Brisbane City Council v Mathes [1992] QPEC 80

IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P. & E. Application No. 13 of 1992 BETWEEN: BRISBANE CITY COUNCIL Applicant SIEGFRIED MATHES Respondent REASONS FOR JUDGMENT - ROW D.C.J. - 19th November, 1992 Brisbane City Council ( the applicant) sought in these proceedings declarations in relation to the use by the respondent of certain premises situated at 280 Bowhill Road, Willawong ( "the Willawong site") . The matter has been before the Court on a number of occasions. On 30th April, 1992 the Court ordered and \ declared that the use by the respondent of the Willawong site, ' being premises in a non-urban zone, is for an unlawful purpose. At that time, the respondent proposed a timetable in relation to the removal of the tyres from the Willawong site which was duly incorporated into the order. Since that date there have been a number of orders made ordering the respondent to remove the tyres from the Willawong site by a certain date; all of which orders have not been complied with. on 8th May, 1992 it was ordered that all tyres be removed on or before 31st July, 1992. On 6th August, 1992 the tyres, not having been so removed by 31st July, 1992, it was ordered that the tyres still remaining on the site be removed on or before 7th -- 1 of 22 -- 2 September, 1992 and the respondent was found to have committed an offence under s.2.24(7)(a) in that he failed to comply with the court Order of the 8th May, 1992. On 11th September, 1992 the tyres, not having been so removed, it was further ordered that the respondent remove the tyres still remaining on the Willawong site on or before 11th November, 1992. It was further found that the respondent had committed an offence under s.2.24(7)(a) relative to Court Order dated 6th August, 1992. The tyres not having been removed by 11th November, 1992 the applicant has sought further orders and the imposition of a penalty in relation to the failure of the respondent to comply with the order of the Court dated 11th September, 1992. The affidavit material before me clearly establishes that the tyres have not been removed from the site and remain on the site at the present time. On the material before me I am satisfied that the use of the Willawong site, which is located within the non-urban zone, is for an unlawful purposes and has continuously been so used since the original declaration made on 30th April, 1992. Prior to April, 1992 the respondent had been I ,}I ,TT ( 1\ v I /\ informed by an officer of the Council, David Graeme Pirie, on (,/ 15th October, 1991 that the Willawong site was in the non-urban zone and that the use that was being made of the premises was prohibited under the Town Plan. On that evidence and on the admissions by Mr. Mathes in evidence today, it is clear that he was aware that the use of the Willawong site as from at least 15th October, 1991 was for an unlawful purpose and has continued to be so used for an unlawful purpose by him during the period for which he was using those premises. In those circumstances, -- 2 of 22 -- 3 the Court orders and declares that the use by the respondent of the premises situated at 280 Bowhill Road, Willawong, Brisbane - more particularly defined as Lot 5 on Registered Plan 76401 Parish of Oxley, ( "the Willawong site") being premises in the non-urban zone is and continues to be used for an unlawful purpose. The evidence as set out in the material filed on behalf of the applicant, and also on the admissions made by the respondent, ) establishes that the respondent failed to remove the tyres located on the Willawong site within the time prescribed by the ), J order of the Court dated 11th September, 1992. Under that order the respondent was obliged to remove the trues still remaining on the Willawong site on or before 11th November, 1992. In those circumstances, the respondent has breached and failed to comply with the order of the Court dated 11th September, 1992. Consequently, he has committed an offence under s.2.24(7)(a) of the Act. Under s. 2. 24 ( 4) of the Act the Court has power to make declarations and consequential orders where an offence has been committed, or that such offence will, unless restrained by order of the Court, be committed. The power of the Court is to make such order as it considers appropriate to remedy or restrain the offence. Under sub-s. 5 of s. 2. 