The Council of the City of Gosford v Tauszik [2003] NSWLEC 354

The Council of the City of Gosford v Tauszik [2003] NSWLEC 354

Because the prohibition against contravening the tree preservation order is contained in the Gosford Planning Scheme Ordinance (an environmental planning instrument), the alleged conduct constitutes 'development' under s 4 and s 26 of the Environmental Planning and Assessment Act 1979. The consent required is therefore 'development consent' and the offence charged falls within the first category of offences under s 125(1), attracting a 12 month limitation period under s 127(6)(a). Consequently, the proceedings were commenced within time and are not statute barred.

Jurisdiction
Australia
Judgment Date
19 December 2003
Procedural Posture
Prosecution / Notice of Motion to Strike Out Summons as Statute Barred
Outcome
prayer 2 of defendant's notice of motion dismissed; prayer 3 stood over; costs reserved
Legal Topics
['tree Preservation Orders' 'statutory Interpretation' 'limitation Periods' 'development Consent' 'offences Under Environmental Planning and Assessment Act 1979']
['environmental Law' 'local Government Law' 'planning Law' 'criminal Procedure'] ['tree Preservation Orders' 'statutory Interpretation' 'limitation Periods' 'development Consent' 'offences Under Environmental Planning and Assessment Act 1979']

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Procedural Posture

Prosecution / Notice of Motion to Strike Out Summons as Statute Barred

Legal Issues

  1. 1 ['Whether the proceedings are statute barred under the Environmental Planning and Assessment Act 1979' "Whether consent required under the Ordinance and Tree Preservation Order is 'development consent' under s 4 of the EP&A Act" 'Which category of offence under s 125(1) of the EP&A Act applies' 'Whether the summons discloses all necessary elements of the offence']

Ratio Decidendi

Because the prohibition against contravening the tree preservation order is contained in the Gosford Planning Scheme Ordinance (an environmental planning instrument), the alleged conduct constitutes 'development' under s 4 and s 26 of the Environmental Planning and Assessment Act 1979. The consent required is therefore 'development consent' and the offence charged falls within the first category of offences under s 125(1), attracting a 12 month limitation period under s 127(6)(a). Consequently, the proceedings were commenced within time and are not statute barred.

Court Disposition

prayer 2 of defendant's notice of motion dismissed; prayer 3 stood over; costs reserved

Orders

  • ["Prayer 2 of the Defendant's Notice of Motion filed 23 September 2003 is dismissed." "Prayer 3 of the Defendant's Notice of Motion filed 23 September 2003 is stood over to the hearing of this matter." 'Costs are reserved.']