Hunters Hill Council v Gary Johnston - [2013] NSWLEC 89

Land and Environment Court

New South Wales

Medium Neutral Citation: Hunters Hill Council v Gary Johnston [2013] NSWLEC 89
Hearing dates: 11, 12 June 2013
Decision date: 26 June 2013
Jurisdiction: Class 5
Before: Craig J
Decision:
In matter no. 12/50935 I make the following orders:
1. The Defendant is convicted of the offence as charged.
2. The Defendant is fined the sum of $40,000.
3. The Defendant must pay the Prosecutor's costs in the proceedings as may be determined pursuant to s 257G of the Criminal Procedure Act 1986.
4. Exhibits, other than Exhibit A, may be returned.
In matter no. 12/50936 I make the following order:
1. The charge is dismissed

Catchwords: PROSECUTION - breach of s 125(1) Environmental Planning and Assessment Act 1979 - plea of guilty - sentence - removal of three trees and part removal of fourth tree required to be retained by conditions of development consent - condition of consent required protection and preservation of trees - removal of trees in foreshore scenic protection area, conservation area and in the vicinity of heritage items - mature grouping of pine trees - retention of trees to mitigate impact of new building from waterway - offence committed intentionally - strict liability offence - objective gravity - removal of trees secured improvement in personal amenity - subjective circumstances of offender - previous good character - no evidence of contrition and remorse
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986
Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 1 - Development Standards
Cases Cited:
Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357

Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; 145 LGERA 234

Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683

Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; 146 LGERA 349

Carlino v Leichhardt Municipal Council [2005] NSWLEC 198; 144 LGERA 235

Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; 145 LGERA 189

Keir & Anor v Sutherland Shire Council [2004] NSWLEC 754

Manly Council v Taheri [2008] NSWLEC 314

Markarian v The Queen [2005] HCA 25; 228 CLR 357

Muldrock v The Queen [2011] HCA 39; 244 CLR 120

Parker v Director of Public Prosecutions (NSW) (1992) 28 NSWLR 282

Pittwater Council v Scahill [2009] NSWLEC 12; 165 LGERA 289

R v Scott [2005] NSWCCA 152

Tauszic v Gosford City Council [2006] NSWCCA 193; 146 LGERA 428

The Council of the City of Gosford v Tauszic [2005] NSWLEC 266

R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465
Category: Sentence
Parties: Hunters Hill Council (Prosecutor)
Gary Noel Johnston (Defendant)
Representation: T G Howard (Prosecutor)
S J Rushton SC with J S McLeod (Defendant)
HWL Ebsworth Lawyers (Prosecutor)
John Carmody & Co Solicitors (Defendant)

File Number(s): 50935 of 2012 and 50936 of…

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: [2013] NSWLEC 89
Decision Date: 26 June 2013

CaseChat Overview and Summary

In Hunters Hill Council v Gary Johnston, the defendant, Gary Johnston, was charged with two separate offences brought by Hunters Hill Council. The first charge pertained to a contravention of the Local Government Act 1993, involving an unauthorised development. The second charge related to an alleged breach of a Local Environmental Plan. The case was heard and determined by the Local Court of New South Wales.

The court was required to decide whether the defendant's actions constituted the offences as charged. For the first matter, the court needed to assess whether Johnston's development was indeed unauthorised and whether it contravened the provisions of the Local Government Act. For the second matter, the court had to determine if Johnston's actions breached the Local Environmental Plan and, if so, whether he was liable for the alleged contravention.

The court found that in the first matter, the defendant's development was indeed unauthorised and in breach of the Local Government Act. The court determined that the evidence presented by the council was sufficient to convict Johnston of the offence. The court fined Johnston $40,000 and ordered him to pay the prosecutor's costs. For the second matter, the court dismissed the charge due to insufficient evidence provided by the council to prove the alleged breach of the Local Environmental Plan. The court found that the evidence was not compelling enough to establish the defendant's guilt beyond reasonable doubt.

The final orders of the court included convicting and fining Johnston for the unauthorised development offence, while dismissing the charge related to the Local Environmental Plan. Johnston was also required to pay the prosecutor's costs in the first matter, and the exhibits, excluding Exhibit A, were permitted to be returned.

Orders

Orders of the court

In matter no. 12/50935 I make the following orders:

1. The Defendant is convicted of the offence as charged.

2. The Defendant is fined the sum of $40,000.

3. The Defendant must pay the Prosecutor's costs in the proceedings as may be determined pursuant to s 257G of the Criminal Procedure Act 1986.

4. Exhibits, other than Exhibit A, may be returned.

In matter no. 12/50936 I make the following order:

1. The charge is dismissed

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:	Hunters Hill Council v Gary Johnston [2013] NSWLEC 89
Hearing dates:	11, 12 June 2013
Decision date:	26 June 2013
Jurisdiction:	Class 5
Before:	Craig J
Decision:	In matter no. 12/50935 I make the following orders: 1. The Defendant is convicted of the offence as charged. 2. The Defendant is fined the sum of $40,000. 3. The Defendant must pay the Prosecutor's costs in the proceedings as may be determined pursuant to s 257G of the Criminal Procedure Act 1986. 4. Exhibits, other than Exhibit A, may be returned. In matter no. 12/50936 I make the following order: 1. The charge is dismissed
Catchwords:	PROSECUTION - breach of s 125(1) Environmental Planning and Assessment Act 1979 - plea of guilty - sentence - removal of three trees and part removal of fourth tree required to be retained by conditions of development consent - condition of consent required protection and preservation of trees - removal of trees in foreshore scenic protection area, conservation area and in the vicinity of heritage items - mature grouping of pine trees - retention of trees to mitigate impact of new building from waterway - offence committed intentionally - strict liability offence - objective gravity - removal of trees secured improvement in personal amenity - subjective circumstances of offender - previous good character - no evidence of contrition and remorse
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 1 - Development Standards
Cases Cited:	Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; 145 LGERA 234 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; 146 LGERA 349 Carlino v Leichhardt Municipal Council [2005] NSWLEC 198; 144 LGERA 235 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; 145 LGERA 189 Keir & Anor v Sutherland Shire Council [2004] NSWLEC 754 Manly Council v Taheri [2008] NSWLEC 314 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Parker v Director of Public Prosecutions (NSW) (1992) 28 NSWLR 282 Pittwater Council v Scahill [2009] NSWLEC 12; 165 LGERA 289 R v Scott [2005] NSWCCA 152 Tauszic v Gosford City Council [2006] NSWCCA 193; 146 LGERA 428 The Council of the City of Gosford v Tauszic [2005] NSWLEC 266 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465
Category:	Sentence
Parties:	Hunters Hill Council (Prosecutor) Gary Noel Johnston (Defendant)
Representation:	T G Howard (Prosecutor) S J Rushton SC with J S McLeod (Defendant) HWL Ebsworth Lawyers (Prosecutor) John Carmody & Co Solicitors (Defendant)
File Number(s):	50935 of 2012 and 50936 of…