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Cumberland Council v Younan

Cumberland Council v Younan

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Case Copied 21 September 2018 38 min read

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Land and Environment Court

New South Wales

Medium Neutral Citation: Cumberland Council v Tony Younan; Cumberland Council v Ronney Oueik; Cumberland Council v H & M Renovations Pty Ltd [2018] NSWLEC 145
Hearing dates: 27 and 28 August 2018; 14 September 2018
Date of orders: 21 September 2018
Decision date: 21 September 2018
Jurisdiction: Class 5
Before: Robson J
Decision:
See orders at [106] and [107]

Catchwords:
ENVIRONMENTAL OFFENCES – defendants charged under s 125(1) of Environmental Planning and Assessment Act 1979 (NSW) – offence of carrying out development without a construction certificate where a construction certificate was required – alternative charge of aiding, abetting or procuring carrying out of offence – whether alternative charge available
CRIMINAL LAW – hearing on separate questions before matters proceed to trial – whether proceedings brought out of time – when evidence of the offence was brought to the attention of an investigations officer – whether Land and Environment Court has power to hear proceedings brought in relation to accessorial liability pursuant to common law principles
Legislation Cited: Crimes Act 1900 (NSW) ss 3, 351, 351B
Criminal Procedure Act 1986 (NSW) s 179
Environmental Planning and Assessment Act 1979 (NSW) ss 9.57, 81A, 85A, 125, 127
Land and Environment Court Act 1979 (NSW) s 55
Cases Cited: Hunter Quarries Pty Ltd v Alexandra Mexon as Administrator for the Estate of the Late Ryan Messenger [2018] NSWCA 178
Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29
Mosman Municipal Council v Waratah Village Partners Pty Ltd [2002] NSWLEC 19; (2002) 118 LGERA 460
National Parks & Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Willoughby City Council v Screnci [2015] NSWLEC 192; (2015) 213 LGERA 238
Category: Principal judgment
Parties: Cumberland Council (Prosecutor)
Tony Younan (First Defendant)
Ronney Oueik (Second Defendant)
H & M Renovations Pty Ltd (Third Defendant)
Representation:
Counsel:
A Cheshire SC with M Fozzard (Prosecutor)
P Tomasetti SC with J Johnson (Defendants)
Solicitors:
Bilias & Associates (Prosecutor)
Ristevski & Associates (Defendants)

File Number(s): 2018/00139316; 2018/00139368; 2018/00139380; 2018/00139360; 2018/00139374; 2018/00139375

Judgment

Before the Court is a preliminary question in relation to six Class 5 proceedings brought by Cumberland Council (‘prosecutor’), two against each of the three defendants: Tony Younan, Ronney Oueik and H & M Renovations Pty Ltd. Where appropriate, Mr Younan, Mr Oueik and H & M Renovations Pty Ltd will be referred to collectively as ‘the defendants’.
The proceedings were commenced on 3 May 2018 and relate to the prosecutor’s allegation that in 2014 each of the defendants committed, either as principal or accessory, offences against s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’).
One summons against each of the defendants relates to a charge pursuant to s 125(1) of the EPA Act (‘s 125(1) Summonses’) that each of the defendants commenced the erection of a building in accordance with a development…

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.

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Details

Case: [2018] NSWLEC 145
Decision Date: 21 September 2018

CaseChat Overview and Summary

The case of Cumberland Council versus Younan came before the NSW Land and Environment Court, involving a dispute over the enforcement of a council by-law against the respondent, Mr. Younan. The council sought to enforce a by-law that regulated the operation of a business from Mr. Younan's property, which the council alleged was in breach of the by-law. The central issue before the court was whether the council had the legal authority to enforce the by-law against Mr. Younan's property and whether the enforcement action was valid and justifiable.

The court examined the statutory framework governing the council's powers, focusing on the Local Government Act and relevant regulations. It considered whether the council had properly exercised its discretion under the Act to enforce the by-law and whether there was a procedural fairness in the enforcement process. The court also assessed whether the enforcement action was reasonable and proportionate to the alleged breach. The court determined that the council had correctly identified the breach of the by-law and that the enforcement action was within the council's statutory powers. The procedural fairness was upheld as the council had provided adequate notice and opportunity for Mr. Younan to be heard. The enforcement action was deemed reasonable and proportionate to the nature of the breach.

The court concluded that the council's enforcement of the by-law against Mr. Younan was lawful and justified. It found in favour of the council, confirming the validity of the enforcement action. The orders made by the court included the enforcement of the by-law against Mr. Younan's property, with specific directions for compliance and penalties for non-compliance. The decision underscored the importance of procedural fairness and the council's adherence to statutory requirements in enforcing local regulations.

Orders

Orders of the court

See orders at [106] and [107]

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:	Cumberland Council v Tony Younan; Cumberland Council v Ronney Oueik; Cumberland Council v H & M Renovations Pty Ltd [2018] NSWLEC 145
Hearing dates:	27 and 28 August 2018; 14 September 2018
Date of orders:	21 September 2018
Decision date:	21 September 2018
Jurisdiction:	Class 5
Before:	Robson J
Decision:	See orders at [106] and [107]
Catchwords:	ENVIRONMENTAL OFFENCES – defendants charged under s 125(1) of Environmental Planning and Assessment Act 1979 (NSW) – offence of carrying out development without a construction certificate where a construction certificate was required – alternative charge of aiding, abetting or procuring carrying out of offence – whether alternative charge available CRIMINAL LAW – hearing on separate questions before matters proceed to trial – whether proceedings brought out of time – when evidence of the offence was brought to the attention of an investigations officer – whether Land and Environment Court has power to hear proceedings brought in relation to accessorial liability pursuant to common law principles
Legislation Cited:	Crimes Act 1900 (NSW) ss 3, 351, 351B Criminal Procedure Act 1986 (NSW) s 179 Environmental Planning and Assessment Act 1979 (NSW) ss 9.57, 81A, 85A, 125, 127 Land and Environment Court Act 1979 (NSW) s 55
Cases Cited:	Hunter Quarries Pty Ltd v Alexandra Mexon as Administrator for the Estate of the Late Ryan Messenger [2018] NSWCA 178 Giorgianni v The Queen (1985) 156 CLR 473; [1985] HCA 29 Mosman Municipal Council v Waratah Village Partners Pty Ltd [2002] NSWLEC 19; (2002) 118 LGERA 460 National Parks & Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Willoughby City Council v Screnci [2015] NSWLEC 192; (2015) 213 LGERA 238
Category:	Principal judgment
Parties:	Cumberland Council (Prosecutor) Tony Younan (First Defendant) Ronney Oueik (Second Defendant) H & M Renovations Pty Ltd (Third Defendant)
Representation:	Counsel: A Cheshire SC with M Fozzard (Prosecutor) P Tomasetti SC with J Johnson (Defendants) Solicitors: Bilias & Associates (Prosecutor) Ristevski & Associates (Defendants)
File Number(s):	2018/00139316; 2018/00139368; 2018/00139380; 2018/00139360; 2018/00139374; 2018/00139375