Phone 4342 2070 Fax 4342 2071 Email us

2002 (c) Peninsula Community Access Newspaper Inc

 

Cottage demolition prosecution fails

 

Gosford Council's prosecution for the unauthorised demolition of the Ferry Master's Cottage at Wagstaffe has failed.

The Land and Environment Court found that the prosecution was made under the wrong section of the act.

It found that the prosecution should have been made under a different section of the act, which the judge said had been breached.

A prosecution under this section of the act cannot be made now, as the time limit for such a prosecution had expired.

Following the court decision, Gosford Council issued a press release about the matter:

"The Ferry Master's Cottage at Wagstaffe was demolished in 2001.

"Council considered that the cottage was a heritage item that warranted preservation and that the demolition required development consent.

"Council prosecuted the owner of the land and the person who carried out the demolition for a breach of the act.

"Council believed that the offence was carrying out work without consent.

"The hearing of the prosecution was in the Land and Environment Court on June 25, before Mr Justice Lloyd.

"An unexpected decision was made on a question of law to acquit the defendants of the charges.

"The defendants argued that they had no case to answer because demolition of a dwelling is exempt development or prohibited development.

"The charges showed no offence because the prosecution was brought under s76A of the act being the carrying out of development without consent.

"The Court said the charge should be under s76B for carrying out prohibited development.

"Council's barrister successfully argued that the wording of the planning ordinance was clear.

"He argued that the demolition of dwellings and retaining walls were not development exempted from the need for Council's consent, as were heritage items identified in the instruments.

"The barrister unsuccessfully argued that demolition of the cottage was permissible with consent.

"Surprisingly, the Court ruled that demolition of a dwelling is not exempt development under the relevant provisions of the Council's planning ordinance, but because the ordinance prohibits demolition of a dwelling in the Residential 2(a) zone, Council did not have the power to consent to the demolition of the dwelling and therefore the defendants did not commit the offence for which they had been charged.

"The Court effectively ruled that the demolition was prohibited, and so unlawful, but because Council could not permit the demolition, the way the illegal act was prosecuted was incorrect and so the charges were dismissed.

"His Honour commented that the Defendants had breached s76B of the Act in that they had carried out prohibited development but held that there was no case to answer because the development they carried out was not development, to which Council had the power to consent, which was the offence with which they were charged under s76A.

"The following orders were made: Charges dismissed; the prosecutor to pay the costs of the defendants; the exhibits be returned.

"No fresh prosecutions under s76B of the Act for carrying out prohibited development can be commenced because the time limits for such a prosecution is only 6 months from the date of the offence."

Press release, June 28