Don Smith v Afif Abdallah [1994] Nswlec 198 (9 December 1994) - [1994] NSWLEC 198

Land and Environment Court

of New South Wales

CITATION: DON SMITH v. AFIF ABDALLAH [1994] NSWLEC 198 (9 December 1994) [1994] NSWLEC 1

PARTIES: DON SMITH v. AFIF ABDALLAH [1994] NSWLEC 198 (9 December 1994)

FILE NUMBER(S): 50026 of 1994

CORAM: Talbot J

KEY ISSUES: :- Penalty
Costs

LEGISLATION CITED: Local Government Act s 68, s 669
Environmental Planning and Assessment Act

CASES CITED: Latoudis v Casey (1990) 170 CLR 534 Mason CJ at 544 and Toohey J at 565;
Anthony Patrick Morrison v Caltex Refining Co Pty Limited on 9 September 1994 at p 5

DATES OF HEARING: 5 - 6 December 1994

DATE OF JUDGMENT:
12/09/1994

LEGAL REPRESENTATIVES:

Mr G Miller QC with Mrs J Kelly
Mr C Stevens QC With Mr G Turner

JUDGMENT:

The defendant has pleaded guilty to the charge that he between 27 July 1993 and 22 January 1994 at Homebush in the State of New South Wales did contrary to s 68 of the Local Government Act 1993 erect a building without having obtained approval of Strathfield Council. The prosecutor is the strategic planner of the council.

Section 68(1) of the Local Government Act 1993 provides that a person may carry out an activity specified in the table only with the prior approval of the council, except in so far as the Act, the Regulations or a local policy adopted by council pursuant to the Act allows the activity to be carried out without that approval.

The penalty for erecting a building without having obtained a prior approval of the council is $20,000 in the case of an individual.

It is admitted that the defendant is a person to which s 669 applies. This section states:-

"669. A person:

(a) who causes the commission of an offence against this Act or the regulations; or

(b) by whose order or direction such an offence is committed; or

(c) who aids, abets, counsels or procures or by act or omission is directly or indirectly concerned in the commission of such an offence,

is guilty in the same degree and liable to the same penalty as the principal offender."

Although the business at 55 Parramatta Road, Homebush is carried on by his son who is the lessee of the premises, the defendant pays the rent each month and has been responsible for the organisation of and payment for building work carried out on the property during the relevant period.

The total cost of the works undertaken, including fittings, is in the order of $500,000.

The defendant was originally to be charged with a breach of the Provisions of the Environmental Planning and Assessment Act but those proceedings No. 50025 of 1994 were discontinued following the entry of a guilty plea in this matter.

Although not strictly relevant to the current proceedings, the premises are listed as an heritage item in the Schedule to Strathfield LEP No. 30.

The building was originally constructed as a picture theatre. It was one of the largest in Sydney at the…

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

AGLC: Don Smith v Afif Abdallah [1994] Nswlec 198 (9 December 1994) [1994] NSWLEC 1
Case: [1994] NSWLEC 198
Decision Date: 12/09/1994

CaseChat Overview and Summary

Don Smith, the strategic planner for Strathfield Council, prosecuted Afif Abdallah for building a structure without obtaining the necessary approval from the council, in breach of the Local Government Act 1993. The court heard that Abdallah had been responsible for the organisation and payment of extensive building works on a property in Homebush, New South Wales, between 27 July 1993 and 22 January 1994, without obtaining the required approval from Strathfield Council. The court considered the seriousness of the offence, Abdallah's lack of a genuine belief that the work had been approved, and his culpability as an experienced builder who was aware of the necessity to obtain consent before commencing work. The court also noted Abdallah's late change of plea from not guilty to guilty, which had caused delays and additional costs in the proceedings.

The court assessed the appropriate penalty and costs, taking into account the totality of the works undertaken, the lack of evidence to support Abdallah's claim of aesthetic improvement, and the high culpability of the offender. The court imposed a fine of $15,000 and ordered Abdallah to pay the prosecutor's costs, also assessed at $15,000. The fine and costs were to be paid to the Registrar of the Land and Environment Court for payment to Strathfield Council. The court considered the prosecutor's claim for costs of $30,000 to be excessive, given the circumstances of the case.

Orders