Lismore City Council v Ihalainen [2013] NSWLEC 149

Lismore City Council v Ihalainen [2013] NSWLEC 149

The Defendant was not afforded procedural fairness before the issue of the second clean-up notice as required by law; the work required by the notice was substantial and required consultation which was not given. There was no urgent imminent harm to justify issuing the notice without opportunity to be heard. Consequently, the charges based on the notice must be dismissed.

Jurisdiction
Australia
Judgment Date
12 September 2013
Procedural Posture
Prosecution / Interlocutory Application for Summary Dismissal
Outcome
charges summarily dismissed; costs reserved
Legal Topics
['clean Up Notice' 'procedural Fairness' 'pollution' 'summary Dismissal' 'statutory Powers']
['environmental Law' 'criminal Law' 'administrative Law'] ['clean Up Notice' 'procedural Fairness' 'pollution' 'summary Dismissal' 'statutory Powers']

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Procedural Posture

Prosecution / Interlocutory Application for Summary Dismissal

Legal Issues

  1. 1 ['Whether the Council failed to afford procedural fairness to the Defendant before issuing the second clean-up notice under s 91 Protection of the Environment Operations Act 1997' 'Whether the charges relating to failure to comply with the second clean-up notice should be summarily dismissed']

Ratio Decidendi

The Defendant was not afforded procedural fairness before the issue of the second clean-up notice as required by law; the work required by the notice was substantial and required consultation which was not given. There was no urgent imminent harm to justify issuing the notice without opportunity to be heard. Consequently, the charges based on the notice must be dismissed.

Court Disposition

charges summarily dismissed; costs reserved

Orders

  • ['The charges specified in par 5 - 15 of the summons relating to an alleged clean-up notice dated 9 July 2012 are summarily dismissed.' 'Costs are reserved.']