Heatscape Pty Ltd v Mahoney - [2016] NSWLEC 45 - NSWLEC 2015 case summary — Zoe

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Heatscape Pty Ltd v Mahoney

[2016] NSWLEC 45

Land and Environment Court (NSW)|2015-08-05|Before: Pepper J

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2015-08-05

Before

Pepper J

Source

Original judgment source is linked above.

Judgment (47 paragraphs)

[1]

the City of Sydney v Adams [2015] NSWLEC 206 Council of the City of Sydney v Trico Constructions Pty Ltd [2015] NSWLEC 56 Cowra Shire Council v Fuller [2015] NSWLEC 13 Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; 66 NSWLR 379 Department of Environment and Climate Change v Olmwood Pty Ltd [2010] NSWLEC 15; (2010) 173 LGERA 366 Director General, Department of Land and Water Conservation v Bailey [2003] NSWCCA 361; (2003) 136 LGERA 242 Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 Director-General of the Department of Environment, Climate Change v Walker Corporation Pty Limited (No 2) [2010] NSWLEC 73 Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 2) [2011] NSWLEC 229 Director-General, Department of Natural Resources v Gleeson [2007] NSWLEC 749 Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5; (1990) 168 CLR 594 Egan v Hawkesbury City Council (1993) 79 LGERA 321 Environment Protection Authority v Attard [2000] NSWCCA 242 Environment Protection Authority v Djura [2012] NSWLEC 122 Environment Protection Authority v Fletcher [2001] NSWLEC 104; (2001) 114 LGERA 187 Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 Environment Protection Authority v Riverina (Australia) Pty Ltd [2014] NSWLEC 190 Environment Protection Authority v Schon G Condon as liquidator for Orchid Holdings (NSW) Pty Ltd (in liq) [2014] NSWCA 149; (2014) 86 NSWLR 499 Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 Filipowski v Fratelli D'Amato Srl [2000] NSWLEC 50; (2000) 108 LGERA 88 Filipowski v Hemina Holdings SA; Filipowski v Rajagopalan (No 2) [2009] NSWLEC 104 Fletcher v Byron Shire Council (No 2) [2010] NSWLEC 226 Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160 Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 Gore v The Queen [2010] NSWCCA 330 Heatscape Pty Ltd v Mahoney [2015] NSWLEC 126 Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661; (1998) 103 LGERA 355 Holroyd City Council v El-Khouri [2008] NSWLEC 83 Hunter Water Board v State Rail Authority of New South Wales (No 2) (1992) 75 LGRA 22 Hurstville City Council v Naumcevski [2011] NSWLEC 226 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 296 Kari & Ghossayn Pty Ltd v Sutherland Shire Council [2006] NSWLEC 532; (2006) 150 LGERA 231 Ku-Ring-Gai Council v Vinci [2007] NSWLEC 283 Lane Cove Council v Wu [2011] NSWLEC 43 Lavorato v The Queen [2012] NSWCCA 61; (2012) 82 NSWLR 568 Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79 Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170 Lloyd v Wollongong City Council [2015] NSWLEC 146 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Master Education Services Pty Ltd v Ketchell [2008] HCA 38; (2008) 236 CLR 101 Matic v Mid-Western Regional Council [2008] NSWLEC 113 Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 Mosman Municipal Council v IPM [2016] NSWLEC 26 Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89 Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 Newcastle City Council v Pace Farm Egg Products Pty Ltd (No 3) [2005] NSWLEC 423 Olsson v Goulburn Mulwaree Council [2010] NSWLEC 169; 176 LGERA 71 Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 Parramatta City Council v Cheng [2010] NSWLEC 94 Pittwater Council v Scahill [2009] NSWLEC 12;(2009) 165 LGERA 289 Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144; Plath v Rawson [2009] NSWLEC 178; (2009) 170 LGERA 253 Port Stephens Council v SS & LM Johnson Pty Limited [2007] NSWLEC 30; (2007) 152 LGERA 193 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v State of New South Wales [2014] NSWCA 116 Queanbeyan City Council v Kovacevic [2015] NSWLEC 152 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Paris [2001] NSWCCA 83 R v Piccin (No 2) [2001] NSWCCA 323 R v Wickham [2004] NSWCCA 193 Ryde City Council v Pedras [2009] NSWCCA 248 Sutherland Shire Council v Benedict (No 4) [2015] NSWLEC 101 Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 Thomson v Hawkesbury City Council [2009] NSWLEC 151 Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512 Willoughby City Council v BCPD Pty Ltd [2010] NSWLEC 163 Willoughby City Council v Finlay (No 2) [2010] NSWLEC 233 Wollongong City Council v Ensile; Wollongong City Council v Hogarth (No 4) [2008] NSWLEC 149; (2008) 71 NSWLR 563 Woollahra Municipal Council v JPS Development & Construction Pty Limited [2007] NSWLEC 595 Woolmington v Director of Public Prosecutions (UK) [1935] AC 462 Texts Cited: Macquarie Dictionary (online ed) Oxford English Dictionary (online ed) The Oxford English Dictionary (2nd ed) Category: Principal judgment Parties: Heatscape Pty Ltd (Appellant) Mr Maxwell Mahoney (Respondent) Representation: Counsel: Mr J Dupree (Appellant) Ms M Carpenter (Respondent)

[3]

