Tweed Shire Council v Sikiric (No 2)
[2012] NSWLEC 119
•24 May 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Tweed Shire Council v Sikiric (No 2) [2012] NSWLEC 119 Hearing dates: 24 May 2012 Decision date: 24 May 2012 Jurisdiction: Class 4 Before: Sheahan J Decision: 1. The defendant is found guilty of, and convicted of, contempt of orders 4 and 5 made by me on 9 December 2011.
2. The defendant is fined $18,000, plus a penalty of $2,000 per week until all chickens and poultry sheds have been removed.
3. The weekly penalty in Order 2 is suspended until 3 June 2012.
4. My Orders 6 and 7 of 9 December 2011, regarding costs of the proceedings and storage of materials, are affirmed.
5. The defendant is ordered to pay Council's costs incurred since 1 January 2012 on an indemnity basis.
6. The exhibits are returned.
7. The Council is given liberty to apply on 72 hours notice in respect of these orders.
Catchwords: CONTEMPT: Plea of Guilty - principles to apply - conviction and fine - weekly penalty pending total compliance - indemnity costs Cases Cited: Burwood Council v Ruan [2008] NSWLEC 167
Environment Protection Authority v Ramsey Food Processing Pty Ltd (No 4) [2011] NSWLEC 246
Tweed Shire Council v Sikiric [2011] NSWLEC 240
Wollongong City Council v Kilpatrick (No 2) [2012] NSWLEC 98Category: Sentence Parties: Tweed Shire Council (Prosecutor)
Dean Sikiric (Defendant)Representation: Mr M R Hall, barrister
Mr P Trout, barrister
Sparke Helmore Lawyers (Prosecutor)
Solon Lawyers (Defendant)
File Number(s): 40825 of 2011
extempore Judgment
Introduction
The defendant Sikiric has pleaded guilty to a charge by the applicant Council that he is in contempt of orders made by the Court in conjunction with my written judgment of 9 December 2011 Tweed Shire Council v Sikiric [2011] NSWLEC 240.
I will not repeat all the detail in that judgment, but will summarise it as follows:
Mr Sikiric appears to have had a history of some difficulties in his dealings with the Council.
The Council planning evidence before the Court at the November/December hearing was much to be preferred to the non-expert evidence on planning matters given on the defendants behalf.
Despite a series of promises to lodge a Development Application (DA), the evidence before me then indicated that one had not been even drafted.
The Court felt the need to balance any hardship occasioned to the defendant against the need to defend the integrity of the planning system.
He had been unable to explain away his failure to take advice from the Council officers some 12 months earlier that consent would likely be required for at least part of his project. His assertion about information upon which he relied from the Council was specifically denied by the officer concerned.
I found that he actively pursued his commercial objectives and was inattentive to the question of regularising his planning situation. He appeared to be in receipt of defective advice in a number of aspects of the matter, and did not consult a planner until October 2011, when he engaged Mr Pratt whose evidence was inferior to that given on the Council's behalf.
I noted in par [88] that there had been assertions that the respondent had suffered from depression, but I remained concerned with the obvious errors and inconsistencies in his evidence, and about his limited knowledge of the regimes, guidelines etc relevant to a chicken farming operation.
My conclusion was that the Council was entitled to the relief it sought generally in the terms it had put to the Court. As the Council had been entirely successful I also ordered the respondent to pay its costs.
The key orders were order (3) restraining the defendant from using the land for keeping poultry without development consent (DC), (4) that he remove all poultry within 21 days (i.e. by 1 January), (5) that the poultry sheds be demolished within 40 days (i.e. by 20 January), and (6) that he pay the costs of the proceedings. I also ordered (7) that all building materials used in the construction of the existing 2 poultry sheds were not to be stored on the land unless more than 50m from the southern boundary and 100m from any waterbody.
I believe a lot of latitude was extended to Mr Sikiric and his counsel in the defence of those proceedings and again today.
The chronology of events since 31 December 2011 is important to assessing the seriousness of the admitted contempt.
The Court file contains an email communication from the defendant dated 4 January pleading for an extension of time. In reply the court officers told him he needed to file a Notice of Motion ('NOM'), pay a fee etc. He was also advised of his appeal rights, and on 6 January he filed in the Court of Appeal a Notice of Intention to Appeal. He has not pursued that appeal, and has never sought from this Court any extension of time for compliance with its orders.
On 9 January (Exhibit C1, fol 28), Council extended until 23 January, the time for an application to be made for a stay. The defendant's solicitors on 23 July (fol 39) sought an extension of time for enforcement of the orders until 15 February 2012, subject to weather conditions and availability of tradespeople. Council agreed to hold off until 15 February (fol 79), but on 10 February (fol 83) sought details of measures taken to comply with the orders. The defendant's solicitors responded on 13 February (fol 85-86) - he was holding his DA back pending compliance, but would need more time, due to difficulties they enumerated. On 13 February Council's solicitors (fol 88-9) identified the irony of the explanation of delay being based on a watercourse, the existence of which the defendant denied at the substantive hearing, and indicated that Council would reconsider its instructions at its meeting on 21 February. On 20 February (fol 91) Council's solicitors invited a submission from the defendant for the meeting. The dialogue between solicitors continued until 16 March, on which date Council's solicitors advised (fol 139) that the defendant was at liberty to apply for a DC at any time.
