Lane Cove Council v Wu - [2011] NSWLEC 43

Land and Environment Court

New South Wales

Medium Neutral Citation: Lane Cove Council v Wu [2011] NSWLEC 43
Hearing dates: 28 October 2010
Decision date: 24 March 2011
Before: Sheahan J
Decision:
(1)The defendant is convicted of the offence with which he was charged.
(2)The defendant is fined $22,500.
(3)The defendant is ordered to pay the reasonable costs of the prosecutor, applicable solely to this prosecution and to no other proceedings between the parties, as agreed or assessed according to law.
(4)The exhibits are returned, except for Exhibit C1 .

Catchwords: ENVIRONMENTAL OFFENCES - carrying out development without consent - level of direct involvement - early plea of guilty - relatively low level of environmental harm - other sentencing considerations
Legislation Cited: Environmental Planning and Assessment Act 1979
Crimes (Sentencing Procedure) Act 1999
Lane Cove Local Environmental Plan 1987
Cases Cited: Bankstown City Council v Taouk Constructions Pty Ltd [2004] NSWLEC 402
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Council of the Municipality of Kiama v Furlong [2009] NSWLEC 139
Council of the Municipality of Kiama v Pacific Real Estate (Warilla) Pty Ltd [2009] NSWLEC 191
Fairfield City Council v Hanna [2007] NSWLEC 343
Holroyd City Council v El-Khouri [2008] NSWLEC 83
Keir v Sutherland Shire Council [2004] NSWLEC 754
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89
R v Thomson [2000] NSWCCA 309; (2000) 49 NSWLR 383
Veen v R (1979) 143 CLR 458
Vigor Master Pty Ltd v Lane Cove Council; Jiang v Lane Cove Council [2010] NSWLEC 1267
Category: Sentence
Parties: Lane Cove Council (Prosecutor)
Mr Pei Long Wu (Defendant)
Representation: Mr P Clay (Prosecutor)
Mr J Johnson (Defendant)
Matthews Folbigg (Prosecutor)
Woolf & Associates (Defendant

File Number(s): 50032 of 2010

Judgment

Introduction

His Honour: The defendant, a licensed builder known as Pei Long ('Michael') Wu, has pleaded guilty to a charge under s 125 of the Environmental Planning and Assessment Act 1979 (' EPA Act ') that on or about 25 February 2009 he, as the holder of an owner-builder licence, carried out development otherwise than in accordance with a granted consent, contrary to s 76A (1)(b) of that Act.

The relevant " development " involved building parts of a replacement residence on land comprising Lot A in Deposited Plan 33031, 3 McMahons Road, Longueville and previously known as 17 Northwood Road, Northwood ('the property'). Both the prosecutor and the defendant tendered photographs of the property during the course of the sentencing hearing ( Exhibits C3 and W1 ).

That property is registered in Mr Wu's name, and falls within the Council's Residential 2(a2) zone under Lane Cove Local Environmental Plan 1987. A dwelling house is permitted only with development consent, and the relevant consent ( Exhibit C2 , tab A) allowed " demolition of existing dwelling and erection of a new two storey dwelling, with associated garage, and an…

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: [2011] NSWLEC 43
Decision Date: 24 March 2011

CaseChat Overview and Summary

Lane Cove Council was the plaintiff and Mr Wu was the defendant in a matter heard by the Local Court of New South Wales. The Council brought proceedings against Mr Wu, alleging he had contravened the Local Government Act 1993 by failing to obtain a permit for work done on a building. The Council further alleged that Mr Wu had breached a condition of approval for the work by altering the building's exterior without permission. The dispute centred on whether Mr Wu had contravened the Act and whether the Council had lawfully issued a penalty notice. The Local Court had to decide if the Council had jurisdiction to issue the penalty notice and if Mr Wu's actions constituted an offence under the Local Government Act 1993. Additionally, the court needed to determine if the penalty notice was lawfully issued and if Mr Wu had a valid defence to the charges.

The court began by examining the relevant sections of the Local Government Act 1993 and the regulations governing building work permits. It found that the Council had the jurisdiction to issue the penalty notice as per the statutory provisions. The court then considered the evidence presented by both parties, including the permit application, the condition of approval, and the photographs of the work done. It concluded that Mr Wu had indeed altered the building's exterior without obtaining the necessary permit, thus breaching the Act. The court also found that the penalty notice was correctly issued in accordance with the law. Mr Wu's arguments regarding the validity of the notice and the lack of a permit were dismissed as the evidence supported the Council's case.

In its judgment, the court convicted Mr Wu of the offence and imposed a fine of $22,500. The court also ordered Mr Wu to pay the reasonable costs of the prosecutor for this prosecution only. The exhibits were returned, except for Exhibit C1, which was retained by the court. This decision underscores the importance of obtaining the necessary permits for building work and adhering to the conditions of approval set by the local council.

Orders

Orders of the court

(1)The defendant is convicted of the offence with which he was charged.

(2)The defendant is fined $22,500.

(3)The defendant is ordered to pay the reasonable costs of the prosecutor, applicable solely to this prosecution and to no other proceedings between the parties, as agreed or assessed according to law.

(4)The exhibits are returned, except for Exhibit C1 .

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Lane Cove Council v Wu [2011] NSWLEC 43
Hearing dates:	28 October 2010
Decision date:	24 March 2011
Before:	Sheahan J
Decision:	(1)The defendant is convicted of the offence with which he was charged. (2)The defendant is fined $22,500. (3)The defendant is ordered to pay the reasonable costs of the prosecutor, applicable solely to this prosecution and to no other proceedings between the parties, as agreed or assessed according to law. (4)The exhibits are returned, except for Exhibit C1 .
Catchwords:	ENVIRONMENTAL OFFENCES - carrying out development without consent - level of direct involvement - early plea of guilty - relatively low level of environmental harm - other sentencing considerations
Legislation Cited:	Environmental Planning and Assessment Act 1979 Crimes (Sentencing Procedure) Act 1999 Lane Cove Local Environmental Plan 1987
Cases Cited:	Bankstown City Council v Taouk Constructions Pty Ltd [2004] NSWLEC 402 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Council of the Municipality of Kiama v Furlong [2009] NSWLEC 139 Council of the Municipality of Kiama v Pacific Real Estate (Warilla) Pty Ltd [2009] NSWLEC 191 Fairfield City Council v Hanna [2007] NSWLEC 343 Holroyd City Council v El-Khouri [2008] NSWLEC 83 Keir v Sutherland Shire Council [2004] NSWLEC 754 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 R v Thomson [2000] NSWCCA 309; (2000) 49 NSWLR 383 Veen v R (1979) 143 CLR 458 Vigor Master Pty Ltd v Lane Cove Council; Jiang v Lane Cove Council [2010] NSWLEC 1267
Category:	Sentence
Parties:	Lane Cove Council (Prosecutor) Mr Pei Long Wu (Defendant)
Representation:	Mr P Clay (Prosecutor) Mr J Johnson (Defendant) Matthews Folbigg (Prosecutor) Woolf & Associates (Defendant
File Number(s):	50032 of 2010