Gosford City Council v Aliton Pty Ltd [2002] NSWLEC 138 | Case summary

The submission of the defendants is that the demolition of the dwelling house in this case was exempt development. It is submitted that the exclusionary words (under Item 3 of Sch 10) are to be read conjunctively rather than disjunctively. It is further submitted that if there is any ambiguity in the wording of Item 3 of Sch 10 then that is to be resolved in favour of the defendants.
It is, I think, convenient to consider this limb of the "no case to answer" submission separately from the second limb, to which I will presently turn. In construing the words in Item 3 of Sch 10 one approaches the problem of construction in the manner described by Gibbs J in Beckwith v The Queen (1976) 135 CLR 569 at 576. That judgment was subsequently adopted by the Full Bench of the Industrial Relations Commission of New South Wales in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 629. I quote from latter judgment at 629 and 630: [41] We consider that the appellant's reliance upon the line of cases in relation to the construction of penal statutes exemplified by the judgments in Beckwith v The Queen and Waugh v Kippen [(1986) 160 CLR 156] is misplaced. For example, in Waugh v Kippen it was stated (at 164): "…The modern approach in construing penal statutes was stated by Gibbs J (as he then was) in Beckwith v The Queen (1976) 135 CLR 569 at p 576 as follows: 'The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R v. Adams (1935) 53 CLR 563, at 567-568; Craies on Statute Law , 7th ed (1971) at 529-534. The rule is perhaps one of last resort.'" The reference to the rule being one perhaps of last resort requires, because of certain submissions in this matter, some explanation. It means, generally speaking, that the rule only applies to require that an ambiguity as to the meaning of the provision be resolved in favour of an accused if the ambiguity is one which persists after the ordinary rules of construction have "run out": see, for example, Barker v The Queen [(1983) 153 CLR 338] at 355 and Chew v The Queen [(1992) 173 CLR 626] (at 632). In the latter case, the Court spoke of a situation where "all other indicia [have] failed". That is not the case here. However, there is a more fundamental difficulty with the appellant's arguments relying upon this principle of construction. As the above statements from Waugh v Kippen and Beckwith v The Queen illustrate, the principle applies where a court is construing a statute creating an offence so that the court will construe such a statute in favour of the subject by refusing to extend the operation of the statute creating the offence where the statute is ambiguous.
It follows that even though a statute may have penal consequences it is to be construed in much the same way as any statutory provision is to be construed.
In my opinion the words (under item 3 of Sch 10) are to be read disjunctively rather than conjunctively. This appears from the use of the disjunctive word "or" where it appears in that item. The phrasing of the expression, if there was an intention to read the phrase conjunctively would, as Mr Robertson submits, be read something like this: "other than a demolition of a dwelling, retaining wall and a heritage item" et cetera. That would be a phrase that would be more apt to be described as a conjunctive phrase than a disjunctive one. There is no ambiguity in the expression, in my opinion, and the provision is relatively clear. The reference to demolition of a dwelling is, therefore, a reference to that which is not within the definition of exempt development. I thus reject the first limb of the defendants' argument in support of the "no case to answer" submission.
The second limb is slightly different. As I have said, the offence is one which arises under s 125 of the EP&A Act for an infringement of s 76A of that Act. It is submitted that in this case the offences with which each defendant has been charged are not ones which fall under s 76A of the Environmental Planning and Assessment Act, but under s 76B of that Act.
Section 76B provides: 76B Development that is prohibited If: (a) an environmental planning instrument provides that specified development is prohibited on land to which the provision applies or (b) development cannot be carried out on land with or without development consent, a person must not carry out the development on that land.
The submission turns upon a construction, again, of the zoning table to cl 10 of the Gosford Planning Scheme Ordinance, and as well to the definition clause (cl 3) of that Ordinance.
Demolition of a building falls within the meaning of "development" as defined in the EP&A Act. In clause 3 the word "demolition" is separately defined. What the defendants have been charged with is doing an act that falls within item 2 of the zoning table to Zone No. 2(a) Residential ("development that needs consent") under cl 10 of the Gosford Planning Scheme Ordinance. That is to say the defendants have been charged with carrying out development that requires consent and carrying it out without consent. I have already held that the development which had been carried out is not exempt development falling within item 1 of the zoning table to Zone No. 2(a) Residential under cl 10.
