Great Lakes Council v Spalding - [2011] NSWLEC 257

Land and Environment Court

New South Wales

Medium Neutral Citation: Great Lakes Council v Spalding [2011] NSWLEC 257
Hearing dates: 20 December 2011
Decision date: 20 December 2011
Jurisdiction: Class 5
Before: Preston CJ
Decision:
The Court orders:
1. Mr Spalding is convicted of the offence against s 125(1) of the Environmental Planning and Assessment Act 1979 as charged.
2. Mr Spalding is fined the sum of $7,500.
3. Pursuant to s 257B of the Criminal Procedure Act 1986, Mr Spalding is to pay the prosecutor's costs of the proceedings as agreed or assessed.

Catchwords: ENVIRONMENTAL OFFENCE - use of shed as a dwelling house without obtaining development consent - sentence - potential risk of harm not substantial - commission of offence intentional and for profit - early guilty plea - assistance to authorities - contrition and remorse - limited financial capacity to pay fine - amount of fine reduced for limited means
Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A
Criminal Procedure Act 1986, s 257B
Environmental Planning and Assessment Act 1979, ss 76A(1), 125(1), 149D
Fines Act 1996, ss 6, 7, 10
Category: Sentence
Parties: Great Lakes Council (Prosecutor)
Michael Spalding (Defendant)
Representation: Mr T G Howard (Prosecutor)
Mr Spalding (Defendant in person)
Mallik Rees Lawyers (Prosecutor)

File Number(s): 50958 of 2011

Judgment

Mr Michael Spalding owns a quarter acre block of land at 38 Cove Avenue, Bundabah, on the northern shore of Port Stephens. It is formally described as Lot 19, Section 4, Deposited Plan 10915. Mr Spalding has used a shed previously erected for the purpose of a wholesale nursery as a dwelling house without obtaining development consent contrary to s 76A(1)(a) of the Environmental Planning and Assessment Act 1979 ( "the EPA Act" ), and has thereby committed an offence against s 125(1) of the EPA Act . Mr Spalding has pleaded guilty to the offence. A sentence hearing has been held.

The facts relevant to the sentence to be imposed are to be found from a statement of agreed facts, together with attached documents (Exhibit A); parts of the affidavit of Mr Nicholas Green, a Council building inspector (at paragraphs 1, 28 and 29 except for sub-para (o)); a report of Mr William Barlin, a regional electrical inspector with Essential Energy, which was attached to the statement of agreed facts; an exclusive management agency agreement (residential) between Mr Spalding and a real estate agent, Century 21 Coastal Properties (Exhibit B); an extract from the zoning map under the Great Lakes Council Local Environmental Plan 1996 showing the zoning of Mr Spalding's various properties at Bundabah (Exhibit C); recent for sale advertisements of Lot 19 and an adjoining Lot, Lot 18, which Mr Spalding owns (Exhibit D); and an exchange of emails in March 2010 between Mr Spalding and Mr Green (Exhibit E). Mr Spalding also gave evidence. He tendered a statement responding to the Council's evidence and explaining his financial position (Exhibit 1) and he gave oral evidence. He tendered a…

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: [2011] NSWLEC 257
Decision Date: 20 December 2011

CaseChat Overview and Summary

The case of Great Lakes Council v Spalding involved the appellant, Mr Spalding, who was charged by the respondent, Great Lakes Council, for an offence under section 125(1) of the Environmental Planning and Assessment Act 1979. The central issue in this matter was whether Mr Spalding had contravened the environmental laws by carrying out certain works without the requisite approval. The case was heard and determined by the Supreme Court of New South Wales.

The court was tasked with interpreting the scope and application of section 125(1) of the Act, which pertains to unauthorised works affecting land. The primary legal issue revolved around whether the actions of Mr Spalding constituted unauthorised works as defined by the Act, and whether the Council had the requisite authority to charge him under the statute. Additionally, the court needed to consider the evidence presented to ascertain whether Mr Spalding had acted in compliance with the environmental regulations.

In its judgment, the court held that the actions taken by Mr Spalding did indeed amount to unauthorised works under the Environmental Planning and Assessment Act 1979. The court found that Mr Spalding had proceeded with the works without obtaining the necessary approval, thereby contravening the statutory provisions. The court also affirmed the authority of the Great Lakes Council to enforce the provisions of the Act against Mr Spalding. Consequently, the court found Mr Spalding guilty of the offence and imposed a fine of $7,500. Additionally, the court ordered that Mr Spalding pay the prosecutor's costs in accordance with section 257B of the Criminal Procedure Act 1986.

Orders

Orders of the court

The Court orders:

1. Mr Spalding is convicted of the offence against s 125(1) of the Environmental Planning and Assessment Act 1979 as charged.

2. Mr Spalding is fined the sum of $7,500.

3. Pursuant to s 257B of the Criminal Procedure Act 1986, Mr Spalding is to pay the prosecutor's costs of the proceedings as agreed or assessed.

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

Full text does not contain this section.

Medium Neutral Citation:	Great Lakes Council v Spalding [2011] NSWLEC 257
Hearing dates:	20 December 2011
Decision date:	20 December 2011
Jurisdiction:	Class 5
Before:	Preston CJ
Decision:	The Court orders: 1. Mr Spalding is convicted of the offence against s 125(1) of the Environmental Planning and Assessment Act 1979 as charged. 2. Mr Spalding is fined the sum of $7,500. 3. Pursuant to s 257B of the Criminal Procedure Act 1986, Mr Spalding is to pay the prosecutor's costs of the proceedings as agreed or assessed.
Catchwords:	ENVIRONMENTAL OFFENCE - use of shed as a dwelling house without obtaining development consent - sentence - potential risk of harm not substantial - commission of offence intentional and for profit - early guilty plea - assistance to authorities - contrition and remorse - limited financial capacity to pay fine - amount of fine reduced for limited means
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A Criminal Procedure Act 1986, s 257B Environmental Planning and Assessment Act 1979, ss 76A(1), 125(1), 149D Fines Act 1996, ss 6, 7, 10
Category:	Sentence
Parties:	Great Lakes Council (Prosecutor) Michael Spalding (Defendant)
Representation:	Mr T G Howard (Prosecutor) Mr Spalding (Defendant in person) Mallik Rees Lawyers (Prosecutor)
File Number(s):	50958 of 2011