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Warringah Council v Moy

Warringah Council v Moy

Case [2005] NSWLEC 416 29 July 2005

Administrative Law

Statutory Interpretation

Environmental Planning and Assessment Act 1979

Compliance

Development Consent

Construction Certificate

Judicial Review

Environmental Law

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Land and Environment Court

of New South Wales

CITATION:
Warringah Council v Moy [2005] NSWLEC 416

PARTIES:
PROSECUTOR: Warringah Council
DEFENDANT: Moy

FILE NUMBER(S):
50042; 50043 of 2002

CORAM:
Bignold J

KEY ISSUES:
:- Environmental offence - whether issue of construction certificate involved offence - whether accredited certifier held requisite opinion that CC plans not inconsistent with relevant development consent

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2004
Environmental Planning and Assessment (Amendment) Act 1997

CASES CITED:
Associated Provincial Picture House Ltd v Wednesbury Corporation (1948) 1 KB 223;
Buck v Bavone (1976) 135 CLR 110;
Chin v Ryde City Council (2004) 133 LGERA 312;
Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207;
Macleod v The Queen (2003) 77 ALJR 1047 ;
Meehan v Jones (1982) 149 CLR 571 ;
Minister for Immigration v Eshetu (1999) 197 CLR 611 ;
Moy v Warringah Council (2004) 133 LGERA 49;
Over Our Dead Body Society Inc v Byron Bay Community Association Inc (2001) 116 LGERA 158 ;
Peters v The Queen (1998) 192 CLR 493 ;
Re Diecut Pty Ltd (1963) 8 LGRA 343;
Warringah Council v Moy (2003) 128 LGERA 212

DATES OF HEARING: 28,29,30 June 2004, 1 July 2004, written submissions: 26 July 2004, 23 August 2004, 1 September 2004, 22 October 2004, 24 December 2004, 24 January 2005

DATE OF JUDGMENT:

07/29/2005

LEGAL REPRESENTATIVES:
PROSECUTOR:
Mr G. Miller QC
with Mr T. Howard (Barrister)
SOLICITORS:
Wilshire Webb
DEFENDANT:
Mr P. McEwen SC
with Ms V. Culkoff (Barrister)
SOLICITORS:
S. Klinger

JUDGMENT:

- 22 -

A. INTRODUCTION

1 The Defendant, who is an “accredited certifier” under the Environmental Planning & Assessment Act 1979 (the EP&A Act) is charged with two separate offences under that Act in respect of a construction certificate (No CC2002-08311) he issued on 25 October 2001 in respect of building work (comprising a residential flat building) to be erected on land known as Nos 50-52 Old Pittwater Road Brookvale.

2 The two separate charges allege an offence against each of sections 109ZH(1)(b) and 125(1) of the EP&A Act which respectively provide as follows:

109ZH False representations

(1) A person who:
… …
(b) makes any statement that is false or misleading in a material particular in, or in connection with, a Part 4A certificate or complying development certificate,
is guilty of an offence against this Act.

125(1) Offences against this Act and the regulations

Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director-General, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a…

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 Moy

Details

AGLC: Warringah Council v Moy [2005] NSWLEC 416
Case: [2005] NSWLEC 416
Decision Date: 07/29/2005

CaseChat Overview and Summary

The Land and Environment Court of New South Wales delivered judgment in the matter of Warringah Council v Moy, addressing charges against the Defendant, an accredited certifier, for allegedly issuing a false construction certificate. The charges were brought under sections 109ZH(1)(b) and 125(1) of the Environmental Planning and Assessment Act 1979. The primary legal issues revolved around whether the Defendant's issuance of a construction certificate constituted an offence under the Act and whether he had the requisite satisfaction that the construction plans were not inconsistent with the development consent. The court examined the statutory language and interpreted it to require a subjective satisfaction by the certifier, rejecting the prosecution's argument for an objective standard. The expert evidence provided by the prosecution was found to be flawed as it failed to consider the conditions of the development consent that could modify the approved plans. Consequently, the court concluded that the prosecution had not proven beyond reasonable doubt that the Defendant lacked the requisite satisfaction, leading to an acquittal on both charges. The court deferred the pronouncement of final orders to allow the prosecutor to consider the judgment and any potential rights under the Criminal Appeal Act 1912.

Orders