Liverpool City Council v Maller Holdings Pty Ltd trading as Sydney Horse Transport [2014] NSWCCA 299

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Liverpool City Council v Maller Holdings Pty Ltd trading as Sydney Horse Transport [2014] NSWCCA 299 Hearing dates: 15 October 2014 Decision date: 11 December 2014 Before: Macfarlan JA at [1]; Fullerton J at [51]; Bellew J at [52] Decision: (1) The Court answers in the affirmative Questions 1 and 2 of the Stated Case, and answers Question 3 "Does not arise". (2) The Court orders that the proceedings be remitted to the Land and Environment Court for resolution in accordance with those answers. Catchwords: LAND AND ENVIRONMENT - case stated by Land and Environment Court to Court of Criminal Appeal - development consents granted under previously operative environmental planning instruments authorised use of subject property for "stables" - respondent charged with using property for purpose not authorised under the current instrument of conducting horse transport business - whether use of property for horse transport business was authorised by historic consents - whether charge was defeated by authorisation of part of actual use of property - authorised use of stabling did not cover whole of use to which property was put Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5AE Environmental Planning and Assessment Act 1979 (NSW), ss 4, 76A, 76B, 76C, 109B Local Government Act 1919 (NSW) Cases Cited: Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107; 180 LGERA 343 Bardsley-Smith v Penrith City Council [2013] NSWCA 200; 195 LGERA 34 Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147; 201 LGERA 116 Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 Ku-ring-gai Municipal Council v Geoffrey Twibill & Associates (1979) 39 LGRA 154 North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1998) 16 NSWLR 50 Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 Shire of Perth v O'Keefe [1964] HCA 37; 110 CLR 529 Category: Principal judgment Parties: Liverpool City Council (Appellant/Prosecutor) Maller Holdings Pty Ltd trading as Sydney Horse Transport (Respondent) Representation: Counsel: A Galasso SC (Appellant/Prosecutor) I Hemmings SC (Respondent) Solicitors: Hones La Hood (Appellant/Prosecutor) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2014/4774 Decision under appeal Citation: Liverpool City Council v Maller Holdings Pty Limited [2013] NSWLEC 154 Date of Decision: 2013-09-19 00:00:00 Before: Pain J File Number(s): LEC 2012/50757