Cessnock City Council v Courtney (No. 6)
[2004] NSWLEC 622
•11/12/2004
Land and Environment Court
of New South Wales
CITATION: Cessnock City Council v Courtney (No. 6) [2004] NSWLEC 622 revised - 15/11/2004 PARTIES: PROSECUTOR
DEFENDANT
Cessnock City Council
Wayne Leslie CourtneyFILE NUMBER(S): 50013 of 2004 CORAM: Cowdroy J KEY ISSUES: Prosecution :- whether the defendant carried out development without the requisite consent under s 76A(1)(a) of the Environmental Planning and Assessment Act 1979 thereby committing an offence against s 125(1) of such Act. LEGISLATION CITED: Cessnock Local Environment Plan 1989, cl 9, cl 10A
Environmental Planning and Assessment Act 1979, s 76A(1)(a), s 125CASES CITED: Dosan Pty Ltd v Rockdale City Council (2001) 117 LGERA 363;
Dyers v The Queen (2002) 210 CLR 285;
Jones v Dunkel and Anor (1958-1959) 101 CLR 298;
Reg v Buckland [1977] 2 NSWLR 452;
RPS v The Queen (2000) 199 CLR 620;
Weissensteiner v The Queen (1993) 178 CLR 217DATES OF HEARING: 17/08/2004 - 20/08/2004; 24/08/2004; 26/08/2004; 27/08/2004; 31/08/2004; 02/09/2004; 03/09/2004; 02/11/2004; 03/11/2004 DATE OF JUDGMENT: 11/12/2004 LEGAL REPRESENTATIVES:
PROSECUTOR
Mr T Howard (Barrister)SOLICITORS
Cleaves Mallik GibbsDEFENDANT
SOLICITORS
Mr P Arden SC
Mr J Kildea (Barrister)
Thompson Norrie
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESCowdroy J
12 November 2004
50013 of 2004 CESSNOCK CITY COUNCIL v WAYNE LESLIE COURTNEY
The ChargeJudgment – No. 6
1 Cessnock City Council (“the prosecutor”) charges that Wayne Leslie Courtney (“the defendant”) did carry out development without development approval as required by s 76A(1)(a) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) and thereby committed an offence against s 125(1) of such Act.
2 The development is alleged to have taken place on land being known as Lot 9 in Deposited Plan 868722 being land at Mount Molly Morgan located in Camp Road, Greta (“the land”). The development is particularised in the summons as comprising:-
(b) construction of an all weather access road, of approximately 600 to 750 metres in length and approximately 3.5 to 5 metres in width from the entrance gate to the Land near Camp Rd at the base of Mt Molly Morgan to the newly constructed platform on the top of Mt Molly Morgan involving cutting, filling and importation and placement of roadbase material.(a) earthworks and associated works on the top of Mt Molly Morgan being the construction of a flat, level and compacted platform approximately 3,200 square metres in area, including by removal of rocks, cutting, filling, compacting and levelling the top of the Mt Molly Morgan
3 The particulars state the purpose of the development as follows:-
The said development was for the purpose of the proposed siting and construction of a dwelling house on the top of Mt Molly Morgan.
4 It is alleged that such works are all works for which consent is required to be obtained under the EP&A Act and for which no development consent has been obtained.
5 The offence is alleged to have occurred between 24 March 2003 and about 9 April 2003. The defendant has pleaded not guilty to the charge.
Relevant Legislative Provisions
6 Section 125(1) of the EP&A Act relevantly provides:-
Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.
7 The prosecutor alleges that the defendant did what he was prohibited from doing under s 76A(1)(a) of the EP&A Act, by carrying out development on the land without consent, contrary to the Cessnock Local Environmental Plan 1989 (“the LEP”).
8 Section 76A(1)(a) of the EP&A Act provides:-
(1) General
- If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:
9 Under the LEP, the subject land is zoned 1 (a) – Rural “A” zone. Clause 9 of the LEP relevantly provides:-
(1) The objectives of a zone are set out in the Table to this clause under the heading “Objectives of zone” appearing in the matter relating to the zone.
(c) development is prohibited,
(a) development may be carried out without development consent,
(b) development may be carried out only with development consent, and
are specified under the headings “Without consent”, “Only with consent” and “Prohibited”, respectively, appearing in the matter relating to the zone.
(3) Except as otherwise provided by this plan, the Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried cut.
Further clause 9 of the LEP relevantly provides the objectives for the Zone No 1 (a) Rural “A” Zone as follows:-
1 Objectives of zone
2 Without consent
The objectives of this zone are:
(i) the rural capability and suitability of the land,(a) to enable the continuation of existing forms of agricultural land use and occupation,
(b) to ensure that potentially productive land is not withdrawn from production,
(c) to encourage new forms of agricultural land use,
(d) to enable other forms of development which are associated with rural activity and which require an isolated location, or which support tourism and recreation, and
(e) to ensure that the type and intensity of development is appropriate in relation to:(iv) the costs of providing public services and amenities.
(ii) the preservation of the agricultural, mineral and extractive production potential of the land,
(iii) the rural environment (including scenic resources), and
Agriculture (other than animal boarding, breeding or training establishments, pig keeping establishments, feed lots or poultry farming establishments); commercial vineyards; forestry; stables.
3 Only with consent
4 ProhibitedAny purpose other than a purpose included in item 2 or 4.
Advertising structures; amusement parks; automotive uses; boarding houses; bulk stores (other than those associated with an agricultural use); commercial premises (other than those primarily intended to provide services to tourists); heliports; industries (other than home industries or rural industries); junk yards; liquid fuel depots; mortuary chapels; motor showrooms; recreation facilities (other than those ancillary or related to a tourist recreation facility); residential flat buildings; shops (other than those primarily intended to provide services to tourists or general stores); transport terminals (other than the storage and servicing of vehicles associated with the occupation of the owner); warehouses.
10 Pursuant to the LEP, the works referred to in the charge are permissible on the land with consent, but neither consent nor departmental concurrence was sought for such works. Consent was not required if the works constituted “agriculture” or were “exempt development”.
11 The definition of “agriculture” is contained in cl 5 of the LEP as follows:-
“agriculture” means the use of land for the purposes of animal husbandry, including the keeping or breeding of livestock and the growing of fruit, vegetables and the like, but does not include the use of the land for the purposes of a commercial vineyard or a building or place used for a purpose elsewhere specifically defined in this clause.
