De Battista v Shoalhaven City Council

Land and Environment Court (NSW)|2020-10-29|Before: Pain J

SOLICITORS: M E McMahon & Associates (Appellant) Foundation Law (Respondent) File Number(s): 20/90835 Decision under appeal Court or tribunal: Local Court Nowra Jurisdiction: Criminal Date of Decision: 10 March 2020 Before: Farnan LCM File Number(s): 18/339270

Judgment

The Appellant appeals against his conviction in the Local Court on 10 March 2020 for an offence in 2016 against s 76A(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) as then in force. Such an appeal can be made pursuant to s 31 of the Crimes Appeal and Review Act 2001 (NSW) (CAR Act).
The offence particularised in the Court Attendance Notice (CAN) issued on 31 October 2018 was that the clearing of 24 trees on Lot 1 DP 1082382 at 114 Island Point Road, St Georges Basin was contrary to subdivision consent SF10111 granted by Shoalhaven City Council (the Council) in 2011 (the seven-lot subdivision consent). The Appellant was found guilty by the Local Court Magistrate on 10 March 2020. The Appellant's contentions on appeal included that as another consent, No 002197 for a Manufactured Housing Estate granted in 2001 (the MHE consent), was in force in the charge period, it was possible the Appellant was acting in accordance with that consent.
This appeal is a rehearing of the matter based on the evidence in the Local Court hearing, as provided by s 37 of the CAR Act. I do not need to identify errors of law by the Magistrate. The grounds as contained in the amended summons were not pressed in their terms, as these alleged errors of law by the Magistrate. The grounds of appeal evolved in the course of the hearing. The single ground of appeal finally argued was that: The Respondent, Shoalhaven City Council (the Council) must prove, and has not proven beyond reasonable doubt, that the clearing of trees particularised in the CAN on Lot 1 was carried out in furtherance of the seven-lot subdivision consent. Accordingly the offence was not proven.
There is no factual dispute as between the parties that trees were cleared on land known as Lot 1 DP 1082382 (Lot 1) on and after 19 November 2016 by the Appellant, or persons acting under his control, and that the clearing was not in accordance with Condition 10 of the seven-lot subdivision consent the subject of the charge. The parties agreed that the MHE consent related to land known as Lot 26 DP 25550 (Lot 26) at the time consent was granted. Pursuant to the registration of DP 1082382 on 23 May 2005, Lot 26 was subdivided to create a public road and became Lot 1 DP 1082382 (Lot 1). The seven-lot subdivision relates to Lot 1 and Lot 6 DP 1082382 (Lot 6), which was formerly Lot 25 DP 25550 (Lot 25). In short, Lot 25 became Lot 6 and Lot 26 became Lot 1.

Crimes Appeal and Review Act 2001 (NSW)

Relevant sections of the CAR Act provide: Part 4 Appeals from Local Court to Land and Environment Court Division 1 Appeals by defendants Subdivision 1 Making of appeals 31 Appeals as of right (1) Any person who has been convicted or sentenced by the Local Court with respect to an environmental offence may appeal to the Land and Environment Court against the conviction or sentence. (1A) Subsection (1) does not apply in respect of a conviction if the person was convicted in the person's absence or following the person's plea of guilty. (2) An appeal must be made - (a) within 28 days after sentence is imposed, or (b) if an application for annulment of the conviction or sentence has been made under Part 2 within that 28-day period, within 28 days after the Part 2 application is disposed of under that Part, but (in the case of an appeal against conviction) may not be made before sentence is imposed. … Subdivision 2 Determination of appeals … 37 Appeals to be by way of rehearing on the evidence (1) An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 38. (2) Fresh evidence may be given, but only by leave of the Land and Environment Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given. ….

Environmental Planning and Assessment Act 1979 (NSW)

Relevant sections of the EPA Act as in force during the charge period in November 2016 provide: Part 4 Development assessment Division 1 Carrying out of development - the threefold classification … 76A Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. (2) For the purposes of subsection (1), development consent may be obtained: (a) by the making of a determination by a consent authority to grant development consent, or (b) in the case of complying development, by the issue of a complying development certificate. (3), (4) (Repealed) …. (6)-(9) (Repealed) … Division 7 Post-consent provisions 95 Lapsing of consent (1) A development consent lapses 5 years after the date from which it operates. … (4) Development consent for: (a) the erection of a building, or (b) the subdivision of land, or (c) the carrying out of a work, does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under this section. (5) Development consent for development other than that referred to in subsection (4) does not lapse if the use of any land, building or work the subject of that consent is actually commenced before the date on which the consent would otherwise lapse. ….

Court attendance notice

The CAN is extracted as follows: Details of Offence Description of Offence: Development not in accordance with development consent Time & Date of Offence: 19 November 2016 Place of Offence: 114 Island Point Road, St Georges Basin NSW 2540 The Land (a) The Land is comprised of Lot 1 in DP1082382, 114 Island Point Road, St Georges Basin NSW 2540 The Consent (b) On 30 May 2011, Council granted development consent SF10111 (Consent), under the EPA Act. (c) The Consent relates to the subdivision of the Land and selective clearing of the Land. (d) On 13 October 2016 the Consent was modified pursuant to section 96 of the EPA Act and a consolidated consent was granted by Council under document reference number SF10111 and DS16/1334, which incorporated the terms of the modification (Modified Consent). (e) Condition 10 of the Modified Consent provides that all trees on the Land are to be retained except: i. if written advice from a qualified arborist is received by Council stating that trees are dangerous; Short Particulars: ii. on the alignment of services; iii. to achieve the minimum RFS requirements. The Development (f) Between 19 November 2016 and 24 November 2016, the defendant did knock over 24 trees on the Land (and therefore failed to retain 24 trees on the Land), otherwise than in accordance with the Consent, being trees that did not fall within the exceptions to Condition 10 of the Modified Consent and were therefore removed otherwise than in accordance with the Modified Consent. Manner of contravention by the Defendant (g) The said development was carried out by the Defendant; and/or (h) The said development was carried out by servants, agents and/or contractors of the Defendant with the Defendant's authority and on the Defendant's instructions. Date on which evidence of the offence first came to the attention of an authorised officer: (i) 19 November 2016.

