Jenner v Richmond Valley Council - [2016] NSWLEC 115

Land and Environment Court

New South Wales

Medium Neutral Citation: Jenner v Richmond Valley Council [2016] NSWLEC 115
Hearing dates: 22 August 2016
Date of orders: 05 September 2016
Decision date: 05 September 2016
Jurisdiction: Class 7
Before: Pain J
Decision:
(1) The application for leave to appeal against conviction in Local Court matter no 2015/297505 is dismissed.
(2) The application for leave to appeal against conviction in Local Court matter no 2015/292912 is dismissed.
(3) The appeal against sentence in Local Court matter no 2015/297505 is dismissed.
(4) The appeal against sentence in Local Court matter no 2015/292912 is dismissed.
(5) The Appellant is to pay the Respondent’s costs of these leave applications and appeals within 60 days.
(6) The exhibits are to be returned.

Catchwords: APPEAL – leave to appeal against two convictions in local court – appeal against sentences in local court – defendant entered pleas of guilty in local court – miscarriage of justice justifying grant of leave to appeal not established – exercise of sentencing discretion to confirm magistrate’s decisions
Legislation Cited: Crimes (Appeal and Review) Act 2001, ss 31, 32, 34, 36, 37, 39, 49, 70, 72
Crimes (Sentencing Procedure) Act 1999, ss 3A, 10, 21A
Environmental Planning and Assessment Act 1979, ss 4, 76A, 125
Fines Act 1996, s 6
Protection of the Environment Operations Act 1997, ss 96, 97, 241, 321, Dictionary
Cases Cited: Brown Brothers Waste Contractors Pty Ltd v Pittwater Council (2015) 90 NSWLR 717; [2015] NSWCA 215
Hamod v New South Wales [2011] NSWCA 375
Kwong v Baulkham Hills Shire Council [2008] NSWLEC 199
R v Hura (2001) 121 A Crim R 472; [2001] NSWCCA 61
Category: Principal judgment
Parties: Kevin Lindsay Jenner (Appellant)
Richmond Valley Council (Respondent)
Representation:
COUNSEL:
L Stephens (Appellant)
M Seymour (Respondent)
SOLICITORS:
N/A (Appellant)
Hannigans Solicitors (Respondent)

File Number(s): 2016/148990 and 2016/149002
Decision under appeal

Court or tribunal:

Casino Local Court

Jurisdiction:

Criminal

Date of Decision:

20 January 2016

Before:

Magistrate Heilpern

File Number(s):

2015/297505 and 2015/292912

Judgment

The Appellant seeks leave to appeal against two convictions in the Local Court at Casino on 3 February 2016. The Appellant also appeals against the severity of two sentences imposed in the Local Court at Casino on 3 February 2016. All appeals can be heard together.
The Appellant was issued with two Penalty Infringement Notices (PINs) by the Respondent Richmond Valley Council (the Council) for carrying out development requiring development consent under s 76A of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) without consent, and for breaching the terms of a prevention notice issued under the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) in breach of s 97 of the POEO Act. Both PINs resulted from a noisy “doof” party held on the Appellant’s property in Seery Road Kippenduff on 3 and 4 July 2015. The Appellant wished to contest the PINs and commenced proceedings in the Local Court. The Appellant pleaded not guilty to both charges at 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: [2016] NSWLEC 115
Decision Date: 05 September 2016

CaseChat Overview and Summary

The case of Jenner v Richmond Valley Council involved an appellant, Jenner, appealing against both convictions and sentences handed down in the Local Court. The respondent was Richmond Valley Council. The appellant contested two separate cases, Local Court matter numbers 2015/297505 and 2015/292912, which involved allegations of contravening local council by-laws and regulations. The primary issues for the court to decide were whether the lower court made any errors in its assessment of the evidence, the application of the law, and the imposition of the sentences.

The court examined the legal principles relevant to both the conviction and the sentencing. The judge considered whether the evidence presented was sufficient to prove the allegations beyond a reasonable doubt, and whether the lower court correctly interpreted and applied the relevant laws and by-laws. The court also assessed the proportionality and appropriateness of the sentences handed down in each case, considering whether they were within the bounds of what a reasonable court would impose under the circumstances.

After reviewing the evidence, the court found no merit in the appellant's arguments. The court upheld the decisions of the lower court, affirming both convictions and sentences. The judge determined that the lower court had correctly assessed the evidence, applied the law, and imposed appropriate sentences. As a result, the court dismissed all applications for leave to appeal against conviction and sentence in both matters. Additionally, the appellant was ordered to pay the respondent’s costs within 60 days, and the exhibits were to be returned.

Orders

Orders of the court

(1) The application for leave to appeal against conviction in Local Court matter no 2015/297505 is dismissed.

(2) The application for leave to appeal against conviction in Local Court matter no 2015/292912 is dismissed.

(3) The appeal against sentence in Local Court matter no 2015/297505 is dismissed.

(4) The appeal against sentence in Local Court matter no 2015/292912 is dismissed.

(5) The Appellant is to pay the Respondent’s costs of these leave applications and appeals within 60 days.

(6) The exhibits are to be returned.

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:	Jenner v Richmond Valley Council [2016] NSWLEC 115
Hearing dates:	22 August 2016
Date of orders:	05 September 2016
Decision date:	05 September 2016
Jurisdiction:	Class 7
Before:	Pain J
Decision:	(1) The application for leave to appeal against conviction in Local Court matter no 2015/297505 is dismissed. (2) The application for leave to appeal against conviction in Local Court matter no 2015/292912 is dismissed. (3) The appeal against sentence in Local Court matter no 2015/297505 is dismissed. (4) The appeal against sentence in Local Court matter no 2015/292912 is dismissed. (5) The Appellant is to pay the Respondent’s costs of these leave applications and appeals within 60 days. (6) The exhibits are to be returned.
Catchwords:	APPEAL – leave to appeal against two convictions in local court – appeal against sentences in local court – defendant entered pleas of guilty in local court – miscarriage of justice justifying grant of leave to appeal not established – exercise of sentencing discretion to confirm magistrate’s decisions
Legislation Cited:	Crimes (Appeal and Review) Act 2001, ss 31, 32, 34, 36, 37, 39, 49, 70, 72 Crimes (Sentencing Procedure) Act 1999, ss 3A, 10, 21A Environmental Planning and Assessment Act 1979, ss 4, 76A, 125 Fines Act 1996, s 6 Protection of the Environment Operations Act 1997, ss 96, 97, 241, 321, Dictionary
Cases Cited:	Brown Brothers Waste Contractors Pty Ltd v Pittwater Council (2015) 90 NSWLR 717; [2015] NSWCA 215 Hamod v New South Wales [2011] NSWCA 375 Kwong v Baulkham Hills Shire Council [2008] NSWLEC 199 R v Hura (2001) 121 A Crim R 472; [2001] NSWCCA 61
Category:	Principal judgment
Parties:	Kevin Lindsay Jenner (Appellant) Richmond Valley Council (Respondent)
Representation:	COUNSEL: L Stephens (Appellant) M Seymour (Respondent) SOLICITORS: N/A (Appellant) Hannigans Solicitors (Respondent)
File Number(s):	2016/148990 and 2016/149002
Decision under appeal	Court or tribunal: Casino Local Court Jurisdiction: Criminal Date of Decision: 20 January 2016 Before: Magistrate Heilpern File Number(s): 2015/297505 and 2015/292912