24, the Court may order as therein prescribed including an order specifying that the failure to comply constitutes a public nuisance. An order made by the Court is to be in such terms as the Court considers appropriate to secure compliance with the planning scheme. If it be ordered that the failure to comply constitutes a public nuisance, the -- 3 of 22 -- 4 applicant is authorised to do such work as would remove the nuisance. All expenses incurred by the Local Authority may be recovered by the Local Authority as a debt due to the Local Authority. rt was submitted by Counsel on behalf of the applicant that the Court should make an order specifying that failure to comply with the order of 11th September, 1992 made under sub-s.4 constitutes a public nuisance. The effect of such an order brings in train the provisions of sub-s. 8 whereby the Local Authority (the applicant) would be empowered to undertake such work as may be necessary to remove the nuisance. All expenses , incurred by the applicant may then be recovered from the respondent by the applicant as a debt due to the applicant. The facts, however, are to some extent complicated by an alleged agreement made between the respondent and one Marcel Creurer whereby it is alleged that the respondent sold to Mr. Creurer for the sum of $1 the business including the assets (J thereof which undoubtedly included the tyres and that such agreement was completed on 9th November, 1992. The existence of (' the agreement was referred to in the affidavit material before '~' the Court. The evidence establishes that the sum of $1 payable pursuant to that alleged agreement has, in fact, been paid. On the material that is before the Court, I find that there has been an agreement in relation to the sale of the business which has been perfected and that the property in the tyres no longer is with the respondent. I would point out, however, that the agreement appears to be subject to an implied term relating to the consent if the owner of the premises to an assignment of the -- 4 of 22 -- 5 respondent's rights of Mr. Creurer. There has been no application made in respect thereof to the grant of the assignment of the tenancy agreement. The evidence of Mr. Welch is indicative that it is likely that such consent would not be forthcoming. At the present time on the material before me, I cannot speculate as to whether or not - if and when any such application is made - it will be successful or otherwise. Mr. Creurer was not a party before the Court and consequently the Court would have no power to make any order directed to him in relation to the enforcement of any rights and/or obligations of the respondent. In those circumstances, I do not consider that it is appropriate that the Court make an order specifying the failure to comply with the earlier order of the Court constitutes a public nuisance as on the findings above; the property in the tyres is not at the present time in the respondent. The penalty prescribed for a breach of s. 2. 24 ( 4) is 165 '( penalty units or imprisonment for 12 months, or both. The issue of penalty was one upon which the agent for the respondent addressed substantive remarks, some of which I will deal with in detail later. The failure of the respondent to comply with other orders of the Court in relation to removal of tyres within the time prescribed has been held previously to have been offences committed under s.2.24(7)(a) of the Local Government {Planning and Environment) Act 1990 as amended in respect to orders of the Court, and as such each constituted an offence. In relation to the various other orders, the respondent has been fined on two -- 5 of 22 -- 6 prior occasions. In respect of those fines, which total $7,500, a sum of $100 only has been paid. Having regard to the financial situation of the respondent and the fact that earlier penalties which have been imposed in relation to earlier offences have significantly been unpaid, I do not think it appropriate that in the circumstances that the Court ought in relation to the offence currently before it impose a further fine. The probability of payment of such fine is substantially nil. Such a fine would be of no effective value in such circumstances. It was submitted by Counsel on behalf of the applicant that the Court had power under and pursuant to s.10 of the Penalty Units Act (1985) as amended to deal with the question of non- payment of the fines imposed under the previous orders of the Court. Section 10 provides: "Subject to sub-s.2 where in respect of an offence a Court has by its order - (a) imposed a monetary penalty on any person ... and it is lawful for the Court to order imprisonment upon default in payment of the penalty, then upon non- payment of such penalty the term of imprisonment to be ordered by the Court shall be of such period as in its opinion will satisfy the justice of the case but not exceeding in any case a period calculated at the rate of 14 days imprisonment for each unit or part thereof ... " The word "Court" is defined in the Penalty Units Act. I am satisfied for the purposes of s.10, the Planning and Environment Court is, within the definition of that term as is referred to in s.10. The power of the Court in relation to the operation