It is submitted on behalf of the defendants that "demolition" per se is not listed in any of the categories of development in item 2 of the zoning table under zone 2(a) and must, therefore, fall within item 3 ("prohibited development"). That is to say, there has been a breach of s 76B of the EP&A Act, not s 76A of the Act, so that it is said the charges in the present case disclose no offence.
It is submitted on behalf of Gosford City Council ("the council") that what has occurred is demolition of a dwelling house which was done for the purpose to erect another dwelling house in its place. As I understand the submission, the demolition was for a purpose. I confess that I have particular difficulty with the submission in the case of the charge against Aliton Pty Ltd. It could not be said that Aliton Pty Ltd was demolishing the dwelling house for the purpose of erecting another dwelling house. Both charges, as I have noted, are the same in each case: identical charges against separate defendants for identical breaches of identical provisions of the same Act. What has occurred is merely the demolition of a dwelling house. If it could be said that the demolition was for another purpose or was part of another purpose, such as the erection of another dwelling in its place, or for some other form of re-development, than s 76A of the EP&A Act may apply.
In the present case, however, there is, as far as I am aware, no current proposal for the erection of another dwelling house on the land. There is no evidence to suggest that there is a current proposal for the erection of another dwelling house. There is, however, evidence that the dwelling house that was demolished was riddled with termites. Both the flooring and the walls were riddled with termites. There may well have been good reason simply to demolish the dwelling house. In my opinion, the second limb of the "no case to answer" submission has been made out. What has occurred is an offence against a provision and against which these defendants have not been charged.
ROBERTSON: Your Honour, having regard to that finding, I'd ask your Honour not to proceed further but to state point of law pursuant to s 5AE of the Criminal Appeal Act 1912 to the Court of Criminal Appeal. I think in the case of applications on behalf of the Crown, the Court must state or submit the question of law. In the case of other applications it has a discretion to do so. The point of law which should in our respectful submission be submitted to the Court of Criminal Appeal is whether - and I haven't precisely formulated it - but whether the summonses in both cases disclose offences known to law.
CRAIG: What was the question, you say?
ROBERTSON: Whether summonses in both cases disclose an offence known to law. Because that was the point, as we understood it, and on which your Honour had ruled.
HIS HONOUR: Yes.
ROBERTSON: I hear Mr Craig suggesting that that is not the case, and we can certainly formulate the point of law in a--
HIS HONOUR: That is not quite right, because one had to have regard to the facts, particularly in relation to the offences with which these defendants are charged. One had to make a finding of what it was that happened before one could then turn to the particular summonses. The question that you have phrased needs to be wider, I suggest.
ROBERTSON: Yes. Your Honour I think the question probably should be whether demolition in the circumstances disclosed in the evidence in this case is for the purpose of dwelling house within--
HIS HONOUR: Are within the charges here, yes.
CRAIG: That would raise the question of law.
HIS HONOUR: Mr Craig?
CRAIG: As my learned friend has indicated the section of the Criminal Appeal Act which pertains does not make it mandatory that you should refer the matter. We would respectfully submit an exercise of your discretion would not do so. This question does not raise any important question in the field of environmental offences, it's a question that depends very much on its own facts, is the first point we make.
The second point that we would make, that emerges, or rather supports the exercise of discretion against the application that is made, is simply this. That on the material that's available to you, indeed the very conversations, together with the documents that form part of the council's evidence it is apparent that this demolition took place in circumstances where rightly or wrongly the defendant relied upon legal advice. And that, we would respectfully submit, must weigh upon the discretion that your Honour has in order to say whether or not this matter should be referred, with the costs attendant upon that, to the Court of Criminal Appeal.
The third thing, that Ms Duggan reminds me about, is this. I suppose it's an aspect of the first matter I put, about the matter not raising matters of great public importance. This doesn't involve the interpretation of a statute that is a matter that recurs every day as a problem. It's a question that arises upon (a) the formulation of the summons and (b) the terms in which the council's own Local Environmental Plan is framed. And with relative ease, and I use the word "relative" advisedly, but with relative ease, if there is seen to be a problem that arises by dint of what has been determined here, then it's within the capacity of the council, admittedly ultimately through the Minister, but nonetheless through the capacity of the council to initiate and have made some amendment to the LEP so as to address any concerns it might have in the way it formulates the controls relating to demolition. So that they are matters, in our respectful submission, which would weigh against in this particular case the discretion being exercised in favour of the application that council makes.