Evidence

The Council tendered an Appeal Book (marked Ex 2) consisting of the orders and judgments of the Local Court, transcripts of the Local Court hearings, and the documents, evidence and submissions that were before the Local Court. Not all of this material was relied on by the parties. Only that material referred to in the hearing is set out below.
An Agreed Statement of Facts (ASOF) was prepared for the purposes of the Appellant's motion for a permanent stay of the proceedings in the Local Court. The only paragraph the Court was taken to by the parties in the appeal provides: 8. SF10111 authorises subdivision of the land into 11 lots and was in force on the date of the alleged offence.

Seven-lot subdivision consent

The seven-lot subdivision consent (SF10111) was granted on 30 May 2011 subject to conditions. These included: Habitat Modification, Removal and Management 9. There shall be no removal or disturbance of indigenous vegetation within the buffer to the Melaleuca biconvexa as shown on the approved plan, including canopy trees, understorey and groundcover vegetation, without development consent. Any development application for the removal or modification of vegetation with the buffer must be accompanied by an Assessment of Significance in accordance with Section 5A of the Environmental Planning and Assessment Act, 1979. 10. Trees outside the buffer are to be retained except; a) if written advice from a qualified arborist is received by Council stating that trees are dangerous; b) on the alignment of services; c) to achieve the minimum RFS requirements. The remaining trees are to be retained. …
As noted above in [4], the seven-lot subdivision applies to Lot 1 and Lot 6.

MHE consent

The MHE consent (DC 002197) was granted on 2 May 2001 subject to conditions. These included: Compliance with Conditions 3. The use shall not commence until all relevant conditions of development consent have been met or unless other satisfactory arrangements have been made with Council (i.e. a security). … ENGINEERING 24. Compliance with the following engineering conditions:- a) Construction of a 6 metre wide Asphaltic Concrete (AC) carriageway and 0.5 metres shoulders from Island Point Road to point opposite visitor parking spaces 1-6. The entrance is to be at right angles to the new street. The provision of concrete barrier kerb and gutter on the northern side of the pavement together with associated drainage. The drainage is to be connected to Council's underground system in Island Pont Road. The road pavement is to be designed for a traffic loading of 2x10 E.S.A. Sub-soil drainage is to be provided behind the kerb line. b) Construction of a 6.0 metre wide AC pavement within the development and as shown on Plan 1583/DA1 as amended dated 28/11/00, together with kerb and gutter and associated drainage. Alternatively, the pavement may be constructed in patterned concrete having a "vee" profile and associated drainage. The latter would not require kerb and gutter. Suitable turning heads for non-commercial vehicles is to be provided. The pavement is to be designed for a traffic loading of 2x104 E.S.A. Subsoil drainage is to be provided behind the kerb line. c) Pavement design is to be approved by the Development Manager - Subdivisions prior to any works being undertaken.
As noted above in [4], the MHE consent applies to Lot 26 (which corresponds with Lot 1).

Has Council established beyond reasonable doubt that CAN offence was carried out in furtherance of the seven-lot subdivision consent?

The Council must establish each element of the offence with which the Appellant is charged beyond reasonable doubt. The Council bears the onus of proof of establishing the elements of the offence identified in the CAN.
The charge under s 76A(1) provides that development may not be carried out unless a development consent has been obtained and is in force, where required by an environmental planning instrument, and the development is carried out in accordance with the development consent. The Appellant accepts that the specified development is the carrying out of the subdivision and the removal of trees for the purposes of the subdivision. The Shoalhaven Local Environmental Plan 2014 provides that development consent was required for the specified development.
Consideration of whether the Council has discharged its onus in light of the parties' respective cases requires, firstly, consideration of the evidence relied on by the Council, and secondly, the MHE consent and whether it is relevant inter alia. As will become clear below, the interaction between the discrete areas of contest is not completely straightforward.

