Sutherland Shire Council v Benedict Industries Pty Ltd (No 8) [2017] NSWLEC 4

Sutherland Shire Council v Benedict Industries Pty Ltd (No 8) [2017] NSWLEC 4

The council failed to prove beyond reasonable doubt that there was no relevant development consent for quarrying on Lot 2 and ancillary bund wall construction. The bund wall was found not to be waste disposal but was constructed for site security and safety, ancillary to lawful quarrying that was historically permitted with consent. Due to uncertainty and deficiencies in the council's searches and evidence, and in light of the presumption of regularity and the site's history, it was not established that the works were unlawful or unconsented. Consequently, both the prohibited development and TPO offences failed.

Parties
Prosecutor: Sutherland Shire Council; Defendant: Benedict Industries Pty Ltd
Jurisdiction
Australia
Judgment Date
24 January 2017
Procedural Posture
Criminal Prosecution (environmental Offences) / Principal Judgment; After Hearing Evidence and Submissions by Both Parties
Outcome
All charges dismissed.
Legal Topics
Development Consent, Tree and Bushland Vegetation Preservation, Prohibited Development, Ancillary Use, Burden of Proof, Presumption of Regularity, Construction of Planning Instruments
Environmental Law Planning and Development Law Criminal Law Development Consent Tree and Bushland Vegetation Preservation Prohibited Development Ancillary Use Burden of Proof +2 more

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Parties

Sutherland Shire Council

Prosecutor

Benedict Industries Pty Ltd

Defendant

Procedural Posture

Criminal Prosecution (environmental Offences) / Principal Judgment; After Hearing Evidence and Submissions by Both Parties

Legal Issues

  1. 1 Whether construction of the bund wall was prohibited development or permissible with consent under SSLEP 2000 and/or SREP 9
  2. 2 Whether Benedict injured or removed trees and bushland vegetation without written consent under the TPO
  3. 3 Whether council proved beyond reasonable doubt that no relevant development consent existed for quarrying or construction of the bund wall on Lot 2

Ratio Decidendi

The council failed to prove beyond reasonable doubt that there was no relevant development consent for quarrying on Lot 2 and ancillary bund wall construction. The bund wall was found not to be waste disposal but was constructed for site security and safety, ancillary to lawful quarrying that was historically permitted with consent. Due to uncertainty and deficiencies in the council's searches and evidence, and in light of the presumption of regularity and the site's history, it was not established that the works were unlawful or unconsented. Consequently, both the prohibited development and TPO offences failed.

Court Disposition

All charges dismissed.

Orders

  • In proceedings 2016/155519 the charge is dismissed.
  • In proceedings 2016/155707 the charges are dismissed.