Sydney Catchment Authority v Bailey (No 2) [2007] NSWLEC 191

Sydney Catchment Authority v Bailey (No 2) [2007] NSWLEC 191

The plain words of cl 35 and Schedule 1 cl 8 of the Model Provisions exempt from local planning controls any development required in connection with the construction, improvement, maintenance, or repair of any road, except for widening, realignment, or relocation. The defendant's work—construction on a pre-existing Crown and public road—fell within these words and was not limited to Crown or public undertakings. Therefore, no development consent was required and no offence under s 125 of the EP&A Act was proved.

Parties
Prosecutor: Sydney Catchment Authority; Defendant: Barry Waldon Bailey
Jurisdiction
Australia
Judgment Date
17 April 2007
Procedural Posture
Prosecution / Judgment
Outcome
Defendant found not guilty; prosecution not proved.
Legal Topics
Development Consent, Interpretation of Planning Instruments, Savings Provisions, Roads Law, Public Roads, Crown Roads
Environmental Law Planning Law Criminal Law Development Consent Interpretation of Planning Instruments Savings Provisions Roads Law Public Roads +1 more

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Parties

Sydney Catchment Authority

Prosecutor

Barry Waldon Bailey

Defendant

Procedural Posture

Prosecution / Judgment

Legal Issues

  1. 1 Whether the defendant carried out development, namely construction or use of land as a road, without required development consent under the Environmental Planning and Assessment Act 1979 and Wollondilly Local Environmental Plan 1991.
  2. 2 Whether the savings provision (clause 35 and Schedule 1 cl 8 of the Environmental Planning and Assessment Model Provisions 1980) applies to exempt the defendant's works from needing development consent.

Ratio Decidendi

The plain words of cl 35 and Schedule 1 cl 8 of the Model Provisions exempt from local planning controls any development required in connection with the construction, improvement, maintenance, or repair of any road, except for widening, realignment, or relocation. The defendant's work—construction on a pre-existing Crown and public road—fell within these words and was not limited to Crown or public undertakings. Therefore, no development consent was required and no offence under s 125 of the EP&A Act was proved.

Court Disposition

Defendant found not guilty; prosecution not proved.

Orders

  • Prosecution dismissed.
  • Question of costs reserved.