TABLE OF CONTENTS TOPIC Heatscape Appeals Against its Conviction and Sentence in the Local Court for Carrying Out Development Without Consent - [1] Nature of an Appeal Against Conviction and Sentence - [9] History of the Proceedings - [21] The Issues Raised on Appeal - [30] The Evidence on Appeal - [32] Heatscape Sought Leave to Adduce New Evidence - [49] The Appeal Against Conviction - [53] Mr Mahoney's Legal Authority to Issue the PIN - [53] The Validity of the CAN - [82] The Defect in the PIN Did Not Affect the Validity of the CAN - [82] The Challenge to the Order Requiring the Council to Elect Must Fail - [102] The CAN Was Not Defective Because the Date of the Commission of the Offence Was Incorrect - [117] The Offence of Development Without Development Consent - [124] Was Development Consent Required for the Development? - [130] Legislative Framework - [136] Principles of Statutory Construction Applicable to the GLEP and the Exempt and Complying Development SEPP - [149] Was Development Consent Required? - [153] Summary: the Premises are Located in a Heritage Conservation Area - [172] Was the Development Exempt Development? - [173] Onus of Proof - [184] The Development Was Not Exempt Development - [211] Under the GLEP - [214] Under the Exempt and Complying Development SEPP - [218] Summary: Heatscape is Guilty of the Offence as Charged - [226] The Appeal Against Sentence - [227] Sentencing Principles - [227] Objective Circumstances of the Offence - [234] Nature of the Offence - [235] Maximum Penalty - [236] Environmental Harm Caused by the Commission of the Offence - [238] Heatscape's State of Mind in Committing the Offence - [240] Heatscape's Reasons for Committing the Offence - [249] The Foreseeability of the Risk of Harm to the Environment - [251] The Practical Measures Available to Heatscape to Avoid Harm to the Environment - [253] Control Over the Causes of the Harm - [254] Conclusion on Objective Gravity - [255] Subjective Considerations - [256] Conclusion on Subjective Circumstances - [261] Deterrence, Denunciation and Retribution - [262] Evenhandedness - [266] Appropriate Penalty to be Imposed - [270] Whether an Order Under ss 10 or 10A of the CSPA Ought to be Made - [273] Costs - [282] Costs in the Local Court - [284] Costs of the Appeal - [293] Orders - [295]

[4]

Heatscape Appeals Against its Conviction and Sentence in the Local Court for Carrying Out Development Without Consent

On 24 August 2012, the prosecutor, Gloucester Shire Council ("the council"), commenced summary criminal proceedings in the Local Court against Heatscape Pty Ltd ("Heatscape"), by issuing a Court Attendance Notice ("CAN") which stated that Heatscape had "carried out building works and signage without consent" to premises at 76 Church Street, Gloucester ("the premises") on 20 June 2012, contrary to s 76A(1) of the Environmental Planning and Assessment Act 1979 ("EPAA").
It was not contested that Heatscape was the registered proprietor of the premises.
On 30 October 2014, McCosker LCM found the offence proved, in short, because Heatscape had removed an external sash window on the premises and replaced it with a new and larger fixed window in the same location, in circumstances where development consent was required for that activity.
The external wall where the window was replaced was located along the northern side of the premises adjacent to a laneway.
On 21 November 2014, Heatscape filed a summons in this Court appealing against the conviction and sentence imposed by the Local Court. No less than 24 separate grounds of appeal were listed in the summons.
The appeal should have been a relatively straightforward, and therefore, inexpensive affair. As Mr James Dupree, counsel appearing for Heatscape, noted on the first day of what became a four day appeal (originally listed for two), "one has to be proportionate about these things, one doesn't go off and run an administrative law case over a $3,000 penalty notice" (T47:37-38). Yet, despite this unassailable observation, this is precisely what Heatscape endeavoured to do before this Court. What is more, in addition to misconceiving the nature of the appeal (which was reflected in its extensive written submissions), Heatscape frequently raised issues for the first time on appeal, it raised issues that were subsequently not developed or were seemingly abandoned, and it generally failed to conduct itself in a manner that facilitated the expeditious and efficient conduct of the proceedings. If every legal point raised by Heatscape and every case referred to by it (most of which were either irrelevant, distinguishable, or both) was the subject of express discussion in these reasons, the judgment would be much longer than its already excessive length.
While a criminal defendant is entitled to conduct its defence vigorously and demand, at all times, that the prosecutor prove the case against it beyond reasonable doubt, there should be, as Mr Dupree sagely stated, a degree of "proportionality", if not reasonableness, brought to bear by an appellant in proceedings commenced in Class 6 of the Court's jurisdiction. In this appeal this was absent. As a consequence, had Heatscape been successful, the manner in which it ran the appeal may have been reflected in any costs award made in its favour.
But, as it transpired, it was not necessary to deal with the costs implications of Heatscape's conduct because, for the reasons that follow, the appeal against both conviction and sentence is dismissed with costs.

[5]

