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Mosman Municipal Council v. Menai Excavations Pty Ltd

Country/Territory
Australia
Type of court
Others
Date
Aug 7, 2002
Source
UNEP, InforMEA
Court name
Land and Environment Court of New South Wales
Judge
Lloyd
Reference number
NSWLEC 132
Language
English
Subject
Wild species & ecosystems
Keyword
Offences/penalties
Abstract
The defendant had pleaded guilty to an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) that he carried out demolition of a Private Hospital without prior development consent issued by the prosecutor and as required under the Mosman Local Environmental Plan 1998. The present proceedings related to penalty and costs. The demolition of a building under the Local Environmental Plan 1998 required development consent. Moreover, the property was also listed as a heritage item and was within a heritage conservation area under the plan. The council’s consent was also required for demolishing a heritage item or a building within a heritage conservation area. The court emphasized that it had to be borne in mind that an offence against s 125(1) of the EP&A Act was one of strict liability. There was thus an obligation on those who carried out development, including demolition work, to ensure that any necessary development consent had been obtained. It was not usual, in the case of strict liability offence, for a defendant to receive the benefit of s 10 of the Crimes (Sentencing Procedure) Act 1999 in case of “(b) trivial nature of the offence”. However, the court did not regard the subject offence as trivial. The system of planning control would become somewhat ineffective if persons were to carry out development, including demolition work, without ensuring that necessary development consent had been obtained. There was in the opinion of the court a need to impose a penalty which reflected a general deterrence and to reinforce this obligation on the defendant. The defendant was convicted of the offence as charged. The court ordered the payment of a penalty of $30,000.
Full text
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