Cumberland Council v See Win Holdings Pty Ltd [2019] NSWLEC 15

Cumberland Council v See Win Holdings Pty Ltd [2019] NSWLEC 15

The Defendant was convicted for carrying out development otherwise than in accordance with a development consent, contrary to s 76A(1)(b) of the Environmental Planning and Assessment Act 1979. While the breach caused no environmental harm and was on the lower end of seriousness, it was not trivial. There were no aggravating factors and several mitigating factors including cooperation, contrition, and an early guilty plea, entitling the Defendant to the maximum 25% discount. Preservation of the planning system's integrity required general deterrence; therefore, a conviction and fine were appropriate.

Parties
Prosecutor: Cumberland Council; Defendant: See Win Holdings Pty Ltd
Jurisdiction
Australia
Judgment Date
22 February 2019
Procedural Posture
Prosecution (class 5) / Sentencing
Outcome
Defendant convicted and fined; order to pay prosecution costs.
Legal Topics
Development Consent, Sentencing, Strict Liability, General Deterrence
Environmental Law Planning Law Criminal Law Development Consent Sentencing Strict Liability General Deterrence

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Parties

Cumberland Council

Prosecutor

See Win Holdings Pty Ltd

Defendant

Procedural Posture

Prosecution (class 5) / Sentencing

Legal Issues

  1. 1 Whether the Defendant carried out development not in accordance with a development consent
  2. 2 Appropriate penalty for breach of s 76A(1)(b) Environmental Planning and Assessment Act 1979
  3. 3 Consideration of aggravating or mitigating factors on sentence

Ratio Decidendi

The Defendant was convicted for carrying out development otherwise than in accordance with a development consent, contrary to s 76A(1)(b) of the Environmental Planning and Assessment Act 1979. While the breach caused no environmental harm and was on the lower end of seriousness, it was not trivial. There were no aggravating factors and several mitigating factors including cooperation, contrition, and an early guilty plea, entitling the Defendant to the maximum 25% discount. Preservation of the planning system's integrity required general deterrence; therefore, a conviction and fine were appropriate.

Court Disposition

Defendant convicted and fined; order to pay prosecution costs.

Orders

  • See Win Holdings Pty Ltd is convicted of a breach of s 76A(1)(b) of the Environmental Planning and Assessment Act 1979 for carrying out development otherwise than as required by the terms of a development consent.
  • The Defendant is fined the sum of $30,000.