Nasser v Hurstville City Council

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Land and Environment Court


of New South Wales


CITATION: Nasser v Hurstville City Council [2007] NSWLEC 720
PARTIES:

APPELLANT
Samuel Nasser

RESPONDENT
Hurstville City Council
FILE NUMBER(S): 60012 of 2007
CORAM: Jagot J
KEY ISSUES: Prosecution :- appeal against severity of sentence - mitigating factors - consistency in sentencing - extra-curial punishment - building certificate - appeal upheld
LEGISLATION CITED: Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Environmental Planning and Assessment Act 1979
CASES CITED: Keir & Anor v Sutherland Shire Council [2004] NSWLEC 754;
Pittwater Council v Walters [2004] NSWLEC 75;
R v Thomson (2000) 49 NSWLR 383;
Ristevski v Hurstville City Council [2003] NSWLEC 409;
Warringah Shire Council v Sahade [2004] NSWLEC 333;
Waverley Council v Boris Meck [2005] NSWLEC 655;
Woollahra Municipal Council v Samadi [2004] NSWLEC 564
DATES OF HEARING: 24 October 2007
 
DATE OF JUDGMENT: 

1 November 2007
LEGAL REPRESENTATIVES:

APPELLANT
Mr R O'Gorman-Hughes
SOLICITORS
N/A

RESPONDENT
Mr P Rigg, solicitor
SOLICITORS
Deacons



JUDGMENT:


        THE LAND AND
        ENVIRONMENT COURT
        OF NEW SOUTH WALES

        Jagot J

        1 November 2007

        60012 of 2007

        SAMUEL NASSER
        Appellant

        HURSTVILLE CITY COUNCIL
        Respondent

        JUDGMENT

Jagot J:

1 This is an appeal from the decision of a Magistrate in the Local Court at Kogarah on 31 May 2007. The appellant, Samuel Nasser, was convicted of carrying out development without development consent on land at 68 Llewellyn St, Oatley (the property) on or about 3 July 2006 in contravention of ss 76A and 125(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act). He was ordered to pay a fine of $35,000, professional costs of $8,000 and court costs of $67. The appeal is against the severity of the sentence in accordance with s 31(1) of the Crimes (Appeal and Review) Act 2001.

2 The appeal is to be by way of rehearing on the basis of certified transcripts of evidence given in the original Local Court proceedings (s 37(1) of the Crimes (Appeal and Review) Act). Under s 37(2) the appellant was granted leave to rely on some further evidence with respect to alleged financial detriment said to constitute extra-curial punishment relevant to sentence.

3 The appellant pleaded guilty to the charge that he carried out development without consent in breach of s 76A(1) of the EPA Act involving alterations to an existing boat shed, construction of a timber deck and stairs, and a balustrade to the unit 1 roof terrace.

4 The facts in brief are as follows. The appellant obtained development consent in 2000 to construct dual occupancy housing on the property. His original intention was to build a home for his family and his parents. When the Council inspected the property in 2006 after the development was substantially completed it observed some unauthorised building works. The alterations to the boat shed included internal works (a shower, kitchen, toilet and air conditioning) and external works (sliding glass doors, a sewer pump out system and a rooftop balustrade).…

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Details
Case
[2007] NSWLEC 720
Decision Date

CaseChat Overview and Summary

The appellant, Mr Nasser, appealed against a penalty imposed by the Local Court at Kogarah. Mr Nasser had been convicted of breaching the Local Government Act 1993 by failing to obtain a permit from Hurstville City Council before installing a sign on his property. The Local Court imposed a penalty of $50,000. The issues before the court were whether the penalty was excessive and whether the appellant should be granted a permit after the fact.

The court found that the penalty imposed by the Local Court was excessive. The court considered the seriousness of the offence, the appellant's previous convictions, and the financial situation of the appellant. The court held that the penalty should be reduced to $22,500. The court also considered whether to grant the appellant a permit after the fact. The court found that there were no exceptional circumstances that warranted such a grant and dismissed the application.

The appeal was upheld, and the penalty imposed by the Local Court was quashed. The appellant was fined $22,500. Each party was ordered to pay their own costs of the appeal.

Orders

Orders of the court

(1) The appeal is upheld.

(2) The order made in the proceedings by the Local Court at Kogarah on 31 May 2007 as to penalty is quashed.

(3) The appellant is fined the sum of $22,500.

(4) Each party is to pay its own costs of the appeal.

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

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