Moseley v Queanbeyan-Palerang Regional Council [2019] NSWCCA 42

Moseley v Queanbeyan-Palerang Regional Council [2019] NSWCCA 42

There was no error of law in the primary judge's finding that the relevant works were not ancillary to development permitted without consent, as required exculpatory purpose was not established on the facts, which were found to be only speculative. There was no onus reversal; the prosecution's burden was correctly identified and applied.

Parties
Appellant: Benjamin Moseley; Respondent: Queanbeyan-Palerang Regional Council
Jurisdiction
Australia
Judgment Date
01 March 2019
Procedural Posture
Criminal Appeal (stated Case) / Court of Criminal Appeal Determination of Questions of Law From Land and Environment Court
Outcome
Questions in the stated case answered as follows: 1. Leave to extend time granted. 2. Question 1: No. 3. Question 2: No. 4. Question 3: (i) No. (ii) Does not arise. 5. Question 4: Inappropriate to answer.
Legal Topics
Stated Case Procedure, Development Consent, Onus of Proof, Purpose of Use Under Planning Laws
Environmental Law Criminal Law Stated Case Procedure Development Consent Onus of Proof Purpose of Use Under Planning Laws

Case Brief

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Parties

Benjamin Moseley

Appellant

Queanbeyan-Palerang Regional Council

Respondent

Procedural Posture

Criminal Appeal (stated Case) / Court of Criminal Appeal Determination of Questions of Law From Land and Environment Court

Legal Issues

  1. 1 Whether the Land and Environment Court erred in law regarding the test for 'purpose' in exempt or permissible development under the Palerang Local Environment Plan and related instruments
  2. 2 Whether there was a reversal of onus regarding exculpatory circumstances
  3. 3 Whether findings regarding 'farm dam' and 'farm building' exemptions were erroneous in law

Ratio Decidendi

There was no error of law in the primary judge's finding that the relevant works were not ancillary to development permitted without consent, as required exculpatory purpose was not established on the facts, which were found to be only speculative. There was no onus reversal; the prosecution's burden was correctly identified and applied.

Court Disposition

Questions in the stated case answered as follows: 1. Leave to extend time granted. 2. Question 1: No. 3. Question 2: No. 4. Question 3: (i) No. (ii) Does not arise. 5. Question 4: Inappropriate to answer.

Orders

  • Leave to extend time to submit the stated case is granted.
  • Question 1: No (that is, there was no error in law in finding that the listed works were not ancillary to development that was permitted without consent).