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

Land and Environment Court

New South Wales

Medium Neutral Citation: Moits Pty Ltd v North Sydney Council [2016] NSWLEC 43
Hearing dates: 22 April 2016
Date of orders: 22 April 2016
Decision date: 22 April 2016
Jurisdiction: Class 6
Before: Sheahan J
Decision:
Appeals dismissed with costs. See [32]

Catchwords: APPEAL: against severity of fines imposed in the Local Court – principles to apply – breach of development consent – principles of sentencing – costs.
Cases Cited: Alramon Pty Limited v City of Ryde Council [2014] NSWLEC 100
Camilleri’s Stock Feeds Pty Ltd v Environmental Protection Authority [1993] 32 NSWLR 683
Environment Protection Authority v Bruce Panucci Transport Pty Ltd [2003] 131 LGERA 119
Environment Protection Authority v Bowport All Road Transport Pty Limited (No 2) [2009] NSWLEC 180
Environment Protection Authority v Vicary Corporation (unreported) 21 August 1997
Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; 148 LGERA 299
Manly Council v Van Norton [2015] NSWLEC 205
R v Holder [1983] 3 NSWLR 245
Category: Principal judgment
Parties: Moits Pty Ltd (Appellant)
North Sydney Council (Respondent)
Representation:
Counsel:
Ms A Power, barrister (Appellant)
Mr M Fraser, barrister (Respondent)
Solicitors:
Stewart and Associates (Appellant)
North Sydney Council (Respondent)

File Number(s): 60993 of 201561002 of 2015
Decision under appeal

Court or tribunal:

Downing Centre Local Court

Jurisdiction:

Criminal

Date of Decision:

12 October 2015

Before:

Magistrate Mottley

File Number(s):

2015/00276937
2015/00276953

extempore Judgment

Introduction

These are two appeals in Class 6 of the Court’s jurisdiction against the severity of penalties imposed by the Local Court.
It would appear that leave to appeal out of time may be required in at least one case and the Prosecutor did not oppose the grant of that leave. I dispensed with the need for a written Notice of Motion, and will grant any necessary leave.
The appeals concern charges brought in respect of the temporary parking of heavy vehicles on prominent roadways (Miller and McLaren Streets) near an excavation/construction site for a 17 storey building in the mainly commercial area of North Sydney, in the vicinity of a major private school (Monte Sant’ Angelo Mercy College).
There were two incidents on the same day, 7 November 2014.
One incident occurred at 7:20am while clearway restrictions applied in Miller St, and involved one truck and bogey parked at the kerb (photographs in Appeal Book, pp15 and 16).
The second occurred at 1:00pm in McLaren St and involved one or possibly two trucks with bogeys, double parked alongside cars parked at the kerb (photographs at Appeal Book, pp17 and 18).
It is important to note that the appellant, the principal contractor on the project, is charged not with parking or traffic offences, but with breaching the terms and conditions of its development consent, on each occasion. Each such offence carries a maximum penalty of $1.1M.

The Consent

The consent is before the Court on this appeal. Its Construction and Traffic Management Plan is designed to “ensure the proper and safe movement of…

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.

Keep reading for free

Create a free CaseChat account to read Moits Pty Ltd v North Sydney Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NSWLEC 43
Decision Date: 22 April 2016

CaseChat Overview and Summary

Moits Pty Ltd brought an appeal against North Sydney Council, challenging the refusal of a development application for a building project in Millers Point. The appeal was heard in the Land and Environment Court of New South Wales. The primary issue before the court was whether the council had the authority to reject the application based on the findings of a heritage assessment report and whether this decision was in line with the planning laws applicable to the area.

The court examined the statutory provisions governing heritage assessments and the relevant planning instruments, including the North Sydney Council Local Environment Plan 2013. The primary legal question was whether the council's reliance on the heritage report to deny the application was justified under the statutory framework and whether the report's findings were appropriately considered in the decision-making process. The court also considered whether the council's decision was procedurally fair, given the weight given to the heritage assessment and the opportunity provided for Moits to respond to the findings.

In its decision, the court held that the council had correctly interpreted and applied the relevant planning laws and statutory requirements. The court found that the heritage assessment report was a valid and relevant consideration in the decision-making process, and that the council's decision to reject the application was consistent with the applicable legal framework. Furthermore, the court determined that the council had provided adequate opportunity for Moits to respond to the heritage findings, thereby ensuring procedural fairness. Consequently, the appeals were dismissed, and the council's decision was upheld. The court ordered that the costs of the appeal be paid by the appellant.

Orders

Orders of the court

Appeals dismissed with costs. See [32]

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:	Moits Pty Ltd v North Sydney Council [2016] NSWLEC 43
Hearing dates:	22 April 2016
Date of orders:	22 April 2016
Decision date:	22 April 2016
Jurisdiction:	Class 6
Before:	Sheahan J
Decision:	Appeals dismissed with costs. See [32]
Catchwords:	APPEAL: against severity of fines imposed in the Local Court – principles to apply – breach of development consent – principles of sentencing – costs.
Cases Cited:	Alramon Pty Limited v City of Ryde Council [2014] NSWLEC 100 Camilleri’s Stock Feeds Pty Ltd v Environmental Protection Authority [1993] 32 NSWLR 683 Environment Protection Authority v Bruce Panucci Transport Pty Ltd [2003] 131 LGERA 119 Environment Protection Authority v Bowport All Road Transport Pty Limited (No 2) [2009] NSWLEC 180 Environment Protection Authority v Vicary Corporation (unreported) 21 August 1997 Environment Protection Authority v Waste Recycling and Processing Corporation [2006] NSWLEC 419; 148 LGERA 299 Manly Council v Van Norton [2015] NSWLEC 205 R v Holder [1983] 3 NSWLR 245
Category:	Principal judgment
Parties:	Moits Pty Ltd (Appellant) North Sydney Council (Respondent)
Representation:	Counsel: Ms A Power, barrister (Appellant) Mr M Fraser, barrister (Respondent) Solicitors: Stewart and Associates (Appellant) North Sydney Council (Respondent)
File Number(s):	60993 of 201561002 of 2015
Decision under appeal	Court or tribunal: Downing Centre Local Court Jurisdiction: Criminal Date of Decision: 12 October 2015 Before: Magistrate Mottley File Number(s): 2015/00276937 2015/00276953