Nature of an Appeal Against Conviction and Sentence

In Cameron v Eurobodella Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 Preston J elaborated upon the nature of a Class 6 appeal (at [10]-[12]). A similar exercise was undertaken by me in Thomson v Hawkesbury City Council [2009] NSWLEC 151 (at [43]-[44]).
In summary, an appeal against conviction is made to this Court as of right under s 31(1) of the Crimes (Appeal and Review) Act 2001 ("the Appeal and Review Act").
An appeal against conviction is dealt with by way of rehearing on the basis of certified transcripts and evidence adduced in the Court below (s 37(1) of the Appeal and Review Act).
The Court considers the matter afresh and resolves for itself the ultimate issues for determination. Contrary to Heatscape's submissions, it is not necessary for the Court to find fault or error with the lower court's reasoning (Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160 at [6]).
Because the appeal is not for error, it was not incumbent upon Heatscape to demonstrate that a conclusion was not open to the court below "in the sense of being a conclusion to which on the evidence, it should not have come. It is merely necessary to persuade this Court on a review of the evidence that guilt is not, to the necessary standard, proved by the prosecutor" (Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661; (1998) 103 LGERA 355 at 678C).
The Court may determine an appeal against conviction by setting aside the conviction or by dismissing the appeal (s 39 of the Appeal and Review Act).
The Court may grant leave to adduce new evidence only if it is satisfied that it is in the interests of justice to do so (s 37(2) of the Appeal and Review Act and see Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485 at [34], Kari & Ghossayn Pty Ltd v Sutherland Shire Council [2006] NSWLEC 532; (2006) 150 LGERA 231 at [13] and Fletcher v Byron Shire Council (No 2) [2010] NSWLEC 226 at [13]).
There is, similarly, an appeal as of right against sentence pursuant to s 31(1) of the Appeal and Review Act. However, there is a distinction in the Act between how appeals against sentence and appeals against conviction are to be conducted by appellants insofar as there is no equivalent to s 37 of the Appeal and Review Act in an appeal against sentence. The Appeal and Review Act is therefore silent on the nature of an appeal against sentence, and, in particular, whether leave is required to adduce fresh evidence on the appeal.
In Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 (at [33]-[51]) the Court discussed this legislative inconsistency and concluded that (at [51]): Notwithstanding the legislative lacuna on the nature of an appeal against sentence only under the Act, the Court proceeded on the basis that the appeal was by way of rehearing, absent the limitation on adducing fresh evidence contained in s 37(2). Thus the Court resolved for itself the ultimate issues for determination, in this case, the appropriate sentence to be imposed for the offence …
Consequently, an appeal against sentence proceeds by way of rehearing but without the need for an appellant to seek the leave of the Court to adduce fresh evidence.
Notwithstanding the nature of the appeal, Heatscape invited the Court to "bifurcate" (T109:37) the proceedings before it pursuant to the power contained in s 49(2) of the Appeal and Review Act and dismiss the appeal on a "prima facie" basis, presumably on the basis of a no case application (T109-110). This meant ignoring, for the purpose of determining the application, some of the evidence before the court below, in particular, the 11 June 2012 letter.
But the application ignores the nature of the appeal against conviction explained above and the plain and unambiguous language of s 37 of the Appeal and Review Act. It was not a course that the Court was, on appeal, inclined to follow and it refused to do so.

[6]

History of the Proceedings

On 20 June 2012, Heatscape was issued with General Penalty Notice 3051361877 ("PIN") for the sum of $3,000 for the offence.
The PIN stated the following: It is alleged at --:-- hrs to --:-- hrs on Wed (day) 20.06.12 date at 76 Church Street (street) between King Street and Denison Street suburb Gloucester…the following offence was committed…the carrying out of building works signage without development consent.
The issuing authority was purportedly signed by Max Mahoney (although this is not immediately apparent from the signature and is a matter of inference based on later documentation, such as the CAN).
As was its right, Heatscape elected to contest the PIN and, on 24 August 2012, a CAN was issued to Heatscape by the "prosecutor", "Max Mahoney".
At no point, however, did Heatscape seek to challenge the lawfulness of the PIN or the authority to issue it in the court below.
The CAN stated as follows: DETAILS OF COURT LISTING The Court Attendance Notice has been listed before Gloucester Local Court on Date: 26/09/2013 Time: 9.30 AM Place: CHURCH STREET GLOUCESTER NSW DETAILS OF THE DEFENDANT Defendant HEATSCAPE PTY LTD ADDRESS: PO BOX 386 GLOUCESTER 2422 DETAILS OF PROSECUTOR Prosecutor: MAX MAHONEY Department / Organisation: Gloucester Shire Council - 101569 Date of Issue of Court Attendance Notice: 24/08/2012 Telephone: State Debt Recovery Office 1300 138 118 DETAILS OF OFFENCE Description of Offence: Development without development consent - other - corporation Date & Time of Offence: 20/06/2012 Place of Offence: 76 CHURCH ST GLOUCESTER Short Particulars: LOCATION: 76 CHURCH ST; ADD. PARTICULARS: CARRY OUT BUILDING WORKS AND SIGNAGE WITHOUT CONSENT; Statutory Provision Describing Offence: Environmental Planning and Assessment Act 1979, Section 76A(1)(a) & Section 125(1). Law Part Code: 68246
Heatscape applied in the court below to have the proceedings dismissed on the ground that the CAN was duplicitous. On 29 May 2013, McCosker LCM held that the CAN was duplicitous. But his Honour declined to dismiss the proceedings and instructed the council to elect which offence it intended to prosecute.
Therefore, on 15 August 2013, the council advised Heatscape in writing that, in accordance with the orders made by McCosker LCM, the "sole subject of the proceedings" was "the replacement of the window on the northern wall with a larger window".
On 30 October 2014 McCosker LCM found Heatscape guilty of the offence. His Honour fined Heatscape $12,000 and ordered Heatscape pay the council's costs of $24,000.