of s.10 applies where it is "lawful for the Court to order imprisonment upon default in payment of the penalty." Section 2.24 of the Planning and Environment Act has no such provision C -- 6 of 22 -- 7 in sub-s.7 thereof where it deals with the question of penalty in relation to an offence against the Planning and Environment Act. There is no specific provision within the Local Government (Planning and Environment) Act whereby it is prescribed that the Court may order imprisonment upon default in payment of a penalty imposed under the Act. It was submitted that accepting there was no specific provision the Court nevertheless had power so to do under s.7.8(3) of the Planning and Environment Act, or c alternatively pursuant to an inherent or implied power to regulate its own procedures. Section 7.8(3) of the Planning and Environment Act relates to the taking of a step in a matter or proceeding where no provision is prescribed. In my view, the provisions of that section do not extend whereby the Court could supplement the Act by giving itself a power to make an order where there has been non-payment of a fine or penalty for a money penalty prescribed 9 by the Act. The Court is a creature of Statute and its powers are to be gleaned from a perusal of the Statute itself. The National Parks and Wildlife Service & Anor. v. The Stables ) Perisher Pty. Ltd. ( Court of Appeal (N.S.W.) 19. 10. 90 unreported). Accepting but without deciding that the Court has an implied - or is as often expressed an inherent power to regulate its own procedures, the provision of a power whereby the Court would have the right to order imprisonment in default of payment of the fine goes far beyond, in my view, what could ordinarily be regarded as part of the implied or inherent power of a Court to regulate its own proceedings. Had the legislature intended that the Court should have such power, it ought clearly -- 7 of 22 -- 8 to have expressed it in the Act. In such circumstances I find that the court has not power to deal in relation to the non- payment of fines under and pursuant to s.10 of the Penalty Units Act 1985 as amended. The remaining issues relate to the appropriate penalty. Under the provisions of s.24(7) the penalty that can be imposed is 165 penalty units, or imprisonment for 12 months, or both. It was submitted on behalf of the respondent that a custodial penalty should not be imposed. It was submitted that the breaches which have been found and the offences which have been found to have occurred in the past were not flagrant breaches of the various orders of the Court. It was further submitted that the respondent has done everything in his power to comply with the Court orders and that imprisonment would not be appropriate. His financial and matrimonial position were explained to the Court. I accept that he has a wife and child to support. He is presently employed by Mr. Creurer and is in receipt of some $300 per week. It was further submitted that his degree of culpability was low. In all those circumstances it was submitted that an appropriate penalty would be a community service order. The history of the respondent's conduct in relation to this matter is clearly set out in the various affidavits that have been filed before the Court. I accept that since 15th October, 1991, as admitted by the respondent and as established by the respondent's evidence, he was aware that the use of the Willawong site was unlawful. Such use has continued up until the time when he no longer was the owner of the tyres, namely 9th November, 1992. His attempts to comply with the order of the Court in my ( -- 8 of 22 -- 9 opinion show a flagrant breach and disregard of the significance of the order of the Court. The Court is here to enforce the provisions of a planning scheme, in this case the provisions of the Town Plan for the City of Brisbane. Matters of planning are of some significance and the use of land for a purpose which is unlawful is seen by the legislature as being a matter of particular significance. In addition, any breach of a Court order is viewed in general by _) Courts as a matter of serious concern. That view is enforced when one sees the nature of the penalty that can be imposed in relation to circumstances wherein there has been a breach of an order of the Court by a respondent. The penalty imposed under the Statute is significant. I The fact that the respondent is in a precarious financial position does not detract from attempts being made, nevertheless, to comply with an order of the Court so that the planning process may be adhered to. Whilst not expressing any further view as to the sale of the business and the property, one would say that any owner of the tyres in the future, while they may remain at the Willawong site, will undoubtedly do so at his, her or