Benedict Industries Pty Ltd v Sutherland Shire Council [2015] NSWCCA 272

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Benedict Industries Pty Ltd v Sutherland Shire Council [2015] NSWCCA 272 Hearing dates: 7 August 2015 Decision date: 26 October 2015 Before: Macfarlan JA at [1]; Adams J at [61]; Fagan J at [62] Decision: (1) Grant leave to appeal. (2) Dismiss the appeal. Catchwords: ENVIRONMENT AND PLANNING – environmental offences – appeal – challenge to validity of Tree and Bushland Preservation Order the subject of four criminal charges – whether Council purported to make the Order – whether the Order lawfully made by Council under relevant environmental planning instrument – whether, by purporting to prohibit certain conduct, the Order was outside the authority conferred on the Council by the planning instrument – whether the Order was impliedly repealed by the repeal of the relevant planning instrument by a later environmental planning instrument – appeal dismissed Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5F Environmental Planning and Assessment Act 1979 (NSW), ss 24, 26 Interpretation Act 1987 (NSW), s 32 Local Government Act 1993 (NSW), s 371 Cases Cited: Andrews v Howell [1941] HCA 20; 65 CLR 255 Bank of New South Wales v The Commonwealth [1948] HCA 7; 76 CLR 1 Harrington v Lowe [1996] HCA 8; 190 CLR 311 Myer Queenstown Garden Plaza Pty Ltd v Corporation of the City of Port Adelaide (1975) 11 SASR 504 Category: Principal judgment Parties: Benedict Industries Pty Ltd (Appellant) Sutherland Shire Council (Respondent) Representation: Counsel: T Howard SC with C Ireland (Appellant) D Buchanan SC with P Dwyer (Respondent)