ROBSON: Could I just again embrace that and say one further matter, that in relation to Aliton, even the manner in which my learned friend puts the submission, Mr Robertson, is much less compelling in relation to Aliton than indeed the other defendant. If, for example, Aliton was here on it's own, the submission we would make is - one doesn't wish to criticise a drafter - but not only is it within the council's power to amend its own LEP, as my learned friend says, but it's within those advising the council, when they draft summonses, to look at the facts upon which they rely. And that is the mistake here, if anything. And that, your Honour, given the circumstances of this case and given Aliton's - dare I say - discrete and separate involvement, in a manner which should not cause your Honour to consider exercising the discretion otherwise residing with you, there is a difference again between the respondents. And whilst we are here embracing Mr Craig's submissions, in relation to Aliton it is - I hesitate to use the word a "mistake", it is a matter of drafting, we were able to raise the point which we did, which your Honour found our way. In those circumstances, and the evidence which is before you already, your Honour would be conscious of the consequences of such a decision, in a very serious matter. The parties have put before you very serious submissions, and in those circumstances a mere slip of the hand, or sleight with a pen, in relation to drafting the summons is not a matter that should be sheeted home to Aliton in any event, not part of any overall scheme or purpose or redevelopment in the light of what your Honour has already found. In those circumstances, your Honour there is no compelling ground for your Honour to exercise your discretion. The matter should be dismissed and the normal orders follow.
HIS HONOUR: Mr Robertson?
ROBERTSON: Your Honour the precise point of law which we see arising from your Honour's judgment is as follows. Whether demolition of the dwelling known as the Ferrymaster's Cottage on Lot 222 DP 514964 at 43 Wagstaff Avenue, Wagstaff, on 1 August 2001 was development for the purpose of dwellinghouses within cl 10(2)(b) of the Gosford Planning Scheme Ordinance. Contrary to what my learned friend has put, that is a question of signal public importance. It does not involve any question concerning, or which is anchored, exclusively in the facts of this case. It does not cavil with what we understand to be a part of your Honour's findings. On the contrary, what it raises is this question; whether demolition, one of the means by which development is carried out, is for the purpose of dwelling house when that which is being demolished is a dwelling house. Your Honour will recall that we submitted that demolition of a dwelling house simpliciter, without any concomitant surrounding circumstances, lending purpose or character to the acts, itself amounts to the use, or the planning use if you like, of dwelling house, just as much as an addition to a dwelling house is use for the purpose of a dwelling house, so too is its demolition.
In many planning instruments throughout this State the physical means by which development is carried out is not as an end in itself described as a planning use. On the contrary, what is described as a planning use may be an element of the physical environment, such as a building, or structure, or it may be some object that a person has in mind when conducting physical works on the land. It is rare to find demolition simpliciter described as a planning use. On the contrary - and we find it throughout this instrument but no doubt in many others as well - it is the physical element of the environment, the housing structure, or the end in sight, the purpose properly understood, the object if you like, of carrying out works, which is described as the planning use.
Your Honour's ruling has an effect going well beyond the four corners of this case. It would mean that demolition which, as your Honour has pointed out in your Honour's judgment, involves partial removal as well as the removal completely of a structure, can never be for the purpose or cannot be for the purpose of the structure itself, but rather for the purpose that it alone has in the work. In other word it is an end in itself, the demolition becomes the planning use rather than the object that is being altered or destroyed by the act of demolition.
HIS HONOUR: But it depends upon the facts Mr Robertson. If you have a case like this where the building was riddled with termites, the owner may well feel that it's better to get rid of the building and the termites that are eating it, and just have the land vacant.
ROBERTSON: But your Honour the point is the act of removal is itself a purpose, a dwelling house purpose, because you are removing a dwelling house. So the argument is that to take a dwelling house away is as much development for a dwelling house purpose, because that's what you're doing. And indeed the exemption in the planning instrument itself is an exemption expressed to bring into play the requirement of development consent for the demolition of dwelling houses. So the point is a somewhat more - perhaps a finer point, your Honour, than the question relating to the facts of this particular case. It is whether demolition of a dwelling house, whatever surrounding circumstances might involve, is itself development for the purpose of a dwelling house.
That is (a) question of law, (b) it arises, and it will arise in many other cases, (c) it concerns the construction in s 4 of the Environmental Planning and Assessment Act as well as the planning instrument, (d) it is for those reasons, we respectfully submit, an important question and one that's appropriate to submit to the Court of Criminal Appeal.
