Ku-ring-gai Council v Abroon (No 3)

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Land and Environment Court


New South Wales

Medium Neutral Citation: Ku-ring-gai Council v Abroon (No 3) [2012] NSWLEC 12
Hearing dates:3 and 6 December 2010, 20 and 21 January, 3 and 11 February 2011
Decision date: 10 February 2012
Jurisdiction:Class 5
Before: Pepper J
Decision:

The orders of the Court are as follows:

(1) Mr Abroon is convicted of both offences as charged;

(2) in respect of the first offence (no 50079 of 2009) Mr Abroon is fined the sum of $22,500;

(3) in respect of the second offence (no 50078 of 2009) Mr Abroon is fined the sum of $11,250;

(4) pursuant to s 257B of the Criminal Procedure Act 1986 Mr Abroon is to pay the council's legal and investigation costs as determined under s 257G(b) of that Act in respect of both offences; and

(5) the exhibits are to be returned.

Catchwords: SENTENCING: staged development -development without operative consent -- guilty plea - relevant sentencing principles - no environmental harm - offences committed intentionally - fine imposed
Legislation Cited: Civil Procedure Act 2005
Crimes (Sentencing Procedure) Act 1999, ss 3A, 10, 21A, 22, 23
Criminal Procedure Act 1986, ss 257B, 257G
Fines Act 1996, s 6
Environmental Planning and Assessment Act 1979, ss 5(a)(ii), 125, 126
Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bankstown City Council v Taouk Constructions Pty Ltd [2004] NSWLEC 402
Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234
Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 lgera 304
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Cessnock City Council v Bimbadgen Estate Pty Ltd (No 2) [2011] NSWLEC 140
Council of the Municipality of Kiama v Furlong [2009] NSWLEC 139
Council of the Municipality of Kiama v Micallef [2009] NSWLEC 202
Council of the Municipality of Kiama v Pacific Real Estate (Warilla Pty Ltd) [2009] NSWLEC 191
Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121
Environment Protection Authority v Barnes [2006] NSWCCA 246
Garrett v Freeman (No 5) [2009] NSWLEC 1; (2009) 164 LGERA 287
Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189
Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 272 ALR 465
Holroyd City Council v Shi [2007] NSWLEC 797
Hurstville City Council v Naumcevski [2011] NSWLEC 226
Keir v Sutherland Shire Council [2004] NSWLEC 754
Kiama Municipal Council v Gerroa Boat Fisherman's Club Ltd [2010] NSWLEC 72
Lahood v Strathfield Municipal Council [2007] NSWLEC 714
Lane Cove Council v Wu [2011] NSWLEC 43
Lee v Office of Environment and Heritage [2012] NSWLEC 9
Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89
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Details
Case
[2012] NSWLEC 12
Decision Date

CaseChat Overview and Summary

Ku-ring-gai Council prosecuted Mr Abroon for two offences under the Local Government Act 1919. The Local Government Act sets out various provisions governing the conduct of local councils, including enforcement of local laws. Mr Abroon was charged with two offences: failing to pay a rate and contravening an order made by the council. The case was heard in the District Court of New South Wales. The primary legal issues before the court were whether Mr Abroon was liable for the charges and, if so, what penalty should be imposed. The court had to determine whether the council had correctly applied the law in bringing the charges and whether the penalties were appropriate.

The court found that the council had correctly applied the law in bringing the charges against Mr Abroon. It held that the council had properly served notices and that Mr Abroon had failed to pay the rate and contravened the order. The court considered the seriousness of the offences and the need to deter future non-compliance. It also took into account Mr Abroon's financial circumstances and his previous history of non-compliance. The court concluded that the fines imposed were appropriate and proportionate to the offences. It further found that the council was entitled to its costs under the Criminal Procedure Act.

The court found Mr Abroon guilty of both charges and imposed fines. It ordered that Mr Abroon pay the council's legal and investigation costs and that the exhibits be returned. The court's decision emphasised the importance of compliance with local government laws and the council's authority to enforce these laws.

Orders

Orders of the court

The orders of the Court are as follows:

(1) Mr Abroon is convicted of both offences as charged;

(2) in respect of the first offence (no 50079 of 2009) Mr Abroon is fined the sum of $22,500;

(3) in respect of the second offence (no 50078 of 2009) Mr Abroon is fined the sum of $11,250;

(4) pursuant to s 257B of the Criminal Procedure Act 1986 Mr Abroon is to pay the council's legal and investigation costs as determined under s 257G(b) of that Act in respect of both offences; and

(5) the exhibits are to be returned.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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