Preston v Zapantis [2015] NSWLEC 121

Preston v Zapantis [2015] NSWLEC 121

The council did not prove beyond reasonable doubt that Mr Preston carried out unauthorised building works after the s 121B Notice. Mr Zapantis' evidence was given little weight because the factual basis for his opinion that the work was unauthorised was not properly established, his evidence was equivocal, and the photographs were unexplained and did not show whether any work was unauthorised. The modification approval did not amount to an admission that the charged works were unauthorised. Fresh evidence from Mr Krekacs was not admitted because its admission would be unfair and not in the interests of justice. Accordingly, the conviction and fine were set aside. The inadequacy of the...

Jurisdiction
Australia
Judgment Date
04 August 2015
Procedural Posture
Class 6 Appeal Against Conviction and Sentence From the Local Court for Failing to Comply With a Stop Work Order / Appeal Against Conviction and Sentence
Outcome
Appeal upheld. Conviction and fine set aside. Respondent to pay appellant's costs of the appeal.
Legal Topics
['stop Work Order' 'unauthorised Building Works' 'appeal Against Conviction and Sentence' 'proof Beyond Reasonable Doubt' 'fresh Evidence on Appeal' 'costs Against Public Prosecutor']
['criminal Law' 'environmental Planning and Assessment' 'local Government Enforcement'] ['stop Work Order' 'unauthorised Building Works' 'appeal Against Conviction and Sentence' 'proof Beyond Reasonable Doubt' 'fresh Evidence on Appeal' 'costs Against Public Prosecutor']

Case Brief

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Procedural Posture

Class 6 Appeal Against Conviction and Sentence From the Local Court for Failing to Comply With a Stop Work Order / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 ['Whether Mr Preston engaged in unauthorised building works after the s 121B Notice was issued.' 'Whether the council proved beyond reasonable doubt that the works observed on 27 May 2014 were unauthorised works in contravention of the s 121B Notice.' 'Whether the council was required to prove that the offence occurred on the precise date and time specified in the Court Attendance Notice.' 'Whether fresh evidence from Mr Krekacs should be admitted on the appeal.' 'Whether exceptional circumstances justified a costs order in favour of Mr Preston.']

Ratio Decidendi

The council did not prove beyond reasonable doubt that Mr Preston carried out unauthorised building works after the s 121B Notice. Mr Zapantis' evidence was given little weight because the factual basis for his opinion that the work was unauthorised was not properly established, his evidence was equivocal, and the photographs were unexplained and did not show whether any work was unauthorised. The modification approval did not amount to an admission that the charged works were unauthorised. Fresh evidence from Mr Krekacs was not admitted because its admission would be unfair and not in the interests of justice. Accordingly, the conviction and fine were set aside. The inadequacy of the...

Court Disposition

Appeal upheld. Conviction and fine set aside. Respondent to pay appellant's costs of the appeal.

Orders

  • ['The appeal is upheld.' 'The conviction and fine are set aside.' "The respondent is to pay the appellant's costs of the appeal." 'The exhibits are to be returned.']