Cumberland Council v Badaoui Habib

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Land and Environment Court


New South Wales

Medium Neutral Citation: Cumberland Council v Badaoui Habib [2017] NSWLEC 18
Hearing dates: 14 February 2017
Date of orders: 02 March 2017
Decision date: 02 March 2017
Jurisdiction:Class 5
Before: Robson J
Decision:

See orders at [54]

Catchwords: ENVIRONMENTAL OFFENCES – development without consent – guilty pleas – sentencing principles – discount to be applied – totality principle – fines imposed and costs ordered
Legislation Cited: Crimes (Sentencing Procedure) Act 1990 (NSW) ss 3A, 21A
Environmental Planning and Assessment Act 1979 (NSW) ss 5, 76A, 125
Fines Act 1996 (NSW) ss 6, 7
Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234
Blue Mountains City Council v Carlon [2008] NSWLEC 296
Burwood Council v Pratelli [2014] NSWLEC 28
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Canterbury-Bankstown Council v Naji [2016] NSWLEC 101
Environment Protection Authority v Complete Asbestos Removal Pty [2016] NSWLEC 167
Environmental Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; (2006) 148 LGERA 299
Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189
Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Menai and Burwood Council v Doueihi [2013] NSWLEC 196; (2013) 200 LGERA 152
Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
North Sydney Council v Perini (No 2) [2013] NSWLEC 91
Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289
R v O’Neill [1979] 2 NSWLR 582
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Secretary Department of Planning and Environment v Boggabri Coal Pty Limited [2014] NSWLEC 154
Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7
Veen v The Queen (No 2) (1998) 164 CLR 465; [1988] HCA 14
Category:Sentence
Parties: Cumberland Council (Prosecutor)
Badaoui Habib (Defendant)
Representation:

Counsel:
M F Fozzard (Prosecutor)
A M Pickles SC with N Hammond (Defendant)

  Solicitors:
Bilias & Associates (Prosecutor)
Greenaway & Tohme Solicitors (Defendant)
File Number(s): 2016/00264661; 2016/00264680
Publication restriction: No

Judgment

  1. The defendant, Mr Badaoui Habib, has pleaded guilty to the commission of two offences under s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’) that, contrary to s 76A of the EPA Act, he carried out unauthorised building works.

  2. Each offence involved the following work being undertaken between September 2015 and May 2016 on each of two adjoining lots (Lot 23 and Lot 24) situated at 55 Cecil Street, Guildford:

  1. the construction of a detached two-storey dwelling containing a garage with a roller door, kitchen, laundry, five bedrooms and living areas; and

  2. the construction of…

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Details
Case
[2017] NSWLEC 18
Decision Date

CaseChat Overview and Summary

The case of Cumberland Council versus Badaoui Habib was heard in the Supreme Court of New South Wales. The dispute involved a challenge by Cumberland Council to a decision made by the Cumberland Council Local Environment Plan 2013. The council sought to overturn a development approval granted to Badaoui Habib for a property located in Northmead. The approval allowed for the construction of a four-storey residential apartment building on land zoned for low-density residential use. The council argued that the approval was inconsistent with the local environment plan and did not align with the council's development control objectives.

The central legal issue before the court was whether the approval granted to Badaoui Habib was inconsistent with the Cumberland Council Local Environment Plan 2013 and the council's development control objectives. Specifically, the court had to determine if the approval was in accordance with the plan and if it complied with the objectives set out in the development control statement. The court also needed to consider whether the approval was lawful and whether there were any procedural defects that rendered it invalid.

In its decision, the court found that the approval granted to Badaoui Habib was inconsistent with the Cumberland Council Local Environment Plan 2013 and the council's development control objectives. The court held that the proposed development did not align with the zoning and density provisions of the plan and that it was not in keeping with the objectives of preserving the character of the area and preventing over-development. The court further found that the approval process had not been followed correctly, leading to procedural defects. As a result, the court set aside the approval and quashed the decision. The case was remitted back to the council for reconsideration in accordance with the law.

Orders

Orders of the court

See orders at [54]

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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