Fletcher v Byron Shire Council (No 2) - [2010] NSWLEC 226

Land and Environment Court

of New South Wales

CITATION: Fletcher v Byron Shire Council (No 2) [2010] NSWLEC 226

PARTIES:
APPELLANT
Michael Hume Fletcher
RESPONDENT
Byron Shire Council

FILE NUMBER(S): 60003 of 2010; 60004 of 2010

CORAM: Pepper J

KEY ISSUES: APPEAL :- appeal against conviction and sentence in one matter and against sentence only in another - whether it was in the interests of justice to permit fresh evidence to be given in each appeal - whether there were substantial reasons why it was in the interests of justice that the applicant and other individuals give oral evidence in each appeal - applicant self-represented - fresh evidence allowed in part - applicant allowed to give oral evidence in appeal against sentence only

LEGISLATION CITED: Crimes (Appeal and Review) Act 2001 ss 37, 38

CASES CITED: Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485
Cameron v Eurobodalla Shire Council [2006] NSWLEC 47
Fletcher v Byron Shire Council [2010] NSWLEC 185
Kari & Ghossayn Pty Ltd v Sutherland Shire Council [2006] NSWLEC 532; (2006) 150 LGERA 231
Thomson v Hawkesbury City Council [2009] NSWLEC 151

DATES OF HEARING: 29 October 2010

EX TEMPORE JUDGMENT DATE: 29 October 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr M Fletcher (in person)
SOLICITORS
N/A
RESPONDENT
Mr T March (solicitor)
SOLICITORS
HWL Ebsworth Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

29 October 2010

60003 of 2010 Michael Hume Fletcher v Byron Shire Council (No 2)
60004 of 2010

EX TEMPORE JUDGMENT

Introduction

1 HER HONOUR: This was an application filed on behalf of Byron Shire Council (“the council”) to restrict, in advance of two appeals from the Local Court by Mr Michael Fletcher, the fresh evidence that Mr Fletcher is seeking to adduce at the hearing of the appeals.

2 In so doing, the council relied on an affidavit of Mr Trent March sworn 13 October 2010. Mr March is employed by the solicitors acting for the council.

3 While Mr Fletcher is unrepresented before this Court, he was represented in the court below.

Brief Summary of the Appeals

4 In proceedings 60003 of 2010 Mr Fletcher appeals against the conviction and sentence imposed by Lismore Local Court for (“the waste offences”):

(a) the unlawful transportation of waste to a place that cannot lawfully be used as a waste facility for that waste;

(b) the use of land as a waste facility without lawful authority;

(c) the failure to comply with a clean up notice; and

5 The appeal in proceedings 60004 of 2010 is an appeal against the sentence only imposed in Lismore Local Court for an offence relating to the unlawful clearing of trees by Mr Fletcher (“the tree offence”). Mr Fletcher pleaded guilty to this offence in Lismore Local Court.

6 Mr Fletcher initially sought to appeal both the conviction and sentence in the tree offence, but was not granted leave by the Court to…

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: [2010] NSWLEC 226
Decision Date: 29 October 2010

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was asked to decide an application by Byron Shire Council to restrict the fresh evidence that Mr Michael Hume Fletcher sought to present in two appeals. The first appeal was against both the conviction and sentence for several waste-related offences, and the second was against the sentence only for an offence relating to the unlawful clearing of trees. Mr Fletcher, who was self-represented, sought to adduce various pieces of fresh evidence in support of his appeals, including affidavits, letters, and proposed witness testimony.

The court considered whether it was in the interests of justice to permit the fresh evidence in each appeal under sections 37 and 38 of the Crimes (Appeal and Review) Act 2001. The court noted that Mr Fletcher had complained about the adequacy of his legal representation in the proceedings below, which had resulted in certain evidence not being presented. The court balanced this against the need to avoid inefficient use of hearing time and the relevance of the proposed fresh evidence to the grounds of appeal.

In the waste offences appeal, the court allowed the admission of certain affidavits and a council letter and map, but denied leave for some proposed witnesses to testify and for Mr Fletcher himself to give oral evidence. In the tree offence appeal, the court allowed the admission of a zoning plan, a letter from a qualified horticulturist, and certain affidavits, but denied leave for other proposed witnesses to testify and for Mr Fletcher to give oral evidence. The court concluded that it was in the interests of justice to permit Mr Fletcher to give oral evidence in the tree offence appeal because he had not testified in the proceedings below contrary to his instructions.

The court ordered that each party bear their own costs of the application. The specific orders regarding the admission of fresh evidence and the costs were made in accordance with the amended short minutes of order prepared by the council.

Orders