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

Land and Environment Court of New South Wales

CITATION : DAVID MULCAHY ON BEHALF OF CANTERBURY CITY COUNCIL v. SUDHAKAR RAO [1998] NSWLEC 139 (10 February 1998) [1998] NSWLEC 63 PARTIES : DAVID MULCAHY ON BEHALF OF CANTERBURY CITY COUNCIL v. SUDHAKAR RAO FILE NUMBER(S) : 50026 & 50027 of 1997 CORAM: Pearlman J KEY ISSUES: :- Prosecution - statutory offences - destruction of trees - breaches of conditions of development consent - strict liability - honest and reasonable belief LEGISLATION CITED: Environmental Planning and Assessment Act 1979 ss 76(2), 125(1) Crimes Act 1900 Power v Coopers Construction Pty Ltd (Talbot J, 6 October 1995, unreported; Power v Coopers Construction Pty Ltd, s 76 ; CASES CITED: He Kaw Teh v The Queen (1985) 157 CLR 523; Power v Penthill House Pty Ltd and Ors (1993) 80 LGERA 247; Sherras v De Rutzen (1895) 1 QB 918 DATES OF HEARING: 10 February 1998 EX TEMPORE JUDGMENT DATE : 08/10/1998

Mr A M Hawkes, Solicitor LEGAL REPRESENTATIVES: Mr M J Neil QC

JUDGMENT: The defendant, Dr Rao, is charged with two offences by summonses issued by the prosecutor, David Mulcahy on behalf of Canterbury City Council.

The first summons alleges that on or about 12 September 1996, the defendant caused development consent for alterations and additions to a funeral parlour at 447 Burwood Road, Belmore of which he is the owner, to be implemented contrary to conditions 6 and 8 of the said consent.

Condition 6 provides: "A detailed landscape plan be prepared by a qualified landscape architect or an approved consultant for submission to and approval of Council prior to the release of approved building plans. The Plans should provide for the retention of the row of pine trees towards the rear of the site, behind the proposed parking spaces 5, 6, 7 & 8 and the tree located on car spaces 3 & 4 as shown on the Plans."