Willoughby City Council v Screnci [2015] NSWLEC 192

Land and Environment Court New South Wales

Medium Neutral Citation: Willoughby City Council v Screnci [2015] NSWLEC 192 Hearing dates: 16-18 June 2015; 17 November 2015 Date of orders: 10 December 2015 Decision date: 10 December 2015 Jurisdiction: Class 5 Before: Craig J Decision: Proceedings 50765 of 2014

1. To the extent necessary, give leave to the defendant to withdraw the plea of guilty entered on 27 March 2015 to the charge alleged in the amended summons filed that day.

2. Order that the defendant be acquitted of the charge alleged in the amended summons for the reason that the proceedings for the offence so charged were barred by the provisions of s 127(5) of the Environmental Planning and Assessment Act 1979.

3. The exhibits other than Exhibit A may be returned.

Proceedings 50766 of 2014

4. To the extent necessary, give leave to the defendant to withdraw the plea of guilty entered on 27 March 2015 to the charge alleged in the amended summons filed that day.

5. Order that the defendant be acquitted of the charge alleged in the amended summons for the reason that the proceedings for the offence so charged were barred by the provisions of s 127(5) of the Environmental Planning and Assessment Act 1979.

6. The exhibits other than Exhibit B may be returned. Catchwords: CRIMINAL LAW – plea of guilty entered – sentence hearing held – application to withdraw guilty plea and enter plea in bar – offences against s 125(1) of the Environmental Planning and Assessment Act – defendant caused development to be carried out without consent – prosecution must establish proceedings were commenced within limitation period – s 127(5) of the Environmental Planning and Assessment Act – evidence does not establish the proceedings were commenced in time – statutory bar upon commencement of proceedings cannot be waived – court to give effect to statutory bar even if plea has been entered – plea in bar established – leave to withdraw pleas of guilty – defendant acquitted of charges alleged Legislation Cited: Crimes Act 1958 (Victoria) Criminal Procedure Act 1986 (NSW) Environmental Offences and Penalties Act 1989 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Industrial Relations Act 1996 (NSW) Cases Cited: Brown Brothers v Pittwater Council [2015] NSWCA 215; 209 LGERA 53 Chief Executive, Office of Environment and Heritage v Manchee; Chief Executive, Office of Environment and Heritage v Bogamildi Investments Pty Ltd [2015] NSWLEC 117; 209 LGERA 280 Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 Environment Protection Authority v CSR Ltd t/as CSR Woodpanels [2001] NSWLEC 41; 114 LGERA 217 Industrial Registrar v Matters [2007] NSWIRComm 250 Kari & Ghossayn Pty Ltd v Sutherland Shire Council [2006] NSWLEC 532; 150 LGERA 231 Kim v R [2015] NSWCCA 115 Morgan v Babcock & Wilcox Ltd [1929] HCA 25; 43 CLR 163 R v Cooling [1990] 1 Qd R 376 R v Stone [2005] NSWCCA 344; 64 NSWLR 413 R v Tait [1995] VSC 154; (1996) 1 VR 662 Screnci v Willoughby City Council [2015] NSWLEC 1256 WorkCover Authority of NSW (Inspector Keenan) v Lucon (Australia) Pty Ltd [2002] NSWIRComm 68 Category: Principal judgment Parties: Willoughby City Council (Prosecutor) Joseph Robert Screnci (Defendant) Representation: Counsel: A M Pickles SC (Prosecutor) P W Larkin SC with C D Norton (Defendant) Solicitors: King & Wood Mallesons (Prosecutor) HWL Ebsworth (Defendant) File Number(s): 50765 of 2014 and 50766 of 2014