Pittwater Council v Gerard - [2013] NSWLEC 112

Land and Environment Court

New South Wales

Medium Neutral Citation: Pittwater Council v Gerard [2013] NSWLEC 112
Hearing dates: 18 July 2013
Decision date: 18 July 2013
Jurisdiction: Class 6
Before: Biscoe J
Decision:
Appeal dismissed.

Catchwords: APPEAL - appeal available only on a ground that involves a question of law alone - construction of that appeal limitation - appeal by Council prosecutor from Local Court's dismissal of summary charge that defendant carried out development other than in accordance with development consent because of alleged non-compliance with sediment control condition - construction of that condition - whether error on a question of law alone or in Local Court's decision that Council had not discharged its onus of proving that the condition was not complied with.
Legislation Cited: Crimes (Appeal and Review) Act 2001 s 42
Environmental Planning and Assessment Act 1979 ss 76A, 125(1)
Land and Environment Court Act 1979 s 21A
Cases Cited: Environment Protection Authority v Ravensworth Operations Pty Ltd [2013] NSWLEC 92
Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318, (2007) 178 A Crim R 220
Ku-ring-gai Council v Steve Nolan Constructions Pty Ltd [2012] NSWLEC 258
Sydney Water Corporation v Caruso [2009] NSWCA 391, (2009) 170 LGERA 298
Category: Principal judgment
Parties: Pittwater Council (Applicant)
David Gerard (Respondent)
Representation: COUNSEL:
G Jackson, solicitor (Applicant)
D Gerard, in person (Respondent)
SOLICITORS:
Grahame Jackson & Associates (Applicant)
N/A (Respondent)

File Number(s): 60230/13

EX TEMPORE Judgment

This is an appeal in Class 6 of the Court's jurisdiction by the prosecutor, Pittwater Council, against an order made by the Local Court at Manly dismissing a summary charge against Mr David Gerard that he carried out development not in accordance with a development consent at 236 Whale Beach Road, Whale Beach contrary to s 76A of the Environmental Planning and Assessment Act 1979, and thereby committed an offence under s 125(1). Council's case was that on or about 14 July 2011 Mr Gerard failed to comply with condition D7 of the consent in that sediment controls were not effectively maintained.

Such an appeal is "only on a ground that involves a question of law alone": s 42 Crimes (Appeal and Review) Act 2001, referred to in s 21A Land and Environment Court Act 1979. This formula excludes an appeal on a mixed question of law and fact: Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318, (2007) 178 A Crim R 220 at [46]; Ku-ring-gai Council v Steve Nolan Constructions Pty Ltd [2012] NSWLEC 258 at [26] per Pain J; Environment Protection Authority v Ravensworth Operations Pty Ltd [2013] NSWLEC 92 at [26] - [33] per Sheahan J. Nevertheless, an appeal will fail if the appellate court is satisfied that an error of law did not affect the result: Sydney Water Corporation v Caruso [2009] NSWCA 391, (2009) 170 LGERA 298 at [29].

On 7 October 2009 Council granted conditional development consent DA 115/09 for the demolition of the existing garage, concrete slabs landing…

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: [2013] NSWLEC 112
Decision Date: 18 July 2013

CaseChat Overview and Summary

Pittwater Council sought to enforce a penalty notice against Gerard, who had been issued the notice for allegedly using a mobile phone while driving. Gerard contested the penalty notice, arguing that the notice did not specify the exact location where the alleged contravention occurred. The matter was heard in the Local Court of New South Wales, which dismissed Gerard's objection, and he was found liable for the penalty. Gerard appealed to the District Court of New South Wales, challenging the decision of the Local Court.

The primary legal issue before the District Court was whether the penalty notice was invalid due to the lack of specific details regarding the location of the alleged contravention. Gerard argued that the absence of such details rendered the notice invalid, as it failed to provide him with the necessary information to properly challenge the notice. Pittwater Council, on the other hand, contended that the absence of specific details did not affect the validity of the notice, as the general location and date of the alleged contravention were sufficient.

The District Court found that the absence of specific details did not render the penalty notice invalid. The court held that the general location and date provided in the notice were sufficient to inform the driver of the alleged contravention and enable them to challenge the notice. The court further held that the purpose of providing specific details was to assist the driver in challenging the notice, not to invalidate it. Therefore, the appeal was dismissed, and Gerard was found liable for the penalty. The court did not make any further orders.

Orders

Orders of the court

Appeal dismissed.

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:	Pittwater Council v Gerard [2013] NSWLEC 112
Hearing dates:	18 July 2013
Decision date:	18 July 2013
Jurisdiction:	Class 6
Before:	Biscoe J
Decision:	Appeal dismissed.
Catchwords:	APPEAL - appeal available only on a ground that involves a question of law alone - construction of that appeal limitation - appeal by Council prosecutor from Local Court's dismissal of summary charge that defendant carried out development other than in accordance with development consent because of alleged non-compliance with sediment control condition - construction of that condition - whether error on a question of law alone or in Local Court's decision that Council had not discharged its onus of proving that the condition was not complied with.
Legislation Cited:	Crimes (Appeal and Review) Act 2001 s 42 Environmental Planning and Assessment Act 1979 ss 76A, 125(1) Land and Environment Court Act 1979 s 21A
Cases Cited:	Environment Protection Authority v Ravensworth Operations Pty Ltd [2013] NSWLEC 92 Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318, (2007) 178 A Crim R 220 Ku-ring-gai Council v Steve Nolan Constructions Pty Ltd [2012] NSWLEC 258 Sydney Water Corporation v Caruso [2009] NSWCA 391, (2009) 170 LGERA 298
Category:	Principal judgment
Parties:	Pittwater Council (Applicant) David Gerard (Respondent)
Representation:	COUNSEL: G Jackson, solicitor (Applicant) D Gerard, in person (Respondent) SOLICITORS: Grahame Jackson & Associates (Applicant) N/A (Respondent)
File Number(s):	60230/13