Ku-ring-gai Municipal Council v Ebeid - [2003] NSWLEC 139

Land and Environment Court

of New South Wales

CITATION: Ku-ring-gai Municipal Council v Ebeid [2003] NSWLEC 139

PARTIES:
PROSECUTOR
Ku-ring-gai Municipal Council
DEFENDANT
Michael Maged Ebeid

FILE NUMBER(S): 50015 of 2003

CORAM: Cowdroy J

KEY ISSUES: Practice and Procedure :- application to strike out class 5 proceedings - whether charge is bound to fail - issues of fact and law arising

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 76A(1), 96(2)(a), s 125(1)

CASES CITED: Dey v Victorian Railways Commissioners (1948-1949) 78 CLR 62;
General Steel Industries Inc. v Commissioner For Railways (NSW) and Ors (1964) 112 CLR 125;
Jago v The District Court of New South Wales and Others (1989) 168 CLR 23;
Logwon Pty Limited v Warringah Shire Council (1993) 33 NSWLR 13;
Rogers v The Queen (1994) 181 CLR 251;
Tynan and Others v Meharg and Newcastle City Council (1998) 101 LGERA 255;
Walton v Gardiner; Walton v Herron; Walton v Gill (1992-1993) 177 CLR 378;
Woolmington v The Director of Public Prosecutions [1935] AC 462

DATES OF HEARING: 12/06/2003

DATE OF JUDGMENT:
06/19/2003

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr M. Wright (Barrister)
SOLICITORS
Deacons Lawyers
DEFENDANT
Mr P. Clay (Barrister)
SOLICITORS
McKees Solicitors

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

50015 of 2003

Cowdroy J

19 June 2003

Ku-ring-gai Municipal Council

Prosecutor

Michael Maged Ebeid

Defendant

Judgment

Facts

1 By notice of motion filed on 16 April 2003 the defendant seeks an order that the summons issued in these proceedings be dismissed.

2 The summons which was filed on 5 March 2003 seeks an order that the defendant answer a charge that between 6 September 2002 and 22 October 2002 he committed an offence under s 125(1) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) in that he caused development to be carried out at 50 Ada Avenue, Wahroonga without obtaining development consent, as required pursuant to the Ku-ring-gai Planning Scheme Ordinance. Section 76A(1) of the EP&A Act forbids development to be carried out if an environmental planning instrument requires consent.

3 The charge has arisen because the defendant constructed a swimming pool (“the pool”) otherwise than in accordance with a development consent granted to the defendant by the prosecutor on 6 September 2002 (“the consent”). The consent authorised a proposed development for alterations and additions to a dwelling “plus swimming pool”. One of the conditions to the consent provided as follows:-

The development to be in accordance with Development Application No

930/02

and Development Application plans prepared by

Allan Hobbs

, reference number

SAM1/2002 – SAM62002, SAM8/2002

, dated

May 2002

and lodged with Council on

8 July 2002

4 Section 76A(1) of the EP&A Act provides:-

s 76A Development that needs consent

(1) General

If an environmental planning instrument provides that specified development may not…

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: [2003] NSWLEC 139
Decision Date: 06/19/2003

CaseChat Overview and Summary

The Ku-ring-gai Municipal Council sought to prosecute Michael Maged Ebeid for an alleged offence under section 125(1) of the Environmental Planning and Assessment Act 1979. The Council alleged that Ebeid had carried out development at 50 Ada Avenue, Wahroonga without obtaining development consent, as required under the Ku-ring-gai Planning Scheme Ordinance. The specific charge was that Ebeid constructed a swimming pool in a location that did not accord with the development application plans referred to in the consent, thereby breaching section 76A(1) of the Environmental Planning and Assessment Act 1979. Ebeid sought to have the summons dismissed on the grounds that the charge was bound to fail and constituted an abuse of process.

The court considered whether the defendant's motion to strike out the class 5 proceedings was justified. The legal issues before the court were whether the charge was bound to fail and whether the summons amounted to an abuse of process. The court examined the principles established in Dey v Victorian Railways Commissioners and General Steel Industries Inc v Commissioner For Railways (NSW), which emphasised that courts should not dismiss actions as frivolous or vexatious if there is a real question of fact or law at stake. The court also considered the relevance of Tynan and Others v Meharg and Newcastle City Council, which concerned a discretionary issue that could not be applied to this application.

The court found that the defendant's motion assumed that the grant of the consent was a complete answer to the charge. However, other considerations were raised regarding whether the breach of a condition of a consent resulted in a finding that the defendant's conduct was unlawful. The court held that such issues of fact and law should be determined at a hearing, and that the proceedings were not demonstrably groundless. The court dismissed the defendant's motion, holding that the summons did not amount to an abuse of process and that the issues of fact and law arising in the prosecution should be determined at a hearing.

The court ordered that the defendant's notice of motion be dismissed and that the defendant pay the prosecutor's costs.

Orders