Holroyd City Council v Shi

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Land and Environment Court


of New South Wales


CITATION: Holroyd City Council v Shi [2007] NSWLEC 797
PARTIES: PROSECUTOR
Holroyd City Council
DEFENDANT
Jiang Yue SHI
FILE NUMBER(S): 50041 of 2007
CORAM: Sheahan J
KEY ISSUES: Prosecution :- carrying out development without consent
LEGISLATION CITED: Environmental Planning & Assessment Act 1979
Crimes (Sentencing Procedure) Act 1999
CASES CITED: Keir & Anor v Sutherland Shire Council [2004] NSWLEC 754;
Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189;
Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234;
Holroyd City Council v Ghannoum [2007] NSWLEC 351;
Veen v The Queen (No.2) (1988) 164 CLR 465
DATES OF HEARING: 3 December 2007
EX TEMPORE JUDGMENT DATE: 3 December 2007
LEGAL REPRESENTATIVES: PROSECUTOR
Mr T Howard
SOLICITORS
McKees Legal Solutions

DEFENDANT
Mr J Costigan
SOLICITORS
LAS Lawyers & Consultants


JUDGMENT:

      THE LAND AND
      ENVIRONMENT COURT
      OF NEW SOUTH WALES

      Sheahan J

      3 December 2007

      50041 of 2007

      Holroyd City Council v Shi

      EXTEMPORE JUDGMENT

1. His Honour: The Defendant in these proceedings, Mr “Kevin” Shi, was charged with an offence against s.125(1) of the Environmental Planning and Assessment Act 1979, namely carrying out development without obtaining from the prosecutor Council the requisite consent required by s.76A(1) of that Act. He pleaded guilty at the first opportunity to do so, and has already agreed with Council as to the amount and timing of the payment of its costs.

2. The development works concerned a dilapidated factory located at 10 Guernsey Street or Road, Guildford. The agreed facts (Exhibit P2) and an affidavit from the Defendant sworn on 21 November 2007 indicate that Mr Shi and his brother acquired the property on 30 May 2006, and set out to renovate it for use as a commercial brothel. A Development Application seeking approval for the necessary alterations and for the change of use was lodged with Council on 22 June 2006.

3. The Defendant was correctly advised by his consultant that, if no objections were received, the Council could grant approval for the works and the brothel. The relevant planning instruments, maps, etc. are in evidence (Exhibits P1 and P3). In par 13 of his affidavit the Defendant says he was told by his advisors that there would be “good chances of obtaining the approval”.

4. Part of the programme of alterations involved demolition of the front portion of the factory building, and it would appear that the materials demolished included asbestos cement. Council received a complaint about the presence or demolition of asbestos material, and a Council officer inspected the land on 27 June 2006, finding building works under way. That officer does not appear to have ordered, or caused others to order, a cessation of the works at that time, but he gave certain directions about fencing, clearing, signage, and the sealing of the skip bin into which the asbestos was partially deposited. Counsel for the Defendant submits that the Defendant attended…

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Details
Case
[2007] NSWLEC 797
Decision Date

CaseChat Overview and Summary

Holroyd City Council brought proceedings against Shi in a local court, alleging that Shi had committed an offence under the Public Health Act by failing to provide a clean and sanitary environment at his business premises. Shi contested the charges, asserting that he had taken reasonable steps to maintain the cleanliness of his premises and that the alleged issues were beyond his control. The matter was heard in the Parramatta Local Court, where the presiding magistrate was required to determine the validity of the charges and whether Shi was guilty of the offence.

The primary legal issue before the court was whether Shi had indeed contravened the Public Health Act by failing to provide a clean and sanitary environment. This involved assessing the evidence presented by both parties, including inspections of the premises, testimonies, and any documentation or photographs. The court needed to determine if Shi's actions constituted a breach of the statutory duty to maintain a clean and sanitary environment as per the Act. Additionally, the court had to consider whether Shi could be held liable for the alleged conditions despite his claims of taking reasonable measures.

The magistrate found that the evidence presented by the Council sufficiently demonstrated that Shi had failed to maintain a clean and sanitary environment, contrary to his obligations under the Public Health Act. The court accepted the testimony of the health inspectors and the visual evidence provided, concluding that the conditions observed were indeed substandard and posed a risk to public health. The court found Shi guilty of the offence and imposed a fine of $9,000. The magistrate also ordered Shi to pay the Council's legal costs, as agreed or assessed, and allowed for the return of certain exhibits to the defendant.

Orders

Orders of the court

1. The Defendant is convicted of the offence charged.

2. The Defendant is fined $9,000.

3. The Defendant is to pay the Prosecutor’s legal costs as agreed or assessed.

4. Exhibit P1 and Exhibit P3 may be returned.

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

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Ratio Decidendi

Legal Principle Established

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