Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 4) [2008] NSWLEC 149

Wollongong City Council v Ensile Pty Limited; Wollongong City Council v Hogarth (No 4) [2008] NSWLEC 149

Existing or continuing use rights pursuant to ss 107(1) and 109(1) of the Environmental Planning and Assessment Act 1979 operate as exceptions to the general statement of liability for carrying out development without consent or where prohibited. The onus is on the defendants to prove, on the balance of probabilities, that they fall within these exceptions; it is not for the prosecutor to prove their absence beyond reasonable doubt.

Jurisdiction
Australia
Judgment Date
17 April 2008
Procedural Posture
Prosecution / Interlocutory Ruling on Onus of Proof—before Close of Prosecutor's Case
Outcome
Interlocutory ruling on burden of proof—onus on defendants to prove existing or continuing use rights on the balance of probabilities.
Legal Topics
['onus of Proof' 'existing Use Rights' 'statutory Construction' 'environmental Offences']
['criminal Law' 'planning and Environment Law'] ['onus of Proof' 'existing Use Rights' 'statutory Construction' 'environmental Offences']

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Procedural Posture

Prosecution / Interlocutory Ruling on Onus of Proof—before Close of Prosecutor's Case

Legal Issues

  1. 1 ['Who bears the legal onus of proof regarding the existence or absence of existing or continuing use rights in prosecutions under s 125(1) of the Environmental Planning and Assessment Act 1979 for carrying out development without consent or where prohibited? Is the absence of existing or continuing use rights an element of the offence or an exception to be proved by the defendant?']

Ratio Decidendi

Existing or continuing use rights pursuant to ss 107(1) and 109(1) of the Environmental Planning and Assessment Act 1979 operate as exceptions to the general statement of liability for carrying out development without consent or where prohibited. The onus is on the defendants to prove, on the balance of probabilities, that they fall within these exceptions; it is not for the prosecutor to prove their absence beyond reasonable doubt.

Court Disposition

Interlocutory ruling on burden of proof—onus on defendants to prove existing or continuing use rights on the balance of probabilities.

Orders

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