Ku-ring-gai Municipal Council v Kizana - [2002] NSWLEC 187

Land and Environment Court

of New South Wales

CITATION: Ku-ring-gai Municipal Council v Kizana [2002] NSWLEC 187

PARTIES:
PROSECUTOR
Ku-ring-gai Municipal Council
DEFENDANT
Kizana

FILE NUMBER(S): 50008 of 2002

CORAM: Pearlman J

KEY ISSUES: Prosecution :- development without development consent - preparation of forged plans - reliance upon forged plans - plea of guilty - penalty

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 76A(1), s 125
Ku-Ring-Gai Planning Scheme Ordinance

CASES CITED: Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683;
R v De Simoni (1981) 147 CLR 383;
R v O'Neill [1979] 2 NSWLR 582;
R v Thomson (2000) 49 NSWLR 383

DATES OF HEARING: 29/07/2002

EX TEMPORE
JUDGMENT DATE :
07/29/2002

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr M L Wright (Barrister)
SOLICITORS
Deacons
DEFENDANT
in person
SOLICITORS
N/A

JUDGMENT:

50008 of 2002

Pearlman J
29 July 2002

KU-RING-GAI MUNICIPAL COUNCIL

Prosecutor

JOSEPH KIZANA

Defendant

Judgment

1 The defendant, Joseph Kizana, is charged that between 11 and 23 February 2001 at Turramurra he committed an offence under s 125 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) in that he did cause development (the erection of a two-storey residential addition) to be carried out for which development consent was required under the Ku-Ring-Gai Planning Scheme Ordinance (“KPSO”), without obtaining development consent, being a thing being forbidden to be done under s 76A(1) of the EP&A Act.

2 The premises are at 14 Princes Street, Turramurra (“the site”). They are owned by Mr and Mrs Moujalli. The defendant, Mr Kizana, has pleaded guilty to the offence. A plea of guilty carries with it an admission of all the elements of the offence (R v O’Neill [1979] 2 NSWLR 582).

3 Mr Kizana is unrepresented but he has agreed that the statement of facts prepared by the prosecutor is a correct statement of facts. I base the facts of this matter on that document and that document alone.

4 The site is within zone No 3(a) (Business Retail Services) under the KPSO. Under the KPSO development for the purpose of a dwelling-house is prohibited. However, development for the purpose of a dwelling-house used in conjunction with purposes permitted in the zone can be carried out, but only with development consent. The position, then, is that either the two-storey addition to the shop at the site was prohibited, or, if used in conjunction with a purpose permitted in the zone, was a development which required development consent.

5 In June 1998 the owner of the site lodged a development application for the erection of a two-storey dwelling at the rear of the existing shop. That development application was determined on 16 April 1999 by the refusal of development consent.

6 In or before February 2001 the defendant, Mr Kizana, prepared and provided to Mr Moujalli a plan dated January 2000. That plan bears three relevant stamps. The first stamp gives a date, “15 Feb”, and the number, “DA 9899/101”. The…

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: [2002] NSWLEC 187
Decision Date: 07/29/2002

CaseChat Overview and Summary

The defendant, Joseph Kizana, has pleaded guilty to an offence under s 125 of the Environmental Planning and Assessment Act 1979, specifically for causing development (the erection of a two-storey residential addition) to be carried out at 14 Princes Street, Turramurra, without obtaining the necessary development consent under the Ku-Ring-Gai Planning Scheme Ordinance. The site, owned by Mr and Mrs Moujalli, is in a zone where development for dwelling-houses is prohibited unless accompanied by development consent. The defendant had previously prepared and presented a forged plan, which bore forged stamps and signatures indicating approval, to both the property owners and the council. The court accepted that the defendant's conduct was a serious breach of the law, as it involved the deliberate creation of false documentation to circumvent legal requirements, resulting in the unauthorised construction.

The court was required to consider the circumstances surrounding the offence, including the preparation of the forged plan, its presentation to the owners and the council, and the defendant's subsequent admissions. While the defendant was not charged with forgery, his actions were considered a serious criminal offence that warranted a significant penalty. The court also took into account mitigating factors such as the lack of significant environmental harm, the defendant's health issues, his cooperation with the prosecution, and his early guilty plea. The court referenced the principles outlined in Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority, emphasizing the need to correlate the penalty with the seriousness of the offence.

The court ultimately decided that the appropriate penalty for the defendant's actions was a fine of $75,000, reflecting the seriousness of the offence while considering the mitigating factors. Additionally, the defendant was ordered to pay the prosecutor's costs. The court's decision was based on the substantial breach of planning laws and the defendant's deliberate actions to mislead authorities, balanced against the mitigating circumstances presented.

Orders