Wehbe v Kogarah City Council

[2015] NSWLEC 170

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wehbe v Kogarah City Council [2015] NSWLEC 170
Hearing dates:	24 September 2015
Date of orders:	24 September 2015
Decision date:	24 September 2015
Jurisdiction:	Class 6
Before:	Preston CJ
Decision:	Orders as at [19]
Catchwords:	APPEAL – appeal against convictions in Local Court – court attendance notices commencing proceedings in Local Court defective – charged with wrong offence – prosecutor out of time to amend court attendance notices – appeal upheld   COSTS – appellant whose conviction is set aside – whether proceedings for offences charged were initiated without reasonable case – defect in court attendance notices – charged with wrong offence – no real prospects of success or doomed to fail from the start – proceedings initiated without reasonable cause – unjust to exercise discretion not to award costs – failure by appellant to raise defect in charge not disentitling conduct
Legislation Cited:	Crimes (Appeal and Review) Act 2001 ss 49, 70(1) Environmental Planning and Assessment Act 1979 ss 76A(1), 125(1), 127(5)
Cases Cited:	Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission [2006] FCAFC 199; (2006) 156 FCR 275 Environment Protection Authority v Bulga Coal Management Pty Ltd (No 2) [2014] NSWLEC 70; (2014) 202 LGERA 203 Halpin v Department of Gaming and Racing [2007] NSWSC 815 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Kanan v Australian Postal and Telecommunications Union [1992] FCA 539; (1992) 43 IR 257 Leota v The Queen [2007] NSWDC 146; (2007) 5 DCLR(NSW) 173 Pittwater Council v A1 Professional Tree Recycling Pty Ltd (No 3) [2009] NSWLEC 21; (2009) 165 LGERA 6 Tauszik v Gosford City Council [2006] NSWCCA 193; (2006) 146 LGERA 428
Category:	Principal judgment
Parties:	Mr Adnan Wehbe (Appellant) Kogarah City Council (Respondent)
Representation:	Counsel: Mr B Levet (Barrister) (Appellant) Mr J Johnson (Barrister) (Respondent)   Solicitors: Husseini Lawyers and Public Notaries (Appellant) Pikes and Verekers (Respondent)
File Number(s):	60363 of 2015
Publication restriction:	No
Decision under appeal	Court or tribunal: Local Court of NSW Jurisdiction: Criminal Citation: Kogarah City Council v Wehbe (Local Court (NSW), 13 March 2015, unrep) Date of Decision: 13 March 2015 Before: Magistrate Bradd File Number(s): 327337 of 2013

Judgment

1. Mr Wehbe was convicted by the Local Court of two offences under s 125(1) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) for causing to be cut down trees on two adjacent parcels of land in Castle Street, Blakehurst, in the local government area of Kogarah City. Mr Wehbe was fined $35,000 for one offence and $25,000 for another offence, and ordered to pay the costs of the prosecutor, Kogarah City Council, as agreed. Mr Wehbe appealed against the convictions and the sentences.

2. On the hearing of the appeal in this Court, the Council accepted that the two court attendance notices by which the proceedings were commenced were defective in charging Mr Wehbe with having committed incorrect offences under s 125(1) of the EPA Act.

3. The offences under s 125(1) of the EPA Act fall into two categories, depending on the source of the direction or prohibition that is infringed. The first limb is where any matter or thing is "by or under this Act" directed or forbidden to be done. The second limb is where the Minister, the secretary, a Council, or any other person is authorised by or under the Act "to direct any matter or thing to be done, or to forbid any matter or thing to be done". A person offending against a direction or prohibition by or under the Act commits an offence within the first limb, while a person offending against a direction or prohibition made by one of the authorised persons, including a council, commits an offence against the second limb: see generally Tauszik v Gosford City Council [2006] NSWCCA 193; (2006) 146 LGERA 428 at [9] - [11]. The originating process by which proceedings are commenced (such as a court attendance notice or a summons) needs to frame the charge according to which limb is alleged to have been infringed.

4. In these proceedings, the offences with which Mr Wehbe was charged in the court attendance notices were having done a matter or thing (alleged to be causing to be cut down specified trees) that was forbidden by the Council to be done, within the meaning of the second limb of s 125(1) of the EPA Act. This was, however, incorrect.

