Dennis Flaherty on behalf of Strathfield Council v Columbia Nursing Homes Pty Limited

Land and Environment Court (NSW)|2007-03-22|Before: Jagot J

CITATION : Dennis Flaherty on behalf of Strathfield Council v Columbia Nursing Homes Pty Limited [2007] NSWLEC 148

APPLICANT PARTIES : Dennis Flaherty on behalf of Strathfield Council RESPONDENT Columbia Nursing Homes Pty Limited

KEY ISSUES: Prosecution :- appeal by prosecutor from order of Local Court dismissing charge - appeal limited to grounds involving questions of law alone - whether a tree preservation order is an "instrument" under s 45 of Interpretation Act - no questions of law - appeal dismissed

Crimes (Appeal and Review) Act 2001s 42(2B)(b), s 48(2) Environmental Planning and Assessment Act 1979 s 4(1), s 34, s 125, s 127 Environmental Planning and Assessment (Infrastructure and Other Planning Reform) Act 2005 LEGISLATION CITED: Interpretation Act 1987 s 3(1), s 5, s 6, s 21, s 45 Justices Act 1902 Land and Environment Court Act 1979 s 22, s 23 Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 Statute Law (Miscellaneous Provisions) Act (No 2) 2004

CASES CITED: Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343; Kogarah Council v Beljo, Nedjeko; Beljo, Nedjelko v Kogarah Council [2006] NSWLEC 592

APPLICANT Mr A Pickles SOLICITORS Houston Dearn O'Connor LEGAL REPRESENTATIVES: RESPONDENT Mr T Howard SOLICITORS Matthews Folbigg Pty Limited

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

DENNIS FLAHERTY ON BEHALF OF STRATHFIELD COUNCIL Applicant

COLUMBIA NURSING HOMES PTY LIMITED Respondent

JUDGMENT Jagot J: A. The appeal 1 The appellant, Dennis Flaherty on behalf of Strathfield Municipal Council, has appealed against an order of a Magistrate at the Burwood Local Court. The Magistrate dismissed a charge that the defendant, Columbia Nursing Homes Pty Limited, committed an offence against s 125 of the Environmental Planning and Assessment Act 1979 (the EPA Act) by causing, permitting or directing the cutting down of a tree without having obtained the written consent of the Council as required by a tree preservation order made by the Council on 27 May 1969 under cl 40 of the Strathfield Planning Scheme Ordinance. The appeal is brought under s 42(2B)(b) of the Crimes (Appeal and Review) Act 2001, which provides that: (2B) The prosecutor (including the Director of Public Prosecutions or the Environment Protection Authority) may appeal to the Land and Environment Court against: (a) an order made by a Local Court that stays any summary proceedings for the prosecution of an environmental offence, or (b) an order made by a Local Court dismissing a matter the subject of any summary proceedings with respect to an environmental offence, or (c) an order for costs made by a Local Court against the prosecutor in any summary proceedings with respect to an environmental offence, but only on a ground that involves a question of law alone.

2 The appellant submitted that the appeal raised the following questions of law: 2.1 The Magistrate erred at law in directing himself otherwise than in accordance with Section 45 of the Interpretation Act 1987 when considering validity and effect of the Tree Preservation Order.

2.2 The Magistrate erred at law in failing to apply the presumption under Section 45(1) of the Interpretation Act 1987 that the conditions and preliminary steps precedent to the making of the Tree Preservation Order have been complied with and performed where no evidence had been adduced to rebut the presumption.

3 The appellant sought orders setting aside the Magistrate's decision and remitting the proceedings to the Local Court for determination in accordance with law or, alternatively, that this Court hear and dispose of the proceedings itself.

4 The defendant submitted that s 45 of the Interpretation Act 1987 did not apply to the tree preservation order and, accordingly, the appeal must be dismissed. The defendant also submitted that the Magistrate's decision to dismiss the charge was warranted on other grounds, including the appellant's lack of power to commence the prosecution and that s 45(1) did not extend to the making of the tree preservation order itself (being the defect in evidence alleged by the defendant). Finally, the defendant submitted that the Court had no power to set aside the Magistrate's order.