its peril having regard to the provisions of the planning scheme and the provisions of the Act in respect to penalty for breaches of the planning scheme and the Act. There has, in fact, been no significant reduction in the number of tyres on the Willawong site since the matter first came before the Court on 30th April, 1992. There have been some minor shipments. A number of tyres were destroyed as a result of fire, and there have been some other relatively small quantities including some container loads -- 9 of 22 -- 10 which have been removed from the site. Between the 18th October, 1991 to 26th February, 1992 the number of tyres on the Willawong site increased considerably. Nevertheless, there presently remains on the Willawong site a relatively large number of tyres which, on the evidence, I am satisfied is prejudicial to the arneni ty of the area and creates a potential for a fire hazard and fire risk. residents. These matters are undoubtedly a concern to local The absence by the respondent of serious attempts to reduce the number of tyres when the options were given to him by earlier orders of the Court does not persuade me to treat him leniently in all of the circumstances. On one occasion leniency was extended in relation to the removal of tyres by attempting to regulate such removal and provide a timeframe which could be confirmed by communication to the applicant. This matter was not complied with al though I should imagine it would have taken little effort at the time to notify, as he was required so to do under the order, the applicant of the various matters referred to in that particular order. I have considered the various submissions made on behalf of the respondent. On all of the evidence before me I am satisfied that the offence is one of a quite serious nature and that there has been a flagrant breach by the respondent of the order of the Court. In those circumstances I order that in relation to the imposition of the penalty for an offence relative to the order of the Court dated 11th September, 1992, that Siegfried Mathes be imprisoned for a period of three months. -- 10 of 22 -- P+~ 9d-l{ ago State Reporting Bureau TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold rtithout the written authority of the Director, State Reporting Bureau.) • PLANNING AND ENVIRONMENT COURT JUDGE ROW P & E Application No 13 of 1992 BRISBANE CITY COUNCIL and SIEGFRIED MATHES BRISBANE .. DATE 19/11/9.2 JUDGMENT REVISED COPIES ISSUED State Reporting Bureau Date cJ / I /)_j 9 .).J Applicant -Respondent -- 11 of 22 -- 191192 HIS HONOUR: Brisbane City council (t~e applicant) sought in l t • in relation to the use by the these proceedings dee ara ions respondent of certain premises situated at 280 Bowhill Road, Willawong ("the Willawong site"). The matter has been b f Ccasi·ons On 30 April 1992 1 before the Court on a_num er o o • the court ordered .and declared that the use by the respondent of the Willawong site, being premises in a non-urban zone, is for an unlawful purpose. At that time, h d t ed a timetable in relation to the t e respon en propos removal of the tyres from the Willawong site which was duly 2c incorporated into the order. Since that date there have been a number of orders made ordering the respondent to remove the tyres from the Willawong site by a certain date; all of which orders have not been complied with. On 8 May 1992 it was ordered that all tyres be removed on or before 31 July 1992. On 6 August 1992 the tyres, not having been so removed by 31 July 1992, it was ordered that 30 the tyres still remaining on the site be removed on or before 7 September 1992 and the respondent was found to have 40 committed an offence under s 2.24(7)(a) in that he failed to comply with the Court order of 8 May 1992. On 11 September 1992 the tyres, not having been so removed, it was further ordered that the respondent remove the tyres still remaining on the Willawong site on or before 11 November 1992. It was further found that the respondent had committed an offence under s 2. 24 ( 7) (a) relative to Court order dated 6 August 1992. The tyres not having been removed by 11 November 1992 the applicant has sought further orders and the imposition 2 JUDGMENT 50 -- 12 of 22 -- 191192 of a penalty in relation to the failure of the respondent to comply with the order of the Court dated 11 September 1992. The affidavit material before me clearly establishes th~t the tyres have not been removed from the site and remain on 10 the site at the present time. On the material before me I am satisfied that the use of the Willawong site, which is located within the non-urban zone, is for an unlawful purpose and has continuously been so used since the original declaration made on 30 April 1992. Prior to April 1992 the 20 respondent had been informed by an officer