Wollongong City Council v Eldridge - [2017] NSWLEC 35

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…

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 Wollongong City Council v Eldridge 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: [2017] NSWLEC 35
Decision Date: 29 March 2017

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

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:	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