5 Clause 40 of the Strathfield Planning Scheme Ordinance is in the following terms: Preservation of trees

(1) Where it appears to the responsible authority that it is expedient for the purpose of securing amenity or of preserving existing amenities it may for that purpose make an order (hereinafter referred to as a "tree preservation order") and may by like resolution rescind or vary any such order. (2) A tree preservation order may prohibit the ringbarking, cutting down, topping, lopping, removing, injuring or wilful destruction of any tree or trees specified in such order except with the consent of the responsible authority and any such consent may be given subject to such conditions as the responsible authority may think fit. (3) Any such order may relate to any tree or trees or to any specified class, type or description of trees on land described in such order and such land may be described particularly or generally by reference to the municipality or divisions thereof. (4) The responsible authority shall forthwith upon the making of a tree preservation order cause notice of the making of such order to be published in the Gazette and in a newspaper circulating in the area in which the land described in the order is situate. (5) Any person who contravene or causes or permits to be contravened the provisions of a tree preservation order shall be guilty of an offence. (6) In any proceedings under this clause it shall be sufficient defence to prove that the tree or trees ringbarked, cut down, topped, lopped, removed, injured or wilfully destroyed, was or were dying or dead or had become dangerous. (7) The powers conferred upon the responsible authority by this clause shall not extend to any trees within a State Forest or land reserved from sale as a Timber or Forest Reserve under the Forestry Act 1916, as amended.

6 On 21 June 1991, the following notice was published in the NSW Government Gazette: STRATHFIELD MUNICIPAL COUNCIL

Strathfield Planning Scheme Ordinance Tree Preservation Order

Council hereby advises that the Tree Preservation Order made by resolution of the Council on the 27th May, 1969, be amended such that the Order is in the following terms. That pursuant to the provisions of Clause 40 of the Strathfield Planning Scheme Ordinance, a Tree Preservation Order be and is hereby applied throughout the Municipality of Strathfield, prohibiting the ringbarking, cutting down, lopping, removing, injuring or wilful destruction of any tree having a height greater than 4.0 metres or a girth greater the [sic] 0.5 metre measured at a point 1.0 metre above ground level, excepting with the written consent of the Council. Richard Brown, Town Clerk, P.O. Box 120, Strathfield, N.S.W. 2135.

7 The defendant did not dispute that it had caused a tree to be cut down on 15 February 2005 at premises known as 64 - 70 Albert Road, Strathfield. The defendant submitted to the Magistrate, amongst other things, that cl 40 of the Strathfield Planning Scheme Ordinance enabled the Council to make a tree preservation order by resolution but, as there was no resolution in evidence, the prosecutor's case had to fail. Subsequently, the following exchange occurred between the Magistrate and the appellant's representative: HIS HONOUR: Yes, all sorts of problems with that but we can come back to that. What about the resolution?

BLUNDEN: The resolution, well I would say to you your Honour that--

BLUNDEN: Well there's nothing before the Court in respect to the actual resolution being made that I would be relying upon the gazettal saying that there was a resolution by council.

HIS HONOUR: What page was that gazettal - I've got it it's all right. Well now I have a difficulty with that and perhaps you can help me with it? The language of this gazettal is simply an advice published in the gazette advising that an earlier Tree Preservation Order be amended, this is made in 1991. I suppose just let me think out aloud for a minute - I'm wondering whether this document, this gazettal notice is saying two separate things. One, it is quite uselessly from our point of view simply noting the fact that a 1969 old order is to be amended and it will amended indeed in the following terms, that doesn't help us much because it's not the order or a notice of the order. But it then does say, the second thing "pursuant to Clause 40 a Tree Preservation Order be and is hereby applied through the municipality of Strathfield..." Now there are two aspects to that if we fastened upon that second portion of the notice. One is that this is the notice itself and may be your friend is wrong - I say may be - when he says there is no notice, there must be notice and there isn't because arguably this is the notice. But it's not the resolution itself is it, that's the more critical matter? Notice of resolution is one thing even if there has to be, and no doubt there does, notice of the resolution and even if this be such sufficient notice where is the resolution itself that's what I want to know? The mere fact that notice is given of a resolution is not the resolution one might think. And this document is dated 1991 so it's the relevant one.

HIS HONOUR: We don't need the '69 one, you want the actual resolution from 1991 or thereabouts and you don't appear to have it. I mean there's so much paper here--

BLUNDEN: No I don't, it's not before you your Honour.

BLUNDEN: Well my reading of the notice is that - that notice there is that they're declaring that there is a Tree Preservation Order.

