Nasser v Hurstville City Council

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).…