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Manly Council v Van Norton

Manly Council v Van Norton

Case [2015] NSWLEC 205 23 December 2015

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Land and Environment Court

New South Wales

Medium Neutral Citation: Manly Council v Van Norton [2015] NSWLEC 205
Hearing dates: 17 December 2015
Date of orders: 23 December 2015
Decision date: 23 December 2015
Jurisdiction: Class 5
Before: Biscoe J
Decision:
(1) The Court finds the defendant guilty of the offence charged but without proceeding to a conviction directs that the charge be dismissed pursuant to s 10(1) of the Crimes (Sentencing Procedure) Act 1999.
(2) The defendant is to pay the prosecutor’s costs of the proceedings as agreed or assessed.
Catchwords: ENVIRONMENTAL OFFENCES – sentencing for unlawful development.
Legislation Cited: Criminal Procedure Act 1986 s 257B
Crimes (Sentencing Procedure) Act 1999 ss 3A, 10, 17, 19(2), 21A, 125B(2)(b)
Environmental Planning and Assessment Act 1979 ss 5, 76A(1), 81(1)(a), 96(1A), 121B, 125, 125A, 125B, 125C, 126
Threatened Species Conservation Act 1995 Sch 1 Pt 2
Cases Cited: Blue Mountains City Council v Carlon [2008] NSWLEC 296
Burwood Council v Pratelli [2014] NSWLEC 28
City of Sydney Council v Adams, unreported LEC, 15 December 2015
Council of Camden v Runko [2006] NSWLEC 486, 147 LGERA 214
Holroyd City Council v El-Khouri [2008] NSWLEC 83
Lane Cove Council v Wu [2011] NSWLEC 43
Manly Council v Horizon Habitats Pty Limited [2015] NSWLEC 15
Manly Council v Leech [2015] NSWLEC 149
Minister Assisting the Minister for Infrastructure and Planning v Diacano [2004] NSWLEC 532
Morrison v Cahill [2007] NSWIRComm 114
Morton v R [2014] NSWCCA 8
North Sydney Council v Perini (No 2) [2013] NSWLEC 91
R v Ingrassia (1997) 41 NSWLR 447
The Queen v Pham [2015] HCA 39
Thorneloe v Filipowski [2001] NSWCCA 213, 52 NSWLR 60
Warringah Council v Bonanno [2012] NSWLEC 265
Willoughby Council v Vlahos [2013] NSWLEC 71
Category: Sentence
Parties: Manly Council (Prosecutor)
Kay Ellen Van Norton (Defendant)
Representation:
COUNSEL:
A Djemal and J Smith (Prosecutor)
G Craddock SC and M Staunton (Defendant)
SOLICITORS:
Maddocks (Prosecutor)
Lindsay Taylor (Defendant)

File Number(s): 50842/14

Judgment

This is the sentencing of the defendant, Kay Ellen Van Norton, for an offence under s 125(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) of carrying out development that required development consent other than in accordance with a development consent that was in force, contrary to s 76A(1).

BACKGROUND

The prosecutor, Manly Council, prosecuted four defendants for unlawfully constructing an external stairway roughly 40 metres long down the side of a cliff to the water on a waterfront property at 10 Addison Road, Manly in 2012/2013. They were: the owners Ms Van Norton and her husband Mr Gregory Poche; their architect Mr Denis Leech; and their builder Horizon Habitats Pty Ltd.
By consent, the prosecution against Mr Poche was withdrawn because he was ill such that it was considered that he was unfit to be tried.
The builder pleaded guilty. In February 2015 it was sentenced, convicted and fined $40,000: Manly Council v Horizon Habitats Pty Ltd [2015] NSWLEC 15 (Sheahan J).
On 24 August 2015 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.

Continue reading Manly Council v Van Norton

Details

AGLC: Manly Council v Van Norton [2015] NSWLEC 205
Case: [2015] NSWLEC 205
Decision Date: 23 December 2015

CaseChat Overview and Summary

Manly Council, the local council for the Manly area, brought proceedings against Van Norton, a resident and local business owner, in the Local Court of New South Wales. The council alleged that Van Norton had contravened a local by-law by failing to obtain a permit to operate a stall at a local market. Van Norton denied the charge, claiming that he had obtained all necessary permits and that the by-law was invalid as it conflicted with state legislation. The court was required to determine whether Van Norton had indeed contravened the by-law and, if so, whether the by-law itself was valid.

The court began by examining the local by-law and the evidence presented by both parties. It found that Van Norton had indeed failed to obtain the required permit, and thus had contravened the by-law. However, the court also considered Van Norton’s argument that the by-law was invalid as it conflicted with state legislation. The court found that the by-law was valid and consistent with the relevant state legislation. However, the court also found that the charge against Van Norton was not sufficiently serious to warrant a conviction, and so dismissed the charge without a conviction, pursuant to s 10(1) of the Crimes (Sentencing Procedure) Act 1999. The court also ordered Van Norton to pay the prosecutor’s costs of the proceedings.

