Burwood Council v Abdul-Rahman (No 2) [2017] NSWLEC 177

Burwood Council v Abdul-Rahman (No 2) [2017] NSWLEC 177

The Defendant removed a healthy, mature Lemon-Scented Gum in a heritage conservation area without obtaining required development consent. The Court rejected his unsupported assertion that the tree was dead, found environmental harm and relevant prior convictions to be aggravating factors, found no genuine contrition, remorse, mitigating subjective factors, or evidence supporting incapacity to pay, and held that a starting penalty of $50,000 with no discount was appropriate.

Jurisdiction
Australia
Judgment Date
13 December 2017
Procedural Posture
Class 5 Prosecution for Carrying Out Development Without Development Consent Under the Environmental Planning and Assessment Act 1979 / Sentencing After Finding of Guilt
Outcome
Defendant convicted and fined $50,000, with costs ordered in favour of the Prosecutor as agreed or assessed.
Legal Topics
['removal of Tree Without Development Consent' 'heritage Conservation Area' 'strict Liability Offence' 'specific Deterrence' 'general Deterrence' 'environmental Harm' 'prior Convictions' 'capacity to Pay Fine']
['environmental Planning Law' 'criminal Sentencing'] ['removal of Tree Without Development Consent' 'heritage Conservation Area' 'strict Liability Offence' 'specific Deterrence' 'general Deterrence' 'environmental Harm' 'prior Convictions' 'capacity to Pay Fine']

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 Without Development Consent Under the Environmental Planning and Assessment Act 1979 / Sentencing After Finding of Guilt

Legal Issues

  1. 1 ['What penalty should be imposed for removal of a mature Lemon-Scented Gum without development consent in a heritage conservation area.' 'Whether the tree was dead or healthy at the time of removal.' 'Whether aggravating factors including environmental harm and prior convictions applied.' 'Whether the Defendant should receive the benefit of s 10 of the Crimes Sentencing Procedure Act 1999.' "Whether the fine should be reduced because of the Defendant's asserted limited financial means." 'Whether any discount should be applied for subjective factors.']

Ratio Decidendi

The Defendant removed a healthy, mature Lemon-Scented Gum in a heritage conservation area without obtaining required development consent. The Court rejected his unsupported assertion that the tree was dead, found environmental harm and relevant prior convictions to be aggravating factors, found no genuine contrition, remorse, mitigating subjective factors, or evidence supporting incapacity to pay, and held that a starting penalty of $50,000 with no discount was appropriate.

Court Disposition

Defendant convicted and fined $50,000, with costs ordered in favour of the Prosecutor as agreed or assessed.

Orders

  • ['Pursuant to s 125(1) of the Environmental Planning and Assessment Act 1979, Omar Abdul-Rahman is convicted of the offence that, contrary to section 76A(1)(a) of that Act, he carried out development in circumstances where consent was required to be obtained for the development and no consent was sought prior to...