of the Council, David Graeme Pirie, on 15 October 1991 that the Wil.lawong site was in the non-urban zone and that the use that was being made of the premises was prohibited under the Town Plan. On that evidence and on the admissions by Mr Mathes 30 in evidence today, it is cl.ear that he was aware that the use of the Willawong site as from at least 15 October 1991 was for an unlawful purpose and has continued to be so used for an unlawful purpose by him during the period for which he was using those premises. In those circumstances, the Court orders and declares that the use by the respondent of the premises situated at 280 Bowhill Road, Willawong, Brisbane - more particularly defined as Lot 5 on Registered Plan 7 6401 Parish of Oxley, ( 11 the Willawong site" ) being premises in the non-urban zone is and continues to be used for an unlawful purpose. The evidence as set out in the material filed on behalf of the applicant, and also on the admissions made by the 3 JUDGMENT 50 60 -- 13 of 22 -- 191192 respondent, the tyres establishes that the respondent failed to remove 1ocated on the Willawong site within the time prescribed by the order of the Court dated 11 September 1992. Under that order the respondent was obliged to remove the tyres s~ill remaining on the Willawong site on or before 1 11 November 1992. In those circumstances, the respondent has breached and failed to comply wi·th the order of the Court dated 11 September 1992. Consequently, he has committed an offen6e under s 2.24(7)(a) of the Act. Under s 2.24(4) of the Act the Court has power to make declarations and consequential orders where an offence has been committed, or that such offence will, unless restrained by order of the Court, be committed. The power of the Court 2C is to make such order as it considers appropriate to remedy 3D or restrain the offence. Under subs 5 of s 2.24, the Court ~ay order as therein prescribed including an order specifying that the failure to comply constitutes a public nuisance. An order made by the Court is to be in such terms as the Court considers appropriate to secure compliance with 40 the planning scheme. If it be ordered that the failure to comply constitutes a public nuisance, the applicant is authorised to do such work as would remove the nuisance. All expenses incurred by the Local Authority .may be recovered by the Local Authority as a debt due to the Local 50 Authority. It was submitted by counsel on behalf of the applicant that the Court should make an order specifying that failure to 4 JUDGMENT 60 -- 14 of 22 -- 191192 comply with the order of 11 September _1992 made under subs 4 constitutes a public nuisance. The effect of such an order brings in train the provisions of subs 8 whereby the Local Authority ( the applicant) would be empowered to undertake such work as may be necessary to remove the nuisance. All 10 expenses incurred by the applicant may then be recovered from the respondent by the applicant as a debt due to the applicant. The facts, however, are to some extent complicated by an alleged agreement made between the respondent and one Marcel Creurer whereby it is alleged that the respondent sold to Mr Creurer for the sum of $1 the business including the assets thereof which undoubtedly included the tyres and that such agreement was completed on 9 November 1992. The existence of the agreement was referred to in the affidavit material before the Court. The evidence establishes that the sum of $1 payable pursuant to that alleged agreement has, in fact, been paid. On the material that is before the Court, I find that there has been an agreement in relation to the sale of the business which has been perfected and that the property in the tyres no longer is with the respondent. I would point out, however, that the agreement appears to be subject to an implied term relating to the consent if the owner of the premises to an assignment of the respondent's rights of Mr Creurer. There has been no application made in respect thereof to the grant of the assignment of the tenancy agreement. The evidence of Mr Welch is indicative that it is l~kely that such consent would not be forthcoming. At 5 JUDGMENT 20 30 40 50 60 -- 15 of 22 -- 191192 I cannot the present time on the material before me, speculate as to whether or not - if and when any such application is made - it will be successful or otherwise• Mr Creurer was not a party before the Court and consequently the Court would have no power to make any order directed to him in relation to the enforcement of any rights and/or obligations of the respondent. In those circumstances, I do not consider that it is appropriate that the Court make an order specifying the failure to comply with the earlier order of the Court constitutes a public nuisance as on the findings above; the property in the