Ballina Shire Council v Joblin [2022] NSWLEC 90

Ballina Shire Council v Joblin [2022] NSWLEC 90

Although the in-ground swimming pool is a 'building' for development control order purposes under Sch 5 of the EPA Act, the order issued by Council is invalid because, read as a whole, it is expressed with such uncertainty as to its immediacy and legal effect that it does not satisfy the requirement for clear and unambiguous language. An essential element of the s 9.37 offence (a valid order) could not be proved, so the proceedings must be dismissed.

Jurisdiction
Australia
Judgment Date
22 July 2022
Procedural Posture
Criminal Proceeding (class 5) for Offence Under S 9.37 Environmental Planning and Assessment Act (nsw) / Preliminary Hearing for Collateral Challenge to Validity of Order
Outcome
Proceedings dismissed.
Legal Topics
['development Control Orders' 'statutory Interpretation' 'validity of Regulatory Orders' 'collateral Challenge in Criminal Proceedings' "definition of 'building'"]
['local Government Law' 'criminal Law' 'planning and Environment Law'] ['development Control Orders' 'statutory Interpretation' 'validity of Regulatory Orders' 'collateral Challenge in Criminal Proceedings' "definition of 'building'"]

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Procedural Posture

Criminal Proceeding (class 5) for Offence Under S 9.37 Environmental Planning and Assessment Act (nsw) / Preliminary Hearing for Collateral Challenge to Validity of Order

Legal Issues

  1. 1 ["Whether the in-ground swimming pool is a 'building' for purposes of Sch 5 of the EPA Act" 'Whether the development control order was invalid due to uncertainty']

Ratio Decidendi

Although the in-ground swimming pool is a 'building' for development control order purposes under Sch 5 of the EPA Act, the order issued by Council is invalid because, read as a whole, it is expressed with such uncertainty as to its immediacy and legal effect that it does not satisfy the requirement for clear and unambiguous language. An essential element of the s 9.37 offence (a valid order) could not be proved, so the proceedings must be dismissed.

Court Disposition

Proceedings dismissed.

Orders

  • ['Declared that the development control order issued on 19 July 2019 by Ballina Shire Council to Nellie Genevieve Joblin pursuant to s 9.34(1)(a) Environmental Planning and Assessment Act 1979 (NSW) is invalid.' 'Proceedings are dismissed.']