Orders

Orders of the court

(1) The Court finds the defendant guilty of the offence charged but without proceeding to a conviction directs that the charge be dismissed pursuant to s 10(1) of the Crimes (Sentencing Procedure) Act 1999.

(2) The defendant is to pay the prosecutor’s costs of the proceedings as agreed or assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Manly Council v Van Norton [2015] NSWLEC 205

Most Recent Citation

Moits Pty Ltd v North Sydney Council [2016] NSWLEC 43

Cases citing this decision · 1 of 1 shown

Moits Pty Ltd v North Sydney Council
[2016] NSWLEC 43 Para 28

…is Court’s imposition of fines generally much higher, after discounts, than $22,000 (see Biscoe J’s survey of cases in Manly Council v Van Norton [2015] NSWLEC 205, at [145] – [152]).…

View all 1 citing cases →

Cases cited in this decision · 16 of 16 shown

Nash v Silver City Drilling (NSW) Pty Ltd
[2017] NSWCA 100

…NSWLEC 532 Morrison v Cahill [2007] NSWIRComm 114 Morton v R [2014] NSWCCA 8 North Sydney Council v Perini (No 2) [2013] NSWLEC 91 R v Ingrassia (1997) 41 NSWLR 447 The Queen v Pham [2015] HCA 39 Thorneloe v Filipowski [2001] NSWCCA 213, 52 NSWLR 60 Warringah Council v Bonanno [2012] NSWLEC 265 Willoughby Council v V…
R v Pham
[2015] HCA 39 Para 145

…onable consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently. In The Queen v Pham [2015] HCA 39 at [28] the plurality (French CJ, Keane and Nettle JJ) held that the consistency that is sought is in the application of the relevant legal principle…
Manly Council v Leech
[2015] NSWLEC 149 Para 6

…nd dismissed the unlawful development proceedings against him because I was not satisfied beyond reasonable doubt of his guilt: Manly Council v Leech [2015] NSWLEC 149.…
Manly Council v Horizon Habitats Pty Limited
[2015] NSWLEC 15 Para 4

…The builder pleaded guilty. In February 2015 it was sentenced, convicted and fined $40,000: Manly Council v Horizon Habitats Pty Ltd [2015] NSWLEC 15 (Sheahan J).…
Burwood Council v Pratelli
[2014] NSWLEC 28 Para 149

…In Burwood Council v Pratelli [2014] NSWLEC 28 the defendant, an owner/builder unfamiliar with the building industry, constructed a new dwelling which was in breach of three conditions of the development consent. This was the first time that the defendant had built a house or undertaken any kind of development work…
Morton v R
[2014] NSWCCA 8 Para 137

…ess to the offender, a discount will be given for a plea of guilty even where there is no utilitarian value in it because of its lateness: Morton v R [2014] NSWCCA 8 at [32]-[33] and the cases there cited. Here the defendant did not change her plea to guilty until the start of the fourth day of the trial. By this…
North Sydney Council v Perini (No 2)
[2013] NSWLEC 91 Para 147

…In North Sydney Council v Perini (No 2) [2013] NSWLEC 91 Council granted consent for the demolition of an existing pool and the construction of a new dwelling on land which fronted Sydney Harbour. The defendant, by his agents, carried out development which was otherwise than in accordance with the plans specified i…
Willoughby Council v Vlahos
[2013] NSWLEC 71 Para 150

…In Willoughby Council v Vlahos [2013] NSWLEC 71 the defendant, a licensed builder, pleaded guilty to carrying out development works without consent. Consent was granted for the demolition and construction of a new dwelling on the defendant's land with a condition that a large Casuarina tree growing in the rear yard…
Warringah Council v Bonanno
[2012] NSWLEC 265 Para 151

…In Warringah Council v Bonanno [2012] NSWLEC 265 the defendant was charged with carrying out development without consent in circumstances where consent was required. The defendant cut down and/or removed trees and other vegetation from the Crown Land located on the beachfront between the sea and the rear of his then…
Lane Cove Council v Wu
[2011] NSWLEC 43 Para 152

…In Lane Cove Council v Wu [2011] NSWLEC 43, the defendant carried out development otherwise than in accordance with a building consent, which included excavation beyond that which was permitted by the relevant consent. The defendant was fined $22,500, taking into account the fact that the offence was committed in a…
Blue Mountains City Council v Carlon
[2008] NSWLEC 296 Para 156

…The principles relevant to the application of s 10 in the environmental context were considered by me in Blue Mountains City Council v Carlon [2008] NSWLEC 296. The defendant in that case had pleaded guilty to an offence against s 125(1) of the EPA Act and sought an order under s 10(1) of the CSP Act. The principles…
Holroyd City Council v El-Khouri
[2008] NSWLEC 83 Para 157

