Ashfield Council V Fuda [1998] NSWLEC 80

Ashfield Council V Fuda [1998] NSWLEC 80

The defendant pleaded guilty to all three offences. The re-skinning offence was the most serious because the defendant had been repeatedly warned, the damage to the heritage fabric was irreversible, and the work had an external impact; a fine of $15,000 was appropriate. The basement offence was at the minor end because there was no prior warning, it was not visible, was for storage only and did not affect presentation of the dwelling; a fine of $2,000 was appropriate. The floor replacement offence was serious because the defendant was warned and the work irreversibly changed the fabric, although it was not visible; a fine of $5,000 was appropriate. The defendant was convicted and ordered...

Jurisdiction
Australia
Judgment Date
29 June 1998
Procedural Posture
Prosecution for Offences Under the Environmental Planning and Assessment Act 1979 and the Local Government Act 1993 / Guilty Pleas Entered; Ex Tempore Judgment on Penalty and Costs
Outcome
Defendant convicted on all three offences; fined $15,000 in proceeding 50022/98, $2,000 in proceeding 50033/98, and $5,000 in proceeding 50042/98; ordered to pay the prosecutor's costs in each proceeding.
Legal Topics
['development Without Consent' 'building Works Without Prior Council Approval' 'heritage Conservation Area' 'sentencing After Guilty Plea' 'costs in Land and Environment Court Proceedings']
['environmental Planning Law' 'local Government Law' 'heritage Conservation' 'criminal Penalties'] ['development Without Consent' 'building Works Without Prior Council Approval' 'heritage Conservation Area' 'sentencing After Guilty Plea' 'costs in Land and Environment Court Proceedings']

Case Brief

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Procedural Posture

Prosecution for Offences Under the Environmental Planning and Assessment Act 1979 and the Local Government Act 1993 / Guilty Pleas Entered; Ex Tempore Judgment on Penalty and Costs

Legal Issues

  1. 1 ['What penalties should be imposed for altering a dwelling in a heritage conservation area by widespread removal of external brickwork without council consent.' 'What penalty should be imposed for erecting perimeter basement walls, footings for a basement, a retaining wall and sub-floor excavation without council consent.' 'What penalty should be imposed for replacing timber floors with a concrete slab without prior council approval.' 'What aggravating and mitigating factors should be considered in fixing penalties and costs.']

Ratio Decidendi

The defendant pleaded guilty to all three offences. The re-skinning offence was the most serious because the defendant had been repeatedly warned, the damage to the heritage fabric was irreversible, and the work had an external impact; a fine of $15,000 was appropriate. The basement offence was at the minor end because there was no prior warning, it was not visible, was for storage only and did not affect presentation of the dwelling; a fine of $2,000 was appropriate. The floor replacement offence was serious because the defendant was warned and the work irreversibly changed the fabric, although it was not visible; a fine of $5,000 was appropriate. The defendant was convicted and ordered...

Court Disposition

Defendant convicted on all three offences; fined $15,000 in proceeding 50022/98, $2,000 in proceeding 50033/98, and $5,000 in proceeding 50042/98; ordered to pay the prosecutor's costs in each proceeding.

Orders

  • ['In proceedings 50022/98, the defendant is convicted of the offence with which he is charged.' "In proceedings 50022/98, the defendant is fined the sum of $15,000 to be paid to the council within three months of today's date." 'In proceedings 50022/98, the defendant must pay the costs of the prosecutor as...