Whitlock v Maitland City Council - [2007] NSWLEC 625

Land and Environment Court

of New South Wales

CITATION: Whitlock v Maitland City Council [2007] NSWLEC 625

PARTIES:
APPLICANT
Ronald Whitlock
RESPONDENT
Maitland City Council

FILE NUMBER(S): 60003 of 2007

CORAM: Jagot J

KEY ISSUES: Prosecution :- appeal against conviction - sales of seafood from mobile food van - existing use rights - shops - convenience stores - leave to rely on fresh evidence - appeal dismissed

LEGISLATION CITED: Crimes (Appeal and Review) Act 2001
Environmental Planning and Assessment Act 1979
Fines Act 1996
Food Act 2003

CASES CITED: Lin v Fairfield City Council [2007] NSWLEC 568;
Penrith Waste Services Pty Ltd v Penrith City Council (1998) 101 LGERA 98

DATES OF HEARING: 11-13/9/2007

EX TEMPORE JUDGMENT DATE: 13 September 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr R Whitlock (in person)
SOLICITORS
N/A
RESPONDENT
Mr G Williams
SOLICITORS
Thompson Norrie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

13 September 2007

60003 of 2007

RONALD WHITLOCK
Applicant

MAITLAND CITY COUNCIL
Respondent
JUDGMENT

Jagot J:
A. Introduction

1 These are my reasons for decision in this appeal. The appellant, Ronald Whitlock, has appealed against his conviction in the Local Court of Maitland on 1 March 2007 for the offence of carrying out development without development consent where such consent was required on land being lots 100 and 101 DP849365, known as 101-103 New England Highway, Lochinvar on 4 July 2004. This offence was found to have been committed by the appellant by reason of the activity he carried out of selling seafood products from a mobile van located on part of this land.

2 Relevantly, s 76A of the Environmental Planning and Assessment Act 1979 provides that:

If an environmental planning instrument provides that specified development 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:
(a) such a consent has been obtained and is in force, and
(b) the development is carried out n accordance with the consent and the instrument.

3 Because the appellant was convicted of this offence he has an appeal as of right against the conviction under s 31(1) of the Crimes (Appeal and Review) Act 2001. That section provides as follows:

(1) Any person who has been convicted or sentenced by a Local Court with respect to an environmental offence may appeal to the Land and Environment Court against the conviction or sentence.

4 Other provisions of the Crimes (Appeal and Review) Act are also relevant as follows.

37(1) An appeal is to be dealt with by way of rehearing on the basis of certified transcripts of evidence given in the original Local Court proceedings, except as provided by s 38.
(2) Fresh evidence may be given, but only by leave of the Land and Environment Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given.

5 The Court’s power to determine…

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.

Keep reading for free

Create a free CaseChat account to read Whitlock v Maitland City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] NSWLEC 625
Decision Date: 13 September 2007

CaseChat Overview and Summary

Ronald Whitlock, the applicant, has appealed against his conviction in the Local Court of Maitland for carrying out development without development consent. The conviction was based on the activity of selling seafood products from a mobile van located on lots 100 and 101 DP849365, known as 101-103 New England Highway, Lochinvar on 4 July 2004. The applicant argued that the activities on the land constituted an existing use and thus did not require development consent. The respondent, Maitland City Council, maintained that the activities constituted an enlargement or expansion of the existing use and required development consent. The court considered the arguments and evidence presented by both parties and concluded that the applicant's activities constituted an enlargement or expansion of the existing use and required development consent. The court also found that the applicant's arguments regarding the Food Act licence and the penalty infringement notice were not relevant to the issue of development consent. The appeal was dismissed, and the applicant was ordered to pay the respondent's costs.

Orders