Chin v Ryde City Council - [2004] NSWCCA 167

Reported Decision:
133 LGERA 312

New South Wales

Court of Criminal Appeal

CITATION: Chin v. Ryde City Council [2004] NSWCCA 167 revised - 10/06/2004

HEARING DATE(S): 10 May 2004

JUDGMENT DATE:
27 May 2004

JUDGMENT OF: Hodgson JA at 1; Levine J at 41; Hidden J at 42

DECISION: 1. Appeal against conviction dismissed. 2. Leave to appeal against sentence granted, and appeal against sentence dismissed. 3. Appellant to pay the respondent's costs of the appeal and application.

CATCHWORDS: CRIMINAL LAW - ENVIRONMENT LAW - LOCAL GOVERNMENT - Appeal - Offences pursuant to. s.125 Environmental Planning & Assessment Act 1979 - Carrying out prohibited development being a use of land - Directions to cease prohibited use complied with - Whether still open to Council to prosecute - Whether offence committed only when use commences or for so long as use continues - CRIMINAL LAW - Appeal against sentence - Sentencing judge refers to s.10 of Crimes (Sentencing Procedure) Act 1999 - Whether failed to consider factors in s.10(3) - Whether penalty manifestly excessive.

LEGISLATION CITED: Environmental Planning & Assessment Act 1979 ss.4,76B,125,127
Crimes (Sentencing Procedure) Act 1999 s.10

CASES CITED: NSW Crime Commission v.Kelly [2003] NSWSC 56
Rao v. Canberbury City Council [2000] NSWCCA 471
R v. Piccin No.2 [2001] NSWCCA 323

PARTIES :
Larry Chung Ka Chin - appellant
Ryde City Council - respondent

FILE NUMBER(S): CCA 60052/04

COUNSEL: J. Overall for appellant
C.J. Leggat with T. To and S. Mason for respondent

SOLICITORS: R. Zhou for appellant
M. Hewett for respondent

LOWER COURTJURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): LEC 5050/02

LOWER COURT
JUDICIAL OFFICER : Pain J

CCA 60052/04
LEC 50050/02

HODGSON JA
LEVINE J
HIDDEN J
Thursday 27 May 2004

CHIN v. RYDE CITY COUNCIL

Judgment

1 HODGSON JA: On 3 October 2002, Pain J in the Land and Environment Court found the appellant guilty of the following charge brought under s.125(1) of the Environmental Planning and Assessment Act 1979 (the Act), namely that:

On about 21 November 2001 at North Ryde in the State of New South Wales the Defendant did carry out development for a purpose prohibited by an environmental planning instrument, namely use the premises known as 1A and 1B Kent Road, North Ryde, which premises are zoned Residential 2A under the Ryde Planning Scheme Ordinance, for the purpose of a residential flat building, being a purpose prohibited under Clause 23 of the said Ordinance, contrary to s.76B of the said Act.

2 On 1 November 2002, the primary judge made the following orders:

1. The Defendant is convicted of the offence of which he is charged.

2. The Defendant is fined the sum of $7,500 to be paid to the Registrar of the Court within 28 days of today’s date.

3 The appellant appeals to this Court against his conviction, and seeks leave to appeal against his sentence.

CIRCUMSTANCES

4 The appellant…

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.

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Details

Case: [2004] NSWCCA 167
Decision Date: 27 May 2004

CaseChat Overview and Summary

In the case of Chin v Ryde City Council, the appellant, Mr. Chin, faced charges under the Environmental Planning & Assessment Act 1979 for carrying out prohibited development on his property. Ryde City Council alleged that Mr. Chin had used his land in a manner that contravened zoning regulations. After directions were issued to cease the prohibited use, the council continued to pursue prosecution, prompting Mr. Chin to challenge the council's right to do so once compliance had been achieved. The court was required to determine whether the offence was committed solely when the prohibited use began or if it continued for as long as the use persisted.

The legal issues before the court encompassed the interpretation of the statutory provisions concerning prohibited development and the timing of the offence. The court examined whether the offence was complete upon the initial contravention or if it persisted as long as the prohibited use continued. Additionally, the court assessed the sentencing process, specifically whether the judge had adequately considered all relevant factors as outlined in the Crimes (Sentencing Procedure) Act 1999, and whether the penalty imposed was manifestly excessive.

The court found that the offence of carrying out prohibited development was not limited to the initial act of contravention but could continue for the duration of the prohibited use. Consequently, the council retained the right to prosecute even after compliance had been achieved. Regarding sentencing, the court concluded that the judge had correctly applied the relevant factors under section 10 of the Crimes (Sentencing Procedure) Act 1999 and determined that the penalty was not manifestly excessive. The appeal against the sentence was dismissed.

As a result of the court's decision, the prosecution against Mr. Chin was upheld, and the original sentence was affirmed. The court's ruling clarified the scope of the offence under the Environmental Planning & Assessment Act 1979 and reinforced the council's authority to pursue legal action for ongoing prohibited use of land.

Orders