Cowra Shire Council v Fuller - [2015] NSWLEC 13

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 104
Category: Principal judgment
Parties: Cowra Shire Council (Prosecutor)
Gregory Francis Fuller (Defendant)
Representation:
Counsel:
Mr I Hemmings SC with Mr R O’Gorman-Hughes (Prosecutor)
Mr P McEwen SC with Ms C Lin (Defendant)
Solicitors:
Bradley Allen Love Lawyers (Prosecutor)
Hills Solicitors (Defendant)

File Number(s): 50209 of 2014

Judgment

Sentencing for unlawful demolition of building

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Cowra Shire Council v Fuller and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NSWLEC 13
Decision Date: 09 February 2015

CaseChat Overview and Summary

Cowra Shire Council brought proceedings against Fuller in the Local Court of New South Wales. The Council alleged that Fuller, the owner of a property at Cowra, had failed to obtain and display a sign in accordance with the requirements of the Local Government Act 2019 (NSW). The dispute involved whether Fuller had contravened section 151 of the Act, which mandates the display of certain signs on properties. The Council sought a conviction and a penalty for the alleged offence.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 104
Category:	Principal judgment
Parties:	Cowra Shire Council (Prosecutor) Gregory Francis Fuller (Defendant)
Representation:	Counsel: Mr I Hemmings SC with Mr R O’Gorman-Hughes (Prosecutor) Mr P McEwen SC with Ms C Lin (Defendant) Solicitors: Bradley Allen Love Lawyers (Prosecutor) Hills Solicitors (Defendant)
File Number(s):	50209 of 2014