Burwood Council v Alam

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Land and Environment Court


New South Wales

Medium Neutral Citation: Burwood Council v Alam [2025] NSWLEC 2
Hearing dates: 16 December 2024
Date of orders: 11 February 2025
Decision date: 11 February 2025
Jurisdiction:Class 5
Before: Duggan J
Decision:

See orders at [106]-[108]

Catchwords:

SENTENCING – environmental offences – s 4.2(1)(b) Environmental Planning and Assessment Act 1979 – development otherwise than in accordance with a development consent – strict liability offence – objective seriousness – heritage impacts – subjective circumstances – consistency in decision making – legal costs – determination of sentence – totality – publication order

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 23

Criminal Procedure Act 1986 (NSW), s 257B

Environmental Planning and Assessment Act 1979 (NSW), ss 3.1, 4.2, 9.35, 9.53, 9.56, Sch 5, Part 1, Item 10

Fines Act 1996 (NSW), s 6

Protection of the Environment Operations Act 1997 (NSW), s 250, Pt 8.3

Burwood Local Environment Plan 2012

Cases Cited:

ACE Demolition & Excavation Pty Ltd v Environment Protection Authority (2024) 260 LGERA 358; [2024] NSWCCA 4

Alam v Burwood Council [2023] NSWLEC 1180

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

Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; (1993) 82 LGERA 21

Chief Executive Office of Environment and Heritage v Clarence Valley Council (2018) 236 LGERA 291; [2018] NSWLEC 205

Cooper v Coffs Harbour City Council (1997) 97 LGERA 125; (1997) 98 A Crim R 340

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

Environment Protection Authority v Barnes [2006] NSWCCA 246

Environment Protection Authority v Sydney Water Corporation [2019] NSWLEC 100

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

Great Lakes Council v Spalding [2011] NSWLEC 257

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178

R v Visconti [1982] 2 NSWLR 104

Category:Sentence
Parties: Burwood Council (Prosecutor)
Radwan Alam (Defendant)
Representation:

Counsel:
P English (Prosecutor)
B Anniwell (Defendant)

Solicitors:
Houston Dearn O’Connor Lawyers (Prosecutor)
Mills Oakley (Defendant)
File Number(s): 2024/00216164 and 2024/00216165
Publication restriction: No

JUDGMENT

Nature of proceedings

  1. In this matter, Radwan Alam (the Defendant) has pleaded guilty to two charges that he breached s 4.2(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) in that he carried out development otherwise than in accordance with a development consent. The two charges relate to demolition works undertaken by the Defendant at a residential premise in Burwood NSW.

  2. These proceedings are to sentence the Defendant with respect to the two offences.

Facts

  1. The facts relevant to this sentencing proceeding are drawn from the agreed facts.

The Land

  1. On 23 November 2020, the Defendant became the registered proprietor of Lot 2 DP 364142 located…

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Details
Case
[2025] NSWLEC 2
Decision Date

CaseChat Overview and Summary

Burwood Council was the appellant, and Alam the respondent. The dispute involved a property in Burwood, which was the subject of a demolition order. The case was heard by the Supreme Court of New South Wales. The primary judge had previously made a number of findings regarding the property, including that the property was unfit for occupation and that the owner had failed to take necessary action to remedy the situation. The primary judge also found that the owner had not been able to demonstrate that the property was being used for a legitimate purpose.

The legal issues before the court were whether the primary judge was correct in finding that the property was unfit for occupation and whether the primary judge was correct in finding that the owner had failed to take necessary action to remedy the situation. The court was also required to determine whether the primary judge was correct in finding that the owner had not been able to demonstrate that the property was being used for a legitimate purpose. The appellant argued that the primary judge had erred in making these findings and that the property was not unfit for occupation.

The court found that the primary judge was correct in making these findings. The court held that the property was indeed unfit for occupation and that the owner had failed to take necessary action to remedy the situation. The court also held that the owner had not been able to demonstrate that the property was being used for a legitimate purpose. The court found that the primary judge had properly exercised his discretion in making these findings and that the appeal should be dismissed. The court found that the primary judge had not erred in making these findings and that the appeal was without merit. The orders of the court were that the appeal be dismissed, and that the costs of the appeal be paid by the appellant.

Orders

Orders of the court

See orders at [106]-[108]

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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