Mosman Municipal Council v Spice (No 2) [2015] NSWLEC 136

Land and Environment Court New South Wales

Medium Neutral Citation: Mosman Municipal Council v Spice (No 2) [2015] NSWLEC 136 Hearing dates: 17 August 2015 Date of orders: 21 August 2015 Decision date: 21 August 2015 Jurisdiction: Class 6 Before: Biscoe J Decision: (1) The appeal is upheld. (2) The matter is remitted to the Local Court to be determined according to law. (3) The Court Book is to be returned to the appellant. Catchwords: APPEAL – by prosecutor against Local Court's dismissal of proceedings for an environmental offence of cutting down or lopping trees – appeal restricted to a ground that involves a question of law alone – meaning of "question of law alone" – approach to interpretation of ex tempore judgment of a magistrate – whether Local Court erred on a question of law alone in holding that defendants could not be vicariously liable for directly authorising a contractor to clear trees because they did not have any direct intervention with the sub-contractors. Legislation Cited: Crimes (Appeal and Review) Act 2001 s 42(2B)(b) Environmental Planning and Assessment Act 1979 ss 76A(1)(a), 125(1) Rural Fires Act 1997 ss 100Q, 100R Cases Cited: Acuthan v Coates (1986) 6 NSWLR 472 Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 CB v Director of Public Prosecutions (NSW) [2013] NSWSC 618 Director of Public Prosecutions (NSW) v Mathews-Hunter [2014] NSWSC 843 Director of Public Prosecutions v Gramelis [2010] NSWSC 787 Director of Public Prosecutions v Illawarra Cashmart Pty Limited [2006] NSWSC 343, 67 NSWLR 402 Director of Public Prosecutions v Smith [2012] NSWSC 281 Flaherty v Columbia Nursing Homes Pty Ltd [2007] NSWLEC 148, 152 LGERA 383 Matheson v Director of Public Prosecutions (NSW) [2008] NSWSC 550, 185 A Crim R 83 Stoneman v Lyons [1975] HCA 59, 133 CLR 550 Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300, 71 NSWLR 230 Walker Corporation Pty Ltd v Director-General Department of Environment Climate Change and Water [2012] NSWCCA 210, 82 NSWLR 12 Texts Cited: New South Wales Rural Fire Service, Vegetation Clearing Code of Practice for New South Wales, 2014 Category: Principal judgment Parties: 60302 of 2015 Mosman Municipal Council (Appellant) Wayne Spice (Respondent)