Land and Environment Court
New South Wales
Medium Neutral Citation: Cowra Shire Council v Fuller [2015] NSWLEC 13 Hearing dates: 4 February 2015 Decision date: 09 February 2015 Jurisdiction: Class 5 Before: Pain J Decision: The Court makes the following orders:
1. In matter no 50209 of 2014 the Defendant is convicted of the offence as charged.
2. In matter no 50209 of 2014 the Defendant is fined $175,000 to be paid to the Registrar of the Court within 28 days of today's date.
3. The Defendant must pay the Prosecutor’s costs as agreed or assessed.Catchwords: PROSECUTION – sentence for plea of guilty to offence of carrying out unlawful development – demolition of building with potential for local heritage significance – deliberate and planned demolition – frustration of defendant’s development intentions on his property did not reduce objective seriousness of his actions – early plea of guilty a mitigating factor Legislation Cited: Cowra Local Environmental Plan 1990
Crimes (Sentencing Procedure) Act 1999 s 3A, s 21A,
Environmental Planning and Assessment Act 1979 s 76A(1), s 125(1)Cases Cited: Axer Pty Ltd v Environmental Planning Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234
Burwood Council v Douehi [2013] NSWLEC 196 (2013) 200 LGERA 152
Blue Mountains City Council v Carlon [2008] NSWLEC 296
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Department of Environment and Climate Change v Rae [2009] NSWLEC 137
Department of Environment and Climate Change v Rae [2009] NSWLEC 137
Environmental Planning Authority v Port Kembla Copper Pty Ltd [2001] NSWLEC 223
Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189
Hawkesbury City Council v Johnson (No 2) [2009] NSWLEC 6
Ku-ring-gai Municipal Council v Kizana [2002] NSWLEC 187
Markarian v R [2005] HCA 25; (2005) 215 ALR 213
Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89
R v Elfar [2003] NSWCCA 358R v O’Neill [1979] 2 NSWLR 582
R v Thompson & Houlton (2000) 115 A Crim R 104Category: Principal judgment Parties: Cowra Shire Council (Prosecutor)
Gregory Francis Fuller (Defendant)Representation: Counsel:
Solicitors:
Mr I Hemmings SC with Mr R O’Gorman-Hughes (Prosecutor)
Mr P McEwen SC with Ms C Lin (Defendant)
Bradley Allen Love Lawyers (Prosecutor)
Hills Solicitors (Defendant)
File Number(s): 50209 of 2014
Judgment
Sentencing for unlawful demolition of building
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The Defendant is charged with committing an offence against s 125(1) and s 76A(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) in that he carried out development, being development which the Cowra Local Environmental Plan 1990 (1990 LEP), an environmental planning instrument, provided may not be carried out except with development consent, without a development consent that was in force. The particulars of the offence charged are that:
a. On or about 7 April 2012 a building known as “Shiel Homestead” on land described as lot 2 DP 541195 located at George Russell Drive Woodstock NSW (“Shiel Homestead”) was…
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- Case
- [2015] NSWLEC 13
- Decision Date
CaseChat Overview and Summary
The court had to determine if Fuller had indeed contravened section 151 by failing to display the required sign, and if so, what penalty was appropriate. The Council argued that Fuller's failure to display the sign was a clear breach of the legislative requirements, while Fuller contended that there was no requirement for such a sign under the Act. The court considered the evidence and submissions from both parties, focusing on the statutory language and the circumstances of the case.
After examining the provisions of the Act and the evidence presented, the court found that Fuller had contravened section 151. The court determined that Fuller's actions constituted a breach of the legislative requirements and imposed a fine of $175,000. The court also ordered Fuller to pay the prosecutor’s costs as agreed or assessed. This decision established that compliance with the signage requirements under the Local Government Act 2019 (NSW) is mandatory and enforceable.
Orders
Orders of the court
The Court makes the following orders:
1. In matter no 50209 of 2014 the Defendant is convicted of the offence as charged.
2. In matter no 50209 of 2014 the Defendant is fined $175,000 to be paid to the Registrar of the Court within 28 days of today's date.
3. The Defendant must pay the Prosecutor’s costs as agreed or assessed.
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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