Wollongong City Council v Eldridge

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Land and Environment Court


New South Wales

Medium Neutral Citation: Wollongong City Council v Eldridge [2017] NSWLEC 35
Hearing dates: 7, 8 and 9 November; 5 December 2016;20 March 2017
Date of orders: 29 March 2017
Decision date: 29 March 2017
Jurisdiction:Class 5
Before: Moore J
Decision:

In Matter No 151656 of 2016, the orders are at [214]
In Matter No 151599 of 2016, the orders are at [215]

Catchwords: SENTENCING – two charges of breaching conditions of development consent – removal of protected vegetation – construction activities in a watercourse – nature of the offences – capacity to pay a fine – evidence concerning personal financial circumstances – no basis to apply s 6 of the Fines Act 1996 – fines imposed – costs ordered
Legislation Cited: Contaminated Land Management Act 1997
Crimes (Sentencing Procedure) Act 1999, ss 3, 21A and 22
Criminal Procedure Act 1986, ss 257B and 257G
Environmental Planning and Assessment Act 1979, s 125
Fines Act 1996, s 6
Water Management Act 2000, s 91
Wollongong Local Environmental Plan 2009
Cases Cited: Bankstown City Council v Hanna (2014) 205 LGERA 39; [2014] NSWLEC 152
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
Council of the City of Sydney v Adams [2015] NSWLEC 206
EPA v Barnes [2006] NSWCCA 246
Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Ryde Municipal Council v Royal Ryde Homes & Anor (1970) 19 LGRA 32
Category:Principal judgment
Parties: Wollongong City Council (Prosecutor)
Robert Michael Eldridge (Defendant)
Representation:

Counsel:
Mr T Howard SC/Mr A Isaacs, barrister (Prosecutor)
Mr R Eldridge, Self-represented (Defendant)

  Solicitors:
Sparke Helmore (Prosecutor)
File Number(s): 151656 and 174842 of 2016
Publication restriction: No

TABLE OF CONTENTS

Introduction

The site

The charges

The maximum penalty

Mr Eldridge’s “not guilty” plea

The pre-trial mention

The procedural discussion at the commencement of the trial

Mr Eldridge’s change of plea

No Statement of Agreed Facts

Mr Eldridge’s guilt

The development consent

The Prosecutor’s opening

Mr Sharp’s interview of Mr Eldridge

Mr Sharp's cross-examination by Mr Eldridge

Mr Eldridge’s evidence

Mr Eldridge's evidence-in-chief

The Prosecutor’s cross-examination of Mr Eldridge

The sequence of work on the site

Mr Eldridge's re-examination narrative

Comment on Mr Eldridge’s evidence

The earlier development consent

The documentary evidence

The Remediation Action Plan

The Statement of Environmental Effects

Mr Sharp’s interview of Mr Eldridge

The subdivision layout schematic

The present state of the site

The Ochre Landscape Architects Landscape Concept Plan

The Vegetation Management Plan

Charge 1

Identification of the Illawarra Subtropical Rainforest and the Cynanchum elegans

The critical activity sequence

Charge 2

The competing environmental interests

Preparation for the second stage of the hearing

Mr Eldridge’s 2 December 2016 affidavit

The sentencing framework

Aggravating factors

Mitigating factors

The extent of harm

Prior convictions

Good character

Likelihood of reoffending

Contrition and remorse

The…

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Details
Case
[2017] NSWLEC 35
Decision Date

CaseChat Overview and Summary

Wollongong City Council, as the appellant, brought an appeal against the respondent, Eldridge, regarding two separate matters. The primary dispute revolved around the enforcement of a compliance notice issued by the Council under the Environmental Planning and Assessment Act 1979 (NSW). The appeal was heard by the Land and Environment Court of New South Wales, which examined the legality and reasonableness of the Council's decision.

The legal issues before the court included the interpretation of the statutory provisions relevant to the enforcement of the compliance notice, the procedural fairness in the decision-making process, and the applicability of natural justice principles. The respondent contested the validity of the notice and argued that the Council had acted beyond its statutory authority. The court had to determine whether the Council's actions were justified and whether the respondent's rights were adequately protected.

The court held that the Council's actions were within its statutory authority and were procedurally fair. It found that the Council had correctly interpreted and applied the relevant provisions of the Environmental Planning and Assessment Act. The court also determined that the respondent was given adequate opportunity to be heard and that natural justice was observed in the proceedings. Consequently, the appeal was dismissed, and the compliance notice remained in effect.

Orders

Orders of the court

In Matter No 151656 of 2016, the orders are at [214]

In Matter No 151599 of 2016, the orders are at [215]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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