Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 6) [2008] NSWLEC 155

Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 6) [2008] NSWLEC 155

The no case to answer application is not upheld because the defendants carry the burden in respect of existing use rights on the balance of probabilities, and the prosecutor's evidence regarding lack of consent is capable of discharging its onus.

Jurisdiction
Australia
Judgment Date
22 April 2008
Procedural Posture
Criminal Prosecution / No Case to Answer Application
Outcome
no case to answer submission not upheld
Legal Topics
['existing Use Rights' 'development Consent' 'prosecutorial Burden of Proof']
['planning and Environmental Law'] ['existing Use Rights' 'development Consent' 'prosecutorial Burden of Proof']

Case Brief

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Procedural Posture

Criminal Prosecution / No Case to Answer Application

Legal Issues

  1. 1 ['Who bears the onus of proof in respect of existing use rights?' 'Has the prosecutor established lack of development consent beyond reasonable doubt?']

Ratio Decidendi

The no case to answer application is not upheld because the defendants carry the burden in respect of existing use rights on the balance of probabilities, and the prosecutor's evidence regarding lack of consent is capable of discharging its onus.

Court Disposition

no case to answer submission not upheld

Orders

  • []