Liverpool City Council v Maller Holdings Pty Ltd (No 2) [2015] NSWLEC 48

Liverpool City Council v Maller Holdings Pty Ltd (No 2) [2015] NSWLEC 48

The offence warranted a $500,000 fine because it was at the high to very high end of objective seriousness for offences of this type: it involved continuous prohibited use of low density residential land for a horse transport business over about two years, serious adverse amenity and well-being impacts on neighbouring residents, continuation after the Defendant was put on notice of the Council's view and gave unfulfilled undertakings, offending for commercial gain, foreseeable harm, no measures to minimise impact, full control by the Defendant, and only one mitigating factor, namely no prior convictions. A daily penalty was not imposed because it risked producing a disproportionate...

Jurisdiction
Australia
Judgment Date
02 April 2015
Procedural Posture
Class 5 Prosecution for an Offence Against S 125(1) of the Environmental Planning and Assessment Act 1979 (nsw) for Contravention of S 76 B(1) / Ex Parte Sentencing Hearing Following Defended Hearing, Appeal to the Court of Criminal Appeal, and Finding That All Elements of the Offence Were Proven
Outcome
The Defendant was convicted and fined $500,000, with costs payable to the Prosecutor as agreed or assessed.
Legal Topics
['unlawful Development' 'prohibited Land Use' 'horse Transport Business in Low Density Residential Zone' 'objective Seriousness' 'aggravating and Mitigating Factors' 'specific and General Deterrence' 'corporate Defendant Under Deed of Company Arrangement']
['environmental Planning Law' 'criminal Sentencing'] ['unlawful Development' 'prohibited Land Use' 'horse Transport Business in Low Density Residential Zone' 'objective Seriousness' 'aggravating and Mitigating Factors' 'specific and General Deterrence' 'corporate Defendant Under Deed of Company Arrangement']

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Procedural Posture

Class 5 Prosecution for an Offence Against S 125(1) of the Environmental Planning and Assessment Act 1979 (nsw) for Contravention of S 76 B(1) / Ex Parte Sentencing Hearing Following Defended Hearing, Appeal to the Court of Criminal Appeal, and Finding That All Elements of the Offence Were Proven

Legal Issues

  1. 1 ["What penalty should be imposed for the Defendant's commission of an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 (NSW) for carrying out prohibited development contrary to s 76B(1)." "Whether the offence was objectively serious having regard to its duration, impact on neighbours, the Defendant's state of mind, commercial purpose, foreseeability of harm, practicable measures, and control over the causes of harm." 'Whether aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) were established, including substantial injury, emotional harm, loss or damage and financial gain.' 'Whether a daily penalty should be imposed in addition to a single penalty.' "Whether the Defendant's financial position provided a basis to reduce the penalty."]

Ratio Decidendi

The offence warranted a $500,000 fine because it was at the high to very high end of objective seriousness for offences of this type: it involved continuous prohibited use of low density residential land for a horse transport business over about two years, serious adverse amenity and well-being impacts on neighbouring residents, continuation after the Defendant was put on notice of the Council's view and gave unfulfilled undertakings, offending for commercial gain, foreseeable harm, no measures to minimise impact, full control by the Defendant, and only one mitigating factor, namely no prior convictions. A daily penalty was not imposed because it risked producing a disproportionate...

Court Disposition

The Defendant was convicted and fined $500,000, with costs payable to the Prosecutor as agreed or assessed.

Orders

  • ['The Defendant is convicted of the offence as charged.' "The Defendant is fined $500,000 to be paid to the registrar within 28 days of today's date." "The Defendant is to pay the Prosecutor's costs as agreed or assessed."]