North Sydney Council v Moline; North Sydney Council v Tomkinson [2008] NSWLEC 57

North Sydney Council v Moline; North Sydney Council v Tomkinson [2008] NSWLEC 57

There was evidence on which each element of the offence as charged against both Mr Tomkinson and Mr Moline could lawfully be found proved; in particular, that they carried out development not in accordance with the development consent. Section 96(4) of the Environmental Planning and Assessment Act 1979 does not operate retrospectively to legalise works done prior to the modification; modification of consent operates prospectively only.

Jurisdiction
Australia
Judgment Date
07 February 2008
Procedural Posture
Prosecution / Ruling on 'no Case to Answer' and Related Applications at Close of Prosecution Case
Outcome
No case to answer submissions and related applications refused for both defendants.
Legal Topics
['development Consent and Modification' 'retrospective Effect of Consent Modifications' 'vicarious Liability in Environmental Offences' 'planning Prosecution Procedure']
['planning and Environmental Law'] ['development Consent and Modification' 'retrospective Effect of Consent Modifications' 'vicarious Liability in Environmental Offences' 'planning Prosecution Procedure']

Case Brief

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Procedural Posture

Prosecution / Ruling on 'no Case to Answer' and Related Applications at Close of Prosecution Case

Legal Issues

  1. 1 ['Whether there is evidence of each element of the offence to answer the charge of carrying out development not in accordance with development consent under s 125(1) and s 76A(1)(b) of the Environmental Planning and Assessment Act 1979' 'Whether s 96(4) of the Environmental Planning and Assessment Act 1979 gives retrospective effect to modification of development consent' 'Whether the evidence is so unsatisfactory that it would be unsafe to convict, warranting the court to direct a verdict of not guilty']

Ratio Decidendi

There was evidence on which each element of the offence as charged against both Mr Tomkinson and Mr Moline could lawfully be found proved; in particular, that they carried out development not in accordance with the development consent. Section 96(4) of the Environmental Planning and Assessment Act 1979 does not operate retrospectively to legalise works done prior to the modification; modification of consent operates prospectively only.

Court Disposition

No case to answer submissions and related applications refused for both defendants.

Orders

  • ["Defendants' submissions that there was no case to answer are dismissed." "Defendants' applications that the court should exercise discretion to stop proceedings and direct a verdict of not guilty are refused." "Defendants' submissions regarding retrospective effect of modified consent are rejected."]