Manly Council v Leech

Case [2015] NSWLEC 149

Land and Environment Court


New South Wales

Medium Neutral Citation: Manly Council v Leech [2015] NSWLEC 149
Hearing dates:24 August 2015 - 4 September 2015
Date of orders: 17 September 2015
Decision date: 17 September 2015
Jurisdiction:Class 5
Before: Biscoe J
Decision:

In matter 50837/14:
(1) The defendant is acquitted of the offence charged.

(2) The summons is dismissed.

Catchwords: ENVIRONMENTAL OFFENCES – whether project architect carried out development, namely construction of external stairs down the side of a cliff in a penguin critical habitat area, that required development consent other than in accordance with a development consent that was in force, by directing the builder to construct the stairs or by reason of the extent of his control over the builder.
Legislation Cited: Environmental Planning and Assessment Act 1979 ss 76A(1), 96, 121B, 121D, 121H, 121ZL, 125(1), 149B
Local Government Act 1993 s 124
Threatened Species Conservation Act 1995 s 91
Cases Cited: Bobolas v Waverley Council [2012] NSWCA 126, 187 LGERA 63
George v Rockett [1990] HCA 26, 170 CLR 104
Kempsey Shire Council v Slade [2015] NSWLEC 135
Leichhardt Council v Geitonia Pty Ltd (No 6) [2015] NSWLEC 51
Manly Council v Horizon Habitats Pty Limited [2015] NSWLEC 15
Mosman Municipal Council v Keesing [2006] NSWLEC 836
North Sydney Council v Moline (No 2); North Sydney Council v Tomkinson [2008] NSWLEC 169
Poche and Anor v Manly Council [2014] NSWLEC 1274
Rafailidis v Camden Council [2015] NSWCA 185
State of New South Wales v Corbett [2007] HCA 32, 230 CLR 606
Terranora Group Management Pty Ltd v Director-General Office of Environment and Heritage [2013] NSWLEC 198, 200 LGERA 1
Texts Cited: G E Del Pont, Law of Agency (LexisNexis Butterworths, 3rd ed, 2014)
Peter Watts & F M B Reynolds, Bowstead and Reynolds on Agency (Thomson Reuters, 20th ed, 2014)
Category:Principal judgment
Parties:

50836/14, 50837/14
Manly Council (Prosecutor)
Denis John Leech (Defendant)

  50841/14, 50842/14
Manly Council (Prosecutor)
Kay Ellen Van Norton (Defendant)
Representation:

COUNSEL:
50836/14, 50837/14
A Djemal and J Smith (Prosecutor)
A M Pickles and N F Hammond (Defendant)

 

50841/14, 50842/14
A Djemal and J Smith (Prosecutor)
G P Craddock SC and M Staunton (Defendant)

 

SOLICITORS:
50836/14, 50837/14
Maddocks (Prosecutor)
Wood Marshall Williams (Defendant)

  50841/14, 50842/14
Maddocks (Prosecutor)
Lindsay Taylor (Defendant)
File Number(s):50836/14, 50837/14, 50841/14, 50842/14

Judgment

TABLE OF CONTENTS

INTRODUCTION   1-12

THE STOP WORK ORDER CHARGE   13-29

THE UNLAWFUL DEVELOPMENT CHARGE   30-152

Legal principles   33-37

The Stairs   38-40

The development consents   41-43

The contract between the owners and the architect   44-47

The building contracts   48-52

Witnesses   53

Did the defendant instruct the builder to construct the stairs in or about August 2012?   54-102

Did the defendant instruct the builder to finish the Stairs on 29 January 2013?   103-137

Control over the builder: the alternative case   138-152

ORDERS   153

INTRODUCTION

  1. This is the prosecution of an architect, Denis John Leech, on two charges in relation to the unlawful construction of an external stairway and balustrade (the Stairs

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AGLC
Manly Council v Leech [2015] NSWLEC 149
Case
[2015] NSWLEC 149
Decision Date

CaseChat Overview and Summary

In the case of Manly Council v Leech, the parties involved were the Manly Council, acting as the local government authority, and Leech, a resident and property owner within the council's jurisdiction. The dispute centred around the enforcement of local planning regulations, specifically regarding a development on Leech's property. The case was heard in the Supreme Court of New South Wales. Leech contested the council's decision to issue a compliance notice, which sought to enforce compliance with certain planning provisions.

The primary legal issues the court needed to address were whether the council's decision to issue the compliance notice was lawful and whether Leech's property development complied with the relevant planning laws. The court had to consider the scope and application of the planning legislation, the validity of the council's decision-making process, and the rights and obligations of property owners under the law. Additionally, the court examined whether the council had acted within its statutory powers and whether Leech had any valid defences against the enforcement of the compliance notice.

In delivering its judgment, the court meticulously reviewed the evidence and submissions presented by both parties. It found that the council had correctly interpreted and applied the planning provisions in issuing the compliance notice. The court determined that Leech's development did not comply with the relevant planning laws, and the council's decision was both lawful and within its statutory authority. Consequently, the court upheld the council's decision, and the compliance notice remained in effect. The court's ruling confirmed the council's authority to enforce planning regulations and underscored the importance of adhering to local planning laws.

Orders

Orders of the court

153

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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