Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 8) [2008] NSWLEC 232

Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 8) [2008] NSWLEC 232

The prosecution did not prove beyond reasonable doubt that the clearing of understorey vegetation was done without development consent, given inadequate searches of Council records from 1951-1961. Further, the defendants established on the balance of probabilities that the clearing was ancillary to a continuing use of the land for grazing prior to 3 February 1986 and did not constitute enlargement, expansion or intensification of that use. As such, development consent was not required under s 109(1) Environmental Planning and Assessment Act 1979, and none of the offences were proved beyond reasonable doubt.

Parties
Prosecutor: Wollongong City Council; Defendant: Ensile Pty Limited; Defendant: Robert Martin (aka Bob) Hogarth
Jurisdiction
Australia
Judgment Date
18 August 2008
Procedural Posture
Criminal Prosecution / Final Judgment at First Instance
Outcome
Defendants acquitted; proceedings dismissed.
Legal Topics
Development Consent, Existing Use Rights, Continuing Use Rights, Burden of Proof, Vegetation Clearing, Environmental Planning Instruments
Environmental Law Criminal Law Planning Law Development Consent Existing Use Rights Continuing Use Rights Burden of Proof Vegetation Clearing +1 more

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Parties

Wollongong City Council

Prosecutor

Ensile Pty Limited

Defendant

Robert Martin (aka Bob) Hogarth

Defendant

Procedural Posture

Criminal Prosecution / Final Judgment at First Instance

Legal Issues

  1. 1 Whether the clearing of understorey vegetation required development consent under the relevant planning instrument
  2. 2 Whether the prosecution proved lack of development consent beyond reasonable doubt
  3. 3 Whether existing or continuing use rights applied under the Environmental Planning and Assessment Act 1979

Ratio Decidendi

The prosecution did not prove beyond reasonable doubt that the clearing of understorey vegetation was done without development consent, given inadequate searches of Council records from 1951-1961. Further, the defendants established on the balance of probabilities that the clearing was ancillary to a continuing use of the land for grazing prior to 3 February 1986 and did not constitute enlargement, expansion or intensification of that use. As such, development consent was not required under s 109(1) Environmental Planning and Assessment Act 1979, and none of the offences were proved beyond reasonable doubt.

Court Disposition

Defendants acquitted; proceedings dismissed.

Orders

  • The summons is dismissed in each of proceedings 50019, 50021, 50047 and 50048 of 2007.
  • The exhibits may be returned.