5. The prohibition on the cutting down of trees without development consent was contained not in any direction by the Council, but rather in the relevant environmental planning instrument made under the EPA Act. The cutting down of trees of a certain height or certain spread in the Council's local government area was forbidden by cl 8(1) of Kogarah Local Environmental Plan 1998 (‘the LEP’) except with development consent. Section 76A(1) of the EPA Act states that if an environmental planning instrument (such as the LEP) provides that the specified development (such as the cutting down of trees) may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless development consent has been obtained and is in force, and the development is carried out in accordance with the consent and the instrument. If a person does cut down trees without development consent, the person does a matter or thing that is forbidden by the EPA Act (under s 76A(1)) and the person commits an offence against the first limb of s 125(1) of the EPA Act.

6. However, Mr Wehbe was not charged with committing offences by doing matters or things forbidden to be done by or under the EPA Act within the meaning of the first limb of s 125(1). Instead, he was charged with the offences of doing matters or things forbidden to be done by the Council, within the meaning of the second limb of s 125(1). Those offences were not capable of having been committed because the source of the prohibition on the cutting down of trees was not any direction by the Council, but rather s 76A(1) of the Act in cl 8(1) of the LEP.

7. The Council accepted that it was time barred from amending the charges in the court attendance notices against Mr Wehbe from being offences against the second limb to being offences against the first limb of s 125(1) of the EPA Act. The conduct of cutting down the trees was alleged to have occurred between December 2012 and 11 February 2013. Proceedings for an offence against s 125(1) of the EPA Act need to be commenced no later than two years after the offence was alleged to be committed: s 127(5) of the EPA Act. The date of the hearing of the appeal is more than two years after the offences were alleged to have been committed by Mr Wehbe. Hence, the Council could not now commence proceedings against Mr Wehbe for offences against the first limb of s 125(1) of the EPA Act.

8. The Council therefore consented to the Court making orders upholding Mr Wehbe's appeal, setting aside the convictions, fines and costs orders made by the Local Court, and dismissing the charges. I consider it is appropriate to so order.

9. Mr Wehbe also sought an order that the Council pay his costs of the appeal in this Court and of the proceedings in the Local Court. Section 49(4) of the Crimes (Appeal and Review) Act 2001 empowers this Court to make such order as to the costs to be paid by either party as it thinks just. The Court may make a costs order in relation to the proceedings in this Court as well as the proceedings in the Local Court that are the subject of the appeal to this Court (see s 49(2) of the Crimes (Appeal and Review) Act). However, there are limits on the Court's power to order costs against a public prosecutor. Section 70 provides that costs are not to be awarded in favour of an appellant whose conviction is set aside unless the appeal court is satisfied of one or more of the matters in s 70(1)(a) to (d), including "that the proceedings in the Local Court were initiated without reasonable cause": s 70(1)(b).

10. Mr Wehbe submitted that the offences with which he was charged in the court attendance notices were incapable of being proven at the time of initiation of the proceedings by the court attendance notices. Mr Wehbe never could have committed offences within the second limb of s 125(1) of the EPA Act because the prohibition on cutting down trees without development consent was not in any direction by the Council, but rather in the LEP made under the EPA Act. The cutting down of the trees without development consent could therefore only ever have been an offence within the meaning of the first limb of s 125(1). However, Mr Wehbe was not charged with committing offences within the meaning of the first limb. Mr Wehbe therefore submitted that the proceedings in the Local Court were initiated without reasonable cause. The Court should compensate him for the costs he incurred in defending the proceedings in the Local Court and in appealing to this Court.

11. The Council submitted that Mr Wehbe has not established that the proceedings were initiated without reasonable cause. The Council referred to the summary of propositions given by Biscoe J in Pittwater Council v A1 Professional Tree Recycling Pty Ltd (No 3) [2009] NSWLEC 21; (2009) 165 LGERA 6 at [15] in relation to the factor that the proceedings were initiated without reasonable cause:

(i)   the failure of proceedings does not, of itself, mean that the proceedings were initiated without reasonable cause.

