Gosford City Council v Colmer, K J [2002] NSWLEC 257

Gosford City Council v Colmer, K J [2002] NSWLEC 257

Although the defendant demolished the cottage because storm damage had left it unsafe and his conduct was not motivated by contumacy, he knew the cottage was heritage listed and knew prior consent was required. The demolition of a listed heritage building was an offence of some seriousness, so relief under Crime Sentencing Procedure Act 1999, s 10 was inappropriate. Taking into account the guilty plea, admissions, first known offence, mixed culpability, and extenuating circumstances, a low-end penalty of $5,000 and prosecutor's costs were warranted.

Jurisdiction
Australia
Judgment Date
20 December 2002
Procedural Posture
Prosecution for Offence Against the Environmental Planning and Assessment Act 1979 / Ex Tempore Judgment on Guilty Plea and Sentence
Outcome
Defendant convicted; penalty of $5,000 imposed; defendant ordered to pay prosecutor's legal costs.
Legal Topics
['prohibited Development' 'demolition of Heritage Listed Building' 'guilty Plea' 'section 10 Dismissal or Discharge' 'penalty and Costs']
['environmental Planning Law' 'criminal Sentencing' 'heritage Conservation'] ['prohibited Development' 'demolition of Heritage Listed Building' 'guilty Plea' 'section 10 Dismissal or Discharge' 'penalty and Costs']

Case Brief

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Procedural Posture

Prosecution for Offence Against the Environmental Planning and Assessment Act 1979 / Ex Tempore Judgment on Guilty Plea and Sentence

Legal Issues

  1. 1 ['Whether the defendant should be convicted after pleading guilty to carrying out prohibited development by demolishing a heritage listed cottage without consent.' 'Whether the circumstances justified dismissal or discharge under Crime Sentencing Procedure Act 1999, s 10.' 'What penalty should be imposed for the offence.' "Whether the defendant should pay the prosecutor's costs."]

Ratio Decidendi

Although the defendant demolished the cottage because storm damage had left it unsafe and his conduct was not motivated by contumacy, he knew the cottage was heritage listed and knew prior consent was required. The demolition of a listed heritage building was an offence of some seriousness, so relief under Crime Sentencing Procedure Act 1999, s 10 was inappropriate. Taking into account the guilty plea, admissions, first known offence, mixed culpability, and extenuating circumstances, a low-end penalty of $5,000 and prosecutor's costs were warranted.

Court Disposition

Defendant convicted; penalty of $5,000 imposed; defendant ordered to pay prosecutor's legal costs.

Orders

  • ['The Defendant is convicted of the offence as charged.' 'A penalty of $5,000 is imposed in respect of the conviction.' "The Defendant is to pay the Prosecutor's legal costs in the sum determined in accordance with the Land and Environment Court Act, s 56(2)." 'The exhibits, except for Exhibit 1 (the statement of...