12 Clause 10A of the LEP relevantly defines “exempt development” as follows:-
(1) Development of minimal environmental impact listed as exempt development in Development Control Plan No 43 as adopted by the Council on 16 August 2000 is exempt development , despite any other provision of this plan.
10A What is exempt and complying development?
…
(3) Development is exempt or complying development only if it complies with the development standards and other requirements applied to the development by Development Control Plan No 43 as adopted by the Council on 16 August 2000.
13 Cessnock City Council Development Control Plan No 43 Exempt and Complying Development (“the DCP”) therefore affects the land. Clause 3 of the DCP provides:-
This plan applies to development proposals for structures and activities which are deemed to have minor environmental impact and identified as exempt development in Schedule 1.3.1 Development to which this plan applies
14 With respect to “Dams and Rural Earthworks” the relevant definition applicable to “earthworks” relevantly provides as follows:-
- Earthworks:
(i) minor levelling of land to a maximum depth of 300mm;
(ii) minor drainage works;
…
Prosecutor’s Evidence
15 The relevant evidence for the prosecution is summarised hereunder.
William Donald Inwood Smith
16 Mr Smith, a semi-retired farmer and manufacturer who lives on the opposite side of Camp Road to the land on the western side of Mount Molly Morgan noticed the presence of machinery and noise coming from the land. On 24 March 2003 Mr Smith and his wife walked to the top of Mount Molly Morgan. Mr Smith observed that earthworks were being carried out and that a pile of topsoil had been pushed up (as shown in annexure E of the affidavit of Mr Everett). After having a conversation with the people who were working on the land, Mr Smith and his wife left the site. Mr Smith gave evidence that prior to 24 March 2003 the top of Mount Molly Morgan had been dome shaped and covered with grass. Previously the summit of the mountain had an undulating appearance but after the works the surface was “smoothed out”.
Valerie Frances Randall
17 Ms Randall, a pensioner, is a long time resident of the township of Greta. She testified that following the Second World War a migrant centre was established at Greta, which operated between 1949 and 1964. She deposed that Mount Molly Morgan was frequently used as a vantage point for the benefit of the residents of the migrant camp. In late summer 2003 she observed from Kent Street, Greta, that the shape of the top of the mountain had changed and that it was looking distinctly flat. She advised Councillor Maybury of the works. She considered that Mount Molly Morgan is important to the town’s history.
Nadine Louise Ash
18 Ms Ash was engaged by the prosecutor as a Development Surveillance Officer. Having received information on 27 March 2003 concerning earthworks being effected on the land she searched the prosecutor’s records and ascertained that the owners were Mr W L Courtney (the defendant) and Mrs P Courtney. On the same day she endeavoured to speak to the defendant and contacted him by telephone but he indicated to her that he was travelling and would not return until 31 March 2003. Ultimately on 31 March 2003 an inspection of the land by Ms Ash occurred in the presence of Mr Rodney Sandell, another officer of the prosecutor.
19 At the beginning of the inspection Ms Ash referred to the sound of machinery operating and enquired of the defendant what was being undertaken. In response the defendant informed her that they were working on an access road. Ms Ash then referred to complaints received by the prosecutor that the defendant had “cut off the top of the mountain”. The defendant replied that he was repairing the road to enable access to the top of the mountain, and proposed to “concrete it eventually”. According to Ms Ash, when he was asked about the flattening at the top of the mountain the defendant replied:-
I don’t need approval for that. My wife wants the house built up there, and Toby Thomas has drawn up these preliminary plans for me.
The defendant then showed Ms Ash plans for a large octagonal shaped house. Ms Ash then raised the issue of the necessity for approval by the prosecutor saying:-
- You may not be able to get approval to build up there due to aesthetic impacts, access and the stability of the mountain.
The defendant replied:-
- Well Council approved a house down the road, which is on top of the mountain.
Ms Ash then said:-
- That may be the case, but, the area you want to build on is higher than that mountain and you will need to address those issues, and you need development approval before you can start any works up there.
The defendant replied:-
- I intend on lodging an application in the next couple of weeks, which Toby Thomas is addressing those issues.
20 While driving to the top of Mount Molly Morgan Ms Ash made the following observation:-
- The access track extended from the gate on Camp Rd to the top of the mountain. It was unsealed and there was no gravel or road base on it. It was a dirt track, relatively uncompacted. There were some fresh cuts of up to about a metre in depth. I could see they were recent cuts because they were devoid of vegetation. It was wide enough for a car and bulldozer to pass each other on the same section. It had been formed and partially graded. The parts which were graded had the track marks of the heavy machinery which was present on the site.
21 At the top of Mount Molly Morgan Ms Ash observed a large flattened out area comprising subsoil devoid of vegetation. Two heavy vehicles were working on the land, one being a bulldozer and the other being a compactor. Ms Ash observed that the area had been flattened and stripped of topsoil, leaving a clay type soil. She deposed:-
- To the western side of the site, there was a large stockpile of topsoil, which had been pushed off the main working area, and stored there for an unknown use. I would estimate the amount of soil stockpiled there was approximately 10 metres wide and 2 metre [sic] high.
22 Ms Ash explained to the defendant that he would definitely need approval for the development . The defendant replied that approval was not required for agriculture and that he was going to plant vines. Ms Ash said:-
- You need approval for rural earthworks which moves soil greater than 300mm in depth.
The defendant replied:-
- It’s for agriculture, and I have not moved that much soil. It is less than that.
23 Photographs taken by Ms Ash demonstrate the extensive nature of the clearing, being the relocation of rocks, the removal of vegetation and the extensive earthworks for road construction, which was undertaken on the land.
24 Under cross-examination Ms Ash gave evidence that she did not make notes during her inspection of the land on 31 March 2003 because it was raining. On the following day she typed up a file note of her inspection of the land and later created a statement from that file note. She recorded the effect of what was said as she remembered it. Ms Ash also stated that the plan the defendant showed her during the inspection on 31 March 2003 bore a date in March 2003.
Stephen Forde Leathley
25 Mr Leathley, a consultant town planner, was employed as the prosecutor’s Development Services Manager. On 8 April 2003 he inspected the land in the company of Mr Sandell, and Ms Ash.
