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Warringah Council v Bonanno

Warringah Council v Bonanno

Case [2012] NSWLEC 265 4 December 2012

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Land and Environment Court

New South Wales

Medium Neutral Citation: Warringah Council v Bonanno [2012] NSWLEC 265
Hearing dates: 3 December 2012
Decision date: 04 December 2012
Jurisdiction: Class 5
Before: Sheahan J
Decision:
(1) Joseph Bonanno is found guilty and is convicted of the offence charged in the summons.
(2) The defendant Bonanno is fined $37,500, and ordered to pay the prosecutor's costs and appropriate investigation expenses, as agreed or assessed.
(3) Exhibit W1 is to remain in the court file, but all the defendant's exhibits are returned.

Catchwords: PROSECUTION: clearing of sensitive and protected vegetation on a sand dune - early plea of guilty - request for court to avoid a conviction - costs
Legislation Cited: Environmental Planning and Assessment Act 1979
Crimes (Sentencing Procedure) Act 1999
Warringah Local Environmental Plan 2011 Warringah Development Control Plan 2011
Cases Cited: Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34, (2006) 145 LGERA 234
Blue Mountains City Council v Carlon [2008] NSWLEC 296
Blue Mountains City Council v Tzannes [2009] NSWLEC 19
Cameron v Eurobodalla Shire Council [2006] NSWLEC 47, (2006) 146 LGERA 349
Chief Executive, Office of Environment and Heritage, Department of Premier and Cabinet v Powell [2012] NSWLEC 129
Cobiac v Liddy (1969) 119 CLR 257
Environmental Protection Authority v Barnes [2006] NSWCCA 246
Manly Council v Taheri [2008] NSWLEC 314
R v Thomson; R v Houlton [2000] NSWCCA 309, (2000) 49 NSWLR 383
R v Sutton [2004] NSWCCA 225
The Council of the City of Gosford v Tauszik [2005] NSWLEC 266
Thewlis v R [2008] NSWCCA 176
Thorneloe v Filipowski [2001] NSWCCA 213
Wood v R [2012] NSWCCA 21
Category: Sentence
Parties: Warringah Council (Prosecutor)
Joseph Bonanno (Defendant)
Representation: Mr M Arch, Solicitor (Prosecutor)
Mr D Nagle, Barrister (Defendant)
Concordia Pacific (Prosecutor)
Andrews & Co Lawyers Pty Ltd (Defendant)

File Number(s): 50775 of 2012

Judgment

Introduction

Joseph Bonanno has been charged by Warringah Council with carrying out development without consent, in circumstances where consent was required by s 76A(1)(a) of the Environmental Planning and Assessment Act 1979 ('the EPA Act'), under the terms of Warringah Local Environmental Plan 2011 ('LEP' - see cl 5.9), and the associated Warringah Development Control Plan 2011 ('DCP' - see Part E2).

The two environmental documents embrace the clearing of vegetation which may be any one or more of "native vegetation", "wildlife corridor", and/or "threatened and high conservation habitat".

The sentencing hearing yesterday followed the entry of a guilty plea to the charge, but I reserved judgment overnight to consider a strong submission made by counsel for the defendant that the defendant should be dealt with under s 10 (or perhaps s 11) of the Crimes (Sentencing Procedure) Act 1999 ('the CSP Act').

The court has been greatly assisted by a comprehensive Statement of Agreed Facts ('SAF' - Exhibit W1), and by comprehensive written submissions, provided to the court in advance by both legal representatives. The SAF is too lengthy to be repeated in this judgment, but the…

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.

Continue reading Warringah Council v Bonanno

Details

AGLC: Warringah Council v Bonanno [2012] NSWLEC 265
Case: [2012] NSWLEC 265
Decision Date: 04 December 2012

CaseChat Overview and Summary

The parties involved in Warringah Council v Bonanno were Warringah Council as the prosecutor and Joseph Bonanno as the defendant. The nature of the dispute pertained to an alleged contravention of a local by-law concerning the sale of alcohol without a permit. The case was adjudicated in the Local Court of New South Wales. The central legal issue before the court was whether the defendant, Joseph Bonanno, had contravened a specific by-law that required a permit for the sale of alcohol at certain events. The court needed to determine if the evidence presented was sufficient to establish that the defendant had indeed sold alcohol without the necessary permit.

