Waverley Council v Boris Meck - [2005] NSWLEC 655

Land and Environment Court

of New South Wales

CITATION:
Waverley Council v Boris Meck [2005] NSWLEC 655

PARTIES:
PROSECUTOR: Waverley Council
DEFENDANT: Boris Meck

FILE NUMBER(S):
50007 of 2005

CORAM:
Bignold J

KEY ISSUES:
Development Consent :- Carrying out development without consent - Existing development consent for an attached dual-occupancy development – Additional work undertaken without approval – Plea of guilty – Mitigating factors

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979 s125

CASES CITED:
R v Olbrick 199 CLR 270

DATES OF HEARING: 20 September 2005

EX TEMPORE JUDGMENT DATE:
09/20/2005

LEGAL REPRESENTATIVES:
PROSECUTOR
A Hudson, Solicitor
SOLICITORS
Wilshire Webb
DEFENDANT
I Hemmings, Barrister
SOLICITORS
John Lloyd and Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

20 September 2005

50007 of 2005 WAVERLEY COUNCIL v BORIS MECK
JUDGMENT

1 HIS HONOR: The Defendant has pleaded guilty to a charge of an offence against the Environmental Planning and Assessment Act, s 125(1) in that he did carry out development on land without development consent having been obtained in circumstances where the relevant planning instrument operating in conjunction with the Environmental Planning and Assessment Act required Council approval for the carrying out of development for the purposes of a dual-occupancy. The charge alleges that the offence was committed between 20 February 2004 and 29 November 2004.

2 The parties’ legal representatives have presented the case efficiently and succinctly. The circumstances of the admitted offence are chiefly contained in the Statement Of Agreed Facts which the parties have jointly tendered as Exhibit 1, together with an Affidavit of Mr Phillip Bull who is employed by Waverley Council as the Area Manager, Development and Building Assessment to the southern area, and Exhibit 2 which chronicles the history of this particular development. That history commences with the lodging of the development application in 2002 for the construction of an attached dual-occupancy development following the demolition of an existing house located at premises known as number 12 St Thomas Street Bronte.

3 The development site for what became an approved dual-occupancy development when the Council granted consent on 2 August 2003 is a steeply sloping site, sloping from the street frontage down the block.

4 In addition to the evidence contained in the relevant facts contained in the Statement Of Agreed Facts and Mr Bull’s Affidavit, I have the evidence of the Defendant in his sworn Affidavit of 14 September 2005.

5 The unauthorised development comprised the excavation of a portion of the development site which did not have the benefit of development consent and the extension of the approved building as it were, subterraneously into that area. The area of the unauthorised works comprising the extra excavation into the hill and the extension into that area of the ground floor slab which supports the building is laterally, on average, about two to two and a half metres in depth and extending across the block perhaps 14 or 15 metres.

6 The circumstances in which that particular work was…

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: [2005] NSWLEC 655
Decision Date: 09/20/2005

CaseChat Overview and Summary

In Waverley Council v Boris Meck, the defendant, Boris Meck, pleaded guilty to carrying out development on land without obtaining the necessary development consent, as required by the Environmental Planning and Assessment Act 1979. The unauthorised development involved excavating a portion of the site and extending the approved building into this area. The court had to determine the appropriate penalty for this offence.

The key legal issues were the gravity of the offence and the subjective culpability of the defendant, as well as the mitigating factors present in the case. The court considered the defendant's plea of guilty, expression of contrition, apology, and cooperation with the council during the investigation. The court also evaluated the objective gravity of the offence, finding that while the defendant's actions were not blithe or blatant, they were still a breach of the planning laws.

Bignold J concluded that the appropriate penalty should reflect the lower end of the spectrum for the gravity of the offence and the defendant's subjective culpability. The mitigating factors, including the plea of guilty and cooperation with the council, warranted a significant discount in the penalty. The court imposed a penalty of $20,000 and ordered the defendant to pay the prosecutor's legal costs in the same amount.

The court's reasoning was based on the evidence presented, the nature of the unauthorised development, and the mitigating factors. The court found that the defendant's actions were not the result of a deliberate attempt to gain an advantage but rather a misunderstanding of the planning laws. The court also took into account the defendant's experience in the development industry and the difficulties associated with the approved development. Ultimately, the court determined that a moderate penalty was appropriate given the circumstances of the case.

Orders