Your Honour we don't make any submission that we are the Crown within the meaning of the Court of Criminal Appeal Act. The expression "Crown" is in other sections extended to include statutory authorities. It is not in s 5AE. So it is, we agree, a discretionary matter for your Honour. But we submit discretion must be exercised judicially. It is not a relevant consideration for your Honour to take into account the matter that Mr Craig lastly raised about whether his client acted on legal advice. That is really not a matter that has been, as yet, established. He hasn't gone into his case, and we don't know that. But in any event there is a long line of authority that acting on legal advice doesn't excuse - might say something about penalty but it doesn't have any effect on liability. But it doesn't' seem to us that the purpose for which the Court is given a discretion to state a question of law could embrace, as a discretionary consideration, the kind of matter that Mr Craig has raised. Certainly the other matters he's raised are appropriate for the Court to consider and we don't suggest they're irrelevant at all. If the point was only anchored in the facts of this case then obviously he would have a stronger argument. But it isn't, for the reasons we've explained. Those are the submissions.
CRAIG: Your Honour when we addressed before we didn't have the benefit of having articulated what is said to be the question. Your Honour in our respectful submission your Honour would not be seduced by the rhetoric into elevating what my learned friend seeks to do into some cause celebre. Indeed that is manifest by the way in which the question is framed. It, with respect, frames the matter far too widely having regard to the determination that you have made. It is, as we understood it, leaving aside addresses and DP references, demolition of a dwelling known as the Ferrymaster's Cottage on 1 August 2001 was development for the purpose of dwelling houses within the meaning of cl 10 of Gosford Planning Scheme Ordinance. Now the vice that suffers is the vice which we addressed and on which we succeeded, namely it fails to address the terms in which the charge and summons was framed, because as your Honour determined, in accordance with our submission, there was no case to answer based upon the terms in which the case was framed and the evidence that went to that. What the question, broadly framed, seeks to do is to go beyond the judgment and have some broad question that's sought to be posed which, with respect, whatever the answer would not necessarily impinge upon, as it were, the next step in the case, assuming that your Honour were overturned by the Court of Appeal.
My friend advances the proposition on the basis that this is, as we understood the submission, an endeavour to agitate the position that demolition is part and parcel of the use of a dwelling house. If that be so, that begs the question of the submission we made: why wasn't that the charge? And that's really the problem when we say about this being framed too widely. One can test the proposition my learned friend seeks to make, by asking when the building is demolished in this case on the facts as they are led by the prosecutor, can it truly be said that the land is being used for the purpose of a dwelling house. That, with respect, can't possibly be the argument. And yet that would need to follow, in our submission, from the way in which he seeks to put the matter. But more importantly, we say it expressed far too broadly, that is to say the question that he seeks to agitate is expressed far too broadly to reflect the determination, what we say is the relatively narrow determination that your Honour has made.
Finally can I put this. Contrary to the submission my learned friend made it must, with respect, be relevant to the exercise of discretion as to whether to subject a matter, or more importantly subject the parties to a reference to the Court of Criminal Appeal when a determination has been made that no case, no prima facie case has been made out as to the circumstances of the commission of the offence that's alleged. And this doesn't involve looking at facts or assuming facts down the track, relevantly. What this involves in this particular case is looking no further than the prosecutor's evidence. And the prosecutor's evidence shows relevantly two things. First, from the moment that Mr Hall was spoken to he indicated forthwith that the advice he had was that he was legally entitled to do what he was doing. Not only did he say that, he identified the giver of the advice. He was invited in the evidence to have the giver of the advice, Mr Rigg, communicate with the council concerning that advice. And that advice was indeed communicated in the letter of 14 August, where Mr Rigg confirms that he tendered the advice prior to demolition having taken place. This is not evidence down the track that you might surmise has been given, this is the evidence that emerges from the prosecutor's case. That, we submit, is relevant, not for present purposes to say that an argument for example based on a Proudman v Dayman defence will succeed, that's beside the point. But rather simply to say well look these are the circumstances in which I'm being asked to refer this question - and we say a relatively narrow question - to the Court of Criminal Appeal in circumstances where, perhaps to take a case away from this - let it be assumed that it was obvious, to the extent that these things can be obvious, that even if on the facts as they are known, the defendant was likely to be given the benefit of a s 10, would it truly be said that it warranted the matter being referred for determination in that circumstance We would submit not. At least that's relevant to be considered in all the matters that are relevant to be considered when weighing up the determination as to whether or not this should be referred. And so your Honour for those reasons and the reasons we earlier indicated we would submit that the discretion be exercised in favour of not referring the matter.