[7]

The Issues Raised on Appeal

Notwithstanding that there is no necessity to demonstrate error on the part of the court below, the summons contained a plethora of grounds of appeal, many of which were repetitive or were written in a manner which obfuscated the central issues required to be adjudicated upon in this appeal.
From Heatscape's written and oral submissions the following matters for determination were distilled: 1. whether, for a building, work, relic or tree to form a part of a heritage conservation area, it had to be established that the building, work, relic or tree was of "heritage significance"; 2. whether the Gloucester Main Street Precinct, being the heritage conservation area in which the premises were alleged to be located, constituted: 1. a heritage conservation area that was sufficiently identified on the relevant heritage map contained in the relevant environmental planning instrument, the Gloucester Local Environmental Plan 2010 ("GLEP"); and 2. a heritage conservation area the location and nature of which was sufficiently described within Sch 5 of the GLEP. 1. whether the council bore the onus of proof to establish, beyond all reasonable doubt, that the development was not exempt development; 2. whether the development constituted exempt development, pursuant to ss 76 and/or 76A of the EPAA, by reason of: 1. Sch 2 of the GLEP; and/or 2. cl 2.51(b) of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ("the Exempt and Complying Development SEPP"); 1. whether Mr Mahoney was at all relevant times an appropriate or authorised officer of the council with the legal authority or capacity to commence the proceedings; 2. whether the CAN was affected by error rendering it invalid as a result of: 1. duplicity contained within the PIN; and/or 2. the erroneous order by McCosker LCM requiring the council to elect an offence to remedy the duplicity contained within the original CAN; and 1. the appropriate weight to be given to Heatscape's mitigating factors when determining the appropriate sentence to be imposed upon it.

[8]

