NSW Caselaw
Reported Decision : 146 LGERA 428
New South Wales Court of Criminal Appeal
CITATION: Anthony Tauszik v Gosford City Council [2006] NSWCCA 193 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S): Friday 26 May 2006
JUDGMENT DATE: 5 July 2006
JUDGMENT OF: Tobias JA at 1; James J at 104; Hoeben J at 105
DECISION: (a) Appeal allowed; (b) The conviction of the appellant by McClellan CJ on 22 April 2005 be quashed and the orders made by his Honour on that date imposing a fine and other consequential orders including an order for costs be set aside; (c) The summons filed on 16 January 2003 be dismissed; (d) The respondent to pay the appellant's costs of the summons in the Land and Environment Court
CATCHWORDS: CRIMINAL LAW – appeal – limitation period – whether proceedings statute barred – whether offences proven beyond reasonable doubt – whether offence validly created – CRIMINAL LAW – offence under s 125(1) of the Environmental Planning and Assessment Act 1979 – source of prohibition – construction of s 125(1) – whether proceedings statute barred under s 127 – whether offence was created "by or under" the Act – whether offence was created by a council under the authority of the Act – LOCAL GOVERNMENT LAW – development consent – environmental planning instrument – offence created by Clause 44 of Gosford Planning Scheme Ordinance – tree preservation order
Criminal Appeal Act 1912 LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 76A, s 125, s 127 Gosford Planning Scheme Ordinance
Butler v Attorney-General for Victoria (1961) 106 CLR 268 Cameron v Lake Macquarie City Council (2000) 107 LGERA 308 Chin v Ryde City Council (2004) 133 LGERA 312 Gosford City Council v Tauszik [2003] NSWLEC 183 CASES CITED: Gosford City Council v Tauszik [2003] NSWLEC 266 Gosford City Council v Tauszik [2003] NSWLEC 354 Hornsby Shire Council v Clyne (Unreported, 29 October 1998) Hornsby Shire Council v Winslow (1998) 101 LGERA 117 Meriton Apartments Pty Ltd v Ryde City Council (Unreported, 30 April 1998) Saraswati v The Queen (1991) 172 CLR 1
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