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Local Government Prosecution - Unlawful Building Work

Posted by Terry Law on 26 October 2016

Successful local government prosecution for demolishing an asbestos building without approval

King & Company has assisted Maranoa Regional Council in successfully prosecuting a company and its directors for unlawfully demolishing a house in Roma, which resulted in the release of asbestos material.  

Over a number of days in September 2014, the house was demolished and most of the demolished material was transported to another location.  Samples of the demolition material taken from the property by Council for testing later confirmed the presence of asbestos.  There was no approval for the demolition.  

Following the containment and clean-up of asbestos material, Council commenced a prosecution against the company and its two directors, who had arranged and paid for the house to be demolished.  All three defendants pleaded guilty to the charge and were sentenced on 8 March 2016.  The defendants sought a fine between $5000 and $6000.  

At the sentence hearing, Council argued that general deterrence was particularly important.  Any penalty should deter others from unlawfully demolishing structures containing asbestos where it may be considered cheaper to demolish unlawfully and run the risk of paying a small fine, rather than paying to lawfully demolish the structure and deal with the asbestos in an appropriate manner.   Council also argued that, had an application for building work to demolish the house been made, Council would have likely approved the development and appropriate conditions would have been included to deal with any asbestos.  

The Magistrate considered Council's submissions regarding general deterrence to be reasonable.  The Magistrate also accepted that the early plea and the lack of criminality were matters in the defendants favour.  Having taken into account all matters raised by the parties, the maximum penalties for the offence and the fact that all three defendants were in effect one household, the Magistrate ordered the defendants to pay:

  • a $20,000.00 fine;
  • Council's professional costs of $2,009.20;
  • Council's investigation costs of $218.85;  and
  • Council's other costs (e.g. asbestos clean-up) of $2,692.73. 

The Magistrate made an additional order that the fines be paid to Council.  No conviction was recorded and all fines were referred to the State Penalties Enforcement Registry.  

Terry LawAuthor: Terry Law
About: Terry is a partner in the firm's Planning & Environment Group.
Tags: Local Government kingandcompany Asbestos Planning & Environment

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