Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 6)

[2008] NSWLEC 155

Land and Environment Court

of New South Wales

CITATION:

Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 6) [2008] NSWLEC 155

PARTIES:

PROSECUTOR
Wollongong City Council

DEFENDANTS
Ensile Pty Limited
Robert Martin (aka Bob) Hogarth

FILE NUMBER(S):

50019 of 2007; 50021 of 2007; 50047 of 2007; 50048 of 2007

CORAM:

Jagot J

KEY ISSUES:

Prosecution :- no case to answer application - existing use rights - lack of consent

CASES CITED:

Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 4) [2008] NSWLEC 149

DATES OF HEARING:

22 April 2008

EX TEMPORE JUDGMENT DATE:

22 April 2008

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr C W McEwen SC with Mr Matthew Fraser and Mr Michael Staunton
SOLICITORS
Kells the Lawyers

DEFENDANTS
Mr T F Robertson SC with Mr T G Howard
SOLICITORS
Burrell Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

22 April 2008

50019 of 2007
50047 of 2007

WOLLONGONG CITY COUNCIL
Prosecutor

ENSILE PTY LIMITED
Defendant

50021 of 2007
50048 of 2007

WOLLONGONG CITY COUNCIL
Prosecutor

ROBERT MARTIN (AKA BOB) HOGARTH
Defendant

JUDGMENT

Jagot J:

1 The prosecutor has now closed its case. The defendants have made a no case to answer submission based upon two issues.

2 The first issue relates to existing use rights. The defendants say that the onus always lay on the prosecutor to negative the existence of existing or continuing use rights beyond reasonable doubt or, alternatively, the defendants bore only an evidential burden which had been discharged on the evidence given in the prosecutor’s case principally by Mr Buckley in his oral evidence today and his affidavit sworn 17 April 2008, which has been read into evidence. I dealt with the issue of the onus with respect to existing use rights in Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 4) [2008] NSWLEC 149.

3 The second issue is that the defendants say that the prosecutor has failed to prove to the requisite criminal standard that the activities alleged to have been carried out constituted the carrying out of development without development consent.

4 Both parties have agreed that my reasons in relation to the no case to answer submission can be limited to the two specific points raised by the defendants rather than dealing with each and every element of the offence.

5 On 17 April 2008 in response to a joint request by the prosecutor and the defendants that I determine the question of the onus of proof in relation to existing use rights I delivered a ruling concluding that the lack of continuing or existing use rights is not an element of the offence that must be proved beyond reasonable doubt by the prosecutor but rather was an exception within which the defendants must bring themselves on the balance of probabilities (Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 4)). Consistent with that ruling I made on 17 April 2008 I do not accept that the onus is on the prosecutor to negative beyond reasonable doubt existing or continuing use rights. I also do not accept that the defendants must do no more than point to a real possibility in the evidence (that is, discharge a mere evidential burden of existing or continuing use rights) in which event the burden shifts back to the prosecutor to negative that possibility beyond reasonable doubt.

6 In Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 4) at [26] I concluded that it was a matter for the defendants to bring themselves within the exception of existing or continuing use rights on the balance of probabilities and that they bore the onus of so doing. Consistent with that ruling I do not uphold the defendants’ no case to answer submission on the first ground.

7 The second issue raises different matters for consideration. In the ruling of 17 April 2008 I indicated my view that a lack of development consent was an essential element of the offence to be proved by the prosecutor beyond reasonable doubt (see [21]). In this case the defendants say that the evidence, principally of Ms Lisa McIlrath, a customer services officer of the Council, shows a reliability gap between 1951 and 1960. In short, there is evidence that development consent was required for agricultural activities on the subject land since 1946. Ms McIlrath searched original Council and related minutes between 1945 and 1951 but not thereafter. There is evidence also that from 1960, according to Ms McIlrath, the Council maintained a development application card system containing a record of every development consent. However, the defendants say there is no evidence relating to the nature or reliability of the card system in the intervening period, nor any evidence of instruction to Council officers about the method of maintaining the card system, nor any delegation to those officers. Ms McIlrath also said that the system up to 1960 or 1961 did not constitute a register (leading, according to the defendants, to the inapplicability of any presumption of regularity). In other words, there was a loose card system about which there is no evidence of the way in which it was maintained. According to the defendants, this is insufficient to constitute a prima facie case with respect to the lack of consent.

8 The prosecutor relies on paragraphs 2 and 3 of the affidavit of Ms McIlrath of 22 April 2008. Those paragraphs say that since 1950 all records of building and development permits, approvals and consents issued by the prosecutor are held either electronically or in the card system (with the card system being held in two places, either in the basement or on level 4), and that Ms McIlrath’s evidence is that she searched the card system and found no evidence of a consent.

9 On a no case to answer submission the evidence has to be taken at its highest. It seems to me that the combination of paragraphs 2 and 3 of the affidavit of Ms McIlrath of 22 April 2008 are at least capable of discharging the prosecutor’s onus about the lack of consent. The consequence is that the no case to answer application should not be upheld.

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