Hornsby Shire Council v Surace [2004] NSWLEC 716

Hornsby Shire Council v Surace [2004] NSWLEC 716

Although the offence was proved, the defendant was of good character, made genuine inquiries of the Council about the heritage controls and his obligations, and held a genuinely mistaken belief that he could lawfully carry out the work. That belief was induced by conversations with the Council officer responsible for heritage advice. In those extenuating circumstances, the charge was dismissed under s 10. Costs were ordered only in the sum of $30,000 because the Council's own conduct significantly induced the breach and disclosure of the true nature of the conversations could likely have saved considerable costs.

Jurisdiction
Australia
Judgment Date
14 September 2004
Procedural Posture
Environmental Offence Prosecution / Sentence After Offence Found Proved
Outcome
Offence proved; charge dismissed; defendant ordered to pay part of the Council's costs.
Legal Topics
['development Without Consent' 'damage to Heritage Item' 'mistake of Law' 'application of S 10' 'costs']
['environmental Planning' 'heritage Conservation' 'sentencing'] ['development Without Consent' 'damage to Heritage Item' 'mistake of Law' 'application of S 10' 'costs']

Case Brief

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Procedural Posture

Environmental Offence Prosecution / Sentence After Offence Found Proved

Legal Issues

  1. 1 ['Whether a penalty should be imposed or the charge dismissed under s 10 after the offence was found proved.' "Whether the defendant's mistaken belief, induced by conversations with the Council's heritage officer, constituted extenuating circumstances relevant to sentence." "Whether the defendant should pay the Council's costs and in what amount."]

Ratio Decidendi

Although the offence was proved, the defendant was of good character, made genuine inquiries of the Council about the heritage controls and his obligations, and held a genuinely mistaken belief that he could lawfully carry out the work. That belief was induced by conversations with the Council officer responsible for heritage advice. In those extenuating circumstances, the charge was dismissed under s 10. Costs were ordered only in the sum of $30,000 because the Council's own conduct significantly induced the breach and disclosure of the true nature of the conversations could likely have saved considerable costs.

Court Disposition

Offence proved; charge dismissed; defendant ordered to pay part of the Council's costs.

Orders

  • ['I find the offence proved.' 'I dismiss the charge.' "I order the defendant to pay the Council's costs in the sum of $30,000."]