Affidavits relied on by Council in relation to tree clearing

The Council read three affidavits seeking to establish that the tree clearing the subject of the CAN was undertaken in furtherance of the seven-lot subdivision.
The Council read the affidavit of Mr Greg John Owens sworn 28 June 2019. Mr Owens lives on Anson Street which, according to a hand-drawn map attached as Annexure A to his affidavit, runs between what he describes as the southern and northern portions of the Appellant's land (referred to by Mr Owens as "the Site"). I note that the southern portion as described by Mr Owens is Lot 6, and the northern portion is Lot 1. The Council relied on pars 8-11 of that affidavit in particular which provide: 8. I have observed work being carried out by the man I have identified as Mr De Battista, on the Site. 9. I cannot recall the precise dates on which I observed this work. However, I believe that the work took place some time in late 2016. 10. At that time, I observed Mr De Battista performing work on the Southern part of the Site. I observed Mr De Battista in the cab of an orange excavator. He appeared to be struggling with his operation of the excavator in his attempt to move felled trees on the Site. 11. Some time after observing work being performed on the southern portion of the Site, I observed work being performed on the Northern part of the Site.
The Council read the affidavit of Mr Michael Willoughby sworn 1 July 2019. Mr Willoughby lives on Island Point Road immediately to the south of Lot 6. North of Lot 6 is Anson Street, north of which is Lot 1. References in his affidavit to "Ros" are to his partner Ms Roslyn Middlemiss who also swore an affidavit in the proceedings (see [20] below). In particular the Council relied on pars 6, 7, 8 and 11 of Mr Willoughby's affidavit which provide: Works carried out on Lot 1 6. On 18 November 2016, Ros and I returned home from a holiday in Victoria. 7. At this point in time, the majority of Lot 6 had already been cleared of most trees and vegetation. There was a remnant stand of vegetation in the middle of Lot 6. However this stand of vegetation did not obstruct my view across Lot 6, across Anson Street and into Lot 1. 8. Early in the morning of 19 November 2016, I was standing in my rear yard looking over the fence into Lot 6 and Lot 1. I had been keeping a close eye on developments on this land because I was disappointed by how much destruction was being caused to the vegetation as well as the ongoing nuisance caused by the machinery involved in carrying out that work. … 11. On this particular morning, I observed Mr De Battista using the bucket of the excavator to push over trees. In some cases, where the tree was too large to push over, Mr De Battista would dig the bucket into the soil around the base of those trees to loosen the roots and then knock the tree over.
The Council read the affidavit of Ms Roslyn Middlemiss sworn 1 July 2019, who resides at the same location identified by Mr Willoughby (see [19] above). In particular the Council relied on pars 7-14 of that affidavit which provide: 7. Up until the last 18 months or so, I have observed a man residing in the dwelling on Lot 1, who I now know to be David John De Battista. 8. On several occasions, I have observed Mr De Battista operate an excavator on Lot 1 and Lot 6. The excavator he operates is large, orange and is equipped with digging bucket. 9. On the days that I have seen Mr De Battista performing work on Lots 1 and 6, I observe that he will exit his dwelling, enter his white, four-wheel-drive Nissan Vehicle, drive to the location of an excavator situated on either Lot 1 or Lot 6. He will then exit his four-wheel-drive vehicle and enter the excavator. 10. Mr De Battista is usually dressed in shorts, a shirt or blue singlet, and thongs. Clearing activities on 19 November 2016 11. On the morning of 19 November 2016, I was sitting in the living room of my home at St Georges Basin when Michael entered and said words to me to the effect of: "He's out the back, clearing trees." 12. I immediately got up and walked out to the veranda at the rear of my house. The veranda is elevated off the ground. From a standing position, I can see clear over my back fence directly over Lot 6, and into Lot 1. 13. I observed Mr De Battista in the orange excavator. He was using the digging bucket of the excavator to knock over large trees that occupied Lot 1. 14. I had an unobstructed view of the excavator and Mr De Battista. Although there is a stand of vegetation on Lot 6 that obscures my view of part of Lot 1, the work being carried out by Mr De Battista was within that area of Lot 1 of which I had a clear and unobstructed view.
The Council identified two further documents annexed to the affidavit of Ms Alison Dalyell, council officer, sworn 24 June 2019, read by the Appellant. Ms Dalyell's affidavit describes the Council's record-keeping systems and annexes several documents that are on the Council's files relevant to the seven-lot subdivision consent and MHE consent.
A plan prepared by Allen Price & Associates dated October 2008 displays the "proposed subdivision of Lots 1 and 6 DP 1082382 (incorporating previous approvals approved by SCC in Development Consent No. SF 9795 & SF 10111) at Island Point Read, St Georges Basin for Eastern Grey Pty Ltd".
A letter was sent from Mr Ian Dollery, subdivision engineer, to Allen Price & Associates on 28 May 2012 in relation to clearing over Lots 22-24 in SF 9795 and Lots 1-11 in SF10111 (the seven-lot subdivision consent). The letter identifies that approval of the subdivision clearing works was granted under the EPA Act, being current until 28 May 2014, before which time clearing works should be completed. The letter says that all clearing works must be carried out in accordance with the conditions of approval of the relevant subdivision consents, noting in particular that works on Lots 1-11 are to be carried out in strict accordance with Conditions 12, 13, 15-21, 23-26 and 30 of the seven-lot subdivision consent. The letter states that plans endorsed by the subdivision manager are enclosed. These plans are not annexed to the affidavit of Ms Dalyell.

Statement relied on by Appellant in relation to tree clearing

The Appellant read part of the affidavit of Mr Ian John Staples, council officer, sworn 24 June 2019 which describes his inspections of Lot 1 and a discussion that took place with Mr De Battitsa on site on 8 October 2018. Part of that conversation was recorded as follows: 27. I then handed Mr DeBattista a Notice to Furnish Information, Council reference ON2018/6235 (D18/335164) which he accepted. Council eventually withdrew this notice and it is not attached to my affidavit here. I then continued with my conversation with Mr de [sic] Battista in words to the following effect: Me: " Can you email this to me?" De Battista: "I can email a copy once I return to the office. Can I have your email address? [omitted]. There was an approval for a manufactured home estate, then an approved subdivision and clearing plan. I now have approval to remove trees from here, But I won't be doing anything until the Court case is settled trees in the top corner over there and five trees over there".
The parties agreed that the first two lines of conversation recorded in par 27 have been wrongly attributed to Mr Staples and Mr De Battista respectively. The Appellant did not give any evidence himself in the Local Court proceedings.

