Holroyd City Council v Skyton Developments Pty Limted [2001] NSWLEC 259

Holroyd City Council v Skyton Developments Pty Limted [2001] NSWLEC 259

The summons in matter No 50071 sufficiently encapsulated the essential legal ingredients of the alleged s 125 offence because the charge alleged acts contrary to a prohibition contained in the Tree Preservation Order, which picked up the requirement in cl 4 that the conduct occur without first obtaining the council's written consent. The summonses in matters No 50070 and No 50072 sufficiently stated offences by identifying the prohibition in s 76A(1)(b), namely carrying out development requiring consent under the Holroyd Local Environmental Plan 1991 in a manner contravening conditions of the development consent. The charges conveyed the essential nub of the alleged contraventions and...

Jurisdiction
Australia
Judgment Date
16 November 2001
Procedural Posture
Class 5 Prosecution Proceedings for Offences Under the Environmental Planning and Assessment Act 1979 / Defendant's Notices of Motion to Strike Out the Summonses and Dismiss the Proceedings
Outcome
Defendant's notices of motion dismissed, subject to leave for the prosecutor to file an amended summons in matter No 50071 of 2001; costs reserved.
Legal Topics
['tree Preservation Orders' 'development Consent Conditions' 'statement of Essential Legal Ingredients of an Offence' 'uncertainty and Duplicity in Summonses' 'environmental Planning and Assessment Act 1979 S 125']
['environmental Law' 'planning Law' 'criminal Procedure'] ['tree Preservation Orders' 'development Consent Conditions' 'statement of Essential Legal Ingredients of an Offence' 'uncertainty and Duplicity in Summonses' 'environmental Planning and Assessment Act 1979 S 125']

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Procedural Posture

Class 5 Prosecution Proceedings for Offences Under the Environmental Planning and Assessment Act 1979 / Defendant's Notices of Motion to Strike Out the Summonses and Dismiss the Proceedings

Legal Issues

  1. 1 ['Whether the summons in matter No 50071 of 2001 stated the essential legal ingredients of an offence under s 125(1) of the Environmental Planning and Assessment Act 1979 for contravening a Tree Preservation Order.' 'Whether absence of written consent of the council was an essential legal ingredient of the Tree Preservation Order offence and sufficiently alleged.' 'Whether the summonses in matters No 50070 and No 50072 of 2001 sufficiently identified the matter or thing forbidden to be done and that the prohibition was by or under the Environmental Planning and Assessment Act 1979.' 'Whether the summonses were bad for uncertainty or duplicity.']

Ratio Decidendi

The summons in matter No 50071 sufficiently encapsulated the essential legal ingredients of the alleged s 125 offence because the charge alleged acts contrary to a prohibition contained in the Tree Preservation Order, which picked up the requirement in cl 4 that the conduct occur without first obtaining the council's written consent. The summonses in matters No 50070 and No 50072 sufficiently stated offences by identifying the prohibition in s 76A(1)(b), namely carrying out development requiring consent under the Holroyd Local Environmental Plan 1991 in a manner contravening conditions of the development consent. The charges conveyed the essential nub of the alleged contraventions and...

Court Disposition

Defendant's notices of motion dismissed, subject to leave for the prosecutor to file an amended summons in matter No 50071 of 2001; costs reserved.

Orders

  • ['The prosecutor is granted leave to file and serve an amended summons in matter No 50071 of 2001 alleging that the defendant did remove trees contrary to the prohibition contained in the Tree Preservation Order.' 'Each of the notices of motion is dismissed.' 'The question of costs is reserved.' 'The exhibits may be...