Ku-Ring-Gai Council v Vinci - [2007] NSWLEC 283

Land and Environment Court

of New South Wales

CITATION: Ku-Ring-Gai Council v Vinci [2007] NSWLEC 283

PARTIES: PROSECUTOR
Ku-Ring-Gai Council
DEFENDANT
Joe Peter Vinci

FILE NUMBER(S): 50048 of 2006

CORAM: Pain J

KEY ISSUES: Prosecution :- plea of guilty - carrying out development in breach of consent conditons - licensed builder - mitigating circumstances

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Environmental Planning and Assessment Act 1979 s125(1)

CASES CITED: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357;
Camilleri's Stock Feeds Pty Ltd v Environment Protection;
Authority (1993) 32 NSWLR 683;
Cabonne Shire Council v Environment Protection Authority (2001) 115 LGERA 304;
Carlino v Leichhardt Municipal Council (2005) 144 LGERA 235;
Keir v Sutherland Shire Council [2004] NSWLEC 754;
R v Thomson; R v Houlton (2000) 49 NSWLR 383;
R v Sharma (2002) 54 NSWLR 300

DATES OF HEARING: 14 May 2007

EX TEMPORE JUDGMENT DATE: 14 May 2007

LEGAL REPRESENTATIVES: PROSECUTOR
Mr T Howard
SOLICITORS
Home Wilkinson Lowry
DEFENDANT
Mr P Clay
SOLICITOR
Ross Selvaggio & Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

14 May 2007

50048 of 2006 Ku-ring-gai Council v Vinci
EX TEMPORE JUDGMENT

1 Her Honour: The Defendant is charged with an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) in that he carried out development on land comprising Lot B DP 337312, known as 33 Burns Road, Wahroonga (the land), otherwise than in accordance with the conditions of a development consent in breach of s 76A(1)(b) of the Environmental Planning Assessment Act 1979 (“the EP&A Act”).

2 The maximum penalty applicable is $1.1 million. The Defendant has pleaded guilty and the Prosecutor can therefore be considered to have proved the essential elements of the offence. It is now necessary to sentence the Defendant.

Facts

3 The parties have agreed a Statement of Agreed Facts as follows:

1. Mr Vinci was at all material times the sole shareholder and director of Vincorp Projects Pty limited (“Vincorp”).

2. Vincorp was engaged to carry out certain demolition and building works at land being Lot B DP 337312 known as 33 Burns Road, Wahroonga (“the site”).

3. The work constituted development being alterations and additions to a dwelling house plus pool and fence (“the development”). Such development was permissible only with development consent of Ku-Ring-Gai Council (“the Council”).

and forming part of the development consent

(e) Construction Certificate No 270/05 issued by Dix Gardener Pty Limited dated 29 July, 2005.

5. Mr Vinci directed Vincorp to carry out the development and Vincorp was so doing between 21 January, 2006 and 10 February, 2006 at the site.

6. During the course of carrying out that work Vincorp, at the direction of Mr Vinci, caused to be demolished part of the dwelling in breach of condition 1 of the development consent.

7. Condition 11 of the development required that the tiles on the roof apparent at the front elevation…

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 283
Decision Date: 14 May 2007

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Ku-Ring-Gai Council prosecuted Joe Peter Vinci for carrying out development in breach of consent conditions, a violation of the Environmental Planning and Assessment Act 1979. Vinci pleaded guilty to the charges, admitting to the demolition of part of a dwelling and failure to salvage and reuse roof tiles as required by the development consent conditions. The maximum penalty for the offence was $1.1 million.

The court had to determine an appropriate penalty for Vinci's actions, considering the seriousness of the offence, his culpability, the harm caused, and general deterrence. The prosecutor argued for a substantial penalty to deter similar offences by licensed builders, while the defence argued for a reduced penalty due to Vinci's lack of intent to cause harm and his cooperation with authorities. The court found that while the offence was serious, Vinci's culpability was low as he acted mistakenly rather than recklessly. The court also found that the harm caused was minor, given that the proposed reconstruction could maintain the heritage values of the property.

After considering the relevant sentencing principles and authorities, the court imposed a penalty of $14,000, reduced from the potential maximum of $1.1 million due to mitigating factors such as Vinci's guilty plea, cooperation with authorities, and lack of prior convictions. The court also ordered Vinci to pay the prosecutor's costs. This decision underscores the importance of compliance with development consent conditions and the need for appropriate penalties to deter similar offences in the future.

Orders