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Custodial sentences for illegal development and use in the Land and Environment Court

By Michael Winram

• 23 March 2017 • 3 min read
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This decision should give councils confidence that the court will impose serious sentences on landowners failing to comply with planning laws

The NSW Land and Environment Court has taken the rare step of imposing a custodial sentence on a landowner who refused to comply with Court’s orders to cease an illegal use of a duplex as a boarding house and to rectify unauthorised building improvements.

In the case of Cumberland Council v Khoury [2017] NSWLEC 14, the landowner had been using his two-storey duplex as a commercial boarding house by adapting the building to accommodate several small residential units without development consent. The building posed health and fire safety risks to its occupants. The Council applied to the Court for an order that the owner cease the illegal use after other attempts to require him to comply were unsuccessful.

Orders were made in February 2015 that the owner cease the illegal use. After the owner failed to comply, the Court again ordered the owner to cease the use in April 2015 and ordered that the owner remove the unauthorised improvements to the property. The owner did not take steps to comply with the orders and the Court made further orders to deprive the property of electricity and water services so that it could not be occupied.

Council then prosecuted the owner for contempt of the Court’s February and April 2015 orders. The Court held that the owner was guilty of each count of contempt, finding that the acts of contempt were ‘contumacious’, meaning that they were actions in deliberate defiance of the Court’s authority, and at the high end of seriousness.

The Court sought and obtained a report from the Probation and Parole Service as to the landowners’ suitability for the imposition of a custodial sentence. It assessed the landowner as being unsuitable for the lesser sentencing options of an order for supervision, or an order for community service. The Court also considered that, for various reasons, it was inappropriate to deal with the matter by way of a fine.

The factors that weighed in favour of imposing a custodial sentence included the owner’s prior conviction in 2011 for a similar offence (regarding unauthorised improvements to the same property) for which the owner was fined $35,000, the need to impose a penalty that would act as both a specific deterrent to the owner re-offending and a general deterrent to the community against breaching the State’s planning laws, and the lack of contrition or remorse shown by the owner for his actions. In the landowner’s favour was the fact that he had ceased the illegal use as a boarding house and had taken, and was continuing to take, steps to obtain development consent for the property.

The Court sentenced the landowner to 10 months full time detention for contempt, something which Justice Moore said the Court had done only once before in its long history. The Court also considered that the sentence should be suspended if the landowner entered into a good behaviour bond. It did this because if the sentence was suspended the landowner could rectify the illegal work. If he served the full custodial sentence, the rectification works would go into hiatus during the period of incarceration, which would not be in the broader public interest.

This decision should give councils some confidence that the Court will not shy away from imposing serious sentences where a landowner is ‘contumacious’ with respect to compliance with planning laws.

By Michael Winram

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