Preston v Zapantis [2015] NSWLEC 121

Land and Environment Court New South Wales

Medium Neutral Citation: Preston v Zapantis [2015] NSWLEC 121 Hearing dates: 28 and 31 (further written submissions) July 2015 Date of orders: 04 August 2015 Decision date: 04 August 2015 Jurisdiction: Class 6 Before: Pepper J Decision: Appeal upheld. Conviction and fine set aside. Respondent to pay appellant's costs of the appeal. Catchwords: APPEAL: appeal against conviction and sentence from Local Court – alleged failure to comply with stop work order – whether appellant engaged in works after stop work order was issued – whether appellant engaged in unauthorised works – whether prosecutor had to prove offence committed on date and time specified in Court Attendance Notice – offence not proved beyond reasonable doubt – appeal upheld and conviction and fine set aside – inadequacy of evidence adduced by prosecutor constitutes exceptional circumstances sufficient to warrant costs order in appellant's favour. Legislation Cited: Criminal Procedure Act 1986, ss 15, 16, 20, 21 Crimes (Appeal and Review) Act 2001, ss 31, 37, 49, 70 Criminal Procedure Act 1986, ss 20, 21 Environment Planning and Assessment Act 1979, ss 96, 121B, 125 Evidence Act 1995, s 79 Fines Act 1996, Pt 3 Cases Cited: Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485 AJS Hotel Management Pty Ltd v Lismore City Council [2013] NSWLEC 10 Cameron v Eurobodella Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 Chief Executive, Office of Environment and Heritage v Manchee; Chief Executive, Office of Environment and Heritage v Bogamildi Investments Pty Ltd [2015] NSWLEC 117 Dasreef Pty Ltd v Hawchar [2001] HCA 21; (2011) 243 CLR 588 Fletcher v Byron Shire Council (No 2) [2010] NSWLEC 226 Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160 HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661 Kari & Ghossayn Pty Ltd v Sutherland Shire Council [2006] NSWLEC 532; (2006) 150 LGERA 231 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 Thomson v Hawkesbury City Council [2009] NSWLEC 151 Category: Principal judgment Parties: Mr Andrew Preston (Plaintiff) Mr Andrew Zapantis (First Defendant) Leichhardt Municipal Council (Second Defendant) Representation: Counsel: Mr P Rosier (Plaintiff) Mr M Bonanno (First and Second Defendant)