Appellant's submissions

A prosecutor must establish each element of an offence with which a defendant is charged beyond reasonable doubt. It is axiomatic that in order to prove a defendant's guilt, a prosecutor must negate all reasonable hypotheses consistent with that defendant's innocence beyond a reasonable doubt: Ku-ring-gai Council v John David Chia (No 15) [2019] NSWLEC 1 at [502]-[503] per Robson J, citing Thomas v The Queen (1960) 102 CLR 584; [1960] HCA 2 at 605-606 per Windeyer J.
The Council alleged in the CAN that the Appellant had carried out development of clearing 24 trees which was not in accordance with the seven-lot subdivision consent. Firstly, the evidence relied on by the Council does not establish the purpose of the tree clearing the subject of the charge. The only evidence of purpose is from the Appellant when he told Mr Staples he was relying on the MHE consent (as extracted in [24] above). This is not hearsay as the truth of what is stated does not need to be relied on, rather it is a statement of Mr De Battista's opinion. The Appellant's case is supported by Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 4) [2019] NSWLEC 58 (Leda Manorstead) at [76]-[77], [87].
The Council's affidavits do not prove that the clearing on Lot 1 was in pursuance of the seven-lot subdivision consent. The Court cannot find beyond reasonable doubt that the Appellant was carrying out the seven-lot subdivision consent when undertaking works on Lot 1 in the face of positive evidence, being his statement to Mr Staples showing that he was aware of the MHE consent. The statement suggests that he relied on the MHE consent when tree clearing. The only evidence that could go to establishing that the Appellant was carrying out the seven-lot subdivision consent is evidence of works on Lot 6. The affidavits of Mr Willoughby and Ms Middlemiss relied on by the Council refer only to activities on Lot 1. Paragraph 10 of Mr Owens' affidavit (see [18] above) is the sole evidence of work being performed on Lot 6. In any event, it has not been established by the Council that activities on Lot 6 observed by Mr Owens were works requiring development consent. This scant evidence cannot prove beyond reasonable doubt what the Council relies on it to prove.
Secondly, more than one consent can apply to land. The MHE consent had been granted which permitted the clearing of trees on Lot 1. It commenced in 2001 and/or 2006 (see submissions in [53]-[58] below), meaning it had not lapsed at the time of the charge. The Appellant's counsel accepted that he must prove on the balance of probabilities that the MHE consent had commenced before the charge period. If able to do so the MHE consent provides a reasonable alternative hypothesis for why the trees were cleared.
Thirdly, even if the MHE consent had not commenced, the available evidence suggests that the Appellant acted in reliance on that consent. Even if mistaken in doing so, the clearing would give rise to a different charge other than the charge particularised in the CAN.
The Council cannot establish beyond reasonable doubt that the purpose of the tree clearing was in furtherance of the seven-lot subdivision consent. The Appellant accepted that if the Council could establish beyond reasonable doubt that the tree clearing was carried out in pursuit of the seven-lot subdivision consent, no benefit from the MHE consent would arise.

Council's submissions

The Council's evidence establishes beyond reasonable doubt that the offence of clearing trees particularised in the CAN was carried out in furtherance of the seven-lot subdivision consent.
There is sufficient and corroborating evidence before the Court which shows that at the dates specified in the CAN, 19-24 November 2016, the Appellant was performing work on Lot 1 pursuant to the seven-lot subdivision consent. The affidavit evidence of Mr Owens (see [18]-[18] above), Mr Willoughby (see [19] above), and Ms Middlemiss (see [20] above) confirms that work was being carried out by the Appellant on Lot 1 on or around 19 November 2016. Specifically, Mr Owens deposed that excavation work was undertaken in late 2016 on both the northern and southern parts of what he called the Site (being Lot 1 and Lot 6 respectively) (the Site). Mr Willoughby described seeing the Appellant use the bucket of an excavator to push over and dig out trees on 18 November 2016. Ms Middlemiss said she saw the Appellant operating an excavator on Lot 1 and Lot 6. She observed the Appellant knocking over large trees on Lot 1 on 19 November 2016.
It was an agreed fact before the Local Court that the seven-lot subdivision consent was in force in the charge period, as stated at par 8 of the ASOF (see [9] above). The evidence of Mr Owens, Mr Willoughby and Ms Middlemiss confirms that the seven-lot subdivision was physically commenced and operative.
Critically, only the seven-lot subdivision applied to Lot 6 (the MHE consent applied only to Lot 26, which became Lot 1). It follows that works requiring development consent performed on Lot 6 must have been performed in furtherance of the seven-lot subdivision consent. Mr Owens' affidavit (see par 10 extracted in [18] above) confirms that work was being performed on the southern part of the Site, which corresponds with Lot 6. The Court can therefore comfortably draw the conclusion beyond reasonable doubt that the trees were removed pursuant to the seven-lot subdivision consent.
The Appellant's submission that the tree clearing on Lot 1 was not for the purpose of the seven-lot subdivision is fanciful. The High Court considered the distinction between reasonable doubt and fanciful doubt in The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36 (Dookheea) at [36].
The Council is not required to prove beyond any doubt that the trees were removed in furtherance of the seven-lot subdivision consent, only that this is beyond a reasonable doubt. The Court would need to find that it is reasonable to conclude that the MHE consent was not only operative but was the only consent the Appellant pursued with respect to Lot 1. The facts and evidence before the Court do not support that conclusion. The Court cannot reasonably conclude that the MHE consent was the development consent pursuant to which the trees were removed. Rather, as outlined above, there is undisputed evidence that the Appellant was performing work on Lot 1 and Lot 6 in November 2016 pursuant to the seven-lot subdivision consent.
The existence of the MHE consent does not raise a reasonable doubt that that consent is what the Appellant was pursuing. Nor do the statements of the Appellant as recorded in Mr Staples' affidavit, relied on by the Appellant to submit that his intention to remove the trees for the purpose of the MHE consent was expressed in clear terms. There is no other evidence of what was in the Appellant's mind or his intention. His purported intention to carry out the MHE consent cannot be gleaned from the conversation with Mr Staples as recorded in his affidavit. Under the rules of evidence, the statement is hearsay at best as this recorded conversation is being relied on as evidence of something that was said. It cannot be taken as evidence of the truth of the statement. Considering what the Appellant actually said to Mr Staples, the Appellant submits that he was expressing that the clearing of trees was performed in furtherance of the MHE consent. In the conversation the Appellant referred to a clearing plan. The only approval of clearing that is in evidence was given under the seven-lot subdivision consent (see [21] above). There is no plan or other approval for clearing works other than in accordance with that consent. The Appellant stated that he now had approval to clear trees from here in 2016. Mr Staples' affidavit is not evidence of the Appellant's intention to carry out works in accordance with the MHE consent and cannot cast a reasonable doubt.
Leda Manorstead at [76] sets out fundamental tenets of planning law that apply to development consents. Those principles are that the granting of subsequent, successive consents for the Appellant's land does not derogate from the rights and privileges enjoyed under previous consents. Equally, obligations imposed under later consents are not derogated from by rights and privileges conferred by earlier consents. Consents can operate simultaneously, and the various obligations arising under all of them may be enjoyed as the consent holder pleases, except where to exercise a right under one consent would cause another operative consent to be contravened.