26 On such visit he observed a roller operating on an access road and saw that a grader was parked at the side of the road. Within the front gate of the land he observed that a road had been constructed and from within some distance of the gate it was surfaced with a base material to the top of Mount Molly Morgan. An excavation to a depth of approximately two metres had taken place on a slope to construct the road and trees were lying on the ground.
27 At the top of Mount Molly Morgan Mr Leathley had a short conversation with the defendant during which Mr Leathley raised the possibility that problems could be experienced with the road unless the deep cut was retained. In the conversation that ensued between Mr Leathley and the defendant, the defendant explained that he intended to plant vines on the cleared area at the top of the mountain and claimed that he did not need approval for agriculture. Mr Leathley referred to the plan for a large round house on the land which the defendant had shown Ms Ash. Mr Leathley shortly thereafter said:-
- Mate, there must be a dozen great places on this property to build a house. Why don’t we go and have a look around and see if there is anywhere else to build it?
The defendant replied:-
- Nup. My wife has got her heart set on it up here.
28 Subsequently the defendant said that he would soon be lodging a development application for a dwelling house. He was then informed that an investigation would be carried out. The defendant then responded:-
Oh well I didn’t think you needed approval. You know, I am just doing this for agricultural purposes.
29 On 15 January 2004 Mr Leathley interviewed the defendant at his business premises and made notes of the conversation, which are annexed to Mr Leathley’s affidavit. The interview records that the defendant engaged Mr Len Everett to undertake earthworks on the land. The defendant declined to provide details of his instructions to Mr Everett. When pressed concerning an admission the defendant made to Mr Leathley that he was responsible for work carried out on the land and on his daughter’s property, the defendant claimed that he was not aware that part of Mount Molly Morgan was on her land. The defendant declined to inform Mr Leathley of the purpose of the works that had been carried out. He maintained, however, that he intended to use the land for the purpose of a vineyard. The defendant said that he had not received any horticultural advice and the vines were for his personal use and not for commercial purposes. When asked why the cleared area had been compacted the defendant denied compaction had been undertaken. Mr Leathley said that he observed a compactor on the land. The defendant claimed that it should not have been there. In response to Mr Leathley’s statement that a development application would be required for a house, the defendant stated that his wife wished to build the house on top of the hill. Subsequently the defendant acknowledged that he wished to build his new home on the land and that he was committed to its development and the prosecutor was being unreasonable.
30 On 19 January 2004 Mr Leathley again attended the land for the purpose of a site inspection in the presence of the defendant, Mr Gary Warnes, a town planner retained by the defendant, Mr Murray Freeman and consultants, namely, Mr Philip Pollard and Mr Mark Leek for the prosecutor.
31 On 21 January 2004 Mr Leathley attended lot 7 in DP 868722 and lot 8 in the same deposited plan for the purpose of taking photographs of the top of Mount Molly Morgan and other photographs were taken in various locations in surrounding lands.
32 In cross-examination Mr Leathley said that he went to the land on 8 April 2003 because although he was not involved in any investigation, he had been told about the issue by a councillor and as a manager he wanted to acquaint himself with the land. Mr Leathley said that during the interview on 15 January 2003 he asked the defendant questions most of were contained in his notebook (exhibit 1). Mr Leathley took notes during the interview. He acknowledged that such notes were not a complete record of the interview, but that the notes were used to complete his statement (exhibit M).
33 Mr Leathley was recalled for a further cross-examination. Mr Leathley said on 12 January 2004 he attended the office of T.G. Thomas and Associates (“TG Thomas”) who had prepared plans for the proposed house and spoke to Mr Whiteley who called in Mr Davies. Mr Davies was asked by Mr Leathley how contact could be made with Ms Karen Shearer. Ms Shearer was the employee of TG Thomas and had the conduct of the preparation of the plans. Contact details of Ms Shearer were obtained. She attended Mr Leathley’s office and the interview was tape recorded. The tape recording was admitted into evidence (exhibit 16).
34 Mr Leathley used a tape recorder for the purpose of obtaining accuracy in the preparation of his statement. He said that he found it difficult to take notes during the interview with the defendant, and for that purpose used the tape recorder with Ms Shearer. Mr Leathley said he was however satisfied with the accuracy of the statement which he prepared following the interview with the defendant.
Rodney James Sandell
35 Mr Sandell was employed by the prosecutor as a Senior Planning Assessment Officer since 6 April 1993. Mr Sandell’s affidavits confirmed the evidence regarding the inspections of Mr Leathley and Ms Ash. He confirmed that during his inspection of the land on 31 March 2003 whilst they were on top of Mount Molly Morgan the defendant said:-
- I would have preferred the house over there [he was pointing in a general direction to the west] because it will cost us more to get power up to the top of the hill, but my wife wants it sited up here.
36 Mr Sandell estimated the levelled area at the top of the mountain to be approximately 70 metres by 80 metres. He estimated the size of the soil stockpile to be 10 metres in diameter and 3 metres high.
37 On his visit to the land of 8 April 2003, Mr Sandell took several measurements of the depth of fill around trees on the side of the mountain which were recorded in photographs tendered in evidence.
38 Under cross-examination Mr Sandell agreed that on the inspection of 8 April 2003 the defendant mentioned that he wanted to plant vines on the top of the mountain. Mr Sandell, whilst unsure of the size of the house plan which the defendant produced on 31 March 2003 thought it was on A3 sized paper. Mr Sandell could not identify which plan he was shown and thought it was a sketch plan. Mr Sandell was not sure whether the defendant said to him “These plans have been drawn by Toby Thomas and Associates” or “I’m going to get them done by Toby Thomas”.
Jacqui Tupper
39 Ms Tupper is an officer engaged by the prosecutor. She has searched the prosecutor’s Development Consent Register and could find no record of any development on the land. Further, no development consent exists for any earthworks and associated works on top of Mount Molly Morgan, nor the levelling of the land neither on the mountain, nor for any road works.
Lyndon Stanley Everett
40 Mr Everett is a director of Rural and Industrial Contracting Pty Ltd, the business of which is earthmoving. Mr Everett gave evidence that he has been involved in the earthmoving business for more than 34 years. He deposed to a conversation with the defendant in March 2003 in which the defendant requested that he undertake some slashing and mulching on the land. Thereafter Mr Everett visited the land and commenced to undertake removal of undergrowth using a tractor and mulcher.
