Fairfield City Council v Hanna - [2007] NSWLEC 343

Land and Environment Court

of New South Wales

CITATION: Fairfield City Council v Hanna, Samir [2007] NSWLEC 343

PARTIES:
APPLICANT
Fairfield City Council
RESPONDENT
Samir Hanna

FILE NUMBER(S): 50004 of 2007; 50005 of 2007

CORAM: Jagot J

KEY ISSUES: Prosecution :- sentence - commencing building works without construction certificate - development is breach of development consent - penalties - totality - guilty pleas

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Thomson (2000) 49 NSWLR 383

DATES OF HEARING: 7 June 2007

DATE OF JUDGMENT:
14 June 2007

LEGAL REPRESENTATIVES: APPLICANT
J Thompson, solicitor
SOLICITOR
Ritchie & Castellan
RESPONDENT
I Lloyd QC
SOLICITOR
Hannaford Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

14 June 2007

50004 of 2007
50005 of 2007

FAIRFIELD CITY COUNCIL
Applicant

SAMIR HANNA
Respondent
JUDGMENT

Jagot J:

1 The defendant, Mr Samir Hanna, has pleaded guilty to two offences against the Environmental Planning and Assessment Act 1979 (the EPA Act) as follows:

(1) The defendant erected a building without first obtaining a construction certificate in breach of s 81A(2) of the EPA Act. (2) The defendant erected a building not in accordance with a development consent in breach of s 76A of the EPA Act.

2 The building is a dwelling intended to be the defendant’s family home at 1 Kalang Road, Edensor Park, being lot 148 in deposited plan 260963 (the property). The offence under s 81A(2) carries a maximum penalty of $33,000. The offence by reason of breach of s 76A carries a maximum penalty of $1.1 million (s 126(1)).

B. The facts

3 Most of the facts were recorded in an agreed statement. The defendant owns the property as joint tenant. The property is in a highly visible location on Edensor Road, which is the connecting thoroughfare between Cowpasture Road and Smithfield Road, Edensor Park.

4 The defendant lodged a development application seeking approval to erect a double storey brick home and swimming pool on 17 May 2004. The Council granted development consent on a review application accompanied by amended plans on 28 September 2004. The development consent related to certain approved plans. The defendant, thereafter, caused to be erected a partly completed three storey double brick dwelling not in accordance with the approved plans and absent a construction certificate. The partly completed dwelling does not comply with the approved plans as follows:

· The area titled lower ground floor nominated as a sub-floor area now contains nine rooms. Three of these rooms include sewer line connections and many of the rooms include electrical conduits.
· Internal concrete stairs have been installed, providing internal access from the rooms constructed in the sub-floor area to the hallway near the meals area on the ground floor.
· The house now presents as a three-storey dwelling.
· The concreted floors in the rooms constructed in the lower ground floor are not level and do not achieve a consistent floor to ceiling height.…

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: [2007] NSWLEC 343
Decision Date: 14 June 2007

CaseChat Overview and Summary

The case of Fairfield City Council v Hanna involved Samir Hanna who was prosecuted for two offences under the Environmental Planning and Assessment Act 1979. The first offence was for commencing building works without obtaining a construction certificate, and the second was for building a dwelling that did not comply with the development consent. The Land and Environment Court of New South Wales, presided over by Jagot J, was tasked with determining the appropriate penalties for these offences.

The court had to decide the appropriate penalty for Hanna’s actions, considering the seriousness of the offences, the intent behind them, and the overall impact on the environment and community. Key issues included the nature of the breaches, the defendant’s intent, and the principles of deterrence and proportionality in sentencing.

In his judgment, Jagot J found that Hanna had knowingly breached the development consent by increasing the size and altering the structure of the building without proper approval. The court noted that while Hanna had no prior convictions and appeared to be of good character, his actions were deliberate and undermined the regulatory scheme for building developments. The court also considered the financial and emotional hardship Hanna and his family had suffered due to the delay in completing the house. The maximum penalties for the offences were substantial, reflecting the serious nature of the breaches under the EPA Act. However, the court imposed a total penalty of $28,000, considering the mitigating factors such as Hanna’s guilty pleas, his efforts to remedy the situation, and the financial burden already incurred. The court also ordered Hanna to pay the prosecutor’s costs of $15,000.

Orders