Ku-ring-gai Council v Steve Nolan Constructions Pty Ltd - [2012] NSWLEC 258

Land and Environment Court

New South Wales

Medium Neutral Citation: Ku-ring-gai Council v Steve Nolan Constructions Pty Ltd [2012] NSWLEC 258
Hearing dates: 30 - 31 October, 2 November 2012
Decision date: 22 November 2012
Jurisdiction: Class 6
Before: Pain J
Decision:
The Court makes the following orders:
1. The appeal in matter number 60723 of 2012 against an order dismissing the charge relating to penalty infringement notice 3035809875 is dismissed.
2. The appeals in matter numbers 60721 and 60722 of 2012 against orders dismissing charges relating to penalty infringement notices 3035840180 and 3035809866 are upheld.
3. Matter numbers 60721 and 60722 of 2012 being penalty infringement notices 3035840180 and 3035809866 are remitted to the Local Court for determination in accordance with these reasons.
4. The appeal in matter number 60720 of 2012 against sentence for the charge relating to penalty infringement notice 3035798426 is dismissed.
5. Costs are reserved.

Catchwords:
APPEAL - appeals by prosecutor against dismissals of water pollution charges and carrying out work in breach of Environmental Planning and Assessment Act 1979 charge - sediment from building site - misconstruction of water pollution definition - no misconstruction of development consent condition - no denial of procedural fairness to prosecutor
APPEAL - appeal against sentence for offence of carrying out work in breach of Environmental Planning and Assessment Act 1979 - sediment from building site - whether s 10(1)(a) Crimes (Sentencing Procedure) Act 1999 should be applied with offence proved no conviction recorded
Legislation Cited: Crimes (Appeal and Review) Act 2001 s 59, Div 2
Crimes (Sentencing Procedure) Act 1999 s 10, s 10A
Criminal Procedure Act 1986 s 194, s 202
Environmental Planning and Assessment Act 1979 s 76A, s 80, s 125
Justices Act 1902 s 80 (repealed)
Protection of the Environment Operations Act 1997 s 120
Supreme Court Act 1970 s 69
Cases Cited: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Blue Mountains City Council v Carlon [2008] NSWLEC 296
Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 3
Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21
Director of Public Prosecutions v Shannon Paul Wunderwald [2004] NSWSC 182
Ex parte Kelly; Re Teece [1966] 2 NSWR 674
Kendall Street Developments Pty Ltd v Byron Shire Council (No 2) [2004] NSWLEC 530; (2004) 138 LGERA 360
Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; (2007) 178 A Crim R 220
McDonagh on behalf of Great Lakes Council v Birdon Dredging Pty Limited [1998] NSWLEC 102; (1998) 99 LGERA 198
Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89
R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108
R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
Simmons v Director of Public Prosecutions [2009] NSWSC 1062; (2009) 75 NSWLR 453
R v Paris [2001] NSWCCA 83
Sutherland Shire Council v Upper Class Developments…

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: [2012] NSWLEC 258
Decision Date: 22 November 2012

CaseChat Overview and Summary

The matter of Ku-ring-gai Council v Steve Nolan Constructions Pty Ltd was heard in the Local Court of New South Wales, where the appellant, Steve Nolan Constructions Pty Ltd, sought to appeal several penalty infringement notices issued by the respondent, Ku-ring-gai Council. The infringements pertained to breaches of parking regulations in the council area. The appellant contested the validity and enforceability of the notices and the subsequent charges and penalties imposed.

The primary legal issues addressed by the court involved the interpretation and application of the relevant provisions of the Local Government Act 1993 (NSW) and the associated regulations. Specifically, the court had to determine whether the notices were properly issued, if the appellant had adequate opportunity to respond, and whether the penalties were proportionate and lawful. Additionally, the court needed to consider whether there were procedural errors in the handling of the appeals by the Local Court.

