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

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.
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…

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: [2015] NSWLEC 170
Decision Date: 24 September 2015

CaseChat Overview and Summary

The case of Wehbe v Kogarah City Council was heard in the Supreme Court of New South Wales. The dispute arose from the council's refusal to grant the plaintiff, Mr Wehbe, a permit to operate a takeaway food business in a designated area. Mr Wehbe sought judicial review of the council's decision, arguing that it was unreasonable and had breached his rights under the Environmental Planning and Assessment Act 1979 (NSW). The court was tasked with determining whether the council's decision was lawful and if the plaintiff's rights were properly considered.

The primary legal issues in the case were whether the council's decision was unreasonable and if it had properly exercised its discretion under the Act. The court needed to assess if the council had followed the correct procedure, considered all relevant factors, and exercised its discretion in a manner that was not arbitrary or capricious. Furthermore, the court had to determine whether the decision was in accordance with the relevant planning policies and if it had adequately considered the potential impact on the local community.

The court found that the council's decision was not unreasonable and that it had properly exercised its discretion. The judge held that the council had followed the correct procedure and had considered all relevant factors, including the impact on the local community and the relevant planning policies. The court determined that the council's decision was in accordance with the Act and was not arbitrary or capricious. The judge also found that the plaintiff's rights had been properly considered and that the council's decision did not breach any statutory provisions. Consequently, the court dismissed the plaintiff's application for judicial review.

Orders

Orders of the court

Orders as at [19]

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.

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