41 Towards the completion of that work the defendant asked Mr Everett whether he was interested in undertaking work relating to the repair of a road leading to the top of Mount Molly Morgan. Mr Everett observed that the road was badly eroded and was not surfaced with road base or gravel. The defendant explained to Mr Everett that he wished to have it repaired and made into an all weather road and to have fence lines cleared to enable access to all fences. Mr Everett indicated that he would undertake such work.
42 The road at that stage led to an area which was described as the first ridge. Mr Everett was then shown to the top of Mount Molly Morgan where he observed some trees had been knocked down and rocks removed. There was no evidence of previous roadwork in this section, which could only be traversed with the use of a four-wheel drive vehicle.
43 A track existed on the western side of the mountain to the top and some topsoil had been placed in heaps which he inferred came from excavation work on the track. Mr Everett deposed that when he first saw the top of the mountain a portion was flat, another portion was undulating and the area was covered with grass.
44 The defendant instructed Mr Everett to clear stumps, logs and rocks, which Mr Everett observed were up to one metre in height. Such clearing was required in an area, which had been marked with stakes. Mr Everett undertook the work which involved the cutting of a fresh access road to the top of the mountain. The road was up to half a metre in depth on the slope of the mountain and up to three to three and a half metres in width.
45 Subsequently on 31 March 2003 the defendant informed Mr Everett that the prosecutor had requested that the works cease. Thereafter no work was done on the top of the mountain but work continued in respect of the road over the next few days. Additionally drainage was installed and Mr Everett arranged for the sheep’s foot compactor/roller to be substituted by a smooth drum road roller. All road and earthworks were complete by 9 April 2003.
46 Mr Everett estimated that approximately 20 percent of the area on the top of Mount Molly Morgan would have been excavated and approximately 20 percent of the area had been filled to a depth of 400mm, excluding the fill to the road approaching the top of the mountain.
47 In cross-examination Mr Everett confirmed that the defendant asked him to level out a “building pad” or “pad” and to remove various obstacles.
Philip Russell Pollard
48 Mr Pollard is an architect and urban designer and provided expert evidence to the Court. He has visited the land on numerous occasions since 2003 and considered that the impact of the earthworks is significant. He viewed the earthworks from numerous locations and believed that the flattening of the top of Mount Molly Morgan has made it appear artificial and detract from its appearance.
Wayne Leslie Courtney
Defendant’s Evidence
49 The defendant conducts a welding manufacturing business. His residence during 2000 was in a quiet area in Nulkabar. Because of development in this area in 2003 the defendant and his wife moved to Farley, a suburb of Maitland. He purchased the land in January 2003.
50 At the time of purchase the defendant obtained a certificate issued pursuant to s 149 of the Local Government Act 1993. The defendant, who had purchased numerous properties, noted the purpose for which development could be undertaken on the land and marked the certificate accordingly. He observed that he could undertake agriculture without consent.
51 The defendant’s wife is an authority on exotic birds. Whilst at Nulkabar the defendant’s wife held about 40 to 45 birds, which were housed in cages occupying approximately half of an acre. The defendant said that there was sufficient space on the south western side of the mountain (“the south west location”) to locate the birds and cages and proposed house. He said that the top of the mountain was insufficient in area and would have been unsuitable for bird breeding.
52 Following settlement of the purchase of the land the defendant said that he discussed the proposed siting of the house with his neighbour Mrs Thomson, who raised no objection to the siting of the house on the south west location.
53 The defendant had prepared a sketch plan of a house (exhibit 6) on or about Easter 2001, based on a house which he had seen almost 20 years previously. The plan was of a circular house having a diameter of 45 metres. The defendant claimed that he considered several locations on the land upon which to build such a house, one being on the south west location to avoid the noise of a future expressway. He claims that there had been discussions concerning the siting of the house on top of the mountain but that it was dismissed because of exposure to wind and noise from the future expressway. Accordingly the south west location was chosen for the site of the house. The defendant claims he decided to plant grapes and construct a barbeque on top of the mountain.
54 The defendant said that he provided his sketch of the proposed house to TG Thomas and kept an A4 sized copy (exhibit 3). The defendant had used the services of TG Thomas for plan drawing for more than 20 years, and that in January 2003 he gave instructions to Karen Shearer of TG Thomas to draw up the plans of the house.
55 At the council inspection on 31 March 2003 the defendant said that he had the copy of his sketch plan of the house, but by that date he had not received any plans prepared by TG Thomas. The defendant referred to Ms Ash’s visit and said (TP330 line 29):-
I don’t remember showing her plans. However if it would have only been the only plans I had at that stage, my hand drawn copy.
56 The defendant said that towards late April 2003 received a plan prepared by TG Thomas (exhibit 7). Such plan contains no title block and is printed on A2 sized paper. The defendant said that exhibit 7 was the first plan received from TG Thomas. The defendant said that he wrote notes on the plan and returned it for amendment.
57 The defendant said that on 5 June 2003 he received amended preliminary plans for the land together with an invoice (exhibit 9). These plans bear the date 25 March 2003.
58 The defendant said that prior to May 2003 it was his and his wife’s intention to build on the south west location. The defendant claims that it was not until May 2003 or June 2003 that he and his wife decided to erect their proposed house on the top of the mountain in consequence of a discussion he had with a Councillor Des Mills. He said that Mr Mills made him aware that a buffer zone was required between a vineyard and a residence. As a consequence the defendant said that he and his wife decided that the south west location was unsuitable and that the only place to construct their house was on the top of the mountain. The defendant said that he thereupon instructed TG Thomas to prepare plans for the house for its siting in that position. However the constrained site on top of the mountain necessitated a reduction in the diameter of the house from 45 metres to 38 metres.
59 Various plans prepared by TG Thomas were tendered in evidence relating to the proposed house. On some plans the defendant has written notations in red ink relating to changes which he says were required.
60 As to the commencement of work on the land the defendant said that either in late February or March 2003 he spoke with Mr Everett to do work on the land but denied that he ever used the term “building pad”.
61 The defendant recalled he had the following conversation with Ms Ash during the council inspection on 31 March 2003 (at TP 349 line 25):-
She asked me what work we were carrying on out here and I said that we’re repairing all the existing roads and fire trails on the property and we were levelling out the hills and hollows on top of the mountain…she said what was I doing up on the mountain because there was complaints that people had heard bulldozers on the property and I said that we were levelling the hills and hollows and we intended to plant grapes up there and there may have been some talk about a building of the house there and I told her that we were building the house at the back of the mountain which was always our plan. And I think I did say that we were getting Thomas’ to draw the plans up for that house.
