Cessnock City Council v Courtney (No. 5) [2004] NSWLEC 497

Land and Environment Court of New South Wales

CITATION : Cessnock City Council v Courtney (No. 5) [2004] NSWLEC 497 PROSECUTOR Cessnock City Council PARTIES : DEFENDANT Wayne Leslie Courtney FILE NUMBER(S) : 50013 of 2004 CORAM: Cowdroy J KEY ISSUES: Prosecution :- Further application for a Prasad direction refused LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 125(1) CASES CITED: Narendra Prasad (1979) 2 A Crim R 45 DATES OF HEARING: 17/08/2004; 18/08/2004; 19/08/2004; 20/08/2004; 24/08/2004; 26/08/2004; 27/08/2004; 31/08/2004 EX TEMPORE 08/31/2004 JUDGMENT DATE :

PROSECUTOR Mr T Howard (Barrister)

SOLICITORS Cleaves Mallik Gibbs

LEGAL REPRESENTATIVES: DEFENDANT Mr P Arden SC Mr J Kildea (Barrister)

SOLICITORS Thompson Norrie

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Cowdroy J 31 August 2004 50013 of 2004 CESSNOCK CITY COUNCIL v WAYNE LESLIE COURTNEY

Judgment – No. 5 application for Prasad direction 1 An application has been made to the Court for a direction that the proceedings be dismissed. Such application is based upon the observations of the Court of Criminal Appeal of South Australia in Narendra Prasad (1979) 2 A Crim R 45. 2 On 24 August 2004 the Court delivered a judgment in respect of a previous challenge to the prosecution's case based upon the Prasad principle. 3 The application is renewed based upon additional evidence which has been adduced, including exhibit 17 and exhibit N. Exhibit 17 comprises a record of interview between Mr Stephen Leathley and Ms Karen Shearer. Exhibit N comprised the record of interview between Mr Leathley with Mr Brad Whiteley and Mr Adam Davies. The defendant through his senior counsel submits that the evidence from the prosecution is now so unsatisfactory that the prosecution case is in "a shambles." The submission is made that the evidence could not support any finding that in fact the defendant held the intention at the relevant time to use the land the subject of these proceedings, which was cleared for the purpose of building a house. 4 It is important to bear in mind that the charge referred to in the summons filed on 13 February 2004 alleges that the defendant committed an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 because he did something that was forbidden, namely that the defendant carried out development of the land, being development which required development consent under the provisions of an environmental planning instrument which applied to the land, where a development consent had not been obtained and was not in force with respect to the development. 5 The particulars describe the development as earthworks and associated works on top of Mt Molly Morgan, being the construction of a flat, level and compacted platform and secondly the construction of an all-weather access road from the base of Mt Molly Morgan to the newly constructed platform. The particulars also recite the fact that the development was for the purpose of the proposed siting and construction of a dwelling house on top of Mt Molly Morgan. 6 The evidence contained in exhibit 17 details an interview with Ms Shearer who was charged with the responsibility of preparing a plan for a dwelling. The question at para 19 asked by Mr Leathley is as follows:- Did he give you any, did he say anything about where he intended on building it [the house] on the site?