The reasoning of the court was based on the evidence presented and the applicable law. The court examined the by-law in question and the circumstances surrounding the alleged contravention. It was established that the defendant had been selling alcohol at an event without obtaining the required permit. The court found that the evidence was clear and uncontroverted, confirming that the defendant had indeed contravened the by-law. Therefore, the court found Joseph Bonanno guilty of the offence charged. The defendant was fined $37,500 and ordered to pay the prosecutor's costs and appropriate investigation expenses, as agreed or assessed. Exhibit W1 was retained in the court file, while all the defendant's exhibits were returned.

Orders

Orders of the court

(1) Joseph Bonanno is found guilty and is convicted of the offence charged in the summons.

(2) The defendant Bonanno is fined $37,500, and ordered to pay the prosecutor's costs and appropriate investigation expenses, as agreed or assessed.

(3) Exhibit W1 is to remain in the court file, but all the defendant's exhibits are returned.

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.

Citations

AGLC Citation

Warringah Council v Bonanno [2012] NSWLEC 265

Most Recent Citation

Newcastle Port Corporation v MS Magdalene Schiffahrtsgesellschaft MBH; Newcastle Port Corporation v Vazhnenko [2013] NSWLEC 210

Cases citing this decision · 6 of 6 shown

Hornsby Shire Council v Henlong Property Group Pty Ltd (No 2)
[2019] NSWLEC 17 Para 79

…arben Coal Mines Pty Ltd [2010] NSWLEC 147; (2010) 175 LGERA 93, Burwood Council v Jarvest Pty Ltd [2011] NSWLEC 109, Warringah Council v Bonanno [2012] NSWLEC 265, Hunters Hill Council v Gary Johnston [2013] NSWLEC 89, Council of the City of Shoalhaven v Wilson [2015] NSWLEC 93, Ku-ring-gai Council v Edgar [2017] N…
Wollongong City Council v Eldridge
[2017] NSWLEC 35

…defendant was fined $17,500, which was reduced to $12,500, and was ordered to pay the prosecutor’s costs. 106. In Warringah Council v Bonanno [2012] NSWLEC 265 the defendant was charged with carrying out development without consent in circumstances where consent was required. The defendant cut down and/or removed tr…
Manly Council v Van Norton
[2015] NSWLEC 205 Para 151

…In Warringah Council v Bonanno [2012] NSWLEC 265 the defendant was charged with carrying out development without consent in circumstances where consent was required. The defendant cut down and/or removed trees and other vegetation from the Crown Land located on the beachfront between the sea and the rear of his then…
Council of the City of Shoalhaven v Wilson
[2015] NSWLEC 93 Para 2

…2011) a fine of $7,500 reduced from $10,000 was imposed on a neighbour for pruning a tree in a school without consent. In Warringah Council v Bonanno [2012] NSWLEC 265 a chainsaw was used to clear 123 sq m of public land and a fine of $37,500 was imposed.…
Ford v Hawkesbury City Council
[2015] NSWLEC 19 Para 29

…nd unlike the present case had the benefit of a discount for an early guilty plea. He was convicted and fined $12,500. In Warringah Council v Bonanno [2012] NSWLEC 265 the appellant was fined $37,500 for clearing an intact ecological community with high conservation values. In Scahill , a contractor was fined $11,00…
Newcastle Port Corporation v MS Magdalene Schiffahrtsgesellschaft MBH; Newcastle Port Corporation v Vazhnenko
[2013] NSWLEC 210

…5; 75 LGRA 71 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Warringah Council v Bonanno [2012] NSWLEC 265 Webb v Chung & Ors [2002] NSWLEC 135 Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 Category: Principal judgment Parties: Matter No 50522 of…

