De Battista v Shoalhaven City Council [2020] NSWLEC 164

De Battista v Shoalhaven City Council [2020] NSWLEC 164

The court found that, on the cumulative and largely undisputed evidence, the inference could be firmly drawn beyond reasonable doubt that the appellant was undertaking tree clearing work pursuant to the seven-lot subdivision consent, not the MHE consent. While the MHE consent had commenced and had not lapsed in the charge period, its existence did not constitute a reasonable alternative hypothesis inconsistent with guilt. Statements by the appellant about reliance on the MHE consent carried no evidential weight, and the circumstantial evidence supported the council's case. Accordingly, the appeal was dismissed and the costs order affirmed.

Jurisdiction
Australia
Judgment Date
27 November 2020
Procedural Posture
Criminal Appeal / Appeal From Conviction and Sentence in Local Court to Land and Environment Court
Outcome
Appeal dismissed
Legal Topics
['development Consent' 'physical Commencement' 'tree Clearing' 'standard of Proof' 'appeals From Local Court' 'lapsing of Consent' 'circumstantial Evidence']
['environmental Law' 'criminal Law' 'planning and Development'] ['development Consent' 'physical Commencement' 'tree Clearing' 'standard of Proof' 'appeals From Local Court' 'lapsing of Consent' 'circumstantial Evidence']

Case Brief

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Procedural Posture

Criminal Appeal / Appeal From Conviction and Sentence in Local Court to Land and Environment Court

Legal Issues

  1. 1 ['Whether the clearing of trees was carried out in furtherance of the seven-lot subdivision consent (SF10111) or under the manufactured home estate (MHE) consent (002197)' 'Whether the prosecution proved beyond reasonable doubt that the tree clearing was contrary to subdivision consent and not excused by the existence of another operative consent' 'Whether MHE consent had commenced and was operative in the charge period, so as to provide a reasonable alternative hypothesis to negate guilt' 'Whether council established physical commencement or lawful commencement of the relevant consents']

Ratio Decidendi

The court found that, on the cumulative and largely undisputed evidence, the inference could be firmly drawn beyond reasonable doubt that the appellant was undertaking tree clearing work pursuant to the seven-lot subdivision consent, not the MHE consent. While the MHE consent had commenced and had not lapsed in the charge period, its existence did not constitute a reasonable alternative hypothesis inconsistent with guilt. Statements by the appellant about reliance on the MHE consent carried no evidential weight, and the circumstantial evidence supported the council's case. Accordingly, the appeal was dismissed and the costs order affirmed.

Court Disposition

Appeal dismissed

Orders

  • ['The appeal of the conviction, sentence and costs orders made by Magistrate Farnan on 10 March 2020 at the Local Court is dismissed.' "The Appellant is to pay the Council's costs of the appeal in Order (1)." 'The exhibits are returned.']