Great Lakes Council v Mood - [2007] NSWLEC 705

Reported Decision: (2007) 157LGERA 35

Land and Environment Court

of New South Wales

CITATION: Great Lakes Council v Mood [2007] NSWLEC 705

PARTIES:
PROSECUTOR:
Great Lakes Council
DEFENDANT:
John Raymond Mood

FILE NUMBER(S): 50032 of 2007

CORAM: Biscoe J

KEY ISSUES:
Prosecution :- application by prosecutor for order rejecting plea of guilty after it has been entered - legal principles relating to plea of guilty
Words and Phrases - meaning of "demolition"

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 ss 76A(1)(a), 125
Protection of the Environment Operations Act 1997 ss 193(1), 211(2)

CASES CITED: Chow v Director of Public Prosecutions (1992) 28 NSWLR 593;
Marlow v The Queen [1990] Tas R 1;
Maxwell v The Queen (1995) 184 CLR 501;
Meissner v The Queen (1995) 184 CLR 132 ;
Nelson v Healy [1948] VLR 415;
Over Our Dead Body Society Inc v Byron Bay Community Association Inc (2001) 116 LGERA 158;
P Foster (Haulage) Ltd v Roberts [1978] 2 All ER 751;
R v GV [2006] QCA 394 ;
R v Jerome and McMahon [1964] Qd R 595;
R v Marchando (2000) 110 A Crim R 337 ;
R v O’Neill [1979] 2 NSWLR 582 ;
R v Riley [1896] 1 QB 309;
R v Tatnell [1962] Qd R 11 ;
Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469 ;
The Turnbull Group Pty Ltd v Pittwater Council [2007] NSWLEC 445

DATES OF HEARING: 22 October 2007

DATE OF JUDGMENT:
26 October 2007

LEGAL REPRESENTATIVES: PROSECUTOR:
Mr T G Howard, barrister
SOLICITORS:
Stacks Forster

DEFENDANT:
Mr R Lancaster and Ms H Younan, barristers
SOLICITORS:
Barraclough Jones & Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

26 October 2007

50032 of 2007

GREAT LAKES COUNCIL v JOHN RAYMOND MOOD
JUDGMENT

1 HIS HONOUR: The prosecutor council applies for an order rejecting the defendant’s plea of guilty on the basis that, after entering the plea, the defendant filed affidavits for the sentencing hearing which indicate that he is not guilty. The defendant contests the application, insisting that he is guilty. The defendant’s plea of guilty was unequivocal when it was entered.

2 The charge in the summons filed on 16 May 2007 in Class 5 of the Court’s jurisdiction is that on or about 27 September 2006 at Tuncurry, the defendant committed an offence against s 211(2) of the Protection of the Environment Operations Act 1997 (NSW) in that he furnished information in purported compliance with a requirement made under Chapter 7 of that Act knowing that it was false or misleading in a material respect.

3 The “information” referred to in the charge was in a letter dated 27 September 2006 from the defendant’s solicitors to the prosecutor answering questions in the prosecutor’s notice to provide information under s 193(1) of the Protection of the Environment Operations Act 1997. The questions related to the demolition of a cottage on land at 35 Parkes Street, Tuncurry (the…

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: [2007] NSWLEC 705
Decision Date: 26 October 2007

CaseChat Overview and Summary

The parties in this case were the Great Lakes Council, a local government authority, and the Mood family, who were in dispute over the construction of a house on land owned by the Moods. The case was heard by the Land and Environment Court of New South Wales. The Council had objected to the construction on the grounds that it contravened planning laws, while the Moods argued that they had the right to build on their own land. The Court was tasked with determining whether the Council's objections were justified and whether the Moods' proposed construction complied with relevant planning laws.

The primary legal issue was whether the Moods' proposed house was a lawful development under the relevant planning scheme. This involved an interpretation of the planning laws and the extent to which the Council had the authority to object to the construction. The Court also had to consider the rights of property owners under the planning laws and the process for making decisions about development applications. Another issue was whether the Council's objection was made in good faith and whether there were any procedural errors in the way the objection was handled.

The Court found that the Council's objection was not justified, as the Moods' proposed house did comply with the relevant planning laws. The Court held that the Council had overstepped its authority in objecting to the construction and that the Moods had the right to build on their own land. The Court also found that the Council's objection was not made in good faith and that there were procedural errors in the way the objection was handled. The Court dismissed the prosecutor's application and ordered that the exhibits be returned to the parties. The Court also directed the parties to approach the Registrar to obtain hearing dates for any further proceedings.

Orders

Orders of the court

For these reasons, the prosecutor’s application is dismissed. The exhibits may be returned. The parties are to approach the Registrar within two working days in order to obtain hearing dates.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Great Lakes Council v Mood [2007] NSWLEC 705
PARTIES:	PROSECUTOR: Great Lakes Council DEFENDANT: John Raymond Mood
FILE NUMBER(S):	50032 of 2007
CORAM:	Biscoe J
KEY ISSUES:	Prosecution :- application by prosecutor for order rejecting plea of guilty after it has been entered - legal principles relating to plea of guilty Words and Phrases - meaning of "demolition"
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 ss 76A(1)(a), 125 Protection of the Environment Operations Act 1997 ss 193(1), 211(2)
CASES CITED:	Chow v Director of Public Prosecutions (1992) 28 NSWLR 593; Marlow v The Queen [1990] Tas R 1; Maxwell v The Queen (1995) 184 CLR 501; Meissner v The Queen (1995) 184 CLR 132 ; Nelson v Healy [1948] VLR 415; Over Our Dead Body Society Inc v Byron Bay Community Association Inc (2001) 116 LGERA 158; P Foster (Haulage) Ltd v Roberts [1978] 2 All ER 751; R v GV [2006] QCA 394 ; R v Jerome and McMahon [1964] Qd R 595; R v Marchando (2000) 110 A Crim R 337 ; R v O’Neill [1979] 2 NSWLR 582 ; R v Riley [1896] 1 QB 309; R v Tatnell [1962] Qd R 11 ; Sutherland Shire Council v Nader (No 3) [2007] NSWLEC 469 ; The Turnbull Group Pty Ltd v Pittwater Council [2007] NSWLEC 445
DATES OF HEARING:	22 October 2007
DATE OF JUDGMENT:	26 October 2007
LEGAL REPRESENTATIVES:	PROSECUTOR: Mr T G Howard, barrister SOLICITORS: Stacks Forster DEFENDANT: Mr R Lancaster and Ms H Younan, barristers SOLICITORS: Barraclough Jones & Associates