Zhu v Auburn Council [2009] NSWLEC 97

Zhu v Auburn Council [2009] NSWLEC 97

Due to additional material about the appellant's limited financial means and the application of the totality principle, the penalties imposed by the local court should be reduced, but a s 10A order was not appropriate given the scope and seriousness of the works. Award for prosecutor's costs should not be varied due to lack of evidentiary basis.

Jurisdiction
Australia
Judgment Date
30 June 2009
Procedural Posture
Appeal / Judgment
Outcome
appeal upheld; penalties varied; costs order confirmed; each party to pay own costs of appeal
Legal Topics
['severity of Sentence' "developer's Liability" 'unauthorised Development' 'totality Principle' 'means to Pay' 'variation of Penalties' 'costs Awards']
['criminal Law' 'environmental Law' 'planning Law'] ['severity of Sentence' "developer's Liability" 'unauthorised Development' 'totality Principle' 'means to Pay' 'variation of Penalties' 'costs Awards']

Case Brief

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ['Whether the penalties imposed by the local court for carrying out development without consent were excessive' 'Whether a s 10A order under the Crimes (Sentencing Procedure) Act 1999 was appropriate' 'Whether the totality principle should apply to reduce the penalties' 'Whether the appellant had the financial means to pay the fines' "Whether the award for prosecutor's costs was appropriate"]

Ratio Decidendi

Due to additional material about the appellant's limited financial means and the application of the totality principle, the penalties imposed by the local court should be reduced, but a s 10A order was not appropriate given the scope and seriousness of the works. Award for prosecutor's costs should not be varied due to lack of evidentiary basis.

Court Disposition

appeal upheld; penalties varied; costs order confirmed; each party to pay own costs of appeal

Orders

  • ['The appeal is upheld.' 'In matter no 219125/08/3 the penalty order of the local court is set aside.' 'In lieu thereof, appellant fined $4000 on matter no 219125/08/3.' 'In matter no 219133/08/3 the penalty order of the local court is set aside.' 'In lieu thereof, appellant fined $2000 on matter no 219133/08/3.'...