Gosford City Council v Aliton Pty Ltd [2002] NSWLEC 138

Gosford City Council v Aliton Pty Ltd [2002] NSWLEC 138

The no case to answer submission succeeded. Although demolition of a dwelling house was not exempt development, the prosecution charged offences under s 125 for breach of s 76A of the Environmental Planning and Assessment Act 1979. On the evidence, what occurred was merely demolition of a dwelling house, without evidence of a current proposal to erect another dwelling house or other redevelopment purpose. Demolition per se was not listed as development requiring consent in Item 2 of the zoning table for Zone No. 2(a) Residential under cl 10 of the Gosford Planning Scheme Ordinance 1968, so any offence was against s 76B as prohibited development, not the s 76A offences charged. The stated...

Jurisdiction
Australia
Judgment Date
25 June 2002
Procedural Posture
Prosecution for Alleged Offences Against the Environmental Planning and Assessment Act 1979 / No Case to Answer Submission After Pleas of Not Guilty
Outcome
Charges dismissed; prosecutor's request to state a case to the Court of Criminal Appeal declined; prosecutor ordered to pay the defendants' costs.
Legal Topics
['development Without Development Consent' 'demolition of Dwelling House' 'exempt Development' 'prohibited Development' 'statutory Construction' 'no Case to Answer' 'stated Case to Court of Criminal Appeal' 'costs']
['environmental Law' 'planning and Development Law' 'criminal Procedure'] ['development Without Development Consent' 'demolition of Dwelling House' 'exempt Development' 'prohibited Development' 'statutory Construction' 'no Case to Answer' 'stated Case to Court of Criminal Appeal' 'costs']

Case Brief

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Procedural Posture

Prosecution for Alleged Offences Against the Environmental Planning and Assessment Act 1979 / No Case to Answer Submission After Pleas of Not Guilty

Legal Issues

  1. 1 ['Whether demolition of the dwelling house was exempt development under Item 3 of Schedule 10 to the Gosford Planning Scheme Ordinance 1968.' 'Whether the demolition constituted development requiring consent under s 76A of the Environmental Planning and Assessment Act 1979, as charged, or prohibited development under s 76B.' "Whether the prosecutor's request to state a question of law to the Court of Criminal Appeal should be granted." 'Whether costs should follow the dismissal of the charges.']

Ratio Decidendi

The no case to answer submission succeeded. Although demolition of a dwelling house was not exempt development, the prosecution charged offences under s 125 for breach of s 76A of the Environmental Planning and Assessment Act 1979. On the evidence, what occurred was merely demolition of a dwelling house, without evidence of a current proposal to erect another dwelling house or other redevelopment purpose. Demolition per se was not listed as development requiring consent in Item 2 of the zoning table for Zone No. 2(a) Residential under cl 10 of the Gosford Planning Scheme Ordinance 1968, so any offence was against s 76B as prohibited development, not the s 76A offences charged. The stated...

Court Disposition

Charges dismissed; prosecutor's request to state a case to the Court of Criminal Appeal declined; prosecutor ordered to pay the defendants' costs.

Orders

  • ['The charge is dismissed.' "The prosecutor must pay the defendants' costs." 'The exhibits may be returned.']