Mosman Municipal Council v Spice [2015] NSWLEC 134

Land and Environment Court New South Wales

Medium Neutral Citation: Mosman Municipal Council v Spice [2015] NSWLEC 134 Hearing dates: 17 August 2015 Date of orders: 17 August 2015 Decision date: 17 August 2015 Jurisdiction: Class 6 Before: Biscoe J Decision: Applicant's notice of motion filed on 17 August 2015 is dismissed. Costs are reserved. Catchwords: PRACTICE AND PROCEDURE – motion to vacate imminent hearing date of criminal appeal on ground of senior counsel's illness. Legislation Cited: Environmental Planning and Assessment Act 1979 ss 76A(1)(a), 125(1) Mosman Local Environmental Plan 2012 cl 5.9(3) Category: Procedural and other rulings Parties: 60302 of 2015 Mosman Municipal Council (Appellant) Wayne Spice (Respondent)

60303 of 2015 Mosman Municipal Council (Appellant) Fiona Nollen Sorrenson (Respondent) Representation: COUNSEL: A Isaacs (Appellant) T Howard SC and S Nash (Respondents)

SOLICITORS: Pikes & Verekers (Appellant) Swaab (Respondents) File Number(s): 60302/15, 60303/15 Matter remitted Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 11 March 2015 Before: Magistrate Wilson File Number(s): 00300821/14

EX TEMPORE Judgment 1. This is a motion by the appellant Council to adjourn the hearing tomorrow of its appeal against the Local Court's dismissal of criminal charges brought by Council against the respondents. The respondents were each charged with committing an offence against s 125(1) of the Environmental Planning and Assessment Act 1979. The charges were that, in contravention of s 76A(1)(a), they carried out development on their residential land at 1 Amaroo Crescent, Mosman without prior development consent, contrary to cl 5.9(3) of the Mosman Local Environmental Plan 2012. The development comprised the cutting down of two fiddlewood trees and the lopping of an angophora (Sydney red gum). Council's contention at trial was that they directly authorised an independent contractor to carry out that work. 2. This afternoon Council moved instanter for an adjournment of the hearing to a date to be fixed because of the illness of its senior counsel, which he communicated to Council's solicitor and junior counsel early this morning. Senior counsel was retained by Council in late March this year and has been involved in settling grounds of appeal and written submissions. His illness is such that he is unfit to appear tomorrow and it is not known when he will be fit to appear. Council has enquired as to whether other senior counsel would be available to appear at the hearing tomorrow, in the event that the adjournment motion were to be refused. Two experienced senior counsel are available. 3. The main ground of appeal is that the magistrate erred in law by failing to apply the correct test – the direct authorisation principle relied on by Council at trial – for determining whether the respondents were vicariously liable for the conduct of contractors in cutting or lopping the trees. During the hearing of the adjournment motion, senior counsel for the respondents indicated that if the adjournment were refused, the respondents would limit the contest on the appeal to the grounds of appeal in the amended summons and would abandon a second issue raised in the respondents' written submissions: namely, whether the appeal should be dismissed on other bases even if the error propounded by Council were to be established. The nature of the second issue appears to require close attention to much other evidence in the Local Court and, as was frankly conceded by senior counsel for the respondents, in light of appellate authority it would also require the respondents to correct an underlying statement of legal principle referred to in their written submissions. 4. The question on the adjournment motion is whether refusal of the adjournment would cause significant prejudice to Council. Consideration should also be given to the natural stress and anxiety caused to the respondents, who have been acquitted, by further delay in resolution of criminal proceedings. 5. Had both substantive issues remained on the table, my judgment would have been that the scales came down in favour of Council and I would have granted the adjournment. However, the respondents' abandonment of the second issue if the adjournment is refused weighs in favour of refusal. In my assessment, either of the two experienced senior counsel available for the hearing tomorrow should, without any prejudice to Council, be able to get adequately on top of their brief by then. I take into account the fairly narrow compass of the remaining issue, the earlier exchange of written submissions, and the assistance of junior counsel who appeared for Council at the Local Court trial and has been involved throughout the appeal proceedings. If Council is successful on the appeal, then the only consequential order it seeks (apart from costs) is for remittal to the Local Court for the matter to be determined according to law, and the respondents agree that that would be the appropriate consequential order. 6. In the circumstances as they have evolved during the hearing of the adjournment motion this afternoon, I consider that the motion should be dismissed. 7. The order of the Court is that the Council's notice of motion filed on 17 August 2015 is dismissed. Costs are reserved. 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. Decision last updated: 24 August 2015