Ryding v Kempsey Shire Council - [2008] NSWLEC 306

Land and Environment Court

of New South Wales

CITATION: Ryding v Kempsey Shire Council [2008] NSWLEC 306

PARTIES:
APPELLANT
Richard Ryding
RESPONDENT
Kempsey Shire Council

FILE NUMBER(S): 60005 of 2008

CORAM: Pain J

KEY ISSUES: Appeal :- appeal on conviction and sentence from local court - collateral challenge to validity of clean up notice on judicial review grounds - whether jurisdictional facts satisfied - whether procedural fairness accorded before issue of the notice - whether reasonable measures required - appeal on conviction and sentence dismissed

LEGISLATION CITED: Crimes (Appeal and Review) Act 2001 s 31, s 37, s 39
Crimes (Sentencing Procedure) Act 1999 s 10
Protection of the Environment Operations Act 1997 s 91, s 93, s 94
Protection of the Environment Operations (General) Regulation 1998 cl 60

CASES CITED: Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Cliftleigh Haulage Pty Ltd v Byron Shire Council [2005] NSWLEC 692
Gray v Woollahra Municipal Council [2004] NSWSC 112
Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661
Liverpool City Council v Cauchi (2005) 145 LGERA 1
Pace Farm Eggs Products Pty Limited v Newcastle City Council (2006) 151 LGERA 260

DATES OF HEARING: 5 November 2008

DATE OF JUDGMENT:
11 November 2008

LEGAL REPRESENTATIVES: APPELLANT
Mr T S Hale SC
SOLICITORS
Falvey Associates

RESPONDENT
Mr S Docker
SOLICITORS
Wrights Legal

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

11 November 2008

60005 of 2008 Ryding v Kempsey Shire Council
JUDGMENT

1 Her Honour: On 12 March 2008, the Local Court at Kempsey found the Appellant guilty of failing to pay the prescribed fee within 30 days of being given a clean up notice issued under s 91 of the Protection of the Environment Operations Act 1997 (the POEO Act). The notice required erosion control measures to be carried out at a property at Gregory Street, South West Rocks (the property). The offence was a breach of s 94(4) of the POEO Act. The Local Court found the charge proved but recorded no conviction against the Appellant pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) on the basis that the Appellant enter into a good behaviour bond for 12 months.

2 The Appellant has appealed to this Court pursuant to s 31(1) of the Crimes (Appeal and Review) Act 2001 (the Appeal and Review Act) against both the conviction and the sentence. Subsections 37(1) and (2) of the Appeal and Review Act provide:

(1) An appeal is to be dealt with by way of rehearing on the basis of certified transcripts of evidence given in the original Local Court proceedings, except as provided by section 38.

(2) Fresh evidence may be given, but only by leave of the Land and Environment Court which may…

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: [2008] NSWLEC 306
Decision Date: 11 November 2008

CaseChat Overview and Summary

The matter before the Land and Environment Court was an appeal by the Appellant, Richard Ryding, against his conviction and sentence imposed by the Local Court. Ryding was convicted of failing to pay a clean-up notice fee within 30 days of receiving the notice under section 94 of the Protection of the Environment Operations Act 1997 (POEO Act). Ryding challenged the validity of the clean-up notice on judicial review grounds, arguing that the officer who issued the notice failed to satisfy jurisdictional facts, did not accord procedural fairness, and that the notice required unreasonable clean-up action. Ryding also appealed the sentence, arguing that the 12-month good behaviour bond was too harsh given the trivial nature of the offence and the absence of environmental harm. The court dismissed Ryding's appeal against both conviction and sentence. The court found that the clean-up notice was validly issued and that Ryding's arguments did not establish that the notice was beyond power or that it failed to accord procedural fairness. The court also found that the sentence was not harsh and was necessary to uphold the integrity of the planning and development system. Ryding was ordered to pay the costs of the appeal to the Respondent within 60 days.

Orders