Willoughby City Council v Screnci - [2015] NSWLEC 192

Land and Environment Court

New South Wales

Medium Neutral Citation: Willoughby City Council v Screnci [2015] NSWLEC 192
Hearing dates: 16-18 June 2015; 17 November 2015
Date of orders: 10 December 2015
Decision date: 10 December 2015
Jurisdiction: Class 5
Before: Craig J
Decision:
Proceedings 50765 of 2014

1. To the extent necessary, give leave to the defendant to withdraw the plea of guilty entered on 27 March 2015 to the charge alleged in the amended summons filed that day.

2. Order that the defendant be acquitted of the charge alleged in the amended summons for the reason that the proceedings for the offence so charged were barred by the provisions of s 127(5) of the Environmental Planning and Assessment Act 1979.

3. The exhibits other than Exhibit A may be returned.

Proceedings 50766 of 2014

4. To the extent necessary, give leave to the defendant to withdraw the plea of guilty entered on 27 March 2015 to the charge alleged in the amended summons filed that day.

5. Order that the defendant be acquitted of the charge alleged in the amended summons for the reason that the proceedings for the offence so charged were barred by the provisions of s 127(5) of the Environmental Planning and Assessment Act 1979.
6. The exhibits other than Exhibit B may be returned.
Catchwords: CRIMINAL LAW – plea of guilty entered – sentence hearing held – application to withdraw guilty plea and enter plea in bar – offences against s 125(1) of the Environmental Planning and Assessment Act – defendant caused development to be carried out without consent – prosecution must establish proceedings were commenced within limitation period – s 127(5) of the Environmental Planning and Assessment Act – evidence does not establish the proceedings were commenced in time – statutory bar upon commencement of proceedings cannot be waived – court to give effect to statutory bar even if plea has been entered – plea in bar established – leave to withdraw pleas of guilty – defendant acquitted of charges alleged
Legislation Cited: Crimes Act 1958 (Victoria)
Criminal Procedure Act 1986 (NSW)
Environmental Offences and Penalties Act 1989 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Industrial Relations Act 1996 (NSW)
Cases Cited: Brown Brothers v Pittwater Council [2015] NSWCA 215; 209 LGERA 53
Chief Executive, Office of Environment and Heritage v Manchee; Chief Executive, Office of Environment and Heritage v Bogamildi Investments Pty Ltd [2015] NSWLEC 117; 209 LGERA 280
Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79
Environment Protection Authority v CSR Ltd t/as CSR Woodpanels [2001] NSWLEC 41; 114 LGERA 217
Industrial Registrar v Matters [2007] NSWIRComm 250
Kari & Ghossayn Pty Ltd v Sutherland Shire Council [2006] NSWLEC 532; 150 LGERA 231
Kim v R [2015] NSWCCA 115
Morgan v Babcock & Wilcox Ltd [1929] HCA 25; 43 CLR 163
R v Cooling [1990] 1 Qd R 376
R v Stone [2005] NSWCCA 344; 64 NSWLR 413
R v Tait

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 192
Decision Date: 10 December 2015

CaseChat Overview and Summary

In the matter of the Willoughby City Council against Mr Screnci, the case was heard in the Local Court of New South Wales. The dispute centred around two charges against Mr Screnci related to alleged environmental planning and assessment offences under the Environmental Planning and Assessment Act 1979. The Council alleged that Mr Screnci had contravened certain provisions of the Act by engaging in activities that required approval, which he had not obtained. Mr Screnci initially pleaded guilty to the charges but subsequently sought to withdraw his pleas on the basis that the proceedings were statute-barred.

The legal issues before the court were whether the statutory time limits for bringing the proceedings had expired, rendering the charges invalid. Specifically, the court had to determine whether the provisions of section 127(5) of the Environmental Planning and Assessment Act 1979 applied to bar the Council’s proceedings against Mr Screnci. This section sets out the time limits within which a local council must commence proceedings for certain offences.