tyres is not at the present time in the respondent. The penalty prescribed for a breach of s 2.24(4) is 165 penalty units or imprisonment for 12 months, or both. The issue of penalty was one upon which the agent for the respondent addressed substantive remarks, some of which r will deal with in detail later. The failure of the respondent to comply with other orders of the Court in relation to removal of tyres within the time prescribed has been held previously to have been offences committed under s 2.24(7)(a) of the Local G=-...,-"'-'_.....,.,'----~~aLJyo(Je~r.LnUJml!.!e;.Jn~t (Planning and Environment) Act 1990 as amended in respect to orders of the Court, and as such each constituted an offence. In relation to the various other orders, the respondent has been fined on two prior occasions. In respect of those fines, which total $7 500 I I a sum of $100 6 JUDGMENT ' I : i 10 20 30 50 60 -- 16 of 22 -- 191192 only has been paid. Having regard to the financial situation of the respondent and the fact that earlier penalties which have been imposed in relation to earlier offences have significantly been 10 unpaid, I do not think it appropriate that in the circumstances that the Court ought in relation to the offence currently before it impose a further fine. The probability of payment of such fine is substantially nil. Such a fine would be of no effective value in such circumstances. It was submitted by counsel on behalf of the applicant that the Court had power under and pursuant to s 10 of the Penalty Units Act (1985) as amended to deal with the question of non-payment of the fines imposed under the previous orders of the Court. Section 10 provides: "Subject to sub-s.2 where in respect of an offence a Court has by its order - (a) imposed a monetary penalty on any person ... and it is lawful for the Court to order imprisonment upon default in payment of the penalty, then upon non- payment of such penalty the term of imprisonment to be ordered by the Court shall be of such period as in its opinion will satisfy the justice of the case but not exceeding in any case a period calculated at the rate of 14 days imprisonment for each unit or part thereof ... " The word "Court" is defined in the Penalty Units Act. I am satisfied for the purposes of s 10, the Planning and Environment Court is, within the definition of that term as is referred to ins 10. The power of the Court in relation 7 JUDGMENT 20 30 40 50 60 -- 17 of 22 -- 191192 h • t is "lawful for the to the operation of s 10 applies were i Court to order imprisonment upon default in payment of the penalty". section 2.24 of the Planning and Environment Act • subs 7 thereof where it deals with has no such provision in lt 1• n relation to an offence against 10 the question of pena Y the Planning and Environment Act.. There i.s no specific provision within the Local Government (Planning and Environment} Act whereby it is prescribed that the Court may order imprisonment upon default in payment of a penalty imposed under _ the Act. It was submitted that accepting 20 there was no specific provision the Court nevertheless had power so to do under s 7.8(3} of the Planning and Environment Act, or alternatively pursuant to an inherent or implied power to regulate its own procedures. Section 7.8(3) of the PlanninQ and Environment Act relates to the taking of a step in a matter or proceeding where no provision is prescribed. In my view, the provisions of that section do not extend whereby the Court could supplement the Act by giving itself a power to make an order where there has been non-payment of a fine or penalty for a money penalty prescribed by the Act. The Court is a creature of Statute and its powers are to be gleaned from a perusal of the s ta tu te itself • ~T-=-h=e"'--_._N...,a.._t-><-=i~o"'-'n~a~l=----'PoaQ.kr.l!k~sL_.Ja;llns1:dg__~W[jiJll!d:tlUi:tf~e Service & Anor. y The Stables Perisher Pty. Ltd. (Court of Appeal ( N. S. W.) 19 .10. 90 unreported). Accepting but without deciding that the Court has an implied-or is as often expressed an inherent power to regulate its own procedures, the provision of a power whereby the Court would 8 30 40 50 60 -- 18 of 22 -- 191192 have the right to order imprisonment in default of payment of the fine goes far beyond, in my view, what could 1 ordinarily be regarded as part of the implied or inherent power of a Court to regulate its own proceedings. Had the Legislature intended that the Court should have such power, 10 it ought clearly to have expressed it in the Act. In such circumstances I find that the Court has not power to deal in relation to the non-payment of fines under and pursuant to s 10 of the Penalty Units Act 1985 as amended. The remaining issues relate to the appropriate penalty. Under the provisions of s 24 ( 7) the penalty that can be imposed is 165 