Kovacevic v Queanbeyan City Council - [2016] NSWCA 346

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kovacevic v Queanbeyan City Council [2016] NSWCA 346
Date of orders: 29 September 2016
Decision date: 13 December 2016
Before: Beazley ACJ;
Leeming JA;
Payne JA
Decision:
Reasons published.

Catchwords:
APPEALS – appeal by prosecutor to Land and Environment Court from dismissal in Local Court of summary proceedings with respect to an environmental offence pursuant to Crimes (Appeal and Review) Act 2001 (NSW), s 42(2B)(b) – meaning of the definition of “prosecutor” as contained in Crimes (Appeal and Review) Act, s 3(1) – relevance of definition of “prosecutor” in Criminal Procedure Act 1986 (NSW), s 3(1) – whether Council the “prosecutor” for the purposes of bringing an appeal
LAND & ENVIRONMENT – offence against s 125(1) of Environmental Planning and Assessment Act 1979 (NSW) – failure to cease using premises as a “transport depot” as defined in the Queanbeyan Local Environment Plan 1998 – meaning of the term “transport deport” – whether parking of vehicles used in connection with a business, industry or shop must involve the transport of something
Legislation Cited: Civil Procedure Act 2005 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Criminal Procedure Act 1986 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Fairfield Local Environment Plan 1994
Interpretation Act 1987 (NSW)
Queanbeyan Local Environment Plan 1998
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107; (2011) 180 LGERA 343
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41
Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400
Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; [1955] HCA 27
Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155
Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373
Fairfield City Council v Mangos [2004] NSWLEC 298
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157
Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334
Matic v Mid Western Regional Council [2008] NSWLEC 113
Price v Ferris (1994) 34 NSWLR 704
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v McCullough [1982] Tas R 43
Roads and Traffic Authority (NSW) v Field (2005) 44 MVR 60; [2005] NSWSC 606
Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185
Tickle Industries Pty Ltd v Hann (1974) 130 CLR 321
Category: Principal judgment
Parties: Mary Lucy Kovacevic (Applicant)
Queanbeyan City Council (First Respondent)
Land and Environment Court (Second Respondent)
Representation:
Counsel:
C Stomo; J Masters (Applicant)
T To (First Respondent)
Submitting Appearance (Second Respondent)
Solicitors:
Canberra Legal Group (Applicant)
Herring & Associates (First Respondent)
Crown Solicitor’s Office (Second Respondent)

File Number(s): 2016/158239
Decision under appeal

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 6

Citation:

Queanbeyan City Council v Kovacevic [2015] NSWLEC 152

Date of Decision:

25 September 2015

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] NSWCA 346
Decision Date: 13 December 2016

CaseChat Overview and Summary

The prosecutor, Queanbeyan City Council, appealed to the Land and Environment Court against the Local Court's dismissal of summary proceedings concerning an alleged environmental offence. The offence, under section 125(1) of the *Environmental Planning and Assessment Act 1979* (NSW), involved the failure to cease using premises as a "transport depot" as defined in the Queanbeyan Local Environment Plan 1998. The appeal was brought pursuant to section 42(2B)(b) of the *Crimes (Appeal and Review) Act 2001* (NSW).

The central legal issues before the Court were twofold. Firstly, it was necessary to determine whether the Council qualified as the "prosecutor" for the purposes of bringing an appeal under the *Crimes (Appeal and Review) Act 2001*. This involved considering the definition of "prosecutor" within that Act and its relationship with the definition of "prosecutor" in the *Criminal Procedure Act 1986* (NSW). Secondly, the Court was required to interpret the meaning of "transport depot" as defined in the Queanbeyan Local Environment Plan 1998, specifically whether the parking of vehicles connected to a business, industry, or shop necessarily involved the transport of something.

The Court held that the Council was indeed the "prosecutor" for the purposes of the appeal. It reasoned that the definition of "prosecutor" in the *Crimes (Appeal and Review) Act 2001* was broad enough to encompass a council prosecuting an environmental offence, and that the definition in the *Criminal Procedure Act 1986* did not restrict this broader meaning in the context of an appeal under the former Act. Regarding the environmental offence, the Court found that the definition of "transport depot" did not require that the parking of vehicles used in connection with a business, industry, or shop must involve the transport of something. The appeal was therefore allowed, and the matter was remitted to the Local Court for re-hearing.

Orders

Orders of the court

Reasons published.

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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Medium Neutral Citation:	Kovacevic v Queanbeyan City Council [2016] NSWCA 346
Date of orders:	29 September 2016
Decision date:	13 December 2016
Before:	Beazley ACJ; Leeming JA; Payne JA
Decision:	Reasons published.
Catchwords:	APPEALS – appeal by prosecutor to Land and Environment Court from dismissal in Local Court of summary proceedings with respect to an environmental offence pursuant to Crimes (Appeal and Review) Act 2001 (NSW), s 42(2B)(b) – meaning of the definition of “prosecutor” as contained in Crimes (Appeal and Review) Act, s 3(1) – relevance of definition of “prosecutor” in Criminal Procedure Act 1986 (NSW), s 3(1) – whether Council the “prosecutor” for the purposes of bringing an appeal LAND & ENVIRONMENT – offence against s 125(1) of Environmental Planning and Assessment Act 1979 (NSW) – failure to cease using premises as a “transport depot” as defined in the Queanbeyan Local Environment Plan 1998 – meaning of the term “transport deport” – whether parking of vehicles used in connection with a business, industry or shop must involve the transport of something
Legislation Cited:	Civil Procedure Act 2005 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Criminal Procedure Act 1986 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Fairfield Local Environment Plan 1994 Interpretation Act 1987 (NSW) Queanbeyan Local Environment Plan 1998 Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107; (2011) 180 LGERA 343 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; [1955] HCA 27 Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 Fairfield City Council v Mangos [2004] NSWLEC 298 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334 Matic v Mid Western Regional Council [2008] NSWLEC 113 Price v Ferris (1994) 34 NSWLR 704 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v McCullough [1982] Tas R 43 Roads and Traffic Authority (NSW) v Field (2005) 44 MVR 60; [2005] NSWSC 606 Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 Tickle Industries Pty Ltd v Hann (1974) 130 CLR 321
Category:	Principal judgment
Parties:	Mary Lucy Kovacevic (Applicant) Queanbeyan City Council (First Respondent) Land and Environment Court (Second Respondent)
Representation:	Counsel: C Stomo; J Masters (Applicant) T To (First Respondent) Submitting Appearance (Second Respondent) Solicitors: Canberra Legal Group (Applicant) Herring & Associates (First Respondent) Crown Solicitor’s Office (Second Respondent)
File Number(s):	2016/158239
Decision under appeal	Court or tribunal: Land and Environment Court Jurisdiction: Class 6 Citation: Queanbeyan City Council v Kovacevic [2015] NSWLEC 152 Date of Decision: 25 September 2015