The court found in favour of Mr Screnci, ruling that the proceedings were indeed barred by the statute of limitations as outlined in section 127(5) of the Act. The court held that the time limits had expired, and therefore, the charges against Mr Screnci could not be pursued. Consequently, the court granted leave for Mr Screnci to withdraw his pleas of guilty and ordered his acquittal on both charges. The exhibits submitted in the proceedings, other than certain specified documents, were to be returned to the parties.

Orders

Orders of the court

Proceedings 50765 of 2014

1. To the extent necessary, give leave to the defendant to withdraw the plea of guilty entered on 27 March 2015 to the charge alleged in the amended summons filed that day.

2. Order that the defendant be acquitted of the charge alleged in the amended summons for the reason that the proceedings for the offence so charged were barred by the provisions of s 127(5) of the Environmental Planning and Assessment Act 1979.

3. The exhibits other than Exhibit A may be returned.

Proceedings 50766 of 2014

4. To the extent necessary, give leave to the defendant to withdraw the plea of guilty entered on 27 March 2015 to the charge alleged in the amended summons filed that day.

5. Order that the defendant be acquitted of the charge alleged in the amended summons for the reason that the proceedings for the offence so charged were barred by the provisions of s 127(5) of the Environmental Planning and Assessment Act 1979.

6. The exhibits other than Exhibit B may be 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.

Medium Neutral Citation:	Willoughby City Council v Screnci [2015] NSWLEC 192
Hearing dates:	16-18 June 2015; 17 November 2015
Date of orders:	10 December 2015
Decision date:	10 December 2015
Jurisdiction:	Class 5
Before:	Craig J
Decision:	Proceedings 50765 of 2014 1. To the extent necessary, give leave to the defendant to withdraw the plea of guilty entered on 27 March 2015 to the charge alleged in the amended summons filed that day. 2. Order that the defendant be acquitted of the charge alleged in the amended summons for the reason that the proceedings for the offence so charged were barred by the provisions of s 127(5) of the Environmental Planning and Assessment Act 1979. 3. The exhibits other than Exhibit A may be returned. Proceedings 50766 of 2014 4. To the extent necessary, give leave to the defendant to withdraw the plea of guilty entered on 27 March 2015 to the charge alleged in the amended summons filed that day. 5. Order that the defendant be acquitted of the charge alleged in the amended summons for the reason that the proceedings for the offence so charged were barred by the provisions of s 127(5) of the Environmental Planning and Assessment Act 1979. 6. The exhibits other than Exhibit B may be returned.
Catchwords:	CRIMINAL LAW – plea of guilty entered – sentence hearing held – application to withdraw guilty plea and enter plea in bar – offences against s 125(1) of the Environmental Planning and Assessment Act – defendant caused development to be carried out without consent – prosecution must establish proceedings were commenced within limitation period – s 127(5) of the Environmental Planning and Assessment Act – evidence does not establish the proceedings were commenced in time – statutory bar upon commencement of proceedings cannot be waived – court to give effect to statutory bar even if plea has been entered – plea in bar established – leave to withdraw pleas of guilty – defendant acquitted of charges alleged
Legislation Cited:	Crimes Act 1958 (Victoria) Criminal Procedure Act 1986 (NSW) Environmental Offences and Penalties Act 1989 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Industrial Relations Act 1996 (NSW)
Cases Cited:	Brown Brothers v Pittwater Council [2015] NSWCA 215; 209 LGERA 53 Chief Executive, Office of Environment and Heritage v Manchee; Chief Executive, Office of Environment and Heritage v Bogamildi Investments Pty Ltd [2015] NSWLEC 117; 209 LGERA 280 Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 Environment Protection Authority v CSR Ltd t/as CSR Woodpanels [2001] NSWLEC 41; 114 LGERA 217 Industrial Registrar v Matters [2007] NSWIRComm 250 Kari & Ghossayn Pty Ltd v Sutherland Shire Council [2006] NSWLEC 532; 150 LGERA 231 Kim v R [2015] NSWCCA 115 Morgan v Babcock & Wilcox Ltd [1929] HCA 25; 43 CLR 163 R v Cooling [1990] 1 Qd R 376 R v Stone [2005] NSWCCA 344; 64 NSWLR 413 R v Tait