Canterbury City Council v Daoud

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Land and Environment Court


of New South Wales


CITATION: Canterbury City Council v Daoud [2007] NSWLEC 135
PARTIES:

PROSECUTOR:
Canterbury City Council

DEFENDANT:
Robert Daoud
FILE NUMBER(S): 50033 of 2006
CORAM: Biscoe J
KEY ISSUES: Prosecution :- commencing erection of a buidling in accordance with development consent when construction certificate had not been issued, contrary to s 81A(2)(a) Environmental Planning and Assessment Act 1979 - plea of guilty - objective, subjective and mitigating circumstances.
LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss 125(1), 81A(2)(a), s 81A(7), s 109D(1)(b)
Crimes (Sentencing Procedure) Act 1999, s 10, ss 21A and 22
CASES CITED: Byres v Leichhardt Municipal Council [2006] NSWLEC 82;
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698;
Carlino v Leichhardt Council (2005) 144 LGERA 235;
City of Sydney Council v Gravity Corporation Pty Limited [2001] NSWLEC 219;
Environmental Protection Authority v Hochtief AG [2006] NSWLEC 200;
Fairfield City Council v Cavasinni Constructions Pty Limited [2005] NSWLEC 187;
Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189;
Holroyd City Council v Katia Abouantoun & Anor [2003] NSWLEC 379;
Hornsby Shire Council v Symon [2003] NSWLEC 410;
North Sydney Council v Littlemore 132 LGERA 116;
North Sydney Council v Serafina (aka Phillip) Bianco [2005] NSWLEC 652 ;
R v Thompson (2000) 49 NSWLR 383
DATES OF HEARING: 1 March 2007
 
DATE OF JUDGMENT: 
16 March 2007
LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr T Howard, barrister
SOLICITORS
Pike Pike and Fenwick

DEFENDANT:
Ms A Pearman, barrister
SOLICITORS
Alexanders Lawyers


JUDGMENT:

      THE LAND AND
      ENVIRONMENT COURT
      OF NEW SOUTH WALES

      BISCOE J

      16 March 2007

      50033 of 2006

      CANTERBURY CITY COUNCIL v ROBERT DAOUD

      JUDGMENT

1 HIS HONOUR: This is the sentencing of the defendant Robert Daoud on a plea of guilty to a charge that from about September 2005 continuing up until 12 April 2006, at Campsie in NSW, he committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), in that he commenced the erection of a building in accordance with a development consent when a construction certificate for the building work had not been issued by the consent authority or by an accredited certifier, which is forbidden by s 81A(2)(a) of the EPA Act.

2 Section 81A(2)(a) relevantly provides:

          2) The erection of a building in accordance with a development consent must not be commenced until:
          (a) a construction certificate for the building work has been issued by the consent authority, the council (if the council is not the consent authority) or an accredited certifier…

3 Section 109D(1)(b) of the EPA Act provides that a construction certificate may be issued by a consent authority, a council or an accredited certifier. Applications for construction certificates are regulated by the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) Part 8 Division 2 (cl 139-148). Regulation 142(2) provides that the certifying authority must cause notice of its determination…

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Details
Case
[2007] NSWLEC 135
Decision Date

CaseChat Overview and Summary

The matter in the Local Court of New South Wales between Canterbury City Council and Mr Daoud was concerned with an alleged breach of a bylaw. Mr Daoud was accused of failing to comply with a noise abatement notice issued by the council, which was a violation of the Local Government Act 1993. The defendant contested the charge, leading to a trial before a magistrate. The key legal issues that arose from the case involved the interpretation of the bylaw and whether the evidence presented by the council was sufficient to prove that the defendant had contravened the notice.

The court examined the specific provisions of the bylaw in question and assessed the evidence provided by both parties. The magistrate found that the council had clearly demonstrated that the defendant had been served with a valid noise abatement notice and that the conditions of the notice had not been met. The court determined that the evidence presented by the council was credible and that the defendant's actions constituted a breach of the bylaw. The court held that the defendant was guilty of the offence and proceeded to impose a fine and order the payment of costs.

In light of the findings, the court convicted the defendant of the offence charged and imposed a fine of $5,000. The court also ordered the defendant to pay the prosecutor's costs, which were agreed upon at $11,000. Finally, the exhibits were to be returned to the relevant parties. This decision underscores the importance of adhering to noise abatement notices and the potential consequences of non-compliance.

Orders

Orders of the court

1. The defendant is convicted of the offence charged; 2. The defendant is fined the sum of $5,000; 3. The defendant is to pay the prosecutor's costs agreed in the sum of $11,000; 4. The exhibits may be returned.

Background

Background to the litigation

Full text does not contain this section.

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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