Burwood Council v Abdul-Rahman
[2017] NSWLEC 104
•14 August 2017
Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Burwood Council v Abdul-Rahman [2017] NSWLEC 104 Hearing dates: 14 August 2017 Date of orders: 14 August 2017 Decision date: 14 August 2017 Jurisdiction: Class 5 Before: Moore J Decision: At [12]
Catchwords: PROSECUTION - order given by Council on 3 September 2015 - period to compliance of 28 days - appeal against order - appeal upheld and terms of revised order agreed by parties - revision altered nature of works to be done - revision did not alter time for compliance with the order - time for compliance remained unchanged as 28 days after 3 September 2015 - Defendant charged with failure to comply with order within 28 days of making of revised order - charge defective - charge struck out Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), s 121ZK Cases Cited: Abdul‑Rahman v Burwood Council [2013] NSWLEC 1053 Category: Principal judgment Parties: Burwood City Council (Prosecutor)
Omar Abdul-Rahman (Defendant)Representation: Counsel:
Solicitors:
Mr S Shneider, solicitor (Prosecutor)
Mr O Abdul-Rahman (Defendant)
Houston Dearn O’Connor (Prosecutor)
File Number(s): 112284 of 2017 Publication restriction: No
EX TEMPORE Judgment
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HIS HONOUR: In matter number 112284 of 2017, the Statement of Charge filed on 13 April 2017 reads as follows.
At 12:00am on 16 March 2016 and continuing as at the date of this charge at Burwood Heights in the State of New South Wales, Omar Abdul-Rahman (“the defendant”) breached s 125(1) of the Environmental Planning and Assessment Act 1979 (“the Act”) in that by Orders dated 3 September 2015 and modified by the Court on 16 February 2016 (“the modified Orders”) Burwood Council, being authorised to give Orders pursuant to s 121B of the Act, directed by the modified Orders that things were to be done by the defendant within 28 days of the date of the modified Orders, whereas after 28 days of the modified Orders the things so directed to be done remained undone and as at the date of this charge the things continue to remain undone.
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The orders that are mentioned in the Statement of Charge were made on 3 September 2015 and are set out behind Tab 1 of Exhibit C in these proceedings. In the orders dated 3 September 2015, under the Terms of the Orders, there are set out four paragraphs therein.
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Those orders were the subject of an appeal which commenced in an unsuccessful conciliation conference before Brown C and was determined by Morris C on 16 February 2017, the matter being Abdul‑Rahman v Burwood Council [2013] NSWLEC 1053.
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At an unnumbered page (but [54]) of the learned Commissioner's judgment, the Commissioner set out the orders of the Court. Order 1 was that the appeal was upheld. Order 2 had, as its chapeau, the following.
The terms of the order issued by Burwood Council to Mr Omar Abdul‑Rahman owner of land at number 2 Culdees Road, Burwood Heights on 3 September 2015 are modified as follows.
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For the purposes of what I am now dealing with, it is unnecessary to set out the full detail of the modification of the order.
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It is sufficient to note the following:
That the original order made by the Council contained four operative requirements set out under the heading, "The terms of the orders" - they are numbered, unsurprisingly, from 1 to 4;
Order 2A of the learned Commissioner's orders required that the terms of the orders be modified by the deletion of terms 1 and 2 and 3;
Order 2B required that terms of Order 3 (which was in the form of a single sentence) be replaced by a new order that contained nine sub-elements;
Order 3 of the learned Commissioner's modification to the terms of the orders deleted Order 4 - an order which was also in a single sentence, and substituted in lieu of that a much more detailed and prescriptive order set out in five paragraphs in the learned Commissioner's decision.
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It is to be observed, expressly, that the Commissioner did not make any order extending the time for compliance with the orders.
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The powers of the Court, under s 121ZK of the Environmental Planning and Assessment Act 1979 (NSW) (the EP&A Act), give the Court a range of powers on appeal. They are set out in s 121ZK(4) of the EP&A Act. Those powers are:
To revoke the order; or
Modify the order; or
Substitute for the order any other order that the person who gave the order could have made; or
Find that the order is sufficiently complied with; or
Make such order with respect to compliance with the order as the Court thinks fit; or
Make any other order with respect to the order as the Court thinks fit.
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The learned Commissioner, in her decision, modified the order pursuant to s 121ZK(4)(b).
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The learned Commissioner made no order pursuant to s 121ZK(4)(e), that is, a further order with respect to compliance with the order.
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The consequence of that is, although it was an agreed position (between the legal representatives of the Council and the then legal representative of Mr Abdul-Rahman) that the descriptive terms of the order in [1] to [4] should be amended as I have outlined, there was no agreement recorded in the Commissioner's decision that she make such further order with respect to the compliance with the modified Orders.
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The further consequence of that is that the order remained dated 3 September 2015. The terms that had to be complied with to give effect to the order as to the works to be undertaken were modified by the Commissioner in February 2016. As the time for compliance with the order was not modified, it would remain 28 days from the date of the original order. The charge as pleaded is incompetent and is struck out.
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Amendments
06 December 2017 - Amendment Class 4 to Class 5.
Decision last updated: 06 December 2017
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