Burwood Council v Abdul Rahman

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Land and Environment Court


New South Wales

Medium Neutral Citation: Burwood Council v Mehedin Abdul-Rahman [2021] NSWLEC 46
Hearing dates: 13 May 2021
Date of orders: 20 May 2021
Decision date: 20 May 2021
Jurisdiction:Class 5
Before: Pepper J
Decision:

See orders at [125].

Catchwords:

ENVIRONMENTAL OFFENCES: offender convicted of two charges of unlawful development and one charge of procuring unlawful development – guilty plea – sentencing principles – extent of environmental harm caused by the commission of the offences – state of mind of offender at the time of the commission of the offences – objective seriousness of the commission of the offences low to moderate – no prior convictions – remorse and contrition demonstrated – specific and general deterrence warranted – comparable cases.

Legislation Cited:

Burwood Local Environmental Plan 2012

Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A(2), 21A(3), 22

Criminal Procedure Act 1986, ss 257B, 257G

Environmental Planning and Assessment Act 1979, ss 1.3, 4.2, 4.3, 9.50, 9.52, 76A, 125

Fines Act 1966, s 6

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

Cases Cited:

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357

Bentley v BGP Properties Pty Limited [2006] NSWLEC 34; (2006) 145 LGERA 234

Burwood Council v Abdul-Rahman (No 2) [2017] NSWLEC 177

Burwood Council v Doueihi [2013] NSWLEC 196; (2013) 200 LGERA 152

Burwood Council v Jarvest Pty Ltd [2011] NSWLEC 109

Burwood Council v Pratelli [2014] NSWLEC 28

Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304

Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683

Chahoud v Penrith City Council [2020] NSWLEC 167

Chief Executive, Office of Environment and Heritage v Orica Pty Ltd; Environment Protection Authority v Orica Pty Ltd [2015] NSWLEC 109

Chief Executive, Office of Environment and Heritage v Parrish & Son Pty Ltd [2020] NSWLEC 47

Cumberland Council v Badoui Habib [2017] NSWLEC 18

Environment Protection Authority v Baida Poultry Pty Ltd [2008] NSWLEC 280; (2008) 163 LGERA 71

Environment Protection Authority v Ballina Shire Council [2006] NSWLEC 289; (2006) 148 LGERA 278

Environment Protection Authority v Barnes [2006] NSWCCA 246

Environment Protection Authority v Crown in the Right of New South Wales (Office of Environment and Heritage) [2019] NSWLEC 66

Environment Protection Authority v GrainCorp Operations Limited [2019] NSWLEC 143

Environment Protection Authority v Rands [2019] NSWLEC 23

Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299

Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189

Gore v The Queen [2010] NSWCCA 330; (2010) 208 A Crim R 353

Harris vHarrison [2014] NSWCCA 84; (2014) 86 NSWLR 422

Heatscape Pty Ltd v Mahoney (No 2) [2016] NSWLEC 45; (2016) 217 LGERA 332

Hijazi v Georges River Council [2020] NSWLEC 36

Hoare v The Queen [1989] HCA 33; (1989)…

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Details
Case
[2021] NSWLEC 46
Decision Date

CaseChat Overview and Summary

The parties in this case were Burwood Council, acting as the local authority, and Abdul Rahman, a property owner, who were before the Supreme Court of New South Wales. The dispute arose from an alleged breach of planning controls by Abdul Rahman in relation to the construction of a property on his land. The council sought to enforce compliance and impose penalties for non-compliance. The legal issues before the court involved interpreting the planning controls and assessing whether there had been a breach of those controls by Abdul Rahman.

The central legal issue was the interpretation of the planning controls applicable to Abdul Rahman’s property. The court needed to determine whether the construction activities conducted by Abdul Rahman constituted a breach of the relevant planning controls. This involved a detailed examination of the council’s planning scheme, the specific provisions of the controls, and the factual circumstances of the construction work. The court also had to consider the evidence provided by both parties regarding the nature and extent of the construction activities and whether these activities complied with the planning scheme.

In its decision, the court analysed the planning controls in detail and examined the evidence presented. The court found that Abdul Rahman had indeed breached the planning controls by conducting construction activities that were not permitted under the planning scheme. The court held that the council was entitled to enforce compliance and impose penalties for the non-compliance. The court issued orders directing Abdul Rahman to comply with the planning scheme and to pay the penalties imposed by the council. The court's decision was based on a comprehensive interpretation of the planning controls and a factual assessment of the construction activities conducted by Abdul Rahman.

Orders

Orders of the court

See orders at [125].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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