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Blacktown City Council v Pace

Blacktown City Council v Pace

Case [2002] NSWLEC 142 20 August 2002

Statutory Interpretation

Unconscionable Conduct

Causation

Breach of Trust

Restitution

Admissibility of Evidence

Environmental Law

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Reported Decision: (2002) 121 LGERA 432

Land and Environment Court

of New South Wales

CITATION: Blacktown City Council v Pace & Anor [2002] NSWLEC 142

PARTIES: DEFENDANTS
Francis George Pace and Joseph Pace

FILE NUMBER(S): 50127 of 2001

CORAM: Pain J

KEY ISSUES:
Construction and Interpretation :- meaning of use in s 144 of the Protection of the Environment Operations Act 1997 - meaning of permits in s 144 of the Protection of the Environment Operations Act 1997
Prosecution:- use of land as waste facilty - not guilty plea - whether offence proven

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Evidence Act 1995 s 69, s 165
Protection of the Environment Operations Act 1997 s144

CASES CITED: Bonus Pty Ltd v Leichhardt Municipal Council (1954) 19 LGR 375;
Broad v Parish (1941) 64 CLR 588;
Byron Shire Council v The Rising Damp Corporation Pty Ltd [2001] NSWLEC 260;
Environmental Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1;
Gray's Haulage Co. Limited v Arnold [1966] 1 WLR 534;
Giorgianni v The Queen (1985) 156 CLR 473;
LN Price Pty Ltd v Leichhardt Municipal Council (1959) 4 LGRA 63;
Lyver v The State of Victoria [1983] 2 VR 475;
R v Buckett (1995) 126 FLR 435;
Sweet v Parsley [1969] 1 All ER 347;
The Corporation of the City of Adelaide v The Australasian Performing Right Association Ltd (1928) 40 CLR 481;
William McKenzie Pty Ltd v Leichhardt Municipal Council (1964) 10 LGRA 137

DATES OF HEARING: 19, 20/06/2002

DATE OF JUDGMENT:
08/20/2002

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr DR Parry (barrister)
SOLICITORS
Taylor Kelso
DEFENDANTS
Mr BJ Preston SC
with Ms JM Jagot (barrister)
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

IN THE LAND AND Matter No: 50127 of 2001
ENVIRONMENT COURT Coram: Pain J
OF NEW SOUTH WALES Decision Date: 20 August 2002

BLACKTOWN CITY COUNCIL

Prosecutor

FRANCIS GEORGE PACE and

JOSEPH PACE

Defendants

JUDGMENT

1. These are Class 5 proceedings commenced by the Prosecutor, Blacktown City Council (the Prosecutor), against Francis George Pace and Joseph Pace. The Summons filed by the Prosecutor claims in par 1:

An order that the Defendants, Francis George Pace and Joseph Pace of 687 Richmond Road, Dean Park in the state of New South Wales appear before a Judge of the Court to answer the charge that between 24 July 2000 and 29 July 2000 they committed an offence against the Protection of the Environment Operations Act 1997 (NSW) ("the Act") in that, being the owners of land known as 687 Richmond Road, Dean Park being the land in Folio Identifier 61/777770 ("the land") which cannot lawfully be used as a waste facility, they permitted the land to be used as a waste facility contrary to s 144 of that Act.

2. It was agreed by the parties that the matter would proceed by affidavit evidence. No evidence was filed by the Defendants. The Prosecutor filed a number of affidavits as follows:

(a) affidavit of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Blacktown City Council v Pace

Details

AGLC: Blacktown City Council v Pace [2002] NSWLEC 142
Case: [2002] NSWLEC 142
Decision Date: 08/20/2002

CaseChat Overview and Summary

The case of Blacktown City Council v Pace involved proceedings brought by the Blacktown City Council against Francis George Pace and Joseph Pace, alleging that they had permitted land to be used as a waste facility contrary to s 144 of the Protection of the Environment Operations Act 1997. The Council sought an order for the defendants to appear and answer the charge. The legal issues centred on the interpretation of "use" and "permit" under s 144 of the Act and whether the offence had been proven beyond reasonable doubt.

Regarding the interpretation of "use," the Court found that the land had been used as a waste facility based on the substantial amount of waste present, which suggested accumulation over a period. The Court rejected the defence's argument that "use" required more than mere presence of waste and held that the nature and extent of the presence of activities on the land determined whether it was used as a waste facility.

As for the interpretation of "permit," the Court held that permitting required knowledge of the act and the capacity to prevent it. The Court found that the Prosecutor had failed to prove beyond reasonable doubt that the Defendant had permitted the use of the land as a waste facility. The evidence, particularly the Douglas Partners' report, was deemed unsatisfactory as it did not clearly establish the Defendant's knowledge or intent to permit the use of the land as a waste facility.

Consequently, the summons against Francis George Pace was dismissed. The Court reserved the question of costs and ordered the exhibits to be returned.

Orders