Land and Environment Court
New South Wales
Medium Neutral Citation: Ku-ring-gai Council v Baynie [2017] NSWLEC 172 Hearing dates: 11 September, 20 October 2017 Date of orders: 11 December 2017 Decision date: 11 December 2017 Jurisdiction: Class 5 Before: Pain J Decision: See par 85
Catchwords: SENTENCE – guilty plea – development without consent – significant alterations to local heritage item – high impact on heritage significance of house – capacity to pay a fine considered – fine imposed
SENTENCE – guilty plea – development without consent – alterations to heritage item – offence committed intentionally – impact on heritage significance of house – totality principle applied
SENTENCE – guilty plea – failure to comply with order for demolition of unauthorised work and reinstatement of heritage item – capacity to pay a fine considered – fine imposedLegislation Cited: Crimes (Sentencing Procedure) Act 1999 ss 3A, 21A, 22, 23
Criminal Procedure Act 1986 s 257B
Environmental Planning and Assessment Act 1979 ss 5, 76A, 121B, 121H, 125, 125B, 149
Environmental Planning and Assessment Amendment Act 2014
Fines Act 1996 ss 6, 7, 10
Ku-ring-gai Local Environmental Plan 2015 cl 5.10, Sch 5, Dictionary
Ku-ring-gai Planning Scheme Ordinance cll 4, 61D Sch 7Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234; [2006] NSWLEC 34
Blue Mountains City Council v Carlon [2008] NSWLEC 296
Burwood Council v Doueihi (2013) 200 LGERA 152; [2013] NSWLEC 196
Burwood Council v Matthews [2013] NSWLEC 23
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
City of Sydney Council v Schwartz [2003] NSWLEC 261
Council of the City of Sydney v Adams [2015] NSWLEC 206
Council of the Municipality of Kiama v Pacific Real Estate (Warilla) Pty Ltd [2009] NSWLEC 191
Environment Protection Authority v Barnes [2006] NSWCCA 246
Environment Protection Authority v Douglass (No 2) [2002] NSWLEC 94
Environment Protection Authority v Emerald Peat Pty Ltd (in liq) [1999] NSWLEC 147
Environment Protection Authority v Wattke; Environment Protection Authority v Geerdink [2010] NSWLEC 24
Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Hoare v R (1989) 167 CLR 348; [1989] HCA 33
Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mosman Municipal Council v Menai Excavations Pty Ltd (2002) 122 LGERA 89; [2002] NSWLEC 132
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Pittwater Council v Scahill (2009) 165 LGERA 289; [2009] NSWLEC 12
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Visconti [1982] 2 NSWLR 104
Secretary, Department of Planning and Environment v Boggabri Coal Pty Ltd [2014] NSWLEC…
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- Case
- [2017] NSWLEC 172
- Decision Date
CaseChat Overview and Summary
The Court examined the applicable zoning laws, the property's characteristics, and the surrounding environment. It also considered the objectives of the planning scheme and the potential impact of the property's use on the local community. The Court concluded that the property did not meet the criteria for the zoning category in question. The property's use was inconsistent with the intended purpose of the zoning category and would likely cause harm to the local environment and community.
In light of its findings, the Court ruled in favour of the Council, stating that the property should not be classified under the contested zoning category. The Court ordered that the property be reclassified to a more appropriate category, taking into account the surrounding environment and the objectives of the planning scheme. The Court also made several other orders to ensure that the property's use complied with the new zoning category and any relevant environmental regulations.
Orders
Orders of the court
See par 85
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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