HIS HONOUR: No surely not, as your learned friend Mr Howard said pointing out the legislation, even if one ever needed it in the legislation, there is separate provision for the making of an order in the way of a resolution and for notification of it which is what in the old language used to be a called a mandatory requirement - cited authority to the fact that in effect it's a mandatory requirement - these days they've changed the language around a bit but it's very similar nonetheless. So that invalidity attaches to non compliance and that being intended by the legislature, ie you publish or you're snookered, that's what it says. Now you've got a publication all right but the very fact of publication being specifically provided for in Order 40, or whatever it's called, is that there are two separate physical things that must happen. One, there must be a resolution and two there must, as a mandatory thing, be a notice published in the gazette of the resolution. If you accept for a moment that there is indeed a notice, may be there could be problems with that I don't know, Mr Howard might say there are, but if you accept for the moment that there is a notice appearing in this gazettal copy there is not any evidence of the actual resolution. In its language what the gazette is saying is take notice that there was a resolution, it's not saying - even if it could say - that this is the resolution, it's saying take notice that there was a resolution. We need the actual resolution or some other admissible evidence of it. If for example you had a council member that came into the court and gave evidence and said "I was there this is what the resolution said" you could do that.

BLUNDEN: I was just looking to the form of the Tree Preservation Order itself that was issued with the permit and what it stated on it.

HIS HONOUR: Are you talking about the permit - or what?

HIS HONOUR: Well that's exhibit 6, I've got it in front of me.

BLUNDEN: I think on the bottom of it it's got some--

HIS HONOUR: Well it refers to the Tree Preservation Order. It purports to recite it word perfectly.

BLUNDEN: And it states what the Tree Preservation Order is.

HIS HONOUR: Yes, that's not evidence of the Tree Preservation Order resolution--

BLUNDEN: It's not evidence of the resolution. Your Honour I'll just speak with my council officer. I do not have it with me your Honour it will be in council's records somewhere and I assume it's off site and it's just not here, I don't have it.

8 The "permit" (exhibit 6) in this exchange is a permit issued by the Council on 2 February 2005 authorising another tree on the premises to be cut down. A paragraph appeared at the foot of the permit as follows: Tree Preservation Order made 27th May, 1969 That pursuant to the provisions of Clause 40 of the Strathfield Planning Scheme Ordinance, a Tree Preservation Order be and is hereby applied throughout the Municipality of Strathfield, prohibiting the ring barking, cutting down, lopping, removing, injuring or wilful destruction of any tree having a height greater than four (4.0) metres or a girth greater than half (0.5) metres measured at a point one (1.0) metre above ground level, excepting with the written consent of the Council.

9 The Magistrate gave ex tempore reasons for the dismissal of the charge: HIS HONOUR: I'm only give the shortest of reasons. I'm not going to go into all the other issues, such as Mr Flaherty's authorisations and what not. This prosecution must fail for lack of proof of the Tree Preservation Order and I just want to note one thing for the record; in terms of evidence such as this Tree Preservation Permit which does recite word perfect the language of the 1969 order, right, it's not 1991, but just to be abundantly cautious, even if it were to read 1991, if - because it's word perfect quoted here apparently - if a piece of evidence such as this document, the permit, were to state a fact such as - such as "A Tree Preservation Order was made in these terms", that would be evidence of it in the ordinary case. If, for example, it was in a statement of a witness, shall I say, and the witness said, that statement being tendered - the witness said "This order was made", that would be evidence that it was made, but the substance, as distinct from the form, of this document, this Tree Preservation Permit, is to say "The following work is hereby approved in accordance with" and it recites the order. That's not the same thing as being evidence of the order. And I appreciate that members of the public and members of, or representatives of the Council, might be alarmed at that sort of legalism, but it's not my doing. I always think of an analogous observation made by Mr Justice Mahoney in a case called Bottle v Kettlewell which was a matter - I'm forgetting now what it was actually. It was some sort of driving problem, driving case, but there was a recitation of evidence in that matter and Mr Justice Mahoney pointed out the mere fact of a witness saying that someone had told them something was not evidence of the fact. Now this is, of course, a similar thing, so you get this peculiar, completely pedantic approach in the law, but we're stuck with it. If, for example, a witness were to say "x is the fact", that is evidence that "x" is the fact, even if they did not have knowledge of it and it turned out to be hearsay, assuming it wasn't objected to, but if a witness says "So and so said x is the fact", that is not evidence that "x" is the fact. It's evidence that so and so said "x" is the fact. This Tree Preservation Permit is in the same category. In its substance, as distinct from its form, it is not saying "This is the Tree Preservation Order of 1969" or 1991 for that matter. It is saying, in substance "This work is approved in accordance with such an order in these terms", so it's a tricky thing, but there you go. In any event, it relates to the '69 one. We need the '91 one. I'm sorry.

