Two recent decisions of the Land and Environment Court have dealt with matters involving development without consent.
Cumberland Council v Badouli Habib [2017] NSWLEC 18
Cumberland Council v Badouli Habib [2017] NSWLEC 18 was handed down by Robson J. The defendant was sentenced in relation to a breach of s 125 of the Environmental Planning & Assessment Act 1979 for the construction of a two storey, 5 bedroom detached dwelling and a two bedroom granny flat without development consent. The defendant was the brother of the owner of the properties and admitted to Council that he did not possess development consent. The defendant had previously been involved in developments and was aware of the development process.
In his affidavit, the defendant apologised for his wrongdoing and accepted full responsibility. His Honour did not give the defendant’s statements full weight in consideration of sentence, in line with the case of North Sydney Council v Perini (No 2) [2013] NSWLEC 91 at [172]where an apology was not genuine because it was tethered to the premise that the NSW planning process was only understood after the offence was committed. Robson J determined that it was “difficult to accept that the defendant’s remorse is directed at the offences committed and not that he was caught.
Ultimately, the defendant was fined $52,000, for each offence, after reduction, and ordered to pay the Prosecutor’s costs of $12,000 in both proceedings.
The Council of the City of Sydney v Imaeda [2017] NSWLEC 19
In the Council of the City of Sydney v Imaeda [2017] NSWLEC 19 the defendant was charged, with carrying out development without consent and carrying out development that was prohibited, under s 125 of the Environmental Planning and Assessment Act 1979. The subject property was zoned B7 – business park zone. In that zone, storage without development consent is prohibited and the use of a site for the purpose of a caravan park, tourist and visitor accommodation or a boarding house is prohibited.
The defendant used the property for storage of his own goods described as “hoarding or collecting”. The defendant rented accommodation on the site including:
- an abandoned bus which had a kitchen and sink installed,
- a caravan and annex above a shipping container, and
- three other caravans.
His Honour took a number of aggravating and mitigating factors into consideration, ultimately arriving at the penalty of $150,000 for the accommodation offence and $60,000 for the storage offence, both after discount. The defendant was also ordered to pay the prosecutor’s costs of the proceedings – $71,000.
