Sutherland Shire Council v Nustas - [2004] NSWLEC 608

Land and Environment Court

of New South Wales

CITATION: Sutherland Shire Council v Nustas [2004] NSWLEC 608

PARTIES: PROSECUTOR:
Sutherland Shire Council
DEFENDANT:
Simon Shibli Nustas

FILE NUMBER(S): 50122 of 2003

CORAM: Pain J

KEY ISSUES: Prosecution :- Plea of guilty - Breach of consent conditions resulting in damage to trees

LEGISLATION CITED: Criminal Procedure Act 1986, s 253
Crimes (Sentencing Procedure) Act 1999, s 21A, s 22
Environmental Planning and Assessment Act 1979, s 125(1), s 126(3)
Land and Environment Court Act 1979, s 41

CASES CITED: Council of Camden v Tax [2004] NSWLEC 448;
Ku-ring-gai Council v Nettcorp Pty Limited [2003] NSWLEC 203;
R v Thompson; R v Houlton (2000) 49 NSWLR 383

DATES OF HEARING: 17/08/2004
01/11/2004

DATE OF JUDGMENT: 11/03/2004

LEGAL REPRESENTATIVES:
PROSECUTOR:
Ms S. Duggan instructed by Baker & McKenzie
DEFENDANT:
Mr D. Pullinger instructed by Advance Lawyers Pty Limited

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

3 November 2004

50122 of 2003 Sutherland Shire Council v Simon Shibli Nustas
JUDGMENT

1 Her Honour: The Defendant, Mr Nustas, is charged with an offence under s 125(1) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) in that between 25 and 28 August 2003 he carried out development, being site works, excavations and the construction of access to land, on land known as 179 Fowler Road, Illawong (“the land”) which development was not in accordance with the development consent granted by this Court on 25 July 2001 (“the Development Consent”). The particulars in the summons allege that four conditions of the Development Consent were breached by the Defendant as follows:

In breach of s 76A(1)(b) of he EP&A Act, the Defendant:

(a) contrary to condition 48 of the Development Consent, failed to protect all trees during construction in accordance with the requirements set out in the Sutherland Shire Council Landscape Development Control Plan;

(b) contrary to condition 2 of the Development Consent, failed to implement the development substantially in accordance with the details and specifications set out in plan No. 151.99(H) by John G. Davies & Associates Pty Ltd, with particular regard to trees required to be preserved by those plans;

(c) contrary to condition 16 of the Development Consent, prior to the commencement of works or the issue of a construction certificate, failed to prepare and forward for Council approval, a Construction and Site Management Plan; and

(d) contrary to condition 17 of the Development Consent, prior to the commencement of works or the issue of a construction certificate, failed to prepare and forward for Council approval, a Soil and Water Management Plan and Statement.

2 The Defendant has pleaded guilty to the offence charged so the essential legal ingredients of the offence are taken to be proved. The maximum penalty prescribed for offences of this type is $1.1 million.

3 The Court has had the benefit of a Statement of Facts agreed by the parties. The relevant sections of that Statement of Facts are…

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: [2004] NSWLEC 608
Decision Date: 11/03/2004

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the Sutherland Shire Council brought proceedings against Simon Shibli Nustas for breaching development consent conditions under the Environmental Planning and Assessment Act 1979. The Council alleged that Mr. Nustas had damaged trees on a property at 179 Fowler Road, Illawong, contrary to the terms of the development consent. The specific breaches included failing to protect trees during construction, not implementing the development as per the approved plans, and not preparing required management plans before commencing work. Mr. Nustas pleaded guilty to the charges.

The key legal issues before the court were the appropriate penalty for the breaches and whether the prosecutor's sought orders were justified. The court had to balance considerations of general and specific deterrence against the mitigating factors presented, including the defendant's guilty plea and cooperation with the Council.

Justice Pain found the offence to be reasonably serious, noting the defendant's failure to familiarise himself with the consent conditions despite being aware of their existence and the potential criminal penalties. The court highlighted the importance of protecting vegetation and the need for penalties to reflect this. However, the court also took into account the defendant's remorse, lack of prior convictions, and cooperation with the Council in removing the damaged trees. The court imposed a fine of $11,000, allowing a discount for the late guilty plea, and ordered the defendant to replant and maintain replacement trees, as well as provide a bond of $15,000. The court also ordered the defendant to pay the prosecutor's costs.

The final orders of the court were that Mr. Nustas be convicted of the offence, fined $11,000, replant and maintain three trees, lodge a bond of $15,000, and pay the prosecutor's costs.

Orders