14/12/2000

EX TEMPORE
JUDGMENT DATE :

12/14/2000

LEGAL REPRESENTATIVES:

APPLICANT:
Mr R P Lancaster (Barrister)
SOLICITORS:
Mallesons Stephen Jaques

RESPONDENTS:
In person
SOLICITORS:
N/A

AMICUS CURIAE:
Mr G T Miller QC with Mr P T Newton (Barrister)

JUDGMENT:

IN THE LAND AND Matter No. 40189 of 1995ENVIRONMENT COURT Coram: Talbot JOF NEW SOUTH WALES Decision Date: 14 December, 2000Pittwater Council ApplicantvMichael Csanyi and Kay Csanyi RespondentsREASONS FOR JUDGMENT1. HIS HONOUR: I have been asked by way of Notice of Motion to make declarations regarding the non-compliance with orders made by this Court by consent on 25 July 1996 against the respondents, Michael and Kay Csanyi.2. I have adjourned the proceedings against Mrs Csanyi following submissions made by Mr Miller QC as amicus curiae. Those proceedings are stood over until the next occasion that this matter comes before the Court.3. The basis of standing that matter over was that I heard evidence from Mrs Csanyi to the effect that she is not an owner of the premises and has no control over them, that control ultimately residing with the owner who is her husband, the other respondent.4. The council seeks orders that the orders made on 25 July 1996 be enforced and that the Court find the defendant, Michael Csanyi, is in contempt of the Court’s orders and that a penalty be imposed in that respect. The question of penalty can be deferred if, indeed, there is a finding of contempt.5. The evidence before the Court is in the form of affidavit evidence which has not been met by any evidence in reply, although Mr Csanyi has addressed the Court and made assertions to the contrary in some respects, although not in all respects.6. Mr Hayward, the environmental compliance inspector, gave evidence of attending the premises and making observations and having conversations with persons present at the premises other than Mr Csanyi. None of that evidence has been challenged by way of objection. Bearing in mind that the respondent, Michael Csanyi, is unrepresented, it is clear he has very little understanding of legal procedures.7. It is nevertheless open for the Court to find beyond reasonable doubt that the premises are being used by multiple occupiers and that those occupations are in some important respects separate occupations whereby facilities are provided at different levels of the building. Several parts of the building are occupied distinctly from the others, even though there is suggestion of some communal occupation.8. It is not possible for the Court to find specifically on the evidence that the premises are being used as a boarding house. The boarding house is a prohibited use in the zone, as is a residential flat building. Both of these uses were the subject of the orders made in 1996.9. The premises, however, in their present form clearly answer the definition of a residential flat building. I am able to reach the conclusion that there are at least two domiciles or dwellings within the building.10. As I said, it is not possible to go further and to accept that the house is let in lodging or is occupied as a hostel. There is some evidence that might suggest that is so but that evidence is contained in, to a large extent, uncorroborated material which is not sufficient for the purposes of these quasi-criminal proceedings. However, it is sufficient that the Court find that there is a use as a residential flat building for present purposes.11. The orders made on 23 July 1996 restrained Mr Csanyi from permitting or using the premises as a boarding house or residential flat building as defined in the Pittwater Local Environmental Plan 1993 (“the LEP”).12. I find that during the period referred to in the Notice of Motion and in particular when the premises were inspected by the council officer during that period, that the premises at 41 Cheryl Crescent, Newport were being used as a residential flat building.13. Mr Csanyi has produced a photocopy of what he claims to be a lease of the premises. Accepting for the moment that it may be a copy of a document which is extant, it is nevertheless dated some time in 1998 and refers to tenants, Zoltan Bongo and Liawia Koka, and to the subject premises. The term of the agreement is 12 months from 5 August 1998. At best the tenant is holding over pursuant to the terms of that residential tenancy agreement.14. Neither of the tenants appear to be recorded in material produced on subpoena by ATL or Telstra which leads to the inference at least that the premises have been sublet to other persons who variously from time to time appear in the records of those authorities.15. The Court is not able to find on the material before it which parts of the premises are occupied by various individuals, but it is clear that starting with the lease, authorising the occupation by no more than 10 persons, there have been from time to time up to at least six occupancies which have called for separate accounts or services being connected by the utility authorities.16. I am therefore in a position to find that the premises have since 28 February 2000 been used as a residential flat building as defined in the LEP and that Mr Csanyi as the owner and landlord has and always has had it within his power to cause that use to cease.17. The second matter that is raised by the council is a charge that notwithstanding the orders made by consent on 25 July 1996 the respondents have failed to pay costs in the sum of $7,000 in accordance with a schedule of payments recorded in the consent orders. The payment of the full amount was not made until yesterday.18. Mr Csanyi seems to be under a misunderstanding. I do not stay to determine whether that is deliberate or contrived but he tells the Court that according to his understanding the payment of the costs, which he refers to as a fine, ultimately settled the matters between him and the council.19. Technically there has been a breach of the order by the failure of Mr Csanyi to meet the payments indicated in Schedule 1 to the consent orders made on 25 July 1996 on the due dates. I make that finding.20. I do not propose to go beyond making the findings that I have today.21. Firstly, that since 28 February 2000 Michael Csanyi has permitted or suffered the property, 41 Cheryl Crescent, Newport to be used as a residential flat building as defined in the LEP contrary to and in breach of order 1 made by consent by this Court on 25 July 1996.22. Secondly, I find it proved beyond reasonable doubt that the same respondent has not complied with order 3.23. Whether or not I eventually proceed to deal with the matter having found that it is open to determine the charge by a finding of guilt, I do not propose to take the matter to any further point today.24. Mr Csanyi, you are now exposed to the payment of a penalty by way of a fine and that risk continues for every day that these premises continue to be used in the way they are now being used. The Court’s orders are there and they must be respected and they must be complied with. I propose to defer dealing with you in the sense of imposing a penalty for the contempt which has been proved until such time as the contempt ceases.25. However, that is not to say that if at some future time when this matter comes back before the Court and I am not satisfied then that you are making proper efforts to curtail the use to other than the use for a residential flat building or, indeed, a boarding house, then you will face not only the prospect of paying a fine, but if the situation deteriorates badly enough you could end up going to prison until such time as the use ceases. You might not get out of prison until the orders are complied with.26. I want you to understand that it is a very serious prospect. You really do have to come to grips with the way in which this house is being occupied. You have to either persuade the tenants to use the place as a single dwelling or you have to evict them or do whatever else you can to bring the use of the premises within the terms of the Court’s orders. Until you do that then you remain exposed to the imposition of a significant penalty.27. I propose to give you breathing space until 30 March next year. On that day you will be required to come back to this Court on the basis that the penalty which you must pay will be determined.28. You will be in a much better position on that day if the illegal use contrary to the terms of the orders which I have made has stopped.29. If it is still going then the Court will be in a position where it may have to deal with you quite harshly. It might be that you cannot get the tenants out by then. If that is the case you will have to come to this Court and prove that you have done something about it over the next few weeks or you were held up through something that you cannot control. When that situation is resolved then I will decide what penalty you have to suffer.30. The offence has been proved. Contempt has been proved.31. Mr Csanyi, you now have no choice but to fix things up. Be under no misunderstanding, please. When you come back here on 30 March I hope that I hear that everything has been adjusted to the way it should be pursuant to the orders made by the Court on 25 July 1996.32. I stand the matter over for conviction and sentence to 10.00 am on 30 March 2001.33. I stand over the charge against Kay Csanyi to 10.00 am on 30 March 2001.34. The question of costs in both matters is reserved.