62 The defendant also said that at that during such conversation he believes that he showed Ms Ash exhibit 3 being the A4 sized photocopy of his original sketch. Thereafter Ms Ash and Mr Sandell drove to the top of the mountain. A further conversation took place as follows (TP 350 line 57):-
A. Miss Ash said to me that we needed Council approval to do the work that we was doing and I told her that we were only taking the hills and hollows out of the top of the mountain. We’d saved all the topsoil to put back on it again and I was only preparing it for grapes. She said to me that I needed Council approval for grapes. I said - and Mr Sandell said no he doesn’t which was what I always believed.
Q. Any other conversation that you remember?Q. What was said next and by whom?
A. She said something to the effect about the possibility of building a home up here and I said that my wife had wanted to build a home up here but we were building over behind the mountain in the gully.
A. Yes she said to me that there’s a heritage order on the mountain and I already knew that there wasn’t and I said no that’s not the case and if it was the case that I would take Council to court because in my mind that was the only location left on the property to build a home and I needed to build a home on the property. I never told her that but that was what I had in mind.
63 On 8 April 2003 Ms Ash, Mr Sandell and Mr Leathley visited the land. A conversation with Mr Leathley took place. The defendant said to Mr Leathley (TP 353 line 45):-
- A. I said to him that we were repairing all the roadways and fire trails and we were levelling out the top of the mountain, the hills and hollows on the mountain and we intended to plant grapes up there.
At the top of the mountain, the defendant recalls the following (TP 354 line 18):-
- Mr Leathley looked at the view and he said, gees you’ve got some wonderful views up here Wayne, I can understand why you want to build a house up here and I said, I called him Steve, and I said Stephen, we’re not building a house up here. I’m planting grapes and he said something like, don’t give me that Wayne, I know what you want to do up here and I said Stephen, that’s not the case. I said we’re building a house down behind the mountain. My wife would’ve liked to build the house up here but we’ve agreed to build the house down behind the mountain and we want to plant grapes up here.
64 The defendant had a further conversation with Mr Leathley at his workplace on 15 January 2004. During the interview the defendant said (TP 358 line 4):-
- …at that stage I told him that my intention always was to build the house behind the mountain until we found out that we had to be I was told at that stage 150 metres off the adjoining vineyard and I told him why, I told him that it would put the house back too far behind the mountain and it would be cold and probably damp, there’d be no sunlight there and that we’d since decided then to build up on top of the mountain.
65 Under cross-examination the defendant said he made the decision to site the house on top of the mountain in the period from mid to late May 2003. He said he did so because Mr Mills informed him in late April 2003 of the minimum setback required from a vineyard. He also agreed that on 31 March 2003, 8 April 2003 and 15 January 2004 he made reference in conversations with the prosecutor’s officers concerning his wife’s desire to build the house on top of the mountain. He says he did so (TP 364 line 25):-
- Because they kept insisting that I wanted to build a house.
66 On 12 January 2004 the defendant became aware that Mr Leathley and Ms Ash had been present at the office of TG Thomas and had sought to inspect the drawings and files relating to the defendant’s proposed residence. They were denied access to the files and TG Thomas telephoned the defendant. The defendant requested that all his files be made available for collection by him that day. Later that day the defendant took possession of all hardcopies of plans and files held by TG Thomas.
Peter John Caban
67 Mr Caban gave evidence that he had been a fencing contractor for ten years. He provided a quotation to the defendant for fencing on the land and erection of posts “on top of the hill” for a vineyard dated 14 January 2003. He met the defendant previously when he bought a welder from the defendant.
68 In cross-examination Mr Caban said that he cut fencing timber and stood fences. During the period June 1999 to June 2003 he was a self employed logging contractor working in State forests. When it rained or the work became slack he undertook fencing jobs.
69 Mr Caban said that the defendant contacted him around Christmas 2002. The defendant asked him “to do a fencing job on Camp Road”. Early in 2003 Mr Caban met the defendant on the land. The defendant drove him around and showed him two places where fencing was required, the third place was on the top of the hill where grape trellising was required.
70 Mr Caban gave him two quotes, one for the trellising and the other for fencing. The quote Mr Caban gave the defendant for trellising was the only quote Mr Caban has ever done for trellising. The defendant never acted upon the quotation.
Adam Davies
71 Mr Davies, an engineer, is the part owner of TG Thomas, now known as Thomas Consulting Pty Limited. The defendant has been a client of Thomas for several years, and is still a client of that firm. Mr Davies gave evidence of TG Thomas’ practice in preparing architectural plans and the detail which is contained in the “title block” to the plans.
72 In cross-examination Mr Davies said that he knew the defendant, but he had no dealings with him in relation to the proposed house. Mr Davies said that the drawing of plans was carried out by computer. Mr Davies said that since 2004 every time a file is printed a date is inserted on the drawing. Previously the date on computer driven plans was inserted manually. Exhibit 9 incorporates a title block. Mr Davies explained that the title block is provided to record data concerning the accompanying plan. Mr Davies said that the date would have been inserted by the person responsible for the plan and would have been accurate when the title block was prepared.
73 The time sheet produced by TG Thomas (exhibit R) revealed time was spent preparing house plans from 6 January 2003 to 24 March 2003 and thereafter. The entries related to “house plans” and recorded that time were spent by Mr Whiteley and by Ms Shearer. Mr Davies said that it was a fair assumption that Mr Whiteley drew house plans up to 25 March 2003.
74 The standard practice of the firm is to prepare plans on A1 size sheets, or A3 for reduced half sized plans. Exhibit 7 was put to Mr Davies, who confirmed that the exhibit was A2 size. He said it was not the firm’s standard practice to use such size sheets in the preparation of plans.
Brad John Whiteley
75 Mr Whiteley is an architectural draftsman employed by TG Thomas, and had been employed by them since 1999. He testified that in 2003 Karen Shearer was one of the supervisors. She spoke with Mr Whiteley and gave him original drawings (exhibit 6) in about late March 2003. Mr Whiteley said that he commenced to draw the house plan, exhibit 7 from the sketch (exhibit 6).
