Posted on March 22, 2017 by

A suspended custodial sentence for contempt of planning law orders

The Land and Environment Court has taken the rare step of sentencing an individual to a 10 month custodial sentence for contempt of the court’s orders. The orders required the use of premises as a boarding house to cease. But the Court suspended its sentence so as not to stand in the way of the continuation of the offender’s steps towards rectification of the property.

Mr Khoury had been running a boarding house on his Wentworthville premises without development consent. The Council brought proceedings against Mr Khoury in 2014, and he was ordered by the Court to cease the use of the property as a boarding house.

Mr Khoury, however, did not comply with the Court’s order. He continued to operate his property as a boarding house even after the Council brought proceedings for contempt of court. Those proceedings resulted in Mr Khoury’s conviction for the contempt on 23 May 2016.

Sentencing considerations

On sentence, His Honour Justice Moore found that Mr Khoury’s contempt fell into the gravest possible category albeit not the wort case in that category.  In so doing, he drew upon comments of His Honour Justice Biscoe in Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92, where the three categories of contempt were identified:

1. Technical: where disobedience of a court order is accidental or unintentional;
2. Wilful: more than technical but less than contumacious; and
3. Contumacious: where there is a specific intention to defy a court order, which evidences a conscious defiance of the Court’s authority.

Mr Khoury was found to have had a deliberate and ongoing intention to disregard the Court’s orders.

The Court accepted that Mr Khoury:

• continued to use the property as a boarding house for some 12 months after being ordered by the Court to cease doing so and whilst the building constituted a fire and safety risk;
• failed to carry out a list of works ordered by the Court; and
• had previously been the subject of a fine for failure to comply with a demolition order with respect to the same property.

Under the applicable Court rules,  the Court can punish a contempt of court by a custodial sentence and/or a fine the extent of either of which is at large.

But the Land and Environment Court very rarely orders a custodial sentence for breach of orders arising from its planning law jurisdiction. Justice Moore could find only one case in which such a custodial sentence had been imposed by the Court being Sydney City Council v Sydney Tool Supplies Pty Ltd & Daniel Bek (No 2) [2011] NSWLEC 196.

So why did Mr Khoury’s case warrant a custodial term?

Despite falling into the gravest category of contempt, it was not only this that was relevant. Rather, it was the inappropriate financial hardship of the alternative of a fine.

Mr Khoury was still in the process of paying off the fine imposed by the Court in 2011. The Court also noted that he would have to pay a significant amount in obtaining advice and assistance to lodge the necessary applications to regularise his use of the property as a boarding house.

Taking all of these burdens into account, the Court found that it would be inappropriate to impose an additional fine on Mr Khoury. Accordingly, the only appropriate option available to the Court was a custodial sentence.

However, the sentence ultimately imposed was a suspended custodial sentence which took into account the ‘highly desirable’ outcome of ensuring the rectification of breaches of the planning law. To this end, the Court said:

The planning compliance process is one, necessarily, that will involve Mr Khoury’s active participation. Imposition of the requirement that Mr Khoury actually serve a full-time custodial sentence would necessarily mean the cessation of those rectification endeavours for the duration of the sentence. To that extent, I do not think that it is in the broader public interest that such a hiatus be created.

Significance

The case is a useful guide as to the rare case in which the Land and Environment Court may consider a custodial sentence to be appropriate in cases of contempt under the planning law. However, the Court may still be very reluctant to require an actual custodial sentence if there is a prospect that this will frustrate rectification works or regularisation of a use.

Where a fine is not appropriate and an individual, such as Mr Khoury, has taken some steps towards rectification, the Court may well suspend the custodial sentence to permit those steps to be taken.

Should you wish to discuss the case further, please contact Stuart Simington, Partner on 8235 9704 or by email, at stuart.simington@lindsaytaylorlawyers.com.au