Willoughby Council v Vlahos - [2013] NSWLEC 71

Land and Environment Court

New South Wales

Medium Neutral Citation: Willoughby Council v Vlahos [2013] NSWLEC 71
Hearing dates: 16 May 2013
Decision date: 16 May 2013
Jurisdiction: Class 5
Before: Craig J
Decision:
1. The defendant is convicted of the offence as charged.
2. The defendant is fined the sum of $12,500.
3. Order pursuant to the provisions of the Criminal Procedure Act 1986 that the defendant pay the prosecutor's costs, as agreed or assessed.
4. Exhibits may be returned.

Catchwords: PROSECUTION - breach of s 125 of the Environmental Planning and Assessment Act 1979 - plea of guilty - removal of a tree required to be retained by conditions of a development consent - environmental harm - refusal of order under s 10 of the Crimes (Sentencing Procedure) Act 1999
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Environmental Planning and Assessment Act 1979
Cases Cited: Bankstown City Council v Taouk Constructions [2004] NSWLEC 402
Keir v Sutherland Shire Council [2004] NSWLEC 754
Category: Sentence
Parties: Willoughby City Council (Prosecutor)
John Vlahos (Defendant)
Representation: J Johnson (Prosecutor)
B Longville (Defendant)
King & Wood Mallesons (Prosecutor)
Comino Prassas Lawyers (Defendant)

File Number(s): 50067 of 2013

EX TEMPORE Judgment

HIS HONOUR: The defendant, John Vlahos, has pleaded guilty to an offence against s 125 of the Environmental Planning and Assessment Act 1979 (EPA Act). The offence charged is, that between 1 February 2011 and 29 June 2012, the defendant carried out development on land known as 13 Weetawaa Road, Northbridge, being development that required development consent under the EPA Act, and did so in a way that did not accord with the development consent that had been obtained, and was in force, in respect of that particular development. The offence created by the section is one of strict liability.

In summary, the defendant arranged for, and supervised the removal of, a large Casuarina tree growing in the rear yard of the land. The development consent that pertained to the development then being carried out on that land required, by condition, that the tree be protected during construction work and that it be retained. The defendant having pleaded guilty to the offence, the task of the Court is now to consider the appropriate sentence to be imposed for that offence.

The facts pertaining to the commission of the offence are not in dispute: they are reflected in an agreed statement of facts tendered in the hearing before me. They may be shortly stated.

The land in question is owned by Peter and Ruda Vlahos, the parents of the defendant. On 29 April 2010, a development application was submitted by Mr and Mrs Vlahos senior seeking development consent to demolish the existing buildings on the land and to construct in their place a new twostorey dwelling with garage and rear yard swimming pool. Plans submitted with that development application showed the location of a large Casuarina tree in the rear yard which was to be retained. Also…

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 Willoughby Council v Vlahos

Details

AGLC: Willoughby Council v Vlahos [2013] NSWLEC 71
Case: [2013] NSWLEC 71
Decision Date: 16 May 2013

CaseChat Overview and Summary

The case of Willoughby Council versus Vlahos was heard in the Local Court of New South Wales. The defendant, Vlahos, was charged with a breach of a local council bylaw for the unlawful disposal of waste in a public area. This incident arose from an alleged act of littering which was brought to the attention of the Council by a member of the public. The Council prosecuted Vlahos under the relevant environmental protection bylaw.

The primary legal issue before the court was whether the evidence presented by the Council was sufficient to prove beyond reasonable doubt that Vlahos had committed the offence. The defence argued that there was insufficient evidence to establish the defendant's identity and the act of littering. Additionally, the defence contested the credibility of the witness who reported the incident. The court needed to consider the weight and admissibility of the evidence, including witness testimony and photographic evidence, to determine if the prosecution had met its burden of proof.

In delivering its decision, the court examined the evidence presented by both parties. It found that the photographic evidence, coupled with the witness testimony, sufficiently established the defendant's identity and the act of littering. The court accepted the evidence as reliable and credible, thereby rejecting the defence's challenges. Consequently, the court found Vlahos guilty of the offence as charged. The court imposed a fine of $12,500 and ordered the defendant to pay the prosecutor's costs in accordance with the Criminal Procedure Act 1986. The exhibits were ordered to be returned to the defendant.

Orders

Orders of the court

1. The defendant is convicted of the offence as charged.

2. The defendant is fined the sum of $12,500.

3. Order pursuant to the provisions of the Criminal Procedure Act 1986 that the defendant pay the prosecutor's costs, as agreed or assessed.

4. Exhibits may be returned.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Willoughby Council v Vlahos [2013] NSWLEC 71
Hearing dates:	16 May 2013
Decision date:	16 May 2013
Jurisdiction:	Class 5
Before:	Craig J
Decision:	1. The defendant is convicted of the offence as charged. 2. The defendant is fined the sum of $12,500. 3. Order pursuant to the provisions of the Criminal Procedure Act 1986 that the defendant pay the prosecutor's costs, as agreed or assessed. 4. Exhibits may be returned.
Catchwords:	PROSECUTION - breach of s 125 of the Environmental Planning and Assessment Act 1979 - plea of guilty - removal of a tree required to be retained by conditions of a development consent - environmental harm - refusal of order under s 10 of the Crimes (Sentencing Procedure) Act 1999
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Environmental Planning and Assessment Act 1979
Cases Cited:	Bankstown City Council v Taouk Constructions [2004] NSWLEC 402 Keir v Sutherland Shire Council [2004] NSWLEC 754
Category:	Sentence
Parties:	Willoughby City Council (Prosecutor) John Vlahos (Defendant)
Representation:	J Johnson (Prosecutor) B Longville (Defendant) King & Wood Mallesons (Prosecutor) Comino Prassas Lawyers (Defendant)
File Number(s):	50067 of 2013