Hornsby Shire Council v. Alan Charles Winsloe [1998] NSWLEC 108

Hornsby Shire Council v. Alan Charles Winsloe [1998] NSWLEC 108

The charge did not disclose an offence under s.125(1) of the Environmental Planning and Assessment Act 1979 as it failed to specify a prohibition 'by or under this Act' and omitted essential legal ingredients; the defects are not curable by statutory savings provisions or amendment, particularly after expiry of the limitation period.

Parties
Prosecutor: Hornsby Shire Council; Defendant: Alan Charles Winsloe
Jurisdiction
Australia
Judgment Date
20 August 1998
Procedural Posture
Summary Prosecution (class 5) / Motion to Strike Out/prosecution Motion to Amend Charge
Outcome
Summons struck out; proceedings dismissed; prosecutor's notice of motion dismissed.
Legal Topics
Statutory Offences, Tree Preservation Order, Charge Sufficiency, Amendment of Charge Out of Time, Statutory Interpretation, Summary Jurisdiction
Environmental Law Criminal Procedure Statutory Offences Tree Preservation Order Charge Sufficiency Amendment of Charge Out of Time Statutory Interpretation Summary Jurisdiction

Case Brief

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Parties

Hornsby Shire Council

Prosecutor

Alan Charles Winsloe

Defendant

Procedural Posture

Summary Prosecution (class 5) / Motion to Strike Out/prosecution Motion to Amend Charge

Legal Issues

  1. 1 Whether the charge formulated in the summons and s.41 Order discloses an offence under s.125(1) Environmental Planning and Assessment Act 1979
  2. 2 Whether defects in the charge can be cured by statutory savings provisions or amendment
  3. 3 Whether amendment of the charge is permissible after expiry of statutory limitation period

Ratio Decidendi

The charge did not disclose an offence under s.125(1) of the Environmental Planning and Assessment Act 1979 as it failed to specify a prohibition 'by or under this Act' and omitted essential legal ingredients; the defects are not curable by statutory savings provisions or amendment, particularly after expiry of the limitation period.

Court Disposition

Summons struck out; proceedings dismissed; prosecutor's notice of motion dismissed.

Orders

  • Proceedings be struck out as failing to disclose any offence and the summons dismissed.
  • Prosecutor's Notice of Motion dismissed.