10 It will be apparent from these extracts that the appellant did not refer the Magistrate to s 45 of the Interpretation Act, which is the section now in issue. It is appropriate that I identify the relevant provisions of the Interpretation Act, so that s 45 may be considered in context.

11 Section 3(1) of the Interpretation Act provides that:

(1) In this Act: instrument means an instrument (including a statutory rule or an environmental planning instrument) made under an Act, and includes an instrument made under any such instrument.

12 Section 5 contains the following provisions: (1) This Act applies to all Acts and instruments (including this Act) whether enacted or made before or after the commencement of this Act. (2) This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned.

13 Section 6 is as follows: Definitions that occur in an Act or instrument apply to the construction of the Act or instrument except in so far as the context or subject-matter otherwise indicates or requires.

14 Section 21 includes a definition of environmental planning instrument: environmental planning instrument means an environmental planning instrument within the meaning of the Environmental Planning and Assessment Act 1979.

15 The EPA Act (s 4(1)) defines environmental planning instrument to mean "a State environmental planning policy, a regional environmental plan, or a local environmental plan, and except where otherwise expressly provided by this Act, includes a deemed environmental planning instrument". A deemed environmental planning instrument is defined in the same section to mean "a former planning instrument referred to in clause 2 of Schedule 3 to the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 and includes an instrument referred to in clause 3 (2) of that Schedule". The Strathfield Planning Scheme Ordinance is a deemed environmental planning instrument and thus an environmental planning instrument within the meaning of the EPA Act.

16 Section 45 of the Interpretation Act is as follows: (1) It shall be presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of an instrument have been complied with and performed. (2) In this section: instrument means: (a) an instrument: (i) that is made by the Governor, or (ii) that is made by a person or body other than the Governor, but is required by law to be approved or confirmed by the Governor, or (b) a rule of court, or (c) an environmental planning instrument, being an instrument or rule of court that is required by law to be published in the Gazette.

17 The appellant submitted that the Magistrate misdirected himself in two respects. First, the Magistrate asked the wrong question. Instead of asking whether the notice published in the Gazette on 21 June 1991 was evidence of the tree preservation order, the Magistrate asked whether the permit issued by the Council on 2 February 2005 was such evidence. Secondly, the terms of the tree preservation order were fully stated in the notice published in the Gazette. Once made and published, the tree preservation order became an instrument for the purpose of s 45 of the Interpretation Act. Accordingly, the Magistrate was bound to regard the tree preservation order as a valid instrument in respect of which all conditions and preliminary steps precedent had been complied with and performed.

18 The first submission may be disposed of readily. The Magistrate's reasoning discloses the basis for dismissal of the charge - the appellant failed to prove the making of the varied tree preservation order in 1991 by resolution. The Magistrate discussed the effect of the notice published in the gazette with the appellant's legal representative. This culminated in the legal representative referring to the recitation of the 1969 tree preservation order at the foot of the permit (although, despite its heading, the permit in fact recites the order in the same terms as it appears in the 1991 Gazette notice). The Magistrate's reference to the permit in his reasons occurred in the context of this discussion.

19 The following observation of Johnson J in Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343 at [15] applies to the circumstances of the first error of law alleged: …it is appropriate to bear in mind that his Honour's reasons constitute an unedited and unpunctuated record of ex tempore remarks in a busy Magistrate's Court: Acuthan v Coates (1986) 6 NSWLR 472 at 479A, 485C-D. Such a judgment should not be picked over and appropriate allowance should be given to the pressures under which Magistrates are placed by the volume of cases coming before them: Neighbourhood Association DP295386 v Forgeron (2005) NSWCA 150 at paragraph 15 ; Colosimo v Director of Public Prosecutions (2005) 155 A Crim R 573 at 583 (paragraph 36).

20 The appellant's approach to the Magistrate's reasons conflicts with these important statements. When the Magistrate's reasons are fairly assessed, the first submission is unsustainable. The Magistrate did not fail to consider the notice published in the Gazette or what it evidenced. He did not confuse the notice and the permit. The Magistrate considered both the notice and the permit and determined that the appellant had not proved the making of the 1991 resolution to vary the tree preservation order. Unless the appellant succeeds on its second ground, this decision involved a finding of fact, which cannot found an appeal limited to a question of law alone.

