Hurstville City Council v Naumcevski [2011] NSWLEC 226

Hurstville City Council v Naumcevski [2011] NSWLEC 226

Mr Naumcevski, as principal builder, carried out excavation works without development consent, contrary to s 76A(1)(a) and s 125 Environmental Planning and Assessment Act 1979. The offence was committed recklessly, not deliberately or for financial gain, and was of low objective gravity. Mitigating circumstances included a guilty plea, lack of prior convictions, cooperation, and remorse. A fine of $14,000 and an order to pay legal and investigation costs were imposed to achieve deterrence and punishment appropriate to both the objective and subjective circumstances.

Jurisdiction
Australia
Judgment Date
30 November 2011
Procedural Posture
Criminal Prosecution / Sentencing Judgment
Outcome
Defendant convicted and sentenced
Legal Topics
['unauthorised Excavation' 'sentencing Principles' 'development Consent' 'planning Controls' 'costs Order']
['environmental Law' 'criminal Law'] ['unauthorised Excavation' 'sentencing Principles' 'development Consent' 'planning Controls' 'costs Order']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Criminal Prosecution / Sentencing Judgment

Legal Issues

  1. 1 ['Whether Mr Naumcevski carried out excavation works without development consent contrary to s 76A(1)(a) Environmental Planning and Assessment Act 1979' 'Assessment of the objective and subjective circumstances relevant to sentencing' 'Extent of harm and culpability (intentional/reckless/inadvertent commission of offence)' 'Whether the offence was committed for financial gain' 'Appropriateness and quantum of costs order']

Ratio Decidendi

Mr Naumcevski, as principal builder, carried out excavation works without development consent, contrary to s 76A(1)(a) and s 125 Environmental Planning and Assessment Act 1979. The offence was committed recklessly, not deliberately or for financial gain, and was of low objective gravity. Mitigating circumstances included a guilty plea, lack of prior convictions, cooperation, and remorse. A fine of $14,000 and an order to pay legal and investigation costs were imposed to achieve deterrence and punishment appropriate to both the objective and subjective circumstances.

Court Disposition

Defendant convicted and sentenced

Orders

  • ['Mr Naumcevski is convicted of the offence as charged.' 'Mr Naumcevski is fined the sum of $14,000.' "Mr Naumcevski is ordered, pursuant to s 257B Criminal Procedure Act 1986, to pay the prosecutor's legal and investigation costs as determined under s 257G of that Act." 'Exhibits are to be returned.']