Md Abdul Halim Miah v Canterbury City Council [2012] NSWLEC 193

Land and Environment Court New South Wales

Medium Neutral Citation: Md Abdul Halim Miah v Canterbury City Council [2012] NSWLEC 193 Hearing dates: 22 August 2012 Decision date: 22 August 2012 Jurisdiction: Class 6 Before: Pain J Decision: 1. Appeal dismissed. 2. Appellant to pay Council's costs as agreed or assessed. 3. Order 2 suspended for 3 calendar months to 22 November 2012. Catchwords: APPEAL - appeal against sentence imposed by local court - whether appellant able to pay fine and legal costs imposed by local court Legislation Cited: Crimes (Appeal and Review) Act 2001 s 31(1), s 37, s 49(2) Crimes (Sentencing Procedure) Act 1999 s 3A Environmental Planning and Assessment Act 1979 s 76A(1)(a), s 125(1) Fines Act 1996 s 6, s 10 Cases Cited: Environment Protection Authority v Buchanan (No 2) [2009] NSWLEC 31; (2009) 165 LGERA 383 R v Rahme (1989) 43 A Crim R 81 Zhou v Auburn City Council; Chen v Auburn City Council [2009] NSWLEC 75 Category: Principal judgment Parties: Md Abdul Halim Miah (Applicant) Canterbury City Council (Respondent) Representation: Mr M Miah (Applicant in person) Mr A Simpson (solicitor) (Respondent) Pikes & Verekers Lawyers (Respondent) File Number(s): 60213 of 2012

EX TEMPORE Judgment 1This is an appeal under s 31(1) Crimes (Appeal and Review) Act 2001 (the Appeal Act) against the sentence imposed on the Appellant Mr Miah by Burwood Local Court on 1 December 2011. In response to a summons filed by Canterbury City Council (the Council) Mr Miah pleaded guilty to an offence under s 125(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) being a breach of s 76A(1)(a) of carrying out development without consent. Work was undertaken by Mr Miah on the replacement of an outbuilding/granny flat on land owned by him at Wiley Park. Mr Miah was fined $2,000 and ordered to pay the Council's legal costs of $3,000. 2Under s 37(1) of the Appeal Act an appeal in this Court is by way of rehearing on the basis of evidence before the Local Court. New evidence can be relied upon with leave of the Court under s 37(2) if it is in the interests of justice to allow it. At the outset of the hearing I gave leave to Mr Miah to read an affidavit sworn by him on 15 August 2012 which contained more detail of his financial situation than was before the Magistrate. He was also allowed to rely on a statement which identified a number of matters before the Local Court relating to the purchase of his house at Wiley Park in 2010 and mortgage financing for this, his application for development consent DA 349/2010 for extensions to the main house and the exclusion of work to the outbuilding/granny flat at that time, incorrect information received from a friend that no development consent was needed for the outbuilding/granny flat, and the commencement of work on the outbuilding/granny flat in April 2010. A notice of intention to issue an order to demolish the building was issued by a Council officer in May 2011. An application for a building certificate was made in June 2011 for the work already done and was issued by the Council on 19 July 2011. He lodged a development application for the balance of the work on the outbuilding/granny flat in November 2011. Mr Miah was convicted and sentenced on 1 December 2011. Development consent was granted on 2 December 2011. 3Mr Miah's affidavit attests to his recent surgery which meant he was unable to work for three months earlier this year. His oral evidence is that he has very recently returned to work full time but cannot do any overtime because of his health. Mr Miah was cross-examined by the Council's solicitor about his financial position. He identified that he had a mortgage in 2010 of $375,000. He estimated he had equity in his house of $100,000. He states that his net income when he is working full time is $4,038 per month and his expenses are $4,000. His income was much less when he was on sickness benefits. He stated in cross-examination that he refinanced his house and obtained a mortgage of $410,000 in April 2011 to include funding for the building of the outbuilding/granny flat and for travel expenses to visit a sick relative. 4The transcript and Local Court file were also tendered by the Council. Documents obtained on subpoena from Suncorp Bank concerning an application for a mortgage for his house at Wiley Park were also tendered. A chronology of relevant dates was filed by the Council. 5Mr Miah submitted that he would suffer financial hardship if any penalty at all is imposed on him and also seeks a reduction of the Council's legal costs. He submitted that his case was distinguishable from the many listed in the attachment to the Council's submissions because he stopped work, applied for a building certificate, development consent and a construction certificate. He estimates he has paid $8,383.60 for these certificates. I note this expenditure was over a period from 27 June 2011 to 10 February 2012 according to the dates on some of the receipts at attachment 7 to his statement. 6The Council submitted that the penalty imposed by the Magistrate was already low and Mr Miah's ability to pay was taken into account by the Magistrate. Any lesser penalty would have no deterrence effect for an offence that is increasing in the Council's local government area. A lower penalty would be a disincentive to incur the costs of making development applications where required.