Sutherland Shire Council v Turner - [2004] NSWLEC 774

Land and Environment Court

of New South Wales

CITATION: Sutherland Shire Council v Turner, C B [2004] NSWLEC 774

PARTIES:
PROSECUTOR:
Sutherland Shire Council
DEFENDANT:
Turner, C B

FILE NUMBER(S): 50014 of 2004

CORAM: Bignold J

KEY ISSUES: Development Consent :- Carrying out development without requisite consent - Guilty plea - Mitigating factors

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 76A, s 125
Local Government Act 1993, s 124

CASES CITED: Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89;
Willoughby Council v P and V Masonry Pty Limited [2003] NSWLEC 312

DATES OF HEARING: 18/06/2004

EX TEMPORE
JUDGMENT DATE : 06/18/2004

LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr M Baird (Solicitor)
SOLICITORS
Sutherland Shire Council
DEFENDANT:
Mr G Newport (Barrister)
SOLICITORS
Freidman Reeves

JUDGMENT:

- 10 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

18 June 2004

50014 of 2004

SUTHERLAND SHIRE COUNCIL v CRAIG BRANSON TURNER

HIS HONOUR:

1 The Defendant has pleaded guilty to a charge of an offence against the Environmental Planning and Assessment Act 1979, s 125 (the EP&A Act) in that he did carry out development on land, being development which required the grant of development consent, without that development consent having been granted, contrary to s 76A of the Act.

2 In the Summons, the particulars endorsed of the work carried out in an unauthorised fashion, the works are described as works for the purpose of a proposed construction of a boatshed, sliprails and seawall, in particular, excavation works on the foreshore land above the seawall. Originally the particular had included other matters pertaining to a retaining wall but the Prosecutor at the commencement of the hearing, sought and obtained leave of the Court to delete that further particular.

3 The work carried out without the requisite approval was preparatory excavation work described in the statement of agreed facts behind tab 2 of exhibit 1 by the Council environmental compliance officer Mr Plumber, upon his inspection of the premises, as measuring four metres by five metres with a depth of three to four metres. The amount of excavation from those dimensions, could be deduced at between sixty and eighty cubic metres.

4 However, in the evidence of the Defendant, which has not been challenged or rebutted, it appears that the activity involving the excavation work undertaken by the Defendant in circumstances that I will presently relate, involved the removal of some eight to twelve cubic metres of excavated material from the excavation. The Defendant, having given evidence both in affidavit form and orally of the fact that in carrying out the excavation work, the subject of the present charge, that work involved working on an existing excavated area and doing the arithmetic it can be seen that from the existing excavated area, having a cubic measurement of some sixty to eighty cubic metres, the great bulk of the excavation pre-existed the work undertaken by the Defendant, the subject of this charge.

5 As I…

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: [2004] NSWLEC 774
Decision Date: 06/18/2004

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the Sutherland Shire Council prosecuted Craig Branson Turner for carrying out development without the requisite consent, in contravention of the Environmental Planning and Assessment Act 1979. Turner pleaded guilty to the charge, which pertained to excavation work for a proposed boatshed, sliprails, and seawall on a waterfront property. The court had to determine the appropriate penalty for the offence, considering the minor nature of the work, Turner's contrition, and the need for general deterrence.

The court found that Turner, the managing director of Harbour Port Constructions Pty Limited, had mistakenly believed that he had obtained the necessary development consent from the Department of Land and Water Conservation, when in fact, he had not received approval from the Sutherland Shire Council. Turner had cooperated with the council upon realising his mistake, and there was no evidence of actual environmental damage resulting from the work. Turner had an unblemished record over 25 years in the marine construction industry, and this was his first offence.

Taking into account the minor nature of the work, Turner's contrition, and the need for general deterrence, the court imposed a fine of $15,000, along with an order for Turner to pay the prosecutor's costs of $12,500. The court also dismissed the related charge against Turner's company, Harbour Port Constructions Pty Limited, with no order as to costs.

Orders