MHE consent commenced before charge period?

The Appellant sought to establish on the balance of probabilities that the MHE consent was in force in the charge period because, it was submitted, this was a reasonable alternative hypothesis which the Council had to negative and it had not done so. My understanding of the Appellant's alternative position is that if the MHE consent had not lapsed as a matter of fact before the charge period, that strengthens the submission that it existed as a reasonable alternative hypothesis, suggesting the Council cannot prove the charge set out in the CAN. I note that the Appellant also submitted that it did not matter whether the MHE consent was in fact commenced before the charge period in light of his statement to Mr Staples set out at [24].

Evidence

The Appellant identified several documents relevant to whether the MHE consent had commenced in the charge period annexed to the affidavit of Ms Dalyell, council officer, sworn 24 June 2019, read by the Appellant. Relevant annexures from Ms Dalyell's affidavit were downloaded from the Council's Total Records Information Management (TRIM) database after a search of that database for documents relevant to the MHE consent (amongst other searches described in her affidavit). These are summarised below in chronological order.
Other evidence relevant to whether the MHE consent had commenced in the charge period was annexed to the affidavit of Ms Danya Erin Deller, legal assistant, affirmed 24 January 2020, read by the Appellant. In July 2015 she printed several documents sent to her via email correspondence from solicitors who previously acted for the Appellant. Relevant annexures from Ms Deller's affidavit are council records related to Lot 1, obtained by her in her position as legal assistant. These are summarised below in chronological order.

2001 events

A compaction test report and California bearing ratio test report were prepared by Australian Soil Testing Pty Ltd for Cottier & Associates Pty Ltd (Cottier & Associates) on 19 October 2001.
A geotechnical assessment addressed to the Appellant for the proposed subdivision at Island Point Road St Georges Basin was prepared by Cottier & Associates on 22 October 2001 which included a recommended pavement thickness design.
A letter from Mr John Blom, the Council's subdivision manager, to Eskander Partners dated 14 April 2003 included an approval for construction works (road and drainage) on Lot 26.
A letter from Mr Blom, dated 15 August 2003 advised Cottier & Associates that the Council had received a pavement design for the Appellant's proposed development and that pavement thickness needed to be reduced. The letter stated "please amend accordingly and then [sic] for approval".

2006

A file note dated 12 January 2006, titled "DA00/2197", prepared by Mr Rob Christlo of the Council describes a conversation with the Appellant on 9 January 2006. The final paragraph states: In the conversation with him he indicated that he wanted to secure his consent by commencing works and he was told that he should physically do some of the drainage or roadworks. He said that plans will be changing due to a proposed Council road through the property so he was advised to do some works which would not be affected by these roadworks.
An inspection report describing a council inspection of the site of the MHE consent described as inspection type "go to site" was prepared on 17 February 2006 displaying the result "NOT PASSED", with special instructions as follows: CAN WE CHECK THAT THERE HAS BEEN SUBSTANTIAL COMMENCEMENT prior to lapsing of the consent
Under Comments/Instructions the report states: Informed David that footings of at least 1 unit needs to be poured by the 2nd of May.
A letter from Mr Garon Irwin, district building surveyor, dated 22 March 2006 advised Mr De Battista as follows: In order to justify substantial commencement by the Development Application lapse date of 2nd May 2006; provide at least one of the manufactured homes footings inspected and poured by this date.
A second inspection report detailing a council inspection of the site of the MHE consent described as inspection type "footings, piers" was prepared on 11 April 2006 displaying the result "PASSED".
Under Comments/Instructions the report states: Spoke with David… Piers to be well cleaned out prior to pouring of concrete.