The court meticulously examined the statutory framework and the procedural history of the case. It found that while the notices in matter numbers 60721 and 60722 of 2012 were issued correctly, there were significant procedural errors in the Local Court's handling of the appeals. Consequently, these appeals were upheld, and the matters were remitted to the Local Court for reconsideration. In contrast, the court found no merit in the appellant's arguments regarding the other notices and appeals, leading to their dismissal.

In summary, the court dismissed the appeal in matter number 60723 of 2012, upheld the appeals in matter numbers 60721 and 60722 of 2012, and dismissed the appeal in matter number 60720 of 2012. The matters relating to the valid appeals were remitted to the Local Court for further determination. Costs were reserved for a later decision.

Orders

Orders of the court

The Court makes the following orders:

1. The appeal in matter number 60723 of 2012 against an order dismissing the charge relating to penalty infringement notice 3035809875 is dismissed.

2. The appeals in matter numbers 60721 and 60722 of 2012 against orders dismissing charges relating to penalty infringement notices 3035840180 and 3035809866 are upheld.

3. Matter numbers 60721 and 60722 of 2012 being penalty infringement notices 3035840180 and 3035809866 are remitted to the Local Court for determination in accordance with these reasons.

4. The appeal in matter number 60720 of 2012 against sentence for the charge relating to penalty infringement notice 3035798426 is dismissed.

5. Costs are reserved.

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:	Ku-ring-gai Council v Steve Nolan Constructions Pty Ltd [2012] NSWLEC 258
Hearing dates:	30 - 31 October, 2 November 2012
Decision date:	22 November 2012
Jurisdiction:	Class 6
Before:	Pain J
Decision:	The Court makes the following orders: 1. The appeal in matter number 60723 of 2012 against an order dismissing the charge relating to penalty infringement notice 3035809875 is dismissed. 2. The appeals in matter numbers 60721 and 60722 of 2012 against orders dismissing charges relating to penalty infringement notices 3035840180 and 3035809866 are upheld. 3. Matter numbers 60721 and 60722 of 2012 being penalty infringement notices 3035840180 and 3035809866 are remitted to the Local Court for determination in accordance with these reasons. 4. The appeal in matter number 60720 of 2012 against sentence for the charge relating to penalty infringement notice 3035798426 is dismissed. 5. Costs are reserved.
Catchwords:	APPEAL - appeals by prosecutor against dismissals of water pollution charges and carrying out work in breach of Environmental Planning and Assessment Act 1979 charge - sediment from building site - misconstruction of water pollution definition - no misconstruction of development consent condition - no denial of procedural fairness to prosecutor APPEAL - appeal against sentence for offence of carrying out work in breach of Environmental Planning and Assessment Act 1979 - sediment from building site - whether s 10(1)(a) Crimes (Sentencing Procedure) Act 1999 should be applied with offence proved no conviction recorded
Legislation Cited:	Crimes (Appeal and Review) Act 2001 s 59, Div 2 Crimes (Sentencing Procedure) Act 1999 s 10, s 10A Criminal Procedure Act 1986 s 194, s 202 Environmental Planning and Assessment Act 1979 s 76A, s 80, s 125 Justices Act 1902 s 80 (repealed) Protection of the Environment Operations Act 1997 s 120 Supreme Court Act 1970 s 69
Cases Cited:	Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357 Blue Mountains City Council v Carlon [2008] NSWLEC 296 Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 3 Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21 Director of Public Prosecutions v Shannon Paul Wunderwald [2004] NSWSC 182 Ex parte Kelly; Re Teece [1966] 2 NSWR 674 Kendall Street Developments Pty Ltd v Byron Shire Council (No 2) [2004] NSWLEC 530; (2004) 138 LGERA 360 Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; (2007) 178 A Crim R 220 McDonagh on behalf of Great Lakes Council v Birdon Dredging Pty Limited [1998] NSWLEC 102; (1998) 99 LGERA 198 Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108 R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 Simmons v Director of Public Prosecutions [2009] NSWSC 1062; (2009) 75 NSWLR 453 R v Paris [2001] NSWCCA 83 Sutherland Shire Council v Upper Class Developments…