The Council of the City of Sydney v Trico Constructions Pty Ltd [2014] NSWLEC 75

Land and Environment Court New South Wales

Medium Neutral Citation: The Council of the City of Sydney v Trico Constructions Pty Ltd [2014] NSWLEC 75 Hearing dates: 2 May 2014 Decision date: 23 June 2014 Jurisdiction: Class 5 Before: Sheahan J Decision: The Court declines to make the direction and/or finding sought by the prosecutor. Catchwords: CRIMINAL LAW: Pre-trial disclosure provisions - expert evidence not yet obtained - court asked to impose on the defendant a timetable for obtaining and disclosing its expert evidence. Legislation Cited: Criminal Procedure Act 1986 Environmental Planning and Assessment Act 1979 Cases Cited: NSW Food Authority v Nutricia Australia [2008] NSWCCA 252; (2008) 72 NSWLR 456 Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121 Category: Procedural and other rulings Parties: The Council of the City of Sydney (Prosecutor) Trico Constructions Pty Ltd (Defendant) Representation: Mr T Howard, SC (Prosecutor) Mr C Ireland, barrister (Defendant) The Council of the City of Sydney (Prosecutor) Maddocks Lawyers (Defendant) File Number(s): 50570 of 2013

Judgment

Introduction 1The parties to this Class 5 prosecution are in dispute about the correct construction and application of at least one specific provision in the pre-trial disclosure provisions contained in Division 2A of Part 5 of Chapter 4 of the Criminal Procedure Act 1986. 2The Council has charged the defendant company, under s 125(1) of the Environmental Planning and Assessment Act 1979, with a breach of s 76A of that Act by doing work (demolition of a heritage listed ceiling), permissible only with development consent, without first obtaining such consent. The defendant has pleaded "Not guilty". 3The application of Division 2A to Class 5 summary criminal proceedings in this Court was the subject of definitive analysis and commentary by Biscoe J in Sutherland Shire Council v Benedict Industries Pty Ltd ("Benedict") [2013] NSWLEC 121. 4I need not set out all the provisions in the Division, nor the whole of his Honour's explanation of them, but I adopt his Honour's reasoning, noting that Judges must apply those provisions with caution, because they seriously abrogate the traditional right of silence enjoyed by an accused. 5The actual problem which has arisen in the present case was not before Biscoe J, and it is important that it be resolved by a considered judgment, even though the present parties may be close to a solution of their differences (see defendant's subs, par 18, and Tp9, LL28 - 46).