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Development Without Consent

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.
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