Holroyd City Council v Khoury (No 2)
[2011] NSWLEC 158
•06 September 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Holroyd City Council v Khoury (No 2) [2011] NSWLEC 158 Hearing dates: 6 September 2011 Decision date: 06 September 2011 Jurisdiction: Class 5 Before: Pain J Decision: The Court is satisfied beyond reasonable doubt that the Defendant is guilty of an offence under s 125(1) of the Environmental Planning and Assessment Act 1979 as particularised in the summons filed on 13 May 2011.
Catchwords: PROSECUTION - Prosecutor proves offence of failure to comply with s 121B notice issued under Environmental Planning and Assessment Act 1979 requiring demolition of house - ex parte hearing in absence of defendant Legislation Cited: Criminal Procedure Act 1986 s 250(a)
Environmental Planning and Assessment Act s 121B, s 125, s 153Category: Principal judgment Parties: Holroyd City Council (Prosecutor)
Robert Khoury (Defendant)Representation: Mr J Johnson (Prosecutor)
HWL Ebsworth Lawyers (Prosecutor)
File Number(s): 50397 of 2011
EX TEMPORE Judgment
Having resolved under a s 250(a) of the Criminal Procedure Act 1986 , to proceed in the absence of the Defendant, I have before me a summons in which an order is sought that the Defendant Mr Khoury, of South Wentworthville, appear before a judge of the Court to answer the charge that on or about 8 October 2010 he committed an offence under s 125(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) . The Defendant was directed by the Prosecutor Holroyd City Council (the Council) under s 121B(1) of the EPA Act to do an action which remains undone being to:
... demolish and remove the building erected at lot 24, DP 26984 otherwise known as ... South Wentworthville within 60 days of the day of the said Order number 2, and the said building erected at the said land was not demolished and removed within 60 days of the date of the said order No 2, and remains on the said land.
Proper service of order established
The elements of the offence have been identified today. Firstly, an order to demolish was issued under s 121B and properly served on Mr Khoury in accordance with the provisions for the service of such a notice under s 153 of the EPA Act . Section 153(1) relevantly provides:
Where under this Act any notice or other document is required to be given to or served upon any person, the notice or other document may be given or served:
(a) in the case of an individual:
(i) by delivering it to him or her, or
(ii) by sending it by prepaid post addressed to him or her at the address, if any, specified by him or her for the giving of notices or service of documents under this Act, or, where no such address is specified, at his or her usual or last known place of abode or his or her last known place of business, or
...
The Council relies particularly on s 153(1)(a)(ii) which deals with the sending by prepaid post addressed to Mr Khoury at that address or the giving of notice or service of documents at an address specified by him.
I note the Council advises that it is not necessary in order to establish the offence that the validity of the order itself be considered. I agree. For example, I do not need to consider whether or not the notice of intention to issue the order was properly served in accordance with the EPA Act. In the absence of any collateral challenge today to the validity of the order I accept that the order the subject of these proceedings fits within the description of order 2 in the table in s 121B.
The Prosecutor has established that the appropriate summons address for Mr Khoury is his post office box. The affidavit of Mr Stalley, Council's Manager Financial Services, sworn 14 July 2011 is before me. That is relied on by the Prosecutor for the purposes of identifying that the postal address for Mr Khoury is PO Box 512 Merrylands New South Wales. The affidavit attaches a printout from the Council's electronic database indicating rate notices were sent to South Wentworthville for Mr Khoury and a change of mailing address form was received from Mr Khoury on 9 October 2010 nominating the post office box address as his mailing address.
The application of s 153 of the EPA Act requires the posting of any order to that address. Section 153 has clearly been met in this case.
In terms of the posting of the order, the Prosecutor relies on the affidavit of Mr Walker, the Council's development compliance officer sworn 20 April 2011, which was read in the proceedings. Mr Walker identifies the steps taken by him to issue the order at par 29 to 32 of his affidavit. The order is attached as exhibit H to the affidavit. Steps were taken to obtain signed copies, the order and cover letter were sent by mail to the Defendant's nominated post office box on 9 August 2010. The other copy of the order was hand delivered to the subject property by him that same day. Mr Walker further attests to placing the order into the Trim system at par 32. The Council's Trim system is the document management system of the Council. He attests also at par 33 to the posting of the order. In relation to hand delivery of the order to the property at South Wentworthville, I note this is established by the contents of par 34 to 37 of his affidavit.
Further in that affidavit he attests to a telephone conversation with Mr Khoury on 11 August 2010, set out at par 39 to 46 of that affidavit. That conversation suggests that Mr Khoury did receive information or an order from Council.
In relation to the actual posting process engaged in by Council, two further affidavits are relied on in these proceedings. Firstly, the affidavit of Mr Baird of Toll Priority DX Solutions dated 13 July 2011, the company employed to collect Holroyd City Council's mail, at par 1, 3 and 4 attests to his duties in that regard and confirms on that 9 August 2010, the date the order was issued by Mr Walker, he collected the mail and took it to the Toll Priority Bankstown depot at Bankstown Airport.
Secondly, the Council relied on an affidavit of Ms Pike sworn 20 July 2011. Ms Pike is a mail manager employed by Toll Priority DX Solutions, she attests to her roles and responsibilities at par 2. In considerable detail at par 4 to 16 of her affidavit she otherwise identifies the process for handling mail at the Bankstown depot, where the Council mail is taken to and sets out the processes, including the secure collection and sorting of mail by Toll, leading up to the delivery to Australia Post. This occurred in this case later in the day after the mail was picked up by Mr Baird.
I am satisfied, therefore, the mail from the Council, including the order, did arrive at Australia Post as attested to in those two affidavits.
In Mr Walker's affidavit of 20 April 2011 he attests that the address in South Wentworthville is the home of Mr Khoury, following a conversation with Mr Khoury. That conversation (at par 44) makes clear that Mr Khoury expressed to Mr Walker that that address is his home. As referred to earlier, Mr Walker hand delivered the order to those premises.
Taking into account all of that evidence I am satisfied that the order to demolish the building was properly issued and properly served on Mr Khoury in accordance with the EPA Act .
Failure to comply with order established
The second element of the offence that needs to be established is that there has been a failure to comply with that order. In that regard the Council relies on the fact the house is still standing, contrary to the order for demolition. In particular the affidavit of Mr Walker, sworn 20 April, attests to site inspections conducted by him of the property. He refers to site inspections on 11 October 2010 and 19 April 2011 when the property was essentially in the same state as the time the order was issued, confirming it had not been demolished.
The further affidavit of Mr Walker sworn 6 September 2011 advises he went yesterday, 5 September 2011, to the property for the purposes of delivering a letter, and to attest to the fact the house remains in the same state. This evidence establishes the second element of the offence, the failure to comply with the order, beyond reasonable doubt.
The Council is successful in proving beyond reasonable doubt the elements of the offence the subject of the summons. The Court is satisfied beyond reasonable doubt that the Defendant is guilty of an offence under s 125(1) of the EPA Act as particularised in the summons filed on 13 May 2011.
It follows, therefore, that Mr Khoury must be sentenced. I consider this should occur on another occasion, so that he has the opportunity to attend and make submissions on that occasion.
Decision last updated: 26 October 2011
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