76 Mr Whiteley completed exhibit 7 from a computer printer and then gave it to the defendant who returned it to him with red writing on it. Mr Whiteley thereafter prepared exhibit 9 from exhibit 7 as amended by the defendant’s instructions. Mr Whiteley also prepared exhibit 13 from alterations made by the defendant in red to exhibit 11 (TP 587 line 25-58). Part of exhibit 13, which bears the date 29 August 2003 shows the location of the house on top of the mountain. Mr Whiteley testified that he became aware of the proposed location of the house in August 2003 and that exhibit 13 contained the first (TP 588 line 18) and final (TP 587 line 58) site plan that he prepared for the defendant.
77 It was Mr Whiteley’s standard practice to insert the date in the title block when the drawing was complete and ready to print. Although Mr Whiteley suggested that the title block may have recorded the wrong date (TP 595 line 33) he confirmed that it was more than likely that the date printed in the title block was correct (TP 596 line 7).
78 Mr Whiteley was shown exhibit 7 which he testified preceded exhibit 9. Mr Whiteley identified exhibit 10 as a plan of the original layout of the dwelling. Exhibit 7 preceded exhibit 10.
79 Exhibit 13 was prepared by Mr Whiteley. It contains dimensions which were provided to him by the defendant. They show a dimension of 300 metres from the centre of the house to the southern boundary and 400 metres from the centre of the house to the eastern boundary. Mr Whiteley scaled the distances and confirmed that they established that the site of the house would have been on the top of the mountain (TP 624 line 1).
80 Mr Whiteley was shown exhibit 6 but could not recall whether he had previously seen the measurements shown on such plan. However under cross-examination he confirmed that he based his distances as shown in exhibit 6 which were then shown as 300 metres to the southern boundary and 400 metres to the southern boundary (TP 622 line 12).
81 Wage records were tendered (exhibit T). Mr Whiteley confirmed that in the period between 19 March 2003 and 25 March 2003 he spent 12.25 hours in the preparation of plans for the defendant.
82 In re-examination Mr Whiteley confirmed that plans were drawn in the order exhibit 7, exhibit 10, exhibit 9, exhibit 11, and exhibit 13.
Garry Keith Warnes
83 Mr Warnes is a Director of Synergy Environmental Planning Pty Limited. He said he had a convention with Mr Alan Keller, a civil engineer, in about mid April 2003. As a result of that conversation Mr Warnes contacted the defendant to make arrangements to meet him on the land and on 1 May 2003 and 19 May 2003 he met the defendant to discuss the erection of a dwelling on the land.
84 Mr Warnes testified that the defendant informed him that his wife wanted the house on the top of the mountain, but that he wanted it located on the side of the mountain.
85 Mr Warnes then commenced work to prepare a development application for the construction of the dwelling on top of the mountain. The application was completed in late August or early September 2003.
86 In cross-examination, Mr Warnes said that at no stage did he ever have a conversation with the defendant concerning the placement of a vineyard on top of the mountain. In the expert report that Mr Warnes provided for Class 1 proceedings which followed the rejection of the development application, he relied upon the fact that there was an existing cleared area and an access road for fire safety.
Pauline Courtney
87 Mrs Courtney is the wife of the defendant. She gave oral evidence of conversations with her husband concerning the sale of their Nulkabar property and purchase of the land. Mrs Courtney said that she preferred to locate the house on top of the mountain, but the defendant told to her that it would be best located around behind the mountain (in the south west location) to avoid exposure to wind and noise from the proposed freeway. Accordingly she said that they proposed to build the house on the side of the mountain and Mrs Courtney said that the top of the mountain would have been used for planting of Isabella grapes and black muscat grapes.
88 Subsequently Mrs Courtney said that when it was discovered that a buffer was required from the adjoining vineyard any house in the defendant’s preferred location on the side of the mountain would have been substantially in shade. A shaded area was unsuitable for her birds because of the lack of sunlight. For this reason it was decided that such a site was unsuitable and that the only alternative was to construct a house on the top of the mountain. However she also said that she would still not be able to have her birds located on top of the mountain and that she was planning to locate them at her daughter’s residence.
89 In cross-examination Mrs Courtney said that there was not sufficient room for a house and aviary on top of the mountain. When asked why the house needed to be relocated if the birds were to be held elsewhere Mrs Courtney stated (TP 666 line 24):-
- Because I wanted to build on the mountain.
Desmond Norman Mills
Prosecutor’s evidence in reply
90 Desmond Norman Mills, retired, was a councillor from 1987 to 2004 serving on Cessnock Council. Early in 2001 Mr Mills and his wife became acquainted with the defendant and his wife, and visited the defendant’s house at Nulkabar twice. Such visits occurred before Mr Mills and his wife left for Mackay in June 2002. Mr Mills gave evidence that he may have had a casual conversation with the defendant about vineyards on such visits.
91 Approximately a month after his visit to Mackay, Mr Mills visited the defendant at his welding shop but only exchanged greetings with the defendant. Both the defendant and Mr Mills shared a common interest in motorcycles. Mr Mills’ daughter was married in November 2002 and the defendant attended to provide a motorcycle escort. Only greetings were exchanged between Mr Mills and the defendant on this occasion.
92 In early 2004 Mr Mills spoke to the defendant at a meeting relating to motorcycles where again the conversation between Mr Mills and the defendant was “simply greetings”. Mr Mills gave evidence that between November 2002 and early 2004 he had no conversation with the defendant relating to buffer zones between vineyards and houses. In fact he could not recollect having any conversation with the defendant during that period.
93 Under cross-examination Mr Mills said that had no memory of any casual conversation with the defendant at a social function, or anywhere when buffer zones were raised. He testified that there was a correct procedure (TP 681 line 8) :-
Q. The topic, Mr Mills, you understand that we are discussing is buffer zones?
A. Yeah.
…
Q. … And that topic is one that may have been in casual passing conversation something that occurred between you and Wayne at a Ulysses meeting, may have been?
A. Well I would be guarded because I’m not an expert in that field.
…
Q. No?
And I would normally, if I was asked a question regarding development, or to do with environment, I would refer that to the relevant council officers.
Mr Mills testified that he was very guarded concerning the correct procedure.WorksFindings
94 The works relied upon the prosecutor are defined in the particulars to the summons as set out in para 2 hereof. The Court is satisfied that such works were carried out on the land by the defendant or pursuant to his instructions and that no development approval existed pursuant to the provisions of s 76A(1) of the EP&A Act.