21 The second submission depends on the varied tree preservation order, said by the appellant to have been made in 1991, being an "instrument" within the meaning of s 45 of the Interpretation Act. This argument involved four propositions. (1) The purpose of s 45(2) is not to narrow the definition of "instrument" in s 3, but to narrow the class of instruments to which the presumption in s 45(1) applies.

(2) This purpose is apparent from the fact that the word "instrument" appears in both s 45(2)(a) and in the final line of the s 45(2).

(3) Accordingly, the definition of "instrument" in s 3 applies to the word "instrument" wherever it appears in s 45(2).

(4) It thus follows that s 45(2) includes an instrument made under an environmental planning instrument provided that any such instrument was required by law to be published in the Gazette.

22 One difficulty with the appellant's argument is that, assuming propositions (1) to (3) are correct, proposition (4) does not follow. If "instrument" in s 45 means "instrument" as defined in s 3, then the relevant part of the definition would read an "environmental planning instrument, being an instrument…that is required by law to be published in the Gazette". The controlling words remain "environmental planning instrument", which are defined in a manner that does not include instruments made under environmental planning instruments. The ordinary meaning of s 45(2) cannot extend to an instrument made under an environmental planning instrument without substantially recasting the provision.

23 Another difficulty is that s 45(2) exhibits a clear intention to define "instrument", exclusively and exhaustively, for the purpose of s 45(1). By s 5(1) of the Interpretation Act, the Act applies to all Acts, including the Interpretation Act itself. Section 6 provides that definitions apply to the construction of an Act or instrument except insofar as the context or subject matter otherwise indicates or requires. Accordingly, the definition of "instrument" in s 3 applies except insofar as the context otherwise requires. The words of s 45(2) leave no scope for debate. Section 45(2) requires the word "instrument" in s 45(1) to be given the meaning prescribed by the section. The appellant's argument about the appearance of the word "instrument" twice in s 45(2) does not assist. Section 3, by using the formula "instrument means an instrument…" recognises that the word has an ordinary meaning (that is, a formal legal document). There is no reason to assume that s 45(2) operates on a different basis when it uses the word "instrument".

24 The appellant argued that s 45(2) does not evince an intention to exclude instruments made under the classes of instruments nominated in that section. Section 45(2) prescribes the meaning of "instrument" for the purposes of s 45(1). It is true that, in so doing, s 45(2) uses phrases that carry a particular statutory meaning (for example, "environmental planning instrument", "Gazette", "make", and "rules of court"). But the section cannot both perform its intended function and incorporate the meaning of "instrument" in s 3 wherever it appears in s 45(2). Reading s 45(2) as the appellant proposes would render the provision incomprehensible. The appellant's submission that this incomprehensibility may be avoided by applying only parts of the definition of "instrument" in s 3 to the word "instrument" where it appears on the second and third occasions in s 45(2) (namely, the words "made an under an Act" and "includes an instrument made under any such instrument") does not accord with any approach to statutory construction of which I am aware. Further, it does not avoid the fact that, if this is done, the controlling words nevertheless remain "environmental planning instrument".

25 Section 45(2) limits the operation of s 45(1), insofar as relevant, to environmental planning instruments that are required to be published in the gazette. Does the fact that the EPA Act (s 34(5)) requires all environmental planning instruments to be published in the gazette provide any support for the appellant's construction? As the defendant submitted, s 45 is ambulatory. The section would not apply to environmental planning instruments if any subsequent amendment to the EPA Act permitted such an instrument to be made absent publication in the gazette. Accordingly, the final line of s 45(2) is not otiose. Even if it were, that would not warrant adopting the construction proposed by the appellant.

26 If it were relevant to say so, I also do not consider that the proper construction of s 45(2) leads to a novel result. Before the Environmental Planning and Assessment (Infrastructure and Other Planning Reform) Act 2005 came into force, the definitions of "instrument" in s 3 and 45(2) of the Interpretation Act did not expressly refer to environmental planning instruments. The EPA Act contained its own provisions regulating presumptions with respect to the making of environmental planning instruments (s 34). By s 34(3) it was presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of an environmental planning instrument had been complied with and performed. Section 34(10) (which remains in force, unlike s 34(3)) provided that certain provisions (ss 34(6) to (8), but not s 34(3)) applied to "any planning map or other prescribed instrument or material referred to, embodied or incorporated in the instrument". That is, instruments made under environmental planning instruments did not have the benefit of the presumption in s 34(3).

