Hunter's Hill Council v Touma [2008] NSWLEC 227

Hunter's Hill Council v Touma [2008] NSWLEC 227

The defendant was convicted because he carried out development comprising office spaces, reception area, kitchen and bathroom for commercial office use without the required prior development consent. Although the offence was not trivial and required general deterrence, the penalty was set at the lower end because there was no apparent environmental harm, consent was later granted, the defendant pleaded guilty early, showed remorse and contrition, co-operated fully, had no relevant prior convictions, and agreed to pay costs. A penalty of $23,000 was discounted by 35 per cent to $15,000.

Jurisdiction
Australia
Judgment Date
28 July 2008
Procedural Posture
Prosecution for Carrying Out Development Without Consent / Sentencing After Plea of Guilty
Outcome
Defendant convicted and ordered to pay a penalty and costs.
Legal Topics
['development Without Consent' 'strict Liability Environmental Offence' 'mitigating Factors' 'general Deterrence' 'penalty']
['environmental Law' 'planning Law' 'criminal Sentencing'] ['development Without Consent' 'strict Liability Environmental Offence' 'mitigating Factors' 'general Deterrence' 'penalty']

Case Brief

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Procedural Posture

Prosecution for Carrying Out Development Without Consent / Sentencing After Plea of Guilty

Legal Issues

  1. 1 ['Whether the defendant carried out development requiring consent where development consent had not been obtained and was not in force.' 'What penalty should be imposed after a plea of guilty to an offence against s 125(1) of the Environmental Planning and Assessment Act 1979.']

Ratio Decidendi

The defendant was convicted because he carried out development comprising office spaces, reception area, kitchen and bathroom for commercial office use without the required prior development consent. Although the offence was not trivial and required general deterrence, the penalty was set at the lower end because there was no apparent environmental harm, consent was later granted, the defendant pleaded guilty early, showed remorse and contrition, co-operated fully, had no relevant prior convictions, and agreed to pay costs. A penalty of $23,000 was discounted by 35 per cent to $15,000.

Court Disposition

Defendant convicted and ordered to pay a penalty and costs.

Orders

  • ['The defendant is convicted of the offence as charged.' 'The defendant must pay a penalty in the sum of $15,000.' "The defendant must pay the prosecutor's costs in the agreed sum of $35,000." 'The exhibits, other than Exhibit A (the Statement of Agreed Facts), will be returned.']