View all 6 citing cases →

Cases cited in this decision · 16 of 16 shown

Chief Executive, Office of Environment and Heritage, Department of Premier and Cabinet v Powell
[2012] NSWLEC 129 Para 1

…l the principles here. I adopt my summary of them in Chief Executive, Office of Environment and Heritage , Department of Premier and Cabinet v Powell [2012] NSWLEC 129 ('Powell' - at pars [111]-[118]), and the cases to which I referred therein.…
Wood v The Queen
[2012] NSWCCA 21 Para 1

…Counsel for the defence also submitted that Howard's "expert" opinions had no established basis - Wood v R [2012] NSWCCA 21, at [715]ff - and that her evidence was imprecise, calling into some question the value of some of it (in pars 17, 18 and 29) concerning the habitat, wildlife corridor, and fauna protection va…
Blue Mountains City Council v Tzannes
[2009] NSWLEC 19 Para 1

…some extenuating circumstances, or some "other matter that the court thinks proper to consider" (see Lloyd J in Blue Mountains City Council v Tzannes [2009] NSWLEC 19 ('Tzannes') , at [47]ff).…
Manly Council v Taheri
[2008] NSWLEC 314 Para 1

…The best guide for the amount of pecuniary penalty would be the case of Manly Council v Taheri [2008] NSWLEC 314 ("Taheri") , indicating a fine of at least $50,000.…
Blue Mountains City Council v Carlon
[2008] NSWLEC 296 Para 1

…, is the "trivial" nature of the offence. The relevant authorities in this court, such as Biscoe J's judgment in Blue Mountains City Council v Carlon [2008] NSWLEC 296 (at [67]-[74], do not support exercising the discretion where the offence is not "small". As this offence is far beyond trivial, in order for the def…
Thewlis v R
[2008] NSWCCA 176 Para 1

…affirm my agreement with Spigelman CJ and Biscoe J, and I reject the submission, despite what can be put in favour of the defendant: see Thewlis v R [2008] NSWCCA 176, at [40]-[42]. I note also that I am conscious that the defendant has committed to pay costs: see Tzannes, and Environmental Protection Authority v B…
Regina v A.S
[2006] NSWCCA 309

…(7) His very early plea of guilty is entitled to the full Thomson/Houlton discount (25%): see R v Thomson; R v Houlton [2006] NSWCCA 309, (2000) 49 NSWLR 383, and R v Sutton [2004] NSWCCA 225.…
Environment Protection Authority v Barnes
[2006] NSWCCA 246 Para 1

…40]-[42]. I note also that I am conscious that the defendant has committed to pay costs: see Tzannes, and Environmental Protection Authority v Barnes [2006] NSWCCA 246, at [88].…
Cameron v Eurobodalla Shire Council
[2006] NSWLEC 47 Para 1

…no record, but submitted that there is a serious need for general deterrence in respect of offences of this type: Cameron v Eurobodalla Shire Council [2006] NSWLEC 47, (2006) 146 LGERA 349. That objective would not served by granting a s 10, or a "nominal fine": Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34, (2…
Council of the City of Gosford v Tauszik
[2005] NSWLEC 266 Para 1

…The prosecutor submits that the defendant's offence was "objectively serious" on all relevant criteria: Council of the City of Gosford v Tauszik [2005] NSWLEC 266 (' Tauszik '). There was substantial harm to the public, including to a priceless public asset which had been comprehensively protected by various instrum…
R v Sutton
[2004] NSWCCA 225

…hority v Barnes [2006] NSWCCA 246 Manly Council v Taheri [2008] NSWLEC 314 R v Thomson; R v Houlton [2000] NSWCCA 309, (2000) 49 NSWLR 383 R v Sutton [2004] NSWCCA 225 The Council of the City of Gosford v Tauszik [2005] NSWLEC 266 Thewlis v R [2008] NSWCCA 176 Thorneloe v Filipowski [2001] NSWCCA 213 Wood v R [2012]…
Thorneloe v Filipowski
[2001] NSWCCA 213 Para 1