Appellant's submissions

The Appellant accepts that he bears the onus of proving on the balance of probabilities that the MHE consent had commenced before the charge period. The Appellant submitted that the MHE consent had physically commenced and was in force in the charge period.
Section 95(4) of the EPA Act in force in the relevant period identified that a consent is commenced if physical commencement occurs. Preparatory work such as design and preliminary construction works can be relied on for physical commencement: see Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council (2005) 63 NSWLR 124; [2005] NSWCA 169 at [83], [98], [108] and [109] (Tobias JA) (Hunter Development), Norlex Holdings Pty Ltd v Wingecarribee Shire Council (2010) 177 LGERA 261; [2010] NSWLEC 149 at [80] and [90] (Pepper J). Hunter Development at [104] makes clear that preparatory works will be sufficiently connected to the consent granted if they are a necessary step or part in the process required for carrying out the work authorised by the consent. In Hunter Development at [108], geotechnical investigation works were held to be part of the approved subdivision works as "a development consent may by implication be a consent to matters incidental to the development", citing Mahoney J in Auburn Municipal Council v F N Eckold Pty Limited [1974] 2 NSWLR 148 at 153.
The preparatory works undertaken in 2001, including soil sampling and preparation of an engineering report as set out in [43]-[46] above, demonstrate that the MHE consent had physically commenced. The engineering analysis of the soil was clearly a necessary step in, or part of, the process required for, or involved in, the erection of the carrying out of the work which is authorised by the consent (per Hunter Development at [104]). A geotechnical assessment was prepared in late 2001 and amended in 2002 (see [44] above). That the Council wrote to the Appellant in August 2003 requesting that the pavement thickness design measurement be amended to comply with Condition 24(c) of the MHE consent (see [46] above) does not mean that the engineering works undertaken were unlawful. Contrary to the Council's submission, Conditions 3 and 24 of the MHE consent have no relevance to the engineering works. Condition 24(c), properly construed, means pavement works cannot be undertaken until pavement thickness design is approved, not that preparatory engineering works and a geotechnical assessment could not have been lawfully prepared. It is illogical to say that if the pavement thickness design had not been approved the earlier preparatory works and preparation of the geotechnical assessment were unlawful. The engineering works were the physical commencement of the MHE consent.
If the Court finds that the 2001 engineering works did not constitute physical commencement, the Council went on to inspect and pass later works in 2006 which satisfy physical commencement. These further works arose because the Council identified expressly that commencement was required to ensure the consent did not lapse (see [48]-[50] above). Those later works, the digging of footings and construction of piers, were passed by the Council (see [51] above) and constituted physical commencement. The Council, incorrectly applying the test of substantial rather than physical commencement, sought to ensure that the MHE did not lapse, as evident from conversations recorded with the Appellant (summarised in [47]-[49] above). The Council authorised and passed an inspection document which makes clear that the works it believed were required for commencement of the MHE consent were undertaken in 2006, being works to excavate and construct piers (see [51] above). It is irrelevant that it has not been proven that concrete was poured (see comments on inspection report in [52] above) because the excavation of footings for the construction of piers was physical commencement.
The presumption of regularity should be applied regarding the further approval required for the pavement thickness design. It appears from how the Council was operating that it did not consider that any further approval was required for lawful works to be undertaken. The presumption of regularity as described by Pepper J in Sutherland Shire Council v Benedict Industries Pty Ltd (No 8) [2017] NSWLEC 4 (Benedict Industries) at [328] is a presumption of fact associated with a reasonable inference based on what happens in the ordinary course of human affairs, citing Hill v Woollahra Municipal Council (2003) 127 LGERA 7; [2003] NSWCA 106 at [52]. The Court of Appeal in Darley Australia Pty Ltd v Walfertan Processors Pty Ltd (2012) 188 LGERA 26; [2012] NSWCA 48 at [115] (quoted by Pepper J in Benedict Industries at [331]) described the presumption as a rule of very general application, that where an act is done which can be done legally only after the performance of some prior act, proof of the latter carries with it a presumption of the due performance of the prior act. On this basis, there is therefore no doubt that the MHE consent commenced.
In reply, current High Court authority is that context is vital to the construction of text. It is not open to the Court to find that the pavement thickness design had to be approved pursuant to Condition 24(c) for the consent to commence.

Council's submissions

The Council submitted that, strictly speaking, the MHE consent does not arise for consideration given that the Council has established its case that the clearing was pursuant to the seven-lot subdivision consent beyond reasonable doubt. However, as the Appellant relies on it, the Council submitted that the MHE consent lapsed before the offence period in November 2016. That the Appellant purported to rely on it even if lapsed is fanciful.
The Council submitted that the MHE consent lapsed before the charge period because Condition 24(c) of the MHE consent required the pavement thickness design to be approved before any works could commence. No such approval was given. Any works carried out were therefore unlawful. The Council's letter of 15 August 2003 requesting that the pavement thickness design be amended to comply with Condition 24(c) of the MHE consent (see [46] above) indicated that amendment was required before approval. As there is no evidence that an amended design was ever provided to the Council, it follows that no pavement thickness design was ever approved, as required by Condition 24(c). This does not mean the Appellant could not have undertaken preliminary works, but rather means that these works cannot be relied on to establish the consent had not lapsed as they were not lawful works under the MHE consent.
The words of Condition 24(c) are clear and unambiguous, requiring approval prior to any works being undertaken. It is a principle of construction that words should be given their plain and unambiguous meaning. K and M Prodanovski Pty Ltd v Wollongong City Council (2013) 195 LGERA 23; [2013] NSWCA 202 (Prodanovski) at [30] emphasises that conditions of consent should be given their plain meaning.
The Appellant cannot therefore rely on s 95(4) of the EPA Act to satisfy physical commencement because the use which the MHE consent authorised could not commence until all conditions of the MHE consent were met. That the Council approved works in 2006 cannot overcome the effect of non-compliance with Condition 24(c). It also follows that the Appellant cannot rely on s 95(4) of the EPA Act to satisfy physical commencement because Condition 24(c) required the pavement thickness design to be approved prior to any works being undertaken. The MHE consent was not lawfully commenced and lapsed on 2 May 2006. It was not in force in the charge period.

