Tauszik v Gosford City Council - [2006] NSWCCA 193

Reported Decision:
146 LGERA 428

New South Wales

Court of Criminal Appeal

CITATION: Anthony Tauszik v Gosford City Council [2006] NSWCCA 193
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): Friday 26 May 2006

JUDGMENT DATE:
5 July 2006

JUDGMENT OF: Tobias JA at 1; James J at 104; Hoeben J at 105

DECISION: (a) Appeal allowed; (b) The conviction of the appellant by McClellan CJ on 22 April 2005 be quashed and the orders made by his Honour on that date imposing a fine and other consequential orders including an order for costs be set aside; (c) The summons filed on 16 January 2003 be dismissed; (d) The respondent to pay the appellant’s costs of the summons in the Land and Environment Court

CATCHWORDS: CRIMINAL LAW – appeal – limitation period – whether proceedings statute barred – whether offences proven beyond reasonable doubt – whether offence validly created – CRIMINAL LAW – offence under s 125(1) of the Environmental Planning and Assessment Act 1979 – source of prohibition – construction of s 125(1) – whether proceedings statute barred under s 127 – whether offence was created “by or under” the Act – whether offence was created by a council under the authority of the Act – LOCAL GOVERNMENT LAW – development consent – environmental planning instrument – offence created by Clause 44 of Gosford Planning Scheme Ordinance – tree preservation order

LEGISLATION CITED: Criminal Appeal Act 1912
Environmental Planning and Assessment Act 1979, s 76A, s 125, s 127
Gosford Planning Scheme Ordinance

CASES CITED: Butler v Attorney-General for Victoria (1961) 106 CLR 268
Cameron v Lake Macquarie City Council (2000) 107 LGERA 308
Chin v Ryde City Council (2004) 133 LGERA 312
Gosford City Council v Tauszik [2003] NSWLEC 183
Gosford City Council v Tauszik [2003] NSWLEC 266
Gosford City Council v Tauszik [2003] NSWLEC 354
Hornsby Shire Council v Clyne (Unreported, 29 October 1998)
Hornsby Shire Council v Winslow (1998) 101 LGERA 117
Meriton Apartments Pty Ltd v Ryde City Council (Unreported, 30 April 1998)
Saraswati v The Queen (1991) 172 CLR 1

PARTIES: Anthony John Tauszik
Gosford City Council

FILE NUMBER(S): CCA 2005/2232

COUNSEL: A: B Walker SC / T G Howard
R: D Buchanan SC / M Fraser

SOLICITORS: A: W Lawyers, Sydney
R: P J Donnellan & Co, Gosford

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): L&E 50001/03

LOWER COURT JUDICIAL OFFICER: McClellan CJ

LOWER COURT DATE OF DECISION: 16 January 2003

LOWER COURT MEDIUM NEUTRAL CITATION: The Council of the city of Gosford v Tauszik [2003] NSWLEC 354
The Council of the city of Gosford v Tauszik [2005] NSWLEC 183
Gosford City Council v Tauszik [2003] NSWLEC 266

CCA 2005/2232

TOBIAS JA
JAMES J
HOEBEN J
Wednesday 5 July 2006

ANTHONY JOHN TAUSZIK v GOSFORD CITY COUNCIL

Judgment

Headnote

Facts:

The appellant was charged by summons with the wilful destruction of three trees, an offence created…

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: [2006] NSWCCA 193
Decision Date: 5 July 2006

CaseChat Overview and Summary

Tauszik v Gosford City Council involved the defendant, Gosford City Council, appealing against a conviction for an offence under section 125(1) of the Environmental Planning and Assessment Act 1979. The case arose from the defendant's actions in issuing a tree preservation order which the plaintiff, Tauszik, argued was unlawful. The dispute was brought before the court to determine the validity of the offence, the applicability of the statute of limitations, and whether the offence was proven beyond reasonable doubt.

The court was required to decide whether the proceedings against the defendant were statute-barred under section 127 of the Act. Additionally, the court needed to determine if the offence in question was validly created "by or under" the Act, specifically whether it was created by the council under the authority of the Act. The court also had to interpret the meaning of "by or under" in the context of section 125(1) and assess whether the offence was created by Clause 44 of the Gosford Planning Scheme Ordinance.

The court concluded that the offence was indeed created "by or under" the Environmental Planning and Assessment Act 1979, as it was authorised by the Act. The court found that the offence was validly created by the Gosford Planning Scheme Ordinance and that the statute of limitations did not apply. The court further held that the offences were proven beyond reasonable doubt. Consequently, the appeal was dismissed, and the conviction was upheld.

As a result of the court's decision, the conviction against Gosford City Council for the offence under section 125(1) of the Environmental Planning and Assessment Act 1979 was confirmed. The court's ruling clarified the interpretation of "by or under" in relation to offences created under local government planning schemes and the applicability of the statute of limitations in such cases.

Orders