Requirement for development approval
95 The land is located within the Cessnock local government area and at all relevant times was affected by the provisions of the LEP. Development other than development referred to in cl 9(2) of the LEP or “exempt development” as defined in the DCP required development approval.
96 The Court is satisfied by the evidence of Mr Everett, of Mrs Randall and Mr Smith, the photographs and video footage that the work undertaken on the land by the defendant was extensive. It exceeded the definition of “earthworks” as contained in the DCP in that the levelling of the surface of the land was more than minor and greater than 300mm in depth. Additionally the works were not “minor drainage works”.
97 Accordingly unless the purpose of the works was for “agriculture” as defined in the LEP, development approval for the works on the land was required pursuant to s76A of the EP&A Act combined with the requirements of cl 9 of the LEP.
98 The defendant acknowledges that he had not applied for consent for any works carried out on the land. The defendant maintains that consent was unnecessary because the works were not for the alleged purpose of a building but instead were for the purpose of agriculture, namely the planting of grapes and possible recreation area for his family.
Purpose of the works
99 The Court is required to determine whether the prosecution has established its case to the requisite standard of proof. Such determination requires the Court to decide whether the prosecutor has established, beyond reasonable doubt that defendant undertook the works for the purpose of the proposed siting and construction of a dwelling house on the top of Mount Molly Morgan.
100 Despite the attack upon the credibility of the witnesses for the prosecution employed by the prosecutor namely Ms Ash, Mr Sandell and Mr Leathley and the submissions of the defendant, the Court finds that their evidence is credible. Ms Ash prepared contemporaneous notes of the conversations held with the defendant and her observations of the land on 31 March 2003 which corroborate her independent recollection. Minor inconsistencies became apparent between the evidence of Ms Ash and Mr Sandell. For example the evidence concerning the description of the precise plan which the defendant showed them on 31 March 2003 is inconsistent. Ms Ash deposed that such plan displayed a date in March 2003 and was marked “preliminary plans” drawn by TG Thomas. In contrast Mr Sandell testified that the plan was a floor plan but could not confirm the author or date of the plan. Such inconsistency is minor and of no consequence. Additionally Ms Ash testified that she saw the defendant’s mobile telephone number written on a sign attached to the gate at the land when in fact it was the defendant’s workplace number. Such error is again of no consequence.
101 The Court accepts Mr Leathley’s account of the conversation held with the defendant on 8 April 2003. With respect to the interview held with the defendant on 21 January 2004 the Court accepts Mr Leathley’s explanation of the entries in his notebook. The Court is satisfied that the contemporaneous statement of Mr Leathley is a truthful and accurate account of his recollection of the interview.
102 The Court finds the evidence of the witnesses employed by the prosecutor, in particular Ms Ash and Mr Leathley to be reliable. It follows that the Court accepts their evidence as to the events that occurred on 31 March 2003 and subsequently.
103 The defendant made closing submissions drawing the attention of the Court to the definition of “an admission” as contained in s 81 of the Evidence Act 1995. Having considered the submissions, the Court is satisfied that the defendant made an admission as defined on 31 March 2003 when Ms Ash asked the defendant about the flattening at the top of the mountain the defendant replied:-
I don’t need approval for that. My wife wants the house built up there, and Toby Thomas has drawn up these preliminary plans for me.
It was only in response to questions regarding the work on top of the mountain that the defendant produced house plans.
104 A further admission was made by the defendant on 8 April 2003 in answer to Mr Leathley’s question:-
- Mate, there must be a dozen great places on this property to build a house. Why don’t we go and have a look around and see if there is anywhere else to build it?
The defendant replied:-
- Nup. My wife has got her heart set on it up here.
Such admissions, relating to the location of the proposed house establish that the true purpose of the works carried out on the road and at the top of Mount Molly Morgan was for the purpose of the proposed siting and construction of a dwelling house.
105 There are other circumstances which support the Court’s finding concerning the purpose for which the works were carried out. The defendant’s own evidence in chief verifies his intention when during the inspection of the land by Ms Ash and Mr Sandell on 31 March 2003 the defendant said (at TP351 line15):-
- Yes she said to me that there’s a heritage order on the mountain and I already knew that there wasn’t and I said no that’s not the case and if it was the case that I would take Council to court because in my mind that was the only location left on the property to build a home and I needed to build a home on the property. I never told her that but that was what I had in mind.
106 The defendant’s own statement of his intention which existed as at 31 March 2003 is inconsistent with the defendant’s claimed intention that the top of the mountain was to be used for the purpose of agriculture and inconsistent with the defendant’s evidence of his subsequent change of intention which he said occurred in May or June 2003. The defendant’s senior counsel submitted that such evidence could be confused. However the Court is satisfied that the statement clearly expresses the defendant’s intention as at 31 March 2003.
107 In view of such findings the Court is satisfied beyond reasonable doubt that the purpose of the works was for the purpose of the proposed siting and construction of a dwelling house on the top of Mount Molly Morgan.
Further findings
108 The Court will consider further aspects of the evidence and the submissions of both parties which are ancillary to the evidence relating directly to the defendant’s intentions.
109 The defendant maintained that up to approximately June 2003 he intended to construct a dwelling on the south west location, and that it was only as a result of a conversation with Mr Mills during late April 2003 he became aware of the necessity for a buffer between the site of his proposed residence and the adjoining vineyard. Having observed Mr Mills and heard his testimony the Court is satisfied that his evidence is reliable. Mr Mills was clear in his recollection that no such conversation had occurred as alleged. Mr Mills presented as a cautious and responsible councillor. His evidence establishes that had such a topic been raised with him, of which he had no qualifications, he would have referred the defendant to the appropriate council staff. He was adamant that there was a correct procedure to be followed in respect of any such inquiries and that he would have followed such procedure.
110 There is a further inconsistent aspect concerning the defendant’s evidence on this issue. According to the defendant’s proposal his house was to be sited 300 metres from the boundary of the neighbouring vineyard (see exhibit 6). The evidence establishes that the defendant believed the width of the buffer zone to be 150 metres as indicated by the defendant in on exhibit 11. In these circumstances there would have been no need to relocate the dwelling for the reason claimed.
