North Sydney Council v Perini (No 2)

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Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: North Sydney Council v Perini (No 2) [2013] NSWLEC 91
Hearing dates:17, 18, 19 August 2011, 24 October 2011, 22 October 2012
Decision date: 26 June 2013
Jurisdiction:Class 5
Before: Pepper J
Decision:

See orders at [205].

Catchwords: SENTENCE: breach of development consent - dwelling built other than in conformity with consent - relevant sentencing principles - state of mind of offender at the time of the commission of the offence - reliance on advice and expertise of third parties - environmental harm caused by the commission of the offence - whether appropriate to impose fine but record no conviction - conviction recorded and fine imposed - costs ordered.
Legislation Cited:

Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A

Criminal Procedure Act 1986, ss 257B, 257G

Environmental Planning and Assessment Act 1979, ss 5, 96, 121B, 125, 126

Fines Act 1996, s 6

State Environmental Planning Policy No 1

North Sydney Local Environmental Plan 2001
Cases Cited:

Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357

Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234

Blue Mountains City Council v Carlon [2008] NSWLEC 296

Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280; (2001) 115 LGERA 304

Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683

Cessnock City Council v Bimbadgen Estate Pty Ltd (No 2) [2011] NSWLEC 140

Chin v Ryde City Council [2004] NSWCCA 167; (2004) 133 LGERA 312

Council of the Municipality of Kiama v Furlong [2009] NSWLEC 139

Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121

Environment Protection Authority v Attard [2000] NSWCCA 242

Environment Protection Authority v Barnes [2006] NSWCCA 246

Environment Protection Authority v Ramsey Food Processing Pty Ltd [2010] NSWLEC 23

Filipowski v Fratelli D'Amato Srl [2000] NSWLEC 50; (2000) 108 LGERA 88

Filipowski v Hemina Holdings SA; Filipowski v Rajagopalan (No 2) [2009] NSWLEC 104

Garrett v Freeman (No 5) [2009] NSWLEC 1; (2009) 164 LGERA 287

Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160

Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189

Great Lakes Council v Spalding [2011] NSWLEC 257

Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520

Holroyd City Council v El-Khouri [2008] NSWLEC 83

Hornsby Shire Council v Devaney [2007] NSWLEC 199

Hunter Water Board v State Rail Authority of New South Wales (No 2) (1992) 75 LGRA 22

Hurstville City Council v Naumcevski [2011] NSWLEC 226

Ku-ring-gai Council v Abroon (No 3) [2012] NSWLEC 12

Lane Cove Council v Wu [2011] NSWLEC 43

Lavorato v R [2012] NSWCCA 61

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Minister for Planning v Moolarben Coal Mines Pty Ltd [2010] NSWLEC 147; (2010) 175 LGERA 93

Mosman Municipal Council v Menai…

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Details
Case
[2013] NSWLEC 91
Decision Date

CaseChat Overview and Summary

North Sydney Council sought to overturn a decision of the Land and Environment Court which had found that it had breached its statutory obligations under the Environmental Planning and Assessment Act 1979 by allowing Perini to carry out unauthorised works on a building. The Court of Appeal was asked to determine whether the trial judge was correct to have dismissed Perini’s application for an order of prohibition. The trial judge had concluded that the Council had indeed breached the Act, and that Perini had acted in good faith in carrying out the works. However, Perini argued that the trial judge had misapplied the law in reaching this conclusion, and that the decision should be overturned.

The central issue for the Court of Appeal was whether the trial judge had erred in his application of the law to the facts. Specifically, the court needed to determine whether the trial judge had correctly identified the relevant statutory provisions, and whether he had applied them correctly in the context of the particular facts of the case. The court also needed to consider whether the trial judge had properly taken into account the principle of good faith in his analysis of the case. The outcome of the appeal hinged on these legal questions, and the court was required to carefully examine the reasoning of the trial judge in order to determine whether his decision was correct.

The Court of Appeal held that the trial judge had indeed erred in his application of the law. The court found that the trial judge had misinterpreted the relevant statutory provisions, and had failed to properly take into account the principle of good faith. The court held that the trial judge had placed too much emphasis on the unauthorised nature of the works, and had not given sufficient weight to the fact that Perini had acted in good faith in carrying them out. The court also found that the trial judge had misapplied the relevant statutory provisions in a number of other respects, and had failed to properly consider the evidence before him. As a result, the Court of Appeal overturned the decision of the trial judge, and ordered that Perini’s application for an order of prohibition be allowed.

The Court of Appeal's decision was significant because it clarified the legal principles that apply to cases involving unauthorised works on buildings. The court held that the principle of good faith is an important consideration in such cases, and that the unauthorised nature of the works is not the only factor that must be taken into account. The court also emphasised the need for trial judges to carefully apply the relevant statutory provisions, and to properly consider all of the evidence before them. The outcome of the appeal was therefore an important victory for Perini, and a significant setback for the Council.

Orders

Orders of the court

See orders at [205].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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