DAVID MULCAHY ON BEHALF OF CANTERBURY CITY COUNCIL v. SUDHAKAR RAO [1998] NSWLEC 139 (10 February 1998) [1998] NSWLEC 63

DAVID MULCAHY ON BEHALF OF CANTERBURY CITY COUNCIL v. SUDHAKAR RAO [1998] NSWLEC 139 (10 February 1998) [1998] NSWLEC 63

The summonses validly alleged offences because s 76(2) required the development, once physically commenced, to be carried out in accordance with the development consent conditions, and s 125(1) applied to breaches. The defendant authorised removal of the pine trees contrary to the approved landscape plan and condition 8. The fiddlewood tree was not protected by a suitable barrier as required by condition 7; the offence was one of strict liability and the defendant did not establish an honest and reasonable belief that existing structures were a suitable barrier for the tree. The defendant was therefore guilty on both summonses.

Jurisdiction
Australia
Judgment Date
10 August 1998
Procedural Posture
Prosecution for Offences Under S 125(1) of the Environmental Planning and Assessment Act 1979 / Ex Tempore Judgment on Liability and Penalty After Hearing
Outcome
Defendant found guilty of both offences; fines imposed or indicated, with costs stood over.
Legal Topics
['breach of Development Consent Conditions' 'destruction of Trees' 'suitable Barrier for Retained Tree During Building Operations' 'strict Liability' 'honest and Reasonable Belief']
['environmental Planning Law' 'criminal Law'] ['breach of Development Consent Conditions' 'destruction of Trees' 'suitable Barrier for Retained Tree During Building Operations' 'strict Liability' 'honest and Reasonable Belief']

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Procedural Posture

Prosecution for Offences Under S 125(1) of the Environmental Planning and Assessment Act 1979 / Ex Tempore Judgment on Liability and Penalty After Hearing

Legal Issues

  1. 1 ['Whether the summonses disclosed offences under s 125(1) of the Environmental Planning and Assessment Act 1979 for carrying out development contrary to conditions of development consent.' 'Whether the defendant authorised the cutting down of pine trees contrary to the approved landscape plan and condition 8 of the development consent.' 'Whether condition 7 requiring a suitable barrier for the fiddlewood tree was breached.' 'Whether offences under s 125(1) were offences of strict liability and whether the defendant established an honest and reasonable belief in facts that would exculpate him.']

Ratio Decidendi

The summonses validly alleged offences because s 76(2) required the development, once physically commenced, to be carried out in accordance with the development consent conditions, and s 125(1) applied to breaches. The defendant authorised removal of the pine trees contrary to the approved landscape plan and condition 8. The fiddlewood tree was not protected by a suitable barrier as required by condition 7; the offence was one of strict liability and the defendant did not establish an honest and reasonable belief that existing structures were a suitable barrier for the tree. The defendant was therefore guilty on both summonses.

Court Disposition

Defendant found guilty of both offences; fines imposed or indicated, with costs stood over.

Orders

  • ['Dr Rao convicted and fined $3000 in relation to the first summons concerning the pine trees.' 'Dr Rao fined $1500 in relation to the second summons concerning the fiddlewood tree.' 'Costs stood over to 9.30 the following morning.']