Strathfield Municipal Council v Harris Group (NSW) Pty Limited

[2003] NSWLEC 57

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Land and Environment Court

of New South Wales

CITATION:	Strathfield Municipal Council v Harris Group (NSW) Pty Limited [2003] NSWLEC 57
PARTIES:	APPLICANT Strathfield Municipal Council RESPONDENT Harris Group (NSW) Pty Limited
FILE NUMBER(S):	40127 of 2000
CORAM:	Talbot J
KEY ISSUES:	Contempt :- proved - sentence deferred
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	02/12/2002
EX TEMPORE JUDGMENT DATE :	12/02/2002
LEGAL REPRESENTATIVES:	APPLICANT Mr T J O'Connor (Solicitor) SOLICITORS Houston Dearn O'Connor RESPONDENT Mr H Zizikas (Director) SOLICITORS N/A

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40127 of 2000

Talbot J

2 December 2002

Strathfield Municipal Council

Applicant
v

Harris Group (NSW) Pty Limited

Respondent

Judgment

Introduction

1 HIS HONOUR: I find that the charges in the statement of charge dated 18 December 2001 are proved beyond reasonable doubt.

2 There is evidence before the Court that the activities which are the subject of the consent orders made on 17 November 2000, as amended by the orders dated 25 May 2001, have been carried on in consistent breach of the orders.

3 In that respect, I have before me the evidence of Mark Fozzard, George Siambi, Joseph Henry Coyle, Gordon Patrick Fox and Timothy James Keith who have each sworn affidavits deposing to activities which have occurred since the date the original orders came into force and which are in breach of those orders.

4 Furthermore, Harris Group (NSW) Pty Limited (“the company”) has acknowledged the essential elements of the offence by its plea of guilty.

5 In relation to the orders made on 12 August 2002, the company and the respondent individual, Harry Zizikas, have entered pleas of not guilty. Having heard from Mr Zizikas, I am not entirely satisfied that he fully understands the implications of a not guilty plea as his submissions made to the Court reflect not so much the fact that the company and himself have not complied with the orders made on 12 August 2002, but rather an explanation as to why neither he nor the company had, at least in his opinion, any realistic prospect of complying with the orders.

6 The notice of motion and the statements of charge reflect the repetitive nature of the failure to comply with order No. 2, order No. 3 and order No. 5. Generally, it might be said that the affidavit evidence by Michael O’Donovan, Mr Fox, Mr Keith, Mr Coyle and Mr Fozzard show that there has been continuous activity of vehicles moving to and from and within the site outside the hours specified in the orders. Furthermore, road base has not been spread in the manner specified by order No. 4. In that respect Mr Zizikas has attempted to show that a bitumen seal covers part of the area of the site. That is not a fact, even if true, which resolves the problem of the non-compliance with the specific requirements of order No. 4.

7 Technically speaking, a development application was lodged with Strathfield Municipal Council (“the council”) in compliance with order No. 1 made on 12 August 2002. That document has been tendered in evidence. However, it is quite clear (and it has been proved beyond reasonable doubt) that the prescribed material required to support a statement of environmental effects, in particular the acoustical material required in support of the development application, was not lodged until some weeks after 20 August 2002, namely during the month of September.

8 In the circumstances, the Court finds that the respective charges set out in the statement of charge dated 19 November 2002 against the company and the separate statement of charge in respect of Harry Zizikas of the same date have been proved beyond reasonable doubt. I find the company and the individual respondent, Mr Zizikas, guilty in that respect.

9 The problem remains that neither the company nor Mr Zizikas have offered to comply with the specific orders made by the Court either on 17 November 2000, as subsequently varied on 25 May 2001, or the fresh orders made on 12 August 2002. That circumstance has a very significant bearing on the question of penalty and in particular the contrition of either the company or Mr Zizikas.

10 I am satisfied, after discussing the matter with him, that Mr Zizikas is an intelligent man who fully understands his predicament. In submissions from the bar table I have heard from him that the livelihood of himself and his family members and some 30 employees is at stake. I further heard that there have been efforts to relocate the business. Mr Zizikas seems to be under the impression that so long as the company keeps the impact of the on-going development, illegal as it may be, at the site to a reasonable level, then there should be no complaint.

11 I have already explained to him that the question of whether the existing use of the site continues is not a matter which is the subject of these present proceedings, except in the very short term in order to allow a final opportunity to comply with the orders.

12 There has been no appeal to this Court in respect of the deemed refusal or, indeed if there is one, the refusal of the development application lodged in August 2002.

13 The company and Mr Zizikas should understand that the proper way of resolving the issues that arise in regard to the future carrying on of business on the land is to appeal to this Court in class 1 of its jurisdiction. These class 4 proceedings are not an appropriate forum to seek approval of the Court to continue operating. This is particularly so in circumstances where the formal orders have already been made. In the first instance they were made by consent.

14 The time for any concessional recognition in favour of the respondent in these proceedings is past, except for the limited formal opportunity I will now allow to facilitate a winding down of the business and the accommodation of termination or relocation of employees and vehicles in an orderly fashion. At least as orderly as can be arranged in the circumstances.

15 It is easy to have sympathy for the respondents in this case. Unfortunately, they have done nothing to assist themselves given that the problem has been extant since the year 2000. There never has been a development consent that authorises the use of the site for the carrying on of the activities which the respondent company requires to conduct its business.

16 I propose to defer sentence for a period of three months. I propose to make a further order so that there can be no doubt about what must happen in the meantime in order for the company and Mr Zizikas to have any chance of the Court mitigating the penalty that will otherwise fall heavily upon their shoulders.

17 Mr Zizikas is now exposed to a possible term of imprisonment, particularly if he fails to comply with the final opportunity given to vacate the site, except for the office activities.

18 I propose to make an order whereby the company and Mr Zizikas are directed to cease using the site for any purpose other than for office clerical administration by 4:00pm on 20 December 2002.

19 I order that the company and Mr Zizikas be restrained from causing, permitting or allowing the entry, parking, storing or movement of any motor vehicles on the site apart from passenger vehicles used in connection with the office administration as from 4:00pm on 20 December 2002.

20 Mr Zizikas, you must understand that if you wish to pursue the development application you have lodged you have to take some further steps. If you wish to pursue another development application you have to take some steps to that end. But even the taking of those steps between now and 20 December 2002 does not and will not excuse in any way disobedience of the orders that I have made. They require you to restrict the activities on the site strictly to office administration as from 4:00pm on 20 December 2002.

21 The full wrath of the law as administered and applied by this Court will fall upon you and your company if the orders I make today are not complied with.

22 The question of sentence in relation to the statements of charge before the Court today is stood over to further hearing for one day. The parties are directed to approach the Registrar today for the purpose of obtaining that hearing date. The exhibits are to be retained in the meantime.

23 Costs reserved.