Port Stephens Council v SS & LM Johnston Pty Ltd; Port Stephens Council v Port Stephens Veterans and Citizens Aged Care Limited [2007] NSWLEC 30

Port Stephens Council v SS & LM Johnston Pty Ltd; Port Stephens Council v Port Stephens Veterans and Citizens Aged Care Limited [2007] NSWLEC 30

The prosecution failed to prove beyond reasonable doubt that the clearing was not exempt development under the LEP 2000 and the Development Control Plan: the clearing was development of the kind 'bushfire hazard reduction', carried out consistently with requirements and there remained a reasonable possibility that exemption criteria were met. The council did not discharge its burden of proof. Accordingly, the defendants did not commit the offence charged under s 125(1) of the Environmental Planning and Assessment Act 1979.

Parties
Prosecutor: Port Stephens Council; Defendant: SS & LM Johnston Pty Ltd; Defendant: Port Stephens Veterans and Citizens Aged Care Limited
Jurisdiction
Australia
Judgment Date
30 January 2007
Procedural Posture
Prosecution / Judgment
Outcome
Not guilty – not satisfied beyond reasonable doubt that offence was committed
Legal Topics
Development Consent, Exempt Development, Clearing of Vegetation, Burden of Proof
Environmental Law Planning Law Development Consent Exempt Development Clearing of Vegetation Burden of Proof

Case Brief

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Parties

Port Stephens Council

Prosecutor

SS & LM Johnston Pty Ltd

Defendant

Port Stephens Veterans and Citizens Aged Care Limited

Defendant

Procedural Posture

Prosecution / Judgment

Legal Issues

  1. 1 Whether the clearing carried out constituted 'development' requiring consent under the Environmental Planning and Assessment Act 1979
  2. 2 Whether the activity was 'exempt development' under the LEP 2000 and the Development Control Plan
  3. 3 Whether the definition of 'clearing' in the LEP 2000 was operative in the absence of an adopted tree preservation order

Ratio Decidendi

The prosecution failed to prove beyond reasonable doubt that the clearing was not exempt development under the LEP 2000 and the Development Control Plan: the clearing was development of the kind 'bushfire hazard reduction', carried out consistently with requirements and there remained a reasonable possibility that exemption criteria were met. The council did not discharge its burden of proof. Accordingly, the defendants did not commit the offence charged under s 125(1) of the Environmental Planning and Assessment Act 1979.

Court Disposition

Not guilty – not satisfied beyond reasonable doubt that offence was committed