MHE consent commenced before charge period

While there is reference in the evidence from the Council's files to "substantial" commencement, this was the former requirement under s 315 of the Local Government Act 1919 (NSW). That provision was replaced in 1999 by the requirement in s 95(4) of the EPA Act for "physical" commencement (now s 4.53). Any works relied on to establish physical commencement must be lawful, see Cando Management and Maintenance Pty Ltd v Cumberland Council (2019) 237 LGERA 128; [2019] NSWCA 26 (Cando) at [91].
Physical commencement was considered in Hunter Development, Tobias JA, (Santow JA and Stein AJA agreeing) holding at [129] that survey work undertaken by two proponents, Hunter Development Brokerage Pty Ltd (Hunter) and Tovedale Pty Ltd, and geotechnical investigation work undertaken by Hunter, were engineering works that related to the approved subdivisions and constituted physical commencement upon the land to which the consent applied before its lapsing date. As a result, neither consent lapsed. A similar approach in this case to the 2001 preliminary investigation work identified above in [43]-[46] suggests that the MHE consent had commenced, as the Appellant submitted above in [55].
The work carried out in 2006 also satisfied physical commencement, as the Appellant submitted above in [56]. Council officers passed work undertaken to dig a footing for a pier. Concrete did not need to be poured into the footings for physical commencement to be satisfied. Provided the work in 2001 and 2006 was lawful it can be relied on, meaning in this case whether the work was carried out in compliance with development consent conditions. The Council alleged Condition 24(c) was not complied with so that none of the work was lawful.
It is necessary to construe Condition 24(c) of the MHE consent, which requires the construction of that provision in the context of the conditions as a whole, giving them a practical meaning. The Appellant's approach to construction of Condition 24(c) of the MHE consent set out in [55] above is correct.
Although not strictly necessary to rely upon it, the presumption of regularity as identified by the Appellant in [57] above also supports a conclusion that the MHE consent had commenced before the charge period. The documentary evidence from 2006 shows council officers were expressly addressing the issue of commencement and passed physical work undertaken in digging the footing for a pier in that context.
The MHE consent commenced before the charge period.