The Evidence on Appeal

The following evidence, contained in the court book, was before the Court: 1. the PIN; 2. the CAN; 3. the judgment of McCosker LCM delivered on 5 July 2013 relating to duplicity in the CAN; 4. a letter dated 15 August 2013 from Bowen-Thomas & Barlow, the solicitors for the council, to Corporate Network Legal making the election as to the offence charged; 5. the transcript of the Local Court proceedings on 8 May 2014; 6. three colour photographs, two of which were dated 11 May 2012, and one which was dated 8 June 2012; 7. a letter dated 11 June 2012 from Heatscape to the General Manager of Gloucester Shire Council; 8. an A3 colour copy of the GLEP Heritage Map - Sheet HER_009 ("Heritage Map 009"); 9. an enlarged portion of the Heritage Map 009, showing the Gloucester Main Street Precinct; 10. an A2 colour copy of the Heritage Map 009; 11. the judgment of McCosker LCM dated 30 October 2014; and 12. the transcript of the Local Court proceedings on 30 October 2014.
The transcript of the Local Court proceedings containing the closing submissions of the parties on 17 June 2014 was not tendered by either party.
Mr Roger Stimson was the sole witness called by the council in the Local Court proceedings. He was an environmental planner employed by the council from 2009 to 2013. Mr Stimson explained that his "role in the council at that time was to receive and assess all applications of a commercial type nature including applications for commercial premises in Church Street" (T27:32-34).
Mr Stimson gave evidence in relation to the location of the premises. During examination in chief, Mr Stimson was given a copy of Heritage Map 009. Mr Stimson identified an area hatched in red as constituting the Gloucester Main Street Precinct heritage conservation area. He described that area in the following way (T18:44-48 and T19:3-4): The area is centred on the main street of Gloucester which is Church Street. Church Street runs in a north-south - approximately north-south orientation. The heritage conservation area commences at the northern end of Church Street at the intersection of Queen Street… and continues south along Church Street until approximately the intersection of Hume Street with Church Street.
Mr Stimson identified where the premises were located (T20:11-14): Q. Mr Stimson from your knowledge of the Gloucester area, the Gloucester township, does 76 Church Street fall within the area between Queen Street and Hume Street? A. Yes it does.
Mr Stimson also gave evidence that he attended the premises on two occasions, namely, on 11 May 2012, together with Mr Max Mahoney, and on 8 June 2012.
Mr Stimson was shown two photographs of the window the subject of the proceedings. He stated that he had taken the photographs on 11 May 2012, which accorded with the date-stamp on the photographs. Mr Stimson described the two photographs as follows (T21:41-48 and T22:47-48): The top photo depicts the northern side elevation of 76 Church Street. It shows some preparation done to the external fabric there to prepare for painting. There is a tradesman up a ladder and I see a number of windows opening into the laneway there. … The bottom photograph shows the street or eastern elevation of 76 Church Street and that most of the façade has been painted an orange colour.
Mr Stimson also gave the following evidence about the forehead in the foreground of the first photograph (T21:30-37): Q. I think in one of those photographs and it may be the top one of the two there appears to be the forehead of a person in the bottom right hand corner of the photograph, do you recognise the forehead of the person just for completeness? A. I recognise that forehead. Q. Whose is it? A. That's the forehead of Mr Max Marnie [sic].
Mr Stimson then gave evidence that he returned to the premises on 8 June 2012 and that he noticed that the window had been removed and a "much larger glass window had been installed in its place" (T24:16-17).
Mr Stimson was then shown another photograph, about which he stated the following (T24:34-38): Q. What can you say about the location of that window as against the window that we saw in the earlier photograph which is exhibit 3, is it in the same place or a different place? A. It's in approximately the same location. You can see by this photograph where the old window - the earlier window was placed before it was removed.
Finally, Mr Stimson gave evidence that no development application had been submitted to council for the activity of replacing the window (T25:50-26:3, 27:36-38 and 29:3-6 respectively): Q. So are you able to say whether any written application for development consent was received by council for this replacement window with a larger window? A. Yes I can say and no such application was received. … Q. During the relevant period did you receive any application in connection with these premises? A. No. … Q. To your knowledge was any correspondence or notification received by council to identify the intention to perform this particular work, namely replacement [sic] window with a larger window. A. No.
Heatscape did not relevantly cross-examine Mr Stimson on this evidence. It was unchallenged.
Heatscape called Mr Robert Charman as a witness. Mr Charman was present at the premises in May 2012, because he had been engaged to paint them (see T68:14-16 and 69:14-22). The following evidence was elicited from Mr Charman (T68:18-69:10): Q. During the course of you painting in the period of May to June, did you have a conversation with Mr Max Marnie of the council? A. Yes. Q. Do you recall the words that you said to Mr Marnie and do you recall the words that Mr Marnie said to you? A. Mr Marnie said to me that he didn't care what happened from the return of the building to the front … No, he - he said that he wasn't concerned about the side of the building, it was the return of the building to the front. Q. In respect of the building, what did you say to Mr Marnie? A. So I could keep on painting up the side. Q. And what did he say? A. He said that would be all right. … Q. In respect of the window on the side of the building, could you describe the window at a time prior to the larger window being put in place[?]… A. There was a - it was a sash window in - in not good repair at all, it was very poor, in poor condition.
In cross-examination Mr Charman gave the following further evidence (T69:14-22): Q. Just so that I understand your evidence clearly, you were there as a painter? A. True, yes. Q. And you spoke to Mr Marnie about the painting? A. No, he spoke to me. Q. But that was the conversation about the painting work you were doing. A. True, yes.
Finally, a letter dated 11 June 2012 from Heatscape to the council was relied upon by Heatscape. The header of the letter read as follows: HEATSCAPE PTY LIMITED 76 Church Street Gloucester NSW 2422
The letter then stated (emphasis added): 11 June 2012 The General Manager Gloucester Shire Council 89 King Street Gloucester NSW 2422 Dear Mr Gardner, RE 76 Church Street, Gloucester NSW ("the property") We refer to the letters from Mr Green dated 15th May 2012 ("Councils first letter"), Mr Max Mahoney dated 16th May 2012 (Councils second letter) and 1st June 2012 from Mr Graham Gardner (councils third letter) and the letter from Heatscape Pty Limited dated 15th May 2012 ("Heatscape's first letter"). We also refer to the meeting between Heatscape and Mr Max Mahoney and Mr Roger Stimpson on the 15th of May 2012 ("the first meeting") and the meetings between Heatscape and Mr Graham Gardner on the 23rd May 2012 ("the second meeting") and on the 30th May 2012 ("the third meeting"). We note that Mr Mahoney and Mr Stimpson have attended the property on the 11th May 2012 (the first attendance") and the 8th June 2012 ("the second attendance"). We also note that Mr Mahoney and Mr Stimpson attended at 21 Denison Street Gloucester on the 11th May 2012 at which time there was a conversation with Mrs Lindy Dupree ("the conversation"). The first point that we wish to make is that the matters canvassed in the above need to be kept in context and in proportion. We observe that Heatscape's first letter remains unanswered as to the specific matters raised in it and that further the matters raised in Councils first letter (to which Heatscape's first letter was addressed) were agreed to be suspended on the basis that Heatscape would meet with Mr Gary Smith and consider the matters raised by him in any subsequent report to Council. We confirm that Heatscape agreed to meet with Mr Smith and has considered with great interest the subsequent report. We confirm that at the third meeting it was agreed that Heatscape would use the range colour for the trim suggested by Mr Smith on the basis that Councils expert is of the opinion that the undercoat presently on the