Sharma v Liverpool City Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sharma v Liverpool City Council [2022] NSWLEC 10

Hearing dates:

15 February 2022

Date of orders:

16 February 2022

Decision date:

16 February 2022

Jurisdiction:

Class 6

Before:

Robson J

Decision:

See orders at [53]

Catchwords:

CRIME — Appeal and review — Appeal from Local Court to Land and Environment Court — By person against conviction — Fail to comply with development control order — Use and internal fit-out of garage for habitable purposes contrary to approval — Construction of carport without consent — Procedural fairness — Appeal conceded by prosecutor — Appeal upheld — Conviction and orders of Local Court set aside

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW), ss 31, 37

Environmental Planning and Assessment Act 1979 (NSW), Div 9.3, ss 9.34, 9.37

Fines Act 1996 (NSW), s 24H

Cases Cited:

Cameron v Eurobodalla Shire Council (2006) 146 LGERA 349; [2006] NSWLEC 47

Edwards v Allmen Engineering Pty Ltd [1995] NSWCA 138

Heatscape Pty Ltd v Mahoney [2015] NSWLEC 126

Category:

Principal judgment

Parties:

Sudesh Prasad Sharma (Appellant)
Liverpool City Council (Respondent)

Representation:

Counsel:
S P Sharma, self-represented (Appellant)
N Hammond (Respondent)

Solicitors:
Self-represented (Appellant)
Liverpool City Council (Respondent)

File Number(s):

2021/00110700

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

24 March 2021

Before:

Magistrate Spence

File Number(s):

2020/00176167

Judgment

1. By summons filed 21 April 2021, the appellant, Sudesh Prasad Sharma, appeals pursuant to s 31(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (‘Appeal Act’) against a decision of the Local Court at Liverpool (‘Local Court’) made on 24 March 2021 to convict and fine Mr Sharma in relation to an environmental offence under s 9.37(1) of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’).

2. The charge relates to non-compliance with a development control order dated 6 September 2019 (‘Order’) issued by the respondent, Liverpool City Council (‘Council’), to Mr Sharma in respect of Lot 17 in DP 15142 known as 8 Webster Road, Lurnea (‘the property’).

3. The appeal proceeded to hearing before me on 15 February 2022. Mr Sharma appeared without legal representation (as he had done before the Local Court) and Ms N Hammond of counsel, appeared for Council. In its written submissions filed 11 February 2022, Council informed the Court that it “concedes the appeal and consents to an order that the conviction be set aside”.

4. The Court has received and considered detailed evidence and written and oral submissions both from Mr Sharma and Council. I consider, not without some reservation, that it is appropriate to make the orders which the parties have asked to be made, and that there be no order as to costs. My reasons follow.

Background

5. The background facts are relatively uncontentious and are summarised as follows.

6. Mr Sharma pleaded not guilty to the offence of “[f]ail to comply with terms of development control order” issued pursuant to s 9.37(1) of the…