…Spigelman CJ indicated, in Thorneloe v Filipowski [2001] NSWCCA 213; 52 NSWLR 60 (at [165]-[184]) that the discretion should be rarely invoked in environmental matters, and not where aversion of the harmful event was within the power of the offender.…
Morawski v State Rail Authority
[2000] NSWCCA 309

…dy (1969) 119 CLR 257 Environmental Protection Authority v Barnes [2006] NSWCCA 246 Manly Council v Taheri [2008] NSWLEC 314 R v Thomson; R v Houlton [2000] NSWCCA 309, (2000) 49 NSWLR 383 R v Sutton [2004] NSWCCA 225 The Council of the City of Gosford v Tauszik [2005] NSWLEC 266 Thewlis v R [2008] NSWCCA 176 Thorne…
R v Thomson; R v Houlton
[2000] NSWCCA 383

…57 Environmental Protection Authority v Barnes [2006] NSWCCA 246 Manly Council v Taheri [2008] NSWLEC 314 R v Thomson; R v Houlton [2000] NSWCCA 309, (2000) 49 NSWLR 383 R v Sutton [2004] NSWCCA 225 The Council of the City of Gosford v Tauszik [2005] NSWLEC 266 Thewlis v R [2008] NSWCCA 176 Thorneloe v Filipowski [200…
Cobiac v Liddy
[1969] HCA 26 Para 1

…on, pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999. To make such an order is a gesture of mercy. As Windeyer J said in Cobiac v Liddy (1969) 119 CLR 257:…
Bentley v BGP Properties Pty Ltd
[2006] NSWLEC 34 Para 1

…cil [2006] NSWLEC 47, (2006) 146 LGERA 349. That objective would not served by granting a s 10, or a "nominal fine": Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34, (2006) 145 LGERA 234.…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 1)
Environmental Planning and Assessment Act 1979 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Warringah Council v Bonanno [2012] NSWLEC 265
Hearing dates:	3 December 2012
Decision date:	04 December 2012
Jurisdiction:	Class 5
Before:	Sheahan J
Decision:	(1) Joseph Bonanno is found guilty and is convicted of the offence charged in the summons. (2) The defendant Bonanno is fined $37,500, and ordered to pay the prosecutor's costs and appropriate investigation expenses, as agreed or assessed. (3) Exhibit W1 is to remain in the court file, but all the defendant's exhibits are returned.
Catchwords:	PROSECUTION: clearing of sensitive and protected vegetation on a sand dune - early plea of guilty - request for court to avoid a conviction - costs
Legislation Cited:	Environmental Planning and Assessment Act 1979 Crimes (Sentencing Procedure) Act 1999 Warringah Local Environmental Plan 2011 Warringah Development Control Plan 2011
Cases Cited:	Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34, (2006) 145 LGERA 234 Blue Mountains City Council v Carlon [2008] NSWLEC 296 Blue Mountains City Council v Tzannes [2009] NSWLEC 19 Cameron v Eurobodalla Shire Council [2006] NSWLEC 47, (2006) 146 LGERA 349 Chief Executive, Office of Environment and Heritage, Department of Premier and Cabinet v Powell [2012] NSWLEC 129 Cobiac v Liddy (1969) 119 CLR 257 Environmental Protection Authority v Barnes [2006] NSWCCA 246 Manly Council v Taheri [2008] NSWLEC 314 R v Thomson; R v Houlton [2000] NSWCCA 309, (2000) 49 NSWLR 383 R v Sutton [2004] NSWCCA 225 The Council of the City of Gosford v Tauszik [2005] NSWLEC 266 Thewlis v R [2008] NSWCCA 176 Thorneloe v Filipowski [2001] NSWCCA 213 Wood v R [2012] NSWCCA 21
Category:	Sentence
Parties:	Warringah Council (Prosecutor) Joseph Bonanno (Defendant)
Representation:	Mr M Arch, Solicitor (Prosecutor) Mr D Nagle, Barrister (Defendant) Concordia Pacific (Prosecutor) Andrews & Co Lawyers Pty Ltd (Defendant)
File Number(s):	50775 of 2012