penalty units, or imprisonment for 12 months, or both. It was submitted on behalf of the respondent that a custodial penalty should not be imposed. It was submitted that the breaches which have been found and the offences which have been found to have occurred in the past were not flagrant breaches of the various orders of the Court. It was further submitted that the respondent has done everything in his power to comply with the Court orders and that imprisonment would not be appropriate. His financial and matrimonial position were explained to the Court. I accept that he has a wife and child to support. He is presently employed by Mr Creurer and is in receipt of some $300 per week. It was further submitted that his degree of culpability was low. In all those circumstances it was submitted that an appropriate penalty would be a community service order. 9 JUDGMENT 20 30 40 50 60 -- 19 of 22 -- 191192 The history of the respondent's conduct in relation to this t t J..• n the vari· ous affidavits thatmatter is clearly se ou have been filed before the Court. I accept that since 15 October 1991, as admitted by the respondent and as established by the respondent's evidence, he was aware that 10 the use of the Willawong site was unlawful. Such use has continued up until the time when he no longer was the owner of the tyres, namely 9 November 1992. His attempts to comply with the order of the Court in my opinion show a flagrant breach and disregard of the si.gnif icance of the 20 order of the Court. The Court is here to enforce the provisions of a planning scheme, in this case the provisions of the Town Plan for the City of Brisbane. Matters of planning are of some 30 significance and the use of land for a purpose which is unlawful is seen by the Legislature as being a matter of • V particular significance. In addition, any breach of a Court order is viewed in general by Courts as a matter of serious concern. That view is enforced when one sees the nature of 48 \) the penalty that can be imposed in relation to circumstances wherein there has been a breach of an order of the Court by a respondent. significant. The penalty imposed under the Statute is The fact that the respondent is in a precarious financial position does not detract from attempts being made, nevertheless, to comply with an order of the Court so that the planning process may be adhered to. Whilst not 50 60 -- 20 of 22 -- 191192 expressing any further view as to the sale of the business and the property, one would say that any owner of the tyres in the future, while they may remain at the Willawong site, will undoubtedly do so at his, her or its peril having regard to the provisions of the planning scheme and the provisions of the Act in respect to penalty for breaches of the planning scheme and the Act. There has, in fact, been no significant reduction in the number of tyres on the Willawong site since the matter first came before the Court 10 on 30 April 1992. There have been some minor shipments. A 20 number of tyres were destroyed as a result of fire, and there have been some other relatively small quantities including some container loads which have been removed from the site. Between 18 October 1991 to 26 February 1992 the number of tyres on the Willawong site increased 30 considerably. Neverthel.ess, there presently remains on the Willawong site a relatively large number of tyres which, on the evidence, I am satisfied is prejudicial to the amenity of the area and creates a potential for a fire hazard and fire risk. These matters are undoubtedly a concern to local 40 residents. The absence by the respondent of serious attempts to reduce the number of tyres when the options were given to him by earlier orders of the Court does not persuade me to treat him leniently in all of the circumstances. On one occasion leniency was extended in relation to the removal of tyres by attempting to regulate such removal and provide a•tirneframe which could be confirmed by communication to the applicant. 11 JUDGMENT 60 -- 21 of 22 -- 191192 This matter was not complied with although I should imagine it would have taken little effort at the time to notify, as he was required so to do under the order, the applicant of the various matters referred to in that particular order. I have considered the various submissions made on behalf of the respondent. On all of the evidence before me I am satisfied that the 10 offence is on~ of a quite serious nature and that there has 20 \ • been a flagrant breach by the respondent of the order of the Court. In those circumstances I order that in relation to the imposition of the penalty for an offence relative to the order of the Court dated 11 September 1992, that Siegfried Mathes be imprisoned for a period of three months. 12 JUDGMENT 30 ,,, - 40 r 50 60 I -- 22 of 22 --