27 For these reasons, the second error of law alleged by the appellant does not arise. The varied tree preservation order of 1991 was not an "instrument" within the meaning of s 45(2) of the Interpretation Act and, accordingly, was not subject to the operation of s 45(1).

28 As an appeal under s 42(2B)(b) of the Crimes (Appeal and Review) Act is limited to a ground involving a question of law alone, and I have determined that the appellant's questions do not arise, it is unnecessary to consider the defendant's other arguments. Nevertheless, I consider it appropriate to make certain observations about the detailed submissions made by both parties about this Court's powers with respect to appeals under s 42(2B)(b). The defendant identified what it said was an anomaly in the legislative provisions. Section 48(2) of the Crimes (Appeal and Review) Act empowers the Court to set aside an order of the Local Court and make such other order as it thinks just with respect to appeals against an order referred to in s 43(1)(a) or (b) or (1A)(a) or (b). However, s 48(2) does not refer to s 42(2B).

29 Before the Crimes (Appeal and Review) Act came into force, the provisions of the Justices Act 1902 provided that this Court had the "same jurisdiction and powers as the Supreme Court" to hear and dispose of proceedings on appeal against any conviction or order made, or sentence imposed, by a Magistrate in summary proceedings for an environmental offence (s 133AVB(1) and (2)). Pt 5 of the Justices Act enabled the Supreme Court to hear and dispose of appeals by informants against an order made by a Magistrate in summary proceedings dismissing an information or complaint on a ground that involved a question of law alone (s 104(2)). In that event, the Supreme Court could confirm or set aside the order and remit the matter to the Magistrate to hear and determine (s 109).

30 When the Crimes (Appeal and Review) Act came into force it omitted any reference to appeals by prosecutors to this Court against orders by a Magistrate dismissing a charge. It provided for appeals by prosecutors (the Director Of Public Prosecutions and the Environment Protection Authority) to this Court on sentence only. The Statute Law (Miscellaneous Provisions) Act (No 2) 2004 (as originally in force) inserted ss (2A) and (2B) into s 42 to rectify this omission. The accompanying explanatory note said: The Crimes (Local Courts Appeal and Review) Act 2001 ( the Act ) restated certain provisions of the repealed Justices Act 1902 with respect to appeals and other forms of review in relation to criminal proceedings in Local Courts and other courts of comparable jurisdiction. Sections 104(2) and 133AVB(2) of the Justices Act 1902 allowed certain appeals to the Land and Environment Court which were not included in the Act. The amendment to the Act reinstates those rights of appeal. 31 However, the Statute Law (Miscellaneous Provisions) Act (No 2) 2004 did not amend s 48(2) by including a reference to s 42(2B) (in contrast, for example, to the powers of the Supreme Court for equivalent appeals in s 59(2)).

32 These circumstances caused the defendant to submit that this Court had no power to set aside the Magistrate's decision and remit the matter to the Local Court. The appellant relied on s 49(2) to submit that this Court, if satisfied that the grounds of appeal involving questions of law alone should be upheld, could either set aside the Magistrate's order and remit the proceedings to the Local Court or hear and dispose of the entire proceedings relying on s 49(2). Section 49(2) provides that, in determining an appeal, the Land and Environment Court may exercise any function that the Local Court could have exercised in the original Local Court proceedings. However, this provision (in common with s 47) cannot readily be reconciled with an appeal on a ground limited to a question of law alone (despite the concurrent jurisdiction of this Court and the Local Court under s 127 of the EPA Act). Sections 22 and 23 of the Land and Environment Court Act 1979 also do not expressly identify a power to "set aside" the Magistrate's order.

33 These matters may explain a reference in ex tempore reasons given with respect to the only other appeal under s 42(2B)(b) of which I am aware. Talbot J dismissed the appeal and, in so doing, referred to his "interesting journey through the legislative provisions" ( Kogarah Council v Beljo, Nedjeko; Beljo, Nedjelko v Kogarah Council [2006] NSWLEC 592 at [11]). Arguments about the Court's powers with respect to appeals by prosecutors limited to questions of law alone should be avoided by legislative amendment.

34 The appellant's grounds of appeal should not be upheld for the reasons given. Accordingly, the appeal is dismissed. The parties may argue the question of costs. ****************************

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