After review of conditions at the property on 16 March 2012, the Council filed a NOM and Statement of Charge for contempt on 29 March. The defendant now asserts that all chickens had been removed by last night, and that the offending use has, therefore, ceased, subject to removal of the sheds.
The NOM seeks orders in respect of breaches by the defendant of orders no 4 & 5, including imposition of a fine for breaches to date, and the imposition of a weekly fine until the defendant has complied completely with them. Prayer 4 envisages that the Court will allow a period to enable compliance. The Council also seeks its costs on an indemnity basis.
Evidence
The defendant appeared in person on 20 April when the motion was returnable, and agreed to the fixing of today for the hearing, and to a specific direction that he file all written submissions, affidavits and reports by 11 May. Affidavits were filed on his behalf on 14 May, and the prosecuting Council and the Court were notified on 17 May that liability would be conceded. I declined today to further delay finalisation of the matter to enable further evidence to be filed, which would have been available on 11 May.
The affidavit of solicitor Paul Jayne in support of the NOM and Statement of Charge calls up Exhibit C1 containing correspondence relevant to both the question and the timing of compliance. It also refers to some media coverage, including an interview given on local ABC radio by the respondent/defendant on 24 February.
The Council's Lindsay McGavin deposes to the state of the property as at 16 March, and annexes to his affidavit a series of photographs. Also annexed is a development application lodged in respect of the subject property on 16 March 2012, accompanied by a "Statement of Environmental Effects for Knotsbury Farm", dated 20 December 2011.
Consideration
Both counsel and the Court accept that the relevant principles to be applied are authoritatively set out in Biscoe J's judgment in Burwood Council v Ruan (Ruan) [2008] NSWLEC 167, at [6] -[19], where all the key cases are abstracted. Those principles guided my decision in Environment Protection Authority v Ramsey Food Processing Pty Ltd (No 4) [2011] NSWLEC 246, a case of "contumacious" contempt, and more recently in Wollongong City Council v Kilpatrick (No 2) (Kilpatrick) [2012] NSWLEC 98, a case of less serious, "wilful" contempt, and guide me again today.
As I have said on previous occasions, including in Kilpatrick at [30]:
"...compliance with the law, with Council directions, and certainly with orders of the court, is not 'optional'. 'Scrupulous obedience' is required to protect the integrity of the system..."
Both counsel agreed that a fine is appropriate in this case.
Clearly, it was only the ominous spectre of this sentencing hearing which brought about the defendant's compliance with at least some of the relevant orders.
His ambitions for a larger and viable commercial egg farm on the subject site have been severely set back, but he was not prepared to put the chickens down. His email to the Court asserting the impossibility of their removal within 21 days came after the deadline for it had expired.
The dates of what he puts, in his affidavit of 10 May, as attempts to comply, are vague, but would appear to have not come until January. The people he allegedly approached for assistance are not clearly identified, except Ian McRae, who has sworn an affidavit on his behalf, but was approached only in January. The defendant took nesting boxes to McRae's property only in February, and now has a leasing or partnership arrangement of some sort with Gary Temessl, who lodged the DA, and has also sworn an affidavit for the defendant.
The defendant's disobedience and some threat of environmental harm continued until yesterday. The only evidence of contrition or remorse came only on 17 May, when a plea of guilty was signified.
Health concerns continue, and he has a partner and two children to support. I accept that inclement weather hampered his compliance efforts once they commenced, and I accept that he has been, and remains, under financial strain. He has no prior convictions.
The appropriate fine is in the range of $10 - 25,000, based on the authorities Mr Hall produced, subject to some discount for the plea. That discount, as in Ruan, should be 10%. I have concluded that a fine of $20,000, less 10%, should be imposed.
The defendant seeks 20 days to remove the sheds, and the Council argues for 7 to 10. I will allow 10, and suspend the daily penalty for that period.
Orders
The orders of the Court are as follows:
1. The defendant is found guilty of, and convicted of, contempt of orders 4 and 5 made by me on 9 December 2011.
2. The defendant is fined $18,000, plus a penalty of $2,000 per week until all chickens and poultry sheds have been removed.
3. The weekly penalty in Order 2 is suspended until 3 June 2012.
4. My Orders 6 and 7 of 9 December 2011, regarding costs of the proceedings and storage of materials, are affirmed.
5. The defendant is ordered to pay Council's costs incurred since 1 January 2012 on an indemnity basis.
6. The exhibits are returned.
7. The Council is given liberty to apply on 72 hours notice in respect of these orders.
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Decision last updated: 25 May 2012
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