Liverpool City Council v Maller Holdings Pty Ltd (No.2)  NSW LEC 48
The Defendant, Maller Holdings Pty Ltd, carried on business under the name “Sydney Horse Transport” on and from a property located at Warwick Farm in Sydney. Commencing in the 1960s, various development consents had been granted under relevant environmental planning instruments authorising the use of the property for “stables”.
By summons filed in Class 5 of the Land and Environment Court‘s jurisdiction (environmental planning and protection summary enforcement) the prosecutor, the Liverpool City Council (whom Hones la Hood acted for), alleged that from June 2010 until about 20 June 2012 the respondent used the property in a manner prohibited by the currently applicable environmental planning instrument, the Liverpool Local Environmental Plan 2008 – namely, to conduct a horse transport business.
In a judgment of 19 September 2013, Pain J found that the Council had failed to prove the charge ( NSWLEC 154). However, her Honour deferred the making of final orders and acceded to the Council’s request to submit for determination by the Court of Criminal Appeal certain questions of law arising in the proceedings.
The Court of Criminal Appeal ( NSW CCA 229) held that the task of determining whether the use of the property was prohibited by the Liverpool LEP and for the purpose of determining whether the use of the property was authorised by the historic consents, the primary judge needed to find “what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises” in the charge period and that this was a single task that did not involve determining the use of the property twice.
Further the Court held that the authorisation by the historic consents of part of the actual use of the property was not sufficient to result in failure of the prosecution. There remained in such circumstances a use of the property that is unauthorised (i.e. as a horse transport depot).
Whether the part of the use was authorised would turn on whether that use was for an independent purpose of stabling, or whether the activities in question, whilst constituting stabling, were subsumed in the overall horse transport business such that they were not in substance carried out for the purpose of stabling but for the purpose of the horse transport business.
On remitter her Honour Pain J found the defendant guilty of operating a horse transport depot from land in Warwick Farm (there were existing approvals authorising the use of the land for stables however those approvals did not authorise the actual use to which the land was being put, namely, the purpose of operating a horse transport business).
On 2 April 2015 her Honour convicted the defendant of the charge and imposed the largest single fine ($500,000.00) in respect of a charge of its kind in New South Wales planning history. The fine was in addition to an order that the Defendant pay the Council’s legal costs, which costs were significant. The Council in that matter was represented by Hones Lawyers lawyers.
This matter is important as it represents a shift and new age in penalties imposed for planning law offences, which we expect will be reflected in the increased penalties which we are currently awaiting implementation.