property is within the range of acceptable heritage colours. No doubt Council accepts the advice of Mr Smith and continues to promote his advice as being the opinion of Council. The point of departure between Heatscape and Mr Gardner is the view expressed by Mr Gardner to the effect that Clause 5:10(2) of the Gloucester LEP 2010 requires the submission of a development application as asserted on the first page of Councils third letter. Heatscape is of the opinion that Mr Gardner's opinion does not accord with the requirements of the LEP and we now set out the basis for such a view: It would appear from Councils third letter that Mr Gardner accepts that the property is not included in schedule 5 (at page 52 of 97 of the LEP) as an Heritage Item and he seems to rest his assertion the property is within an heritage conservation area. It would appear that Mr Gardner does not consider the dictionary ascribed meaning of "heritage conservation area" which is in terms: "… "heritage conservation area" means an area of land of heritage significance: (a) shown on the Heritage Map as a heritage conservation area, and (b) the location and nature of which is described in Schedule 5, …" It is clear that there are two elements to be satisfied for clause 5:10(2)(iii) to be satisfied which are, it would seem to be that 1. shown on the Heritage Map as a heritage conservation area 2. the location and nature of which is described in Schedule 5, It is clear that the location of 76 Church Street Gloucester is not included in Schedule 5 and to the contrary it seems to be expressly excluded by there being no reference to it. Hence it is that 76 Church Street Gloucester is not a building, work relic or tree as referred to in 5:10(2). It is also noteworthy that the Development Control Plan 2010 5.1(iv) deals only with Heritage Items such that it is referable back to Schedule 5 of the LEP. It is clear from all that has been said on behalf of Heatscape in respect of the question of the work at the property that Heatscape is only too happy to have the property painted in a suitable colour and will continue to work with Council to achieve an harmonious result. The point of departure is that Heatscape does not believe that the law requires it to acquiesce in Councils demand to lodge a development application. It is apparent that Councils concern, as expressed by Mr Mahoney, is focussed on the street front to Church Street. This arises from Mr Mahoney's advice on site that "…We [meaning the Council} do not care what you do in the lane way [meaning the wall along the boundary of lots 21 and 22 and the wall of the property within the boundary of lot 18] or inside the building [meaning the property] …" ("the Councils representation"). The Councils representation was heard by many witnesses. Acting on Councils representation and on the necessity to repair and maintain the fabric of the property you will no doubt be aware that a dilapidated window has been repaired by its replacement with a fixed window in heritage coloured trim. The necessity of this repair was obvious and involved a window that was old, weather affected and in a position where the building plates were rotten and also needed repair by replacement. Additionally the OHS requirement of safety to the workforce occupying the property necessitated a window that was capable of being made secure which was not the case with the window that was replaced. It is undoubtedly well known by Council as to the history of lawlessness occurring in the laneway constructed on lots 21 and 22. There are a number of matters that caused Heatscape concern in the manner that Mr Mahoney and Mr Stimpson have conducted themselves. In detailing that which follows: On the 11th May 2012 during the conversation after Mr Mahoney made a number of statements Mr Stimpson turned to Mrs Dupree and in what appeared to be threatening manner said "… On the 8th June 2012 the second attendance began with Mr Mahoney asking permission to enter the property ("the request"). On making the request Mr Mahoney was told that he should not and that he should make the request of Mrs Dupree who was at 21 Denison St Gloucester. Mr Mahoney thereupon entered into the property without permission and thereby trespassed. Mr Stimpson, who was accompanying Mr Mahoney made no request to enter and simply followed Mr Mahoney and thereby trespassed on the property It is noteworthy that any materials gathered by either Mr Mahoney or Mr Stimpson were gathered illegally as a result these trespass. As to the consequences of trespass and the view adopted by the High Court we refer you to the successful damages claim in Dillon -v- Plenty Shortly after Mrs Dupree arrived at the property and requested both Mr Mahoney and Stimpson to leave the property. Mr Mahoney at first refused and after a short while complied with Mrs Dupree's request. As Mr Mahoney was leaving, in a threatening voice said to Mrs Dupree "…Don't think about moving in …". This was no doubt referable to the travel agency and the bookshop …" ("the trading threat") Council would no doubt agree that, whatever the difference of opinion as to the law between Council and Heatscape, there is no place for this threatening behaviour, especially when it is directed to a woman by two men seemingly attending together. No doubt Councils Officers do not have the necessary corporate memory as to the fact that the travel agency was prior to 5th September 2006 a tenant in respect of the property from where it traded and will be continuing that landlord and tenant relationship with the current owner Heatscape Pty Limited. In any event there is not a change of use as is referred to in DCP 2010 clause 5.1(iii). We observe that in paragraphs numbered 3 and 5 of the Councils second letter would be made clearer when the Council analyses D/A 2011/2075 ("the Harvey World Travel Agency application"). It is clear that 36 Church Street Gloucester NSW is included in Schedule 5 and thus is an heritage item. A casual observation, applying Mr Smith's criteria, that no attempt to adhere to the DEC or the LEP requirements as to heritage requirements. The building has been recently painted in the Harvey World Travel Groups Corporate colours (blue and white). The signage is large and again pays no regard to heritage consideration. The tenant is a company Sharenern Pty Limited trading as Harvey World Marketing which company is controlled by Mr and Mrs Ernie and Sharee Abeysekera. It was Mrs Sharee Abeysekera who in May 2012 was observed to take photographs of the property and on the same or next day Mr Mahoney and Mr Stimpson attended 21 Dennison Street Gloucester advising that Council has had a complaint. During the first meeting Mr Mahoney did not deny that the complainant was persons interested in the Harvey World Travel. No doubt an analysis of the Councils file in respect of the property will clarify the identity of the complainant and the terms of the complainant. It is further noteworthy that the work done on the lots 21 and 22 is, if Mr Gardner's view of LEP 5:10(2) is correct the Council would be no doubt concerned to ascertain as to whether any development application complying with clause 5:10 was lodged by the owner of lots 21 and 22. Similarly the work outside the toilets in Billabong Park should be analysed as to whether or not there is a necessity for development application as suggested by Mr Gardner's view of the LEP. As to matters in respect of the lane way built over lots 21 and 22 it is clear that Council has attached its public lighting to the fabric of the property. Heatscape knows of no permission given by the openers of the property. Should Council be in possession of any such permission please let us have an advice of the precise nature of such permission. In the event the permission is in writing please let us have a copy of such writing. In the event that there is no extant permission please inform us as to any proposal for the granting of such permission or the terms of the removal of such lighting. As to the recently constructed concrete pathway on lots 21 and 22 Heatscape advised that the construction method adopted by Council results in there being water coming onto the property whereby damage to the property occurs. Please let us have details of the propose remediation of this concrete path and the blue metal immediately adjacent to the pathway which is on the lots 21 and 22 which blue metal has been spread onto the property. In light of that which is said, the DEP 5.1 we propose that there be a meeting between Heatscape and Council in which meeting an endeavour be made to resolve all differences between Heatscape and Council noting that the question of colour has been all but put to bed by Mr Smith Yours Faithfully Heatscape Pty Limited
The letter was unsigned.

