Chin v Ryde City Council

(2004) 133 LGERA 312; [2004] NSWCCA 167

NSW Court of Criminal Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Environment offences
3. › Carrying out prohibited development
4. › Use of land as residential flat building
5. › Whether offence committed only when use commences or for so long as use continues
6. › Whether compliance with Council directions precludes prosecution
7. › Environmental Planning and Assessment Act 1979 (NSW), ss 4, 76B, 125(1), 127
1. Environment Law
2. › Development control
3. › Prohibited development
4. › Use of land
5. › Residential flat building in residential zone
6. › Structure of s 125(1) offence
7. › Four distinct bases of liability
8. › Environmental Planning and Assessment Act 1979 (NSW), ss 76B, 125(1)
1. Criminal Law
2. › Appeal
3. › Sentence
4. › Whether sentencing judge failed to consider factors in s 10(3)
5. › Whether penalty manifestly excessive
6. › Crimes (Sentencing Procedure) Act 1999 (NSW), s 10

Quick Take

The offence of carrying out prohibited development by use of land under s.76B of the Environmental Planning and Assessment Act 1979 is a continuing offence committed for so long as the use continues, not merely when it commences. Compliance with Council directions to cease a prohibited use does not preclude prosecution for the offence of carrying out that prohibited development. Section 125(1) creates four distinct alternative bases of liability, and a breach of s.76B is of itself an offence irrespective of any Council direction.