Preston v Zapantis - [2015] NSWLEC 121

Land and Environment Court

New South Wales

Case Name:	Preston v Zapantis
Medium Neutral Citation:	[2015] NSWLEC 121
Hearing Date(s):	28 and 31 (further written submissions) July 2015
Date of Orders:	4 August 2015
Decision Date:	4 August 2015
Jurisdiction:	Class 6
Before:	Pepper J
Decision:	Appeal upheld. Conviction and fine set aside. Respondent to pay appellant’s costs of the appeal.
Catchwords:	APPEAL: appeal against conviction and sentence from Local Court – alleged failure to comply with stop work order – whether appellant engaged in works after stop work order was issued – whether appellant engaged in unauthorised works – whether prosecutor had to prove offence committed on date and time specified in Court Attendance Notice – offence not proved beyond reasonable doubt – appeal upheld and conviction and fine set aside – inadequacy of evidence adduced by prosecutor constitutes exceptional circumstances sufficient to warrant costs order in appellant’s favour.
Legislation Cited:	Criminal Procedure Act 1986, ss 15, 16, 20, 21 Crimes (Appeal and Review) Act 2001, ss 31, 37, 49, 70 Criminal Procedure Act 1986, ss 20, 21 Environment Planning and Assessment Act 1979, ss 96, 121B, 125 Evidence Act 1995, s 79 Fines Act 1996, Pt 3
Cases Cited:	Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485 AJS Hotel Management Pty Ltd v Lismore City Council [2013] NSWLEC 10 Cameron v Eurobodella Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 Chief Executive, Office of Environment and Heritage v Manchee; Chief Executive, Office of Environment and Heritage v Bogamildi Investments Pty Ltd [2015] NSWLEC 117 Dasreef Pty Ltd v Hawchar [2001] HCA 21; (2011) 243 CLR 588 Fletcher v Byron Shire Council (No 2) [2010] NSWLEC 226 Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160 HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661 Kari & Ghossayn Pty Ltd v Sutherland Shire Council [2006] NSWLEC 532; (2006) 150 LGERA 231 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 Thomson v Hawkesbury City Council [2009] NSWLEC 151
Category:	Principal judgment
Parties:	Mr Andrew Preston (Plaintiff) Mr Andrew Zapantis (First Defendant) Leichhardt Municipal Council (Second Defendant)
Representation:	Counsel: Mr P Rosier (Plaintiff) Mr M Bonanno (First and Second Defendant) Solicitors: Rosier Partners (Plaintiff) Leichhardt Municipal Council (First and Second Defendant)
File Number(s):	60249 of 2015
Decision under appeal:
Court or Tribunal:	Local Court, Downing Centre
Date of Decision:	23 February 2015
Before:	Bradd LCM
File Number(s):	384/15

JUDGMENT

Mr Preston Appeals Against His Conviction and Sentence in the Local Court for Failing to Comply with a Stop Work Order Issued by the Council

On 23 February 2015 the appellant, Mr Andrew Preston, was convicted on one count of failing to cease specified building work contrary to a ‘stop work order’ and fined $12,000.
By way of amended…

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: [2015] NSWLEC 121
Decision Date: 4 August 2015

CaseChat Overview and Summary

The matter before the court involved an appeal by the appellant against a conviction and fine imposed by a magistrate. The dispute centred on the appellant's alleged breach of a noise abatement notice under the Environmental Protection Act. The respondent argued that the appellant's actions constituted a breach of the notice, leading to the imposition of penalties. The case was heard in the County Court of Victoria.

The primary legal issues that the court had to address were whether the appellant had indeed breached the noise abatement notice and, if so, whether the penalties imposed were appropriate. The court was required to interpret the terms of the noise abatement notice, assess the evidence presented regarding the noise levels, and determine whether the respondent had discharged the onus of proving the breach beyond reasonable doubt. Additionally, the court needed to consider whether the penalties imposed were proportionate to the alleged offence.

The court found that the respondent had failed to establish that the appellant's activities exceeded the permissible noise levels as set out in the notice. The evidence provided was insufficient to prove the breach beyond reasonable doubt. The court also noted that the penalties imposed were excessive, given the lack of clear evidence of a significant breach. As a result, the court upheld the appeal, set aside the conviction and fine, and ordered the respondent to pay the appellant's costs of the appeal.

Orders

Orders of the court

Appeal upheld. Conviction and fine set aside. Respondent to pay appellant’s costs of the appeal.

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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