Burwood Council v Pratelli [2014] NSWLEC 28

Burwood Council v Pratelli [2014] NSWLEC 28

Mrs Pratelli admitted breaches of condition 1 and building condition 27, but the Council did not prove beyond reasonable doubt that she breached planning condition 2 by using the sub-floor storage area for habitable purposes. The established offence was of low objective gravity, caused no actual harm to the environment or to human health or safety, involved no proven heightened state of mind or profit, and specific deterrence was unnecessary, but general deterrence, denunciation and accountability required conviction and a fine. Taking into account her early guilty plea, remorse, lack of prior environmental convictions, rectification steps and capacity to pay, the appropriate fine was...

Jurisdiction
Australia
Judgment Date
13 March 2014
Procedural Posture
Class 5 Prosecution for Carrying Out Development Otherwise Than in Accordance With Development Consent Contrary to S 125(1) of the Environmental Planning and Assessment Act 1979 / Sentence Hearing Following Plea of Guilty
Outcome
Defendant convicted of the offence against s 125(1) of the Environmental Planning and Assessment Act 1979, fined $9,750, and ordered to pay the prosecutor's costs as agreed or assessed.
Legal Topics
['development Consent Conditions' 'owner Builder Development' 'strict Liability Offence' 'general Deterrence' 'plea of Guilty' "prosecutor's Costs"]
['environmental Planning Law' 'criminal Sentencing'] ['development Consent Conditions' 'owner Builder Development' 'strict Liability Offence' 'general Deterrence' 'plea of Guilty' "prosecutor's Costs"]

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 5 Prosecution for Carrying Out Development Otherwise Than in Accordance With Development Consent Contrary to S 125(1) of the Environmental Planning and Assessment Act 1979 / Sentence Hearing Following Plea of Guilty

Legal Issues

  1. 1 ['Whether the defendant carried out development otherwise than in accordance with conditions of the development consent' 'Whether the prosecutor proved beyond reasonable doubt the alleged breach of planning condition 2 concerning use of the sub-floor storage area for habitable purposes' "What sentence should be imposed having regard to the objective gravity of the offence and the defendant's subjective circumstances" "Whether an order should be made requiring the defendant to pay the prosecutor's costs"]

Ratio Decidendi

Mrs Pratelli admitted breaches of condition 1 and building condition 27, but the Council did not prove beyond reasonable doubt that she breached planning condition 2 by using the sub-floor storage area for habitable purposes. The established offence was of low objective gravity, caused no actual harm to the environment or to human health or safety, involved no proven heightened state of mind or profit, and specific deterrence was unnecessary, but general deterrence, denunciation and accountability required conviction and a fine. Taking into account her early guilty plea, remorse, lack of prior environmental convictions, rectification steps and capacity to pay, the appropriate fine was...

Court Disposition

Defendant convicted of the offence against s 125(1) of the Environmental Planning and Assessment Act 1979, fined $9,750, and ordered to pay the prosecutor's costs as agreed or assessed.

Orders

  • ['Mrs Pratelli is convicted of the offence against s 125(1) of the Environmental Planning and Assessment Act 1979 as charged.' 'Mrs Pratelli is fined the sum of $9,750.' "Pursuant to s 257B of the Criminal Procedure Act 1986, Mrs Pratelli is to pay the prosecutor's costs of the proceedings as agreed or assessed."]