Manly Council v Van Norton

Case [2015] NSWLEC 205


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

  1. 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

  1. 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.

  2. 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.

  3. 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).

  4. On 24 August 2015 the…

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Details
AGLC
Manly Council v Van Norton [2015] NSWLEC 205
Case
[2015] NSWLEC 205
Decision Date

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

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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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