[10]

Mr Mahoney's Legal Authority to Issue the PIN

Prior to turning to the elements of the offence with which Heatscape has been charged, it is necessary to deal with several preliminary arguments raised by Heatscape challenging, in effect, the validity of the entire prosecution.
The first concerned the legal authority or the capacity of the prosecutor, Mr Max Mahoney, to commence the proceedings in the court below. In this regard, it is of interest to note that while the issue was obliquely raised below, when the prosecution case closed on 8 May 2014, there was no submission made at that juncture by Heatscape that a prima facie case had not been made out by reason of this issue. Rather, the issue was ventilated during the course of Heatscape's defence.
At first instance, McCosker LCM summarised the evidence on this issue as follows: A preliminary point was raised in the defence submissions as to the capacity for the prosecutor Max Mahoney to commence proceedings because there is no evidence that he had standing to institute proceedings. As the Environmental Planning and Assessment Act, 1979 provides for an offence against Section 76A should no consent be obtained before work was done to a prescribed building and that the Gloucester Local Council Environment Plan 2010 contains within its provisions exemptions from the operation of Section 76A then it follows that only an officer duly authorised by the Gloucester Shire Council may institute proceedings of the kind before this Court. If there is no evidence supportive of this point then the proceedings are nullity and they must be dismissed. The prosecutor Max Mahoney did not appear before the Court. It was the evidence of Mr Stimson, a former employee of Gloucester Shire Council, that he did not know the current whereabouts of Mr Mahoney. The effect [of] Mr Stimson's evidence on this point is that while he was employed as an officer of the Gloucester Shire Council both he and Mr Mahoney attended the subject premises for the purposes of making an inspection. I am of the view that a reasonable inference can be drawn from this evidence that Mr Mahoney was not a mere disinterested bystander and that he had more than a passing interest in the premises and that this interest was due to his position with the Council. Interestingly, when the prosecution evidence closed on 8 May 2014 there was no submissions made at that point that a prima facie case was not made out. As the prima facie test is an acknowledgment that the evidence before the court is capable of supporting the elements of the offence and nothing further advanced to detract from the evidence. Indeed, Mr Charman's evidence of conversation with Mr Mahoney and the perceived reliance upon it in the defence case indicates to my mind an acknowledgment by the defendant itself of the authority of Mr Mahoney. The defence relied upon the conversation said to have taken place between Charman and Mahoney as the basis of absolution from liability under the Proudman and Damon principle. It is ironic that Mahoney's authority is relied upon to assist the defence and then rejected by defence on another point.
On appeal, the question of the council's capacity to commence the proceedings prompted the council to make an application for leave to rely on fresh evidence in the form of an affidavit from Mr Danny Green, the General Manager of Gloucester Shire Council.
No affidavit was proffered by Mr Mahoney, but this could not, contrary to Heatscape's submission, give rise to any adverse inference drawn in conformity with the principle in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 296. This is because if for no other reason, it was neither necessary or required for him to do so.
The affidavit sought to demonstrate beyond any doubt that Mr Mahoney had the capacity to initiate the proceedings on behalf of the council. However, in light of a foreshadowed adjournment application by Heatscape on the basis that it required more time to reply to the contents of the affidavit, the application was abandoned by the council.
The council was correct to take this course given the legislative provisions governing a prosecutor's capacity to issue a PIN and CAN.
Section 22 of the Fines Act 1996 ("Fines Act") sets out who may issue a fine: 22 Persons who may issue and deal with penalty notices (appropriate officers) (1) A penalty notice may be issued by a person authorised by the statutory provision providing for the issue of the notice. (2) For the purposes of this Part, the following are appropriate officers for a penalty notice: (a) a person so authorised to issue that kind of penalty notice, (b) a person who is: (i) employed in the Office of State Revenue in the Department of Finance and Services, or whose services are made use of by that Office (whether by way of temporary hire arrangement, secondment or otherwise), and (ii) authorised by, and subject to the control and direction of, the Commissioner for the purposes of this Part, (c) a person, or a member of a specified class of persons, specified in the regulations for that kind of penalty notice or for all penalty notices.
For the purpose of s 22 of the Fines Act, s 127A(1) of the EPAA provides that: 127A Penalty notices for certain offences (1) An authorised person may serve a penalty notice on a person if it appears to the authorised person that the person has committed an offence under this Act or the regulations, being an offence prescribed by the regulations.
Relevantly, for the purpose of s 22(2)(c) of the Fines Act and s 127A of the EPAA, cl 284(3)(c) of the Environmental Planning and Assessment Regulation 2000 ("EPA Regulation") states that: 284 Penalty notice offences (3) The following persons are declared to be authorised persons for the purposes of section 127A of the Act: (a) any person who is generally or specially authorised by the Minister to be an authorised person for those purposes, (b) any person (including a person employed in the Department) who is generally or specially authorised by the Secretary to be an authorised person for those purposes, (c) any person (including an employee of a council) who is generally or specially authorised by a council to be an authorised person for those purposes, (d) any police officer, (e) any authorised fire officer (being an authorised fire officer within the meaning of section 121ZC of the Act).
Schedule 5 of the EPA Regulation sets out the offences that constitute or are amenable to a PIN, which includes an offence pursuant to s 125 of the EPAA for a contravention of s 76A of that Act.
Section 172 of the Criminal Procedure Act 1986 ("CPA") provides that in relation to CANs: 172 Commencement of proceedings by court attendance notice (1) Proceedings for an offence are to be commenced in a court by the issue and filing of a court attendance notice in accordance with this Division. (2) A court attendance notice may be issued in respect of a person if the person has committed or is suspected of having committed an offence. (3) A court attendance notice may be issued in respect of any offence for which proceedings may be taken in this State, including an offence committed elsewhere than in this State.