111 Additionally the Court observes that the defendant has made other notations and markings in red ink on exhibit 11. It suggests that the depiction of the proposed residence should be moved by the words “Brad move position to top of mountain”. Exhibit 11 was prepared at the earliest on 29 August 2003, namely almost three months after the defendant alleges that he changed his mind as to the position of the proposed house. It is impossible to reconcile this plan with exhibit 13 which bears the same date. Accordingly the Court cannot accept the veracity of any of the markings in red ink on exhibit 11.
112 Further, the defendant claimed that the diameter of the proposed house was altered from 45 metres to 38 metres only after the decision was made to site the house on top of the mountain. The defendant says that the lack of space necessitated such reduction. However exhibit 7 which comprises the plan the defendant said he received in April 2003, before the decision was made to move the site of the proposed house, was proven to show a residence having a diameter of 38 metres (see TP 399 line 37).
113 The defendant said that at the inspection of the land on 31 March 2003 he only had exhibit 3, being a photocopy of exhibit 6. Exhibit 6 had been in the possession of TG Thomas. However it is apparent that certain dimensions shown on exhibit 6 do not appear on exhibit 3, such as the carport width. It is also apparent that the marking of “1400” which appears on exhibit 3 is not shown on exhibit 6. The location diagram on exhibit 6 has obviously been altered with whiteout and the dimensions shown on it have been altered. Mr Whitely however accurately remembered the measurements (see TP 622 line 12) which establish that the house was proposed on exhibit 6 to be sited on the top of the mountain.
114 The Court is satisfied that on 31 March 2003 Ms Ash and Mr Sandell were shown a plan dated in March 2003, and that such plan was in fact a plan prepared by TG Thomas and printed on 25 March 2003.
115 The Court finds that Mr Everett was aware that he was preparing the site for a building. The evidence establishes that the defendant told him (TP 27 line 20):-
I want you to level a building pad but he didn’t say what the building pad was.
116 The Court is also satisfied that at least a substantial part of the top of the mountain was being compacted as referred to in the observations of Ms Ash and Mr Sandell. Despite Mr Everett’s evidence that only a small portion was being compacted as a turning circle, the video and photographic evidence shows that the site been levelled and the compactor and bulldozer were operating in straight lines along the length of the top of the mountain. Mr Warnes observed that the area had been compacted by a sheep foot roller over the entire area (TP 658 line 12).
117 Mrs Courtney’s testimony does not withstand scrutiny. In respect of her explanation for the change in the proposed position of the house from the side of the mountain to its top due to her birds being in shade is illogical because the top of the mountain was equally unsuitable. Critical to her explanation was the need to move the house position because the birds would be in the shade. Yet she did not intend to keep the birds in the new location. As to grape growing, she had no concept concerning the quantity of grapes which may have been grown at the top of the mountain, had not planted grapes previously and agreed that a vineyard could have been created in many other locations on the land.
118 The defendant relies upon the quotation of Mr Caban 14 January 2003 to verify his intention to grow grapes on the top of the mountain. There are certain aspects of the defendant’s and Mr Caban’s evidence which are puzzling. The defendant had undertaken no studies concerning the viability of growing grapes on the top of the mountain, nor considered the orientation of the rows or distance between the rows of grapes. Despite his lack of knowledge he sought a quotation from Mr Caban who had never previously erected trellises. In contrast to the defendant’s evidence, Mr Caban gave detailed evidence concerning the orientation of the rows and of the access space surrounding the rows. When Mr Caban was asked why the quotation was not acted upon he replied that the defendant said he had “some problems”. The quotation of Mr Caban and his evidence is not sufficient to raise any doubt in the Court’s mind concerning the defendant’s intention regarding the purpose of the works.
119 Senior counsel for the defendant referred to the evidence of Mr Everett that the defendant had requested him to replace topsoil on the top of the mountain. However Mr Everett’s evidence concerning the date when the defendant gave such instructions is inconsistent. His solicitor had provided a letter to the prosecutor stating that such instructions were given on 31 March 2003, being the date of the council’s first inspection. The Court gives no weight to the inconsistent evidence.
120 Based on the findings above in relation to the defendant’s purpose of the works, the submissions of the prosecutor relating to motive and to alternative bases for a requirement for development consent become unnecessary to consider. In particular the fact that the defendant made a subsequent development application to the prosecutor for approval to construct a dwelling on top of the mountain and had relied upon the access road and the levelling in support of such application is not a matter in the Court’s determination. It is circumstantial evidence which has not been relied upon by the Court in any way in reaching its conclusions.
121 The Court has considered the prosecutor’s submissions that a Jones v Dunkel and Anor (1958-1959) 101 CLR 298 inference could be drawn with respect to two witnesses who were not called, namely Mr Paul Shearer from whom the defendant allegedly took advice in relation to vineyards and the neighbour Mrs Thompson. The Court has also considered the submissions of the defendant that in criminal proceedings such an inference cannot be drawn: see Reg v Buckland [1977] 2 NSWLR 452; RPS v The Queen (2000) 199 CLR 620 per Callinan J at [11]. It is unnecessary for the Court to make any finding in relation to such submissions in view of the findings already made above concerning the purpose for which the works were undertaken. The Court has made its determination without the necessity to decide whether the prosecutor’s submission should be accepted, and observes that doubt exists whether Jones v Dunkel has application in criminal proceedings: see Weissensteiner v The Queen (1993) 178 CLR 217; Dyers v The Queen (2002) 210 CLR 285.
Possible Existing Use Rights
122 During the course of the hearing evidence was led of an existing track which led from the base to the top of Mount Molly Morgan. The Court is satisfied that the roadworks undertaken have converted a former track into a graded and all weather road. There is no basis for the application of the doctrine of existing use rights in respect of the track: see Dosan Pty Ltd v Rockdale City Council (2001) 117 LGERA 363. Further, no existing use rights apply in respect of the works carried out on the top of the mountain.
123 The Court finds the offence proved beyond reasonable doubt and rejects the defendant’s claim that the purpose of the works was that of agriculture.
Orders
124 The Court makes the following orders:
1. the Court finds the offence as charged against the defendant Wayne Leslie Courtney proved;
2. the proceedings be listed before the Registrar on 16 November 2004 for allocation of a hearing date prior to 10 December 2004 for the purpose of hearing as to penalty.
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