ROBSON: Your Honour can I just have one - in relation to Aliton. Aliton, I say from the bar table, is the corporate visage of Mr Bradley Hall, a man who is 60 years of age, de facto private individual, working in the area and has been brought to these proceedings, conducted this matter properly and he wishes there to be an end to proceedings. If your Honour doesn't exercise your discretion in favour of Mr Robertson in relation to his submission then Mr Robertson's not without remedy in any event. Your Honour there is nothing that's been raised either in the earlier formulation of the question or now, that would change your Honour or change what I put earlier, in my respectful submission, in relation to matters which you would take into account in considering the application.
HIS HONOUR: The prosecutor asks that I refer to the Court of Criminal Appeal a stated case raising the following question of law: "Whether demolition of a dwelling house known as The Ferrymaster's Cottage on Lot 222 DP 514964 at 43 Wagstaff Avenue, Wagstaff, within the City of Gosford on 1 August 2001 was development for the purpose of dwelling houses within cl 10(2)(b) of the Gosford Planning Scheme Ordinance". It is submitted by the prosecutor that the question is one of public importance, namely whether demolition in the present case is for the purpose of a dwelling house when that which is being demolished is a dwelling house. It is secondly submitted that demolition of a dwelling house simpliciter itself amounts to the planning use of a dwelling house and is also a question of law. The prosecutor submits that in many planning instruments the physical means by which development is carried out is not necessarily the end use, and it is not usual to find demolition simpliciter as a planning use. In short, it is said that there is a question of law raised here, that the question will arise in other cases, that it involves a construction of s 4 of the EP&A Act and that it involves the construction of planning instruments.
The defendants oppose the making of a stated case to the Court of Criminal Appeal on a number of grounds. It is said that this case turns upon its own facts; that there is no great public importance arising from the facts of this case; and that in the present case if any construction question arises it is solely on the construction of the planning instrument in this case. The defendants also point to the fact that it was open to the prosecutor to charge the defendants with another offence; and that the question of law framed by the prosecutor in the present case is too broad.
Finally, the defendants ask that I have regard to the circumstances in which the offence was committed. Here, the defendant, Michael James Hall, said he was, on legal advice, doing what he did. Moreover, the dispenser of that advice, the defendant's solicitor, got in touch with the prosecutor some fourteen days after the building was demolished and set out the substance of that legal advice.
The Court has a discretion, the discretion being whether or not to accede to the prosecutor's request to state the case for the Court of Criminal Appeal. In my opinion, in the present case, the discretion should be exercised in favour of the defendants. The case turns largely upon the formulation of the particular summonses in this case and that was the reason why the "no case to answer" submission was successful. I do not think any question of general importance is raised. I therefore decline to accede to the prosecutor's request. [COUNSEL ADDRESSED ON COSTS]
HIS HONOUR: On the question of costs it is submitted that no order should be made against the prosecutor in this case on a number of bases. It is said that I have found that what was done was prohibited development, being a breach of s 76B of the EP&A Act rather than s 76A of that Act. But, in the prosecutor's submission, a breach there was. It is also submitted that in the separate Class 1 proceedings there was an issue as to whether demolition should take place: that was an issue which was alive and ought to have alerted the defendants to the fact that the council saw that as important. It is also submitted that one of the substantial legal questions in this case was the question of whether or not demolition was exempt development, and much of the preparation for the case involved that question, on which the prosecutor was successful.
In the present case the individual defendant, Mr Hall, says that he did what was done on legal advice. In my opinion, notwithstanding the submissions of the prosecutor, the principles described by the High Court in Latoudis v Casey (1990) 170 CLR 534 require that costs follow the event. I do have a concern, however, about the fact that the prosecutor succeeded on one of the two issues. Nevertheless, if the proceedings had not been brought at all then the defendants would not have incurred any costs. In my opinion, costs should follow the event.
I make the following formal orders in each case: (1) The charge is dismissed. (2) The prosecutor must pay the defendants' costs. (3) The exhibits may be returned. I hereby certify that the preceding 50 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

Gosford City Council v Aliton Pty Ltd

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Judgment (10 paragraphs)

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Cases Cited (7)

Cited By (1)