Land and Environment Court of New South Wales CITATION : Creak Ian v Hornsby Shire Council [2007] NSWLEC 480 APPELLANT Creak Ian PARTIES : RESPONDENT Hornsby Shire Council FILE NUMBER(S) : 60006 of 2007 CORAM: Talbot J KEY ISSUES: Appeal :- Local Court no jurisdiction to convict on any charge other than for the offenci in the summons. LEGISLATION CITED: Criminal Procedure Ac 1986 t s16(1), s16(2) Environmental Planning and Assessment Act 1979 s 76(1)(a),(b), s125(1) CASES CITED: Ex parte Lovell; Re Buckley (1938) 3 SR (NSW) 153 DATES OF HEARING: 30/07/07 DATE OF JUDGMENT: 2 August 2007 APPELANT Mr P. R Clay (Barrister) LEGAL REPRESENTATIVES: RESPONDENT Mr T. G Howard (Barrister) SOLICITORS Storey & Gough JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Talbot J 2 August 2007 60006/07 Creak Ian v Hornsby Shire Council Judgment 1 Talbot J: These proceedings are an appeal from the decision of a Magistrate to convict the defendant in Hornsby Local Court on 16 January 2007. The charge was that the defendant carried out development not in accordance with development consent. 2 The appellant pleaded not guilty in the Local Court following the issue of a Court Attendance Notice. 3 Previously on 14 July 2006, the appellant was issued with a Penalty Infringement Notice by an authorised officer of the respondent council alleging that on 13 July 2007 the appellant had carried out development without development consent. 4 The parties contend that the offence alleged in the Penalty Infringement Notice was a breach of s 76A(1)(a) of the Environmental Planning and Assessment Act (EPA Act) whereas the breach alleged in the Court Attendance Notice was a breach of s 76A(1)(b) of the EPA Act. 5 At the conclusion of the hearing on 16 January 2007, the Magistrate found the defendant guilty and convicted the defendant for the carrying out of development without first obtaining development consent in contravention of s 76A(1)(a). 6 The parties agree that it appears from the transcript that the hearing before the Magistrate proceeded on the basis of a false premise namely that the charge in respect of which the conviction was recorded was a consequence of the breach alleged in the Penalty Infringement Notice rather than the Court Attendance Notice. 7 Pursuant to s 37 of the Fines Act 1996, if a person duly elects to have the matter dealt with by a court, proceedings against the person in respect of the offence may be taken as if a penalty notice or penalty reminder notice had not been issued. Accordingly the only charge before the Magistrate was the charge set out in the Court Attendance Notice, namely an offence under s 125(1) of the EPA Act as a consequence of a contravention of s 76A(1)(b). In its trite law that the Local Court has no jurisdiction to convict a person for a statutory offence with which the person has not been charged (Ex parte Lovell; Re Buckley (1938) 3 SR (NSW) 153). The defect being a lack of jurisdiction is beyond recall and cannot be cured by the application of s 16(1) and s 16(2) of the Criminal Procedure Act. 8 The parties have jointed in submitting that the Court should uphold the appeal and set aside the conviction entered by the Magistrate in the Local Court on the basis that the Magistrate had no jurisdiction to convict the appellant of the offence. I am satisfied that it is appropriate for the Court to embrace the joint submission and the appeal will be dismissed. It is appropriate that leave be granted to file the appeal out of time and the Prosecutor raises no obligation to this. 9 The Court makes the following orders: 1. Leave is granted to the applicant to appeal the conviction in the Local Court out of time. 2. The appeal is upheld. 3. The conviction of the applicant and other orders by the Local Court on 16 January 2007 are set aside. 10 The abovementioned orders are made by consent. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.