Moseley v Queanbeyan-Palerang Regional Council [2016] NSWLEC 165

Moseley v Queanbeyan-Palerang Regional Council [2016] NSWLEC 165

The Council proved beyond reasonable doubt that particulars D, E, G, B and C involved development requiring development consent and that the appellant had no consent during the charge period. The creek crossing, hillside track, dam works, shed site excavation and stockpiles were not exempt development under the LEP or SEPP and were not ancillary to existing or imminent agricultural use or other exempt development. Particular F concerning the house site excavation was not proved because the Council did not establish beyond reasonable doubt that the cut or fill exceeded 600mm. As sufficient particulars were established, the conviction appeal could not succeed.

Jurisdiction
Australia
Judgment Date
21 December 2016
Procedural Posture
Class 6 Appeal From Local Court Against Conviction for Carrying Out Development Without Development Consent / Conviction Appeal by Way of Rehearing on the Evidence Under S 37(1) of the Crimes (appeal and Review) Act 2001
Outcome
The conviction appeal cannot succeed and can be dismissed; final orders were to be made later because the sentence appeal remained to be determined.
Legal Topics
['development Without Development Consent' 'exempt Development' 'earthworks' 'palerang Local Environmental Plan 2014' 'state Environmental Planning Policy (exempt and Complying Development Codes) 2008' 'strict Liability Offence' 'proof Beyond Reasonable Doubt']
['environmental Planning and Assessment' 'criminal Appeals' 'land and Environment Law'] ['development Without Development Consent' 'exempt Development' 'earthworks' 'palerang Local Environmental Plan 2014' 'state Environmental Planning Policy (exempt and Complying Development Codes) 2008' 'strict Liability Offence' 'proof Beyond Reasonable Doubt']

Case Brief

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Procedural Posture

Class 6 Appeal From Local Court Against Conviction for Carrying Out Development Without Development Consent / Conviction Appeal by Way of Rehearing on the Evidence Under S 37(1) of the Crimes (appeal and Review) Act 2001

Legal Issues

  1. 1 ['Whether the Council proved beyond reasonable doubt that the appellant carried out development requiring development consent during the charge period without consent.' 'Whether the earthworks and related works were exempt development under the Palerang Local Environmental Plan 2014 or the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.' 'Whether the creek crossing, hillside track, dam earthworks, shed site excavation and stockpiles were ancillary to exempt or consent-free agricultural development.' 'Whether the house site excavation particular was proved beyond reasonable doubt.']

Ratio Decidendi

The Council proved beyond reasonable doubt that particulars D, E, G, B and C involved development requiring development consent and that the appellant had no consent during the charge period. The creek crossing, hillside track, dam works, shed site excavation and stockpiles were not exempt development under the LEP or SEPP and were not ancillary to existing or imminent agricultural use or other exempt development. Particular F concerning the house site excavation was not proved because the Council did not establish beyond reasonable doubt that the cut or fill exceeded 600mm. As sufficient particulars were established, the conviction appeal could not succeed.

Court Disposition

The conviction appeal cannot succeed and can be dismissed; final orders were to be made later because the sentence appeal remained to be determined.

Orders

  • []