(ii)   proceedings will be instituted without reasonable cause if, objectively assessed on the facts or the facts apparent at the time of initiating the proceedings, they had no real prospects of success or were doomed to failure [citations omitted].

12. The Council submitted that Mr Wehbe has not established that, at the time the proceedings were initiated, there was not reasonable cause to initiate the proceedings. The fact that the prosecutor made a mistake in charging Mr Wehbe with having committed offences within the second limb of s 125(1), rather than the first limb, did not mean that the proceedings were initiated without reasonable cause.

13. Furthermore, the Council submitted that even if one or more of the factors in s 70(1) of the Crimes (Appeals and Review) Act are satisfied, the Court retains a discretion as to whether to order costs. The Council noted that neither party had raised the defect in the charges. Mr Wehbe defended the charges in the Local Court and appealed against the convictions on the charges on grounds other than the ground that emerged at the hearing of the appeal in this Court that the court attendance notices charged Mr Wehbe with having committed offences under the second limb rather than the first limb of s 125(1) of the EPA Act.

14. In the exceptional circumstances of this case, I consider that the Council should be ordered to pay Mr Wehbe's costs of the appeal and of the proceedings in the Local Court. I find that the proceedings in the Local Court were initiated without reasonable cause. In evaluating whether proceedings are initiated without reasonable cause, it is important to examine the terms of the charge as pleaded: Leota v The Queen [2007] NSWDC 146; (2007) 5 DCLR(NSW) 173 at [49]. The relevant inquiry is whether the proceedings for the offences as charged were initiated without reasonable cause.

15. In this case, the proceedings commenced by the court attendance notices had no real prospects of success or were doomed to failure from the start. The prohibition on the carrying out of development (cutting down certain trees without development consent) was in the LEP, an environmental planning instrument made under the EPA Act, and not by the Council forbidding any matter or thing to be done. There was no prohibition by the Council against which Mr Wehbe could offend, and hence he could not be guilty of an offence within the meaning of the second limb of s 125(1) of the EPA Act. The Council could, therefore, never prove that Mr Wehbe committed an offence against the second limb of s 125(1).

16. This was so, regardless of the evidence available at the time of initiation of the proceedings. Any proceedings charging an offence within the second limb were doomed to failure. In these circumstances, the proceedings were initiated without reasonable cause: see Kanan v Australian Postal and Telecommunications Union [1992] FCA 539; (1992) 43 IR 257 at 264; Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission [2006] FCAFC 199; (2006) 156 FCR 275 at [60]; Halpin v Department of Gaming and Racing [2007] NSWSC 815 at [57]-[61]; Pittwater Council v A1 Tree Recycling (No 3) at [15]; and Environment Protection Authority v Bulga Coal Management Pty Ltd (No 2) [2014] NSWLEC 70; (2014) 202 LGERA 203 at [50]-[52].

17. I do not consider it would be just to exercise the discretion not to award costs. An order for costs is compensatory not punitive. An order for costs is made not to punish the Council for having initiated proceedings without reasonable cause (by charging Mr Wehbe with incorrect offences), but rather to compensate Mr Wehbe for the expense to which he has been put in defending charges for offences that ought not to have been laid against him, and appealing against convictions for those offences that ought not to have been entered: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 543, 563, 567.

18. I consider it is just that Mr Wehbe have his costs of the proceedings in the Local Court and in this Court paid by the Council. It is not a disentitling factor that Mr Wehbe did not raise the defect that was discovered at the hearing of the appeal. Mr Wehbe had no obligation to do so. His failure to raise it is not disentitling conduct.

19. Accordingly, I make the following orders:

1. Uphold the appeal.

2. Set aside the convictions entered by the Local Court on 13 March 2015 for the offences charged in the Court Attendance Notices issued on 18 October 2013, the fines imposed by the Local Court on 8 April 2015, and the costs order made by the Local Court on 8 April 2015.

3. Dismiss the charges in the Court Attendance Notices issued on 18 October 2013.

4. Order Kogarah City Council to pay Mr Adnan Wehbe's costs of the proceedings in this Court and in the Local Court.

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Decision last updated: 28 October 2015