Willoughby City Council v P and V Masonry Pty Limited [2003] NSWLEC 312

Willoughby City Council v P and V Masonry Pty Limited [2003] NSWLEC 312

The defendant's admitted offence was not trivial but was moderately serious: the works were substantial sandstone retaining walls and terracing over a large area of a scenic foreshore site, and development consent had not been obtained, although the defendant honestly but unreasonably believed approval existed and its subjective culpability was not significant. Because the offence was moderately serious and the mistaken belief involved a significant want of care or serious error of judgment, the defendant did not make out a case for relief under s 10 of the Crimes (Sentencing Procedure) Act 1999. Conviction and a modest penalty were required, with a substantial discount for the guilty...

Jurisdiction
Australia
Judgment Date
14 November 2003
Procedural Posture
Prosecution for Environmental Planning Offence Under the Environmental Planning and Assessment Act 1979 / Sentence Following Guilty Plea
Outcome
Defendant convicted and fined $5,000; defendant ordered to pay the Prosecutor's costs as agreed or assessed.
Legal Topics
['carrying Out Development Without Development Consent' 'strict Liability Offence' 'mitigating Factors' 'section 10 Dismissal or Conditional Discharge' 'penalty for Environmental Planning Offence']
['environmental Law' 'planning Law' 'criminal Sentencing'] ['carrying Out Development Without Development Consent' 'strict Liability Offence' 'mitigating Factors' 'section 10 Dismissal or Conditional Discharge' 'penalty for Environmental Planning Offence']

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Procedural Posture

Prosecution for Environmental Planning Offence Under the Environmental Planning and Assessment Act 1979 / Sentence Following Guilty Plea

Legal Issues

  1. 1 ['Whether the defendant should be convicted and penalised after pleading guilty to carrying out development without development consent contrary to the Environmental Planning and Assessment Act 1979.' "How serious the offence was, having regard to the nature and extent of the retaining walls and terracing, their location in a scenic protection zone, and the defendant's subjective culpability." 'Whether the Court should exercise the discretion under s 10 of the Crimes (Sentencing Procedure) Act 1999 not to convict the defendant.' 'What penalty and costs orders should be made.']

Ratio Decidendi

The defendant's admitted offence was not trivial but was moderately serious: the works were substantial sandstone retaining walls and terracing over a large area of a scenic foreshore site, and development consent had not been obtained, although the defendant honestly but unreasonably believed approval existed and its subjective culpability was not significant. Because the offence was moderately serious and the mistaken belief involved a significant want of care or serious error of judgment, the defendant did not make out a case for relief under s 10 of the Crimes (Sentencing Procedure) Act 1999. Conviction and a modest penalty were required, with a substantial discount for the guilty...

Court Disposition

Defendant convicted and fined $5,000; defendant ordered to pay the Prosecutor's costs as agreed or assessed.

Orders

  • ['Defendant is convicted of the offence as charged.' 'A penalty of $5,000 is imposed in respect of that conviction.' "Defendant is to pay the Prosecutor's costs in the sum agreed or failing agreement, in accordance with s 253 of the Criminal Procedure Act 1986." 'Exhibits be returned.' 'The fine to be paid to the...