Council has discharged onus of proving CAN offence

I have found that the MHE consent commenced, meaning it had not lapsed in the charge period. That does not deal conclusively with the issue of whether the Council has discharged the burden of proof it bears in relation to the CAN offence.
Both parties referred to Leda Manorstead, submitting this supported their differing submissions. In Leda Manorstead, a prosecution for a breach of a Pt 3A approval (now repealed) under the EPA Act, numerous (13) development consents or approvals had been issued over the same land. The principles identified by the Council in its submissions in [39] above were based on [76] of Leda Manorstead and do not need repeating here. In drawing her final conclusion Pepper J stated as follows: 77 … a person carrying out development pursuant to a Pt 3A approval must comply with the conditions of that approval and that the obligation to do so is not displaced by the existence of another development consent granted for the same parcel of land. If development is carried out under a development consent, including a project approval under Pt 3A of the EPAA, contrary to the conditions to which the grant of consent is subject, there will be a continuing contravention of the consent (Hillpalm at [19] and Moss at [41]-[44]). … 261 … While at all times the onus remains on the Secretary to prove to the criminal standard that the earthworks in Precincts 1 and 2 (and any other precinct (or area at the site)) were carried out in furtherance of the Project Approval, and not some other consent, once demonstrated, overlapping approvals will not, of themselves, exonerate Leda.
While directed to a Pt 3A approval, the same approach also applies to development consents issued under Pt 4 of the EPA Act. Importantly, the existence of the MHE consent alone does not give rise to a reasonable alternative hypothesis, as observed at [76] and [261] in Leda Manorstead.
The Council's case essentially relies on the drawing of an inference that the tree clearing charged was pursuant to the seven-lot subdivision consent because (i) the seven-lot subdivision consent had physically commenced, SOAF at par 8 (extracted in [9] above); (ii) clearing pursuant to the seven-lot subdivision consent had been approved by the Council, set out in [21] above; and (iii) tree clearing on Lot 1 observed by Mr Willoughby and Ms Middlemiss was occurring at or around the same time work was taking place on Lot 6 (observed by Mr Owens some time in late 2016, according to par 9 of his affidavit (see [18] above)), essentially circumstantial evidence. Before determining if this satisfies the Council's onus of proof, the evidence relied on by the Appellant will be considered.
The Appellant submitted that the statement made to Mr Staples by the Appellant set out in [24] above gives rise to a reasonable alternative hypothesis for the tree clearing, namely that it was in reliance on the MHE consent. Turning to the words recorded by Mr Staples, as the Council submitted above in [38], the statement does not lend itself to any particular construction other than that the two consents granted to the Appellant over Lot 1 are identified and reference is also made to a clearing plan. The only evidence before the Court concerning approval of clearing is in relation to the seven-lot subdivision consent (see [21] above). The Appellant stated that he had consent to clear the trees now, suggesting the seven-lot subdivision consent was being referred to rather than the MHE consent.
The Appellant submitted the words were not to be relied on as to their truth, meaning, as I understand it, they were not relied on to demonstrate that the MHE consent was in force and able to be relied on as a matter of law. The Appellant's counsel submitted that the words should be considered as a reflection of the Appellant's state of mind that he was aware of the MHE consent. It was then submitted that the Appellant told the Council that he thought he had consent to clear, meaning in reliance on the MHE consent. In my opinion, the effect of the words recorded by Mr Staples is neutral in the sense that they do not expressly state pursuant to what particular consent the Appellant was clearing trees. If not relied on to establish the truth of something such as the Appellant's opinion about the MHE consent being relied on by him, it is difficult to see what role the statement can play in supporting the Appellant's argument. The statement does not carry any evidential weight in establishing a reasonable alternative hypothesis that the MHE consent was relied on by the Appellant for the tree clearing. If anything, for the reasons given in [73] above, the statements support the Council's case.
It remains to be determined if the Council, on the evidence summarised above in [72], has established beyond reasonable doubt that the evidence supports the CAN offence.
In Newcastle City Council v Pace Farm Egg Products Pty Ltd (No 2) (2005) 141 LGERA 133; [2005] NSWLEC 241, in considering the application of proof beyond reasonable doubt to circumstantial evidence, I included the following extracts: 62 The Prosecutor bears the burden of proving all the elements of the crime beyond reasonable doubt. In a case of circumstantial evidence, the obligation of the Prosecutor is to exclude all reasonable hypotheses consistent with the innocence of the defendant. The guilt of the defendant should not only be a rational inference but it should be the only rational inference that could be drawn from the circumstances. In Shepherd v The Queen (1990) 170 CLR 573 Dawson J states at 578-580: The learned trial judge gave the customary direction that, where the jury relied upon circumstantial evidence, guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances … Whilst a direction of that kind is customarily given in cases turning upon circumstantial evidence, it is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt. In many, if not most, cases involving substantial circumstantial evidence, it will be a helpful direction … …. As I have said, the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact - every piece of evidence - relied upon to prove an element by inference must itself be proved beyond reasonable doubt. 63 In Shepherd, Dawson J continued at 583-584 referring to the decision of Brennan J in Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 599: In Chamberlain (30) Brennan J also expresses the view that in a case turning upon circumstantial evidence: the primary facts from which the inference of guilt is to be drawn must be proved beyond reasonable doubt. No greater cogency can be attributed to an inference based upon particular facts than the cogency that can be attributed to each of those facts … An inference of guilt may properly be drawn although any particular primary fact, or any concatenation of primary facts falling short of the whole, would be insufficient to exclude other inferences. It follows that the insufficiency of a piece of evidence to support an inference of guilt does not by itself warrant the setting aside of a verdict of guilty if that piece of evidence, however important, is but a part of the whole body of evidence available to support the inference. In the passage the reference to "the primary facts from which the inference of guilt is to be drawn" is clearly a reference to such intermediate conclusions of fact as are necessary for the drawing of the inference of guilt and is not a reference to each basic fact - each individual item of evidence - upon which those conclusions may be based. That is why his Honour points out that an inference of guilt may be drawn even though a particular "primary" fact falling short of the whole would be insufficient to exclude other inferences. I do not take this latter reference to a "primary" fact to mean anything more than a piece of evidence. That, I think, is shown by the use of that term in the sentence that follows. The term "primary facts" is apt to confuse if it is used to refer to the basic facts - the individual items of evidence - as well as to the factual conclusions from which inferences may be drawn. More often than not it is in the latter sense that the term is used when it is said that an appellate court may draw its own inferences from the primary facts as found by the trial judge. 64 In Filipowski v Nikolaos [2005] NSWLEC 102 Talbot J recently considered the test for proof beyond reasonable doubt based on circumstantial evidence in relation to a strict liability offence under s 8 of the Marine Pollution Act 1987 (NSW). At [61] he relied on Martin v Osborne (1936) 55 CLR 367 per Dixon J at 375: If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued.
These authorities are addressing evidence where multiple facts, not all of which may be established beyond reasonable doubt, when combined do enable a conclusion to be drawn of the ultimate (primary) fact beyond reasonable doubt. They confirm that a combination of facts, not all of which establish a matter beyond reasonable doubt, can establish the ultimate finding of guilt beyond reasonable doubt. Applying such considerations to the Council's evidence, the cumulative effect of the three components outlined in [72] above arises. Each fact has been established beyond reasonable doubt. The evidence is essentially undisputed. Considering all three matters together, the inference can be firmly drawn that the Appellant was undertaking work pursuant to the seven-lot subdivision consent at the time he cleared the trees the subject of the CAN charge. That inference has been established beyond reasonable doubt by the Council.
I am fortified in my conclusion by the Council's reliance on Dookheea where the High Court in the unanimous decision of Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ stated in relation to doubt: 36 Contrary, therefore, to Dookheea's submissions, it is not the case that any doubt on the part of an individual juror dictates that the prosecution has failed to convince that juror to the criminal standard. Indeed, as counsel for Dookheea conceded, a fanciful doubt would not require a juror to vote for an acquittal; and to reason, as was suggested, that a fanciful doubt is distinguishable as not a doubt at all is not at all convincing (67). Not all jurors would regard a fanciful doubt as no doubt and nor logically should they do so. 37 Admittedly, it has been said that to invite a jury to consider the distinction between reasonable doubt and any doubt risks obfuscating the jury's understanding of their task (68). Consequently, as the authority of this Court stands, it is generally speaking undesirable for a trial judge to contrast reasonable doubt with any doubt. But, for the reasons already given, in point of principle it is not wrong to notice the distinction; and, therefore, as a matter of authority, it is not necessarily determinative of an appeal against conviction that a trial judge may for one reason or another happen to do so. …
I accept the Council's submission relying on Dookheea that to accept the proposition that the Appellant was relying on the MHE consent raises a fanciful doubt only.
Accordingly, the Appellant is unsuccessful in this appeal and it should be dismissed.
Pursuant to s 49(4) of the CAR Act the Court may make such order as to costs to be paid by either party as it thinks just. Accordingly, the only costs order I am considering is whether the Appellant should pay the Council's costs. Costs are compensatory not punitive per Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 at 543. Exercising my discretion in all the circumstances, I consider the Appellant as the unsuccessful party should pay the Council's costs of the appeal.
The consequence of my finding to dismiss the appeal means that the orders of Magistrate Farnan on 10 March 2020 stand.

Orders

The Court orders: 1. The appeal of the conviction, sentence and costs orders made by Magistrate Farnan on 10 March 2020 at the Local Court is dismissed. 2. The Appellant is to pay the Council's costs of the appeal in Order (1). 3. The exhibits are returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 November 2020

Crimes Appeal and Review Act 2001(NSW)ss 31, 37, 49

Local Government Act 1919(NSW)s 315

Legislation Crimes Appeal and Review Act 2001(NSW)

Marine Pollution Act 1987(NSW)

(2019) 237 LGERA 128

(2005) 141 LGERA 133

(2010) 177 LGERA 261

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (23 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (27)

Cited By (2)