Georges River Council v RNA Building Solutions Pty Ltd; Georges River Council v El Saadi [2024] NSWLEC 139

Land and Environment Court New South Wales

Medium Neutral Citation: Georges River Council v RNA Building Solutions Pty Ltd; Georges River Council v El Saadi [2024] NSWLEC 139 Hearing dates: 10 December 2024 Date of orders: 18 December 2024 Decision date: 18 December 2024 Jurisdiction: Class 5 Before: Preston CJ Decision: The Court orders: (a) in proceedings 2023/237804 (demolition): (1) RNA Building Solutions Pty Ltd is convicted of the offence against s 9.50(3A) and s 4.2(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW), as charged. (2) RNA Building Solutions Pty Ltd is fined $18,750. (3) RNA Building Solutions Pty Ltd is to pay the fine in order 2 to the Registrar of the Land and Environment Court, who is to pay such fine to Georges River Council pursuant to s 694(1) of the Local Government Act 1993 (NSW). (4) RNA Building Solutions Pty Ltd is to pay the prosecutor's costs of the proceedings of one-half of the amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW). (b) in proceedings 2023/237806 (excavation): (1) RNA Building Solutions Pty Ltd is convicted of the offence against s 9.50(3A) and s 4.2(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW), as charged. (2) RNA Building Solutions Pty Ltd is fined $28,125. (3) RNA Building Solutions Pty Ltd is to pay the fine in order 2 to the Registrar of the Land and Environment Court, who is to pay such fine to Georges River Council pursuant to s 694(1) of the Local Government Act 1993 (NSW). (4) RNA Building Solutions Pty Ltd is to pay the prosecutor's costs of the proceedings of one-half of the amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW). (c) in proceedings 2023/237805 (erection of building): (1) RNA Building Solutions Pty Ltd is convicted of the offence against s 9.50(3A) and s 4.2(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW), as charged. (2) RNA Building Solutions Pty Ltd is fined $18,750. (3) RNA Building Solutions Pty Ltd is to pay the fine in order 2 to the Registrar of the Land and Environment Court, who is to pay such fine to Georges River Council pursuant to s 694(1) of the Local Government Act 1993 (NSW). (4) RNA Building Solutions Pty Ltd is to pay the prosecutor's costs of the proceedings of one-half of the amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW). (d) in proceedings 2023/237814 (demolition): (1) Mr Ahmad El Saadi is convicted of the offence against s 9.50(3A) and s 4.2(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW), as charged. (2) Mr Ahmad El Saadi is fined $18,750. (3) Mr Ahmad El Saadi is to pay the fine in order 2 to the Registrar of the Land and Environment Court, who is to pay such fine to Georges River Council pursuant to s 694(1) of the Local Government Act 1993 (NSW). (4) Mr Ahmad El Saadi is to pay the prosecutor's costs of one-half of the amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW). (e) in proceeding 2023/237813 (excavation): (1) Mr Ahmad El Saadi is convicted of the offence against s 9.50(3A) and s 4.2(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW), as charged. (2) Mr Ahmad El Saadi is fined $28,125. (3) Mr Ahmad El Saadi is to pay the fine in order 2 to the Registrar of the Land and Environment Court, who is to pay such fine to Georges River Council pursuant to s 694(1) of the Local Government Act 1993 (NSW). (4) Mr Ahmad El Saadi is to pay the prosecutor's costs of one-half of the amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW). (f) in proceedings 2023/237812 (erection of building): (1) Mr Ahmad El Saadi is convicted of the offence against s 9.50(3A) and s 4.2(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW), as charged. (2) Mr Ahmad El Saadi is fined $18,750. (3) Mr Ahmad El Saadi is to pay the fine in order 2 to the Registrar of the Land and Environment Court, who is to pay such fine to Georges River Council pursuant to s 694(1) of the Local Government Act 1993 (NSW). (4) Mr Ahmad El Saadi is to pay the prosecutor's costs of one-half of the amount as may be determined under s 257G of the Criminal Procedure Act 1986 (NSW). Catchwords: OFFENCES AND PENALTIES – sentence – aiding, abetting, counselling or procuring another person to commit an offence – offence of carrying out development otherwise than in accordance with development consent – alteration and additions to a dwelling house – objective seriousness of offences – nature of offending – intention an element of secondary participation in offence – not aggravating factor – no harm to environment – no foreseeability of harm – no practical measures to prevent harm – full control over causes of offences – offences not committed for financial gain – low objective seriousness – subjective circumstances of offenders – early guilty plea – remorse – no prior convictions – good character – unlikelihood of reoffending – general deterrence – review of appropriate penalties – totality of sentences – substantial overlap between offences – close relationship between corporate and individual offenders – fines reduced – no additional orders appropriate – application of fines when recovered – process for – costs Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A Criminal Procedure Act 1986 (NSW), s 257B Environmental Planning and Assessment Act 1979 (NSW), ss 1.5, 4.2, 9.56 Fines Act 1996 (NSW), ss 6, 112 Local Government Act 1993 (NSW), s 694 Protection of the Environment Operations Act 1997 (NSW), Pt 8.3 Land and Environment Court Rules 2007 Cases Cited: ACE Demolition & Excavation Pty Ltd v Environment Protection Authority (2024) 260 LGERA 358; [2024] NSWCCA 4 Botany Bay City Council v Saab Corp Pty Ltd (2011) 183 LGERA 228; [2011] NSWCA 308 Burwood Council v Pratelli [2014] NSWLEC 28 Canterbury-Bankstown Council v Naji [2016] NSWLEC 101 Chief Executive, Office of Environment and Heritage v Traikaero Pty Ltd; Chief Executive, Office of Environment and Heritage v Woods [2019] NSWLEC 90 Cooper v Coffs Harbour City Council (1997) 97 LGERA 125 Cumberland Council v Badaoui Habib [2017] NSWLEC 18 Director-General, Department of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009] NSWLEC 137 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Elias v The Queen (2013) 248 CLR 483; [2013] HCA 1 Elyard v R (2006) 45 MVR 402; [2006] NSWCCA 43 Environment Protection Authority v Ghossayn Group Pty Ltd; Environment Protection Authority v Ghossayn [2023] NSWLEC 127 Environment Protection Authority v Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006] NSWLEC 419 GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 Giorgianni v The Queen (1985) 156 CLR 475; [1985] HCA 29 Hawkesbury City Council v Foster and Mushroom Composters Pty Ltd (1997) 97 LGERA 12; [1997] NSWCA 141 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 Mansour v R (2011) 209 A Crim R 275; [2011] NSWCCA 28 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 R v Thomson (2000) 49 NSWLR 383; [2000] NSWCCA 309 Secretary, Department of Planning, Industry and Environment v Ronald Lewis Greentree and Auen Grain Pty Ltd [2024] NSWLEC 131 The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 Texts Cited: Kogarah Local Environmental Plan 2012 Category: Sentence Parties: Georges River Council (Prosecutor) RNA Building Solutions Pty Ltd (Defendant) Ahmad El Saadi (Defendant) Representation: Counsel: R Coffey (Prosecutor) M Fozzard (Defendants)