Ku-ring-gai Municipal Council v Kizana [2002] NSWLEC 187

Land and Environment Court of New South Wales

CITATION : Ku-ring-gai Municipal Council v Kizana [2002] NSWLEC 187 PROSECUTOR Ku-ring-gai Municipal Council PARTIES : DEFENDANT Kizana FILE NUMBER(S) : 50008 of 2002 CORAM: Pearlman J KEY ISSUES: Prosecution :- development without development consent - preparation of forged plans - reliance upon forged plans - plea of guilty - penalty LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 76A(1), s 125 Ku-Ring-Gai Planning Scheme Ordinance Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; CASES CITED: R v De Simoni (1981) 147 CLR 383; R v O'Neill [1979] 2 NSWLR 582; R v Thomson (2000) 49 NSWLR 383 DATES OF HEARING: 29/07/2002 EX TEMPORE JUDGMENT DATE : 07/29/2002

PROSECUTOR Mr M L Wright (Barrister) SOLICITORS Deacons LEGAL REPRESENTATIVES: DEFENDANT in person SOLICITORS N/A

JUDGMENT:

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 50008 of 2002

Pearlman J

29 July 2002 KU-RING-GAI MUNICIPAL COUNCIL Prosecutor v JOSEPH KIZANA Defendant Judgment 1 The defendant, Joseph Kizana, is charged that between 11 and 23 February 2001 at Turramurra he committed an offence under s 125 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") in that he did cause development (the erection of a two-storey residential addition) to be carried out for which development consent was required under the Ku-Ring-Gai Planning Scheme Ordinance ("KPSO"), without obtaining development consent, being a thing being forbidden to be done under s 76A(1) of the EP&A Act. 2 The premises are at 14 Princes Street, Turramurra ("the site"). They are owned by Mr and Mrs Moujalli. The defendant, Mr Kizana, has pleaded guilty to the offence. A plea of guilty carries with it an admission of all the elements of the offence (R v O'Neill [1979] 2 NSWLR 582). 3 Mr Kizana is unrepresented but he has agreed that the statement of facts prepared by the prosecutor is a correct statement of facts. I base the facts of this matter on that document and that document alone. 4 The site is within zone No 3(a) (Business Retail Services) under the KPSO. Under the KPSO development for the purpose of a dwelling-house is prohibited. However, development for the purpose of a dwelling-house used in conjunction with purposes permitted in the zone can be carried out, but only with development consent. The position, then, is that either the two-storey addition to the shop at the site was prohibited, or, if used in conjunction with a purpose permitted in the zone, was a development which required development consent.