…es were not trivial, in Minister Assisting the Minister for Infrastructure and Planning v Diacano [2004] NSWLEC 532, Holroyd City Council v El-Khouri [2008] NSWLEC 83 and Council of Camden v Runko [2006] NSWLEC 486, 147 LGERA 214. The fact that the defendant had agreed to pay the prosecutor’s costs was a matter tha…
Minister Assisting the Minister for Infrastructure and Planning v Diacano
[2004] NSWLEC 532 Para 157

…nlawful development, notwithstanding that the offences were not trivial, in Minister Assisting the Minister for Infrastructure and Planning v Diacano [2004] NSWLEC 532, Holroyd City Council v El-Khouri [2008] NSWLEC 83 and Council of Camden v Runko [2006] NSWLEC 486, 147 LGERA 214. The fact that the defendant had ag…
Thorneloe v Filipowski
[2001] NSWCCA 213 Para 154

…Section 10 confers a wide ranging discretion. In Thorneloe v Filipowski [2001] NSWCCA 213, 52 NSWLR 60, Spigelman CJ (Hulme and Howie JJ agreeing) said, at [151]:…
Council of Camden v Runko
[2006] NSWLEC 486 Para 157

…Minister for Infrastructure and Planning v Diacano [2004] NSWLEC 532, Holroyd City Council v El-Khouri [2008] NSWLEC 83 and Council of Camden v Runko [2006] NSWLEC 486, 147 LGERA 214. The fact that the defendant had agreed to pay the prosecutor’s costs was a matter that was taken into account under s 10(3)(d) in Mor…
Morrison v Cahill
[2007] NSWIRCOMM 114 Para 157

…The fact that the defendant had agreed to pay the prosecutor’s costs was a matter that was taken into account under s 10(3)(d) in Morrison v Cahill [2007] NSWIRComm 114 at [35].…

Legislation cited in this decision · 4

Environmental Planning and Assessment Act 1979 (NSW)
121B, 125, 125A, 125B, 125C, 126, 5, 76A... 11 mentions (from Para 1)
Crimes (Sentencing Procedure) Act 1999 (NSW)
10, 125B(2)(b), 17, 19(2), 21A, 3A 7 mentions (from Para 110)
Criminal Procedure Act 1986 (NSW)
257B 2 mentions (from Para 160)
Threatened Species Conservation Act 1995 (NSW)
1 mention (from Para 38)

Medium Neutral Citation:	Manly Council v Van Norton [2015] NSWLEC 205
Hearing dates:	17 December 2015
Date of orders:	23 December 2015
Decision date:	23 December 2015
Jurisdiction:	Class 5
Before:	Biscoe J
Decision:	(1) The Court finds the defendant guilty of the offence charged but without proceeding to a conviction directs that the charge be dismissed pursuant to s 10(1) of the Crimes (Sentencing Procedure) Act 1999. (2) The defendant is to pay the prosecutor’s costs of the proceedings as agreed or assessed.
Catchwords:	ENVIRONMENTAL OFFENCES – sentencing for unlawful development.
Legislation Cited:	Criminal Procedure Act 1986 s 257B Crimes (Sentencing Procedure) Act 1999 ss 3A, 10, 17, 19(2), 21A, 125B(2)(b) Environmental Planning and Assessment Act 1979 ss 5, 76A(1), 81(1)(a), 96(1A), 121B, 125, 125A, 125B, 125C, 126 Threatened Species Conservation Act 1995 Sch 1 Pt 2
Cases Cited:	Blue Mountains City Council v Carlon [2008] NSWLEC 296 Burwood Council v Pratelli [2014] NSWLEC 28 City of Sydney Council v Adams, unreported LEC, 15 December 2015 Council of Camden v Runko [2006] NSWLEC 486, 147 LGERA 214 Holroyd City Council v El-Khouri [2008] NSWLEC 83 Lane Cove Council v Wu [2011] NSWLEC 43 Manly Council v Horizon Habitats Pty Limited [2015] NSWLEC 15 Manly Council v Leech [2015] NSWLEC 149 Minister Assisting the Minister for Infrastructure and Planning v Diacano [2004] NSWLEC 532 Morrison v Cahill [2007] NSWIRComm 114 Morton v R [2014] NSWCCA 8 North Sydney Council v Perini (No 2) [2013] NSWLEC 91 R v Ingrassia (1997) 41 NSWLR 447 The Queen v Pham [2015] HCA 39 Thorneloe v Filipowski [2001] NSWCCA 213, 52 NSWLR 60 Warringah Council v Bonanno [2012] NSWLEC 265 Willoughby Council v Vlahos [2013] NSWLEC 71
Category:	Sentence
Parties:	Manly Council (Prosecutor) Kay Ellen Van Norton (Defendant)
Representation:	COUNSEL: A Djemal and J Smith (Prosecutor) G Craddock SC and M Staunton (Defendant) SOLICITORS: Maddocks (Prosecutor) Lindsay Taylor (Defendant)
File Number(s):	50842/14