Sections 173 and 174 of the CPA further provides that: 173 Commencement of proceedings by police officer or public officer If a police officer or public officer is authorised under section 14 of this Act or under any other law to commence proceedings for an offence against a person, the officer may commence the proceedings by issuing a court attendance notice and filing the notice in accordance with this Division. 174 Commencement of private prosecutions (1) If a person other than a police officer or public officer is authorised under section 14 of this Act or under any other law to commence proceedings for an offence against a person, the person may commence the proceedings by issuing a court attendance notice, signed by a registrar, and filing the notice in accordance with this Division. (2) A registrar must not sign a court attendance notice if: (a) the registrar is of the opinion that the notice does not disclose grounds for the proceedings, or (b) the registrar is of the opinion that the notice is not in the form required by or under this Act, or (c) the registrar is of the opinion that a ground for refusal set out in the rules applies to the notice. (3) If a registrar refuses to sign a court attendance notice proposed to be issued by any such person, the question of whether the court attendance notice is to be signed and issued is to be determined by the court on application by the person.
Section 14 of the CPA in turn states that: 14 Common informer A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons.
Relevantly, the term "public officer" is defined in the Dictionary in s 3(1) of the CPA as: public officer means any of the following persons, if acting in an official capacity: … (c) an employee of a council within the meaning of the Local Government Act 1993,
Further, s 3(3) of the CPA says: In the absence of evidence to the contrary, a person specified in paragraphs (a)-(f) of the definition of public officer who purports to exercise a function as a public officer under this Act is presumed to be acting in an official capacity.
Finally, s 697 of the Local Government Act 1993 ("the LGA") provides (emphasis added): 697 Formal matters In any prosecution or other legal proceeding under this Act or any other Act instituted by or under the direction or on behalf or for the benefit of the council, proof is not, until evidence is given to the contrary, to be required of any of the following: • the incorporation of the council • the persons comprising the governing body of the council • the election or appointment of the mayor or any other councillor • the extent or boundaries of the area or of any ward • the fact that any particular place is within the area or within a ward • the appointment of the general manager or of any other employee of the council • any order to prosecute or the authority of the general manager or any employee of the council to prosecute • the presence of a quorum of the council at the passing of any resolution or the making of any decision or determination or the doing of any act • the fact that the defendant is or at any relevant time was the owner or occupier of any land in question • the fact that the defendant is or at any relevant time was the owner or in possession, control or charge of any animal or thing in question.
Tracing through the above statutory framework, it is, in my opinion, tolerably clear that Mr Mahoney had the legal authority to issue the PIN and to commence the proceedings.
As s 697 of the LGA makes plain, proof is not required of Mr Mahoney's authority to prosecute until evidence is given to the contrary and none has ever been provided by Heatscape. Simply asserting, as Heatscape does, that "nobody knows who he is" (T44:3-4) is not, in my view, sufficient. The section is not limited in its application to the LGA but includes the EPAA, and any prosecutions instituted under it.
In response, Heatscape asked the Court to infer from the PIN that Mr Mahoney was either commencing the prosecution in his personal capacity or as an officer of the State Debt Recovery Office, and not under the direction, or on behalf of, the council, and that thereby, Mr Mahoney did not have the authority to prosecute the offence. Heatscape submitted that, because the PIN stated that the prosecutor was "Max Mahoney" and made no reference to the council, it was open to the Court to infer that the prosecution against Heatscape was, contrary to s 697 of the LGA, not instituted on behalf, or for the benefit, of the council, but was instead instituted by Mr Mahoney in his personal capacity under s 174 of the CPA. Alternatively, Heatscape submitted that, as the fine was "payable to the State Debt Recovery Office", it was open for the Court to infer that the prosecution was instituted on behalf, or for the benefit, of the State Debt Recovery Office.
I decline to draw either inference.
Whilst it is true that the PIN does not expressly refer to the council, the PIN must be read within its statutory context. In this context, and absent any cogent evidence to the contrary, it may be inferred that the issuer of the PIN is an employee of the council and has authority to prosecute an offence. Further, the PIN ought not be construed in isolation, but in conjunction with the CAN. This is because, upon a defendant electing (which is what Heatscape did) to have a matter dealt with by a court (s 76A(1)(a) of the Fines Act), pursuant to s 173 of the CPA, a "public officer … may commence the proceedings by issuing a court attendance notice and filing the notice". This is precisely what occurred.
The CAN relevantly stated, "Prosecutor: Max Mahoney; Department/Organisation: Gloucester Shire Council". In my opinion, the CAN is sufficient evidence enabling the inference to be drawn that Mr Mahoney was at all material times an employee of the council and had the authority to prosecute on behalf, or for the benefit, of it (see generally the discussion at Director-General of the Department of Environment, Climate Change and Water v Walker Corporation (No 2) [2011] NSWLEC 229 at [11]-[57], Corbyn v Walker Corporation Pty Ltd [2012] NSWLEC 75; (2012) 186 LGERA 442 at [2]-[11] and Queanbeyan City Council v Kovacevic [2015] NSWLEC 152 at [27]). In other words, Mr Mahoney neither commenced the prosecution in his personal capacity nor on behalf of the State Debt Recovery Office.
Additionally, for the purpose of s 173 of the CPA, the term "public officer" is defined as including "an employee of the council" (s 3(1) of the CPA). And importantly, s 3(3) provides that, "in the absence of evidence to the contrary, a person specified in paragraphs (a)-(f) of the definition of public officer who purports to exercise a function as a public officer under this Act is presumed to be acting in an official capacity". The section is consistent with the common law legal maxim 'omnia praesumuntur rite esse acta', also known as the presumption of regularity (Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 per McHugh JA at 164). Thus, the operation of s 3(3) of the CPA presents as a formidable barrier, in the absence of any evidence to the contrary, to the Court finding that Mr Mahoney instituted the proceedings in his personal capacity.
On the contrary, the inference Heatscape invites the Court to draw is inconsistent with the evidence before it. First, the CAN states, under the heading "Details of the Prosecutor", that Mr Mahoney's department or organisation is "Gloucester Shire Council".
Second, the letter sent by Heatscape to the council on 11 June 2012, accepted that both Mr Mahoney and Mr Stimson were council employees: It is apparent that Councils concern, as expressed by Mr Mahoney, is focussed on the street front to Church Street. This arises from Mr Mahoney's advice on site that "…We [meaning the council] do not care what you do in the lane way [meaning the wall along the boundary of lots 21 and 22 and the wall of the property within the boundary of lot 18] or inside the building [meaning the property]…." ("the Councils representation").
Third, the unchallenged evidence of Mr Stimson indicates that Mr Mahoney was in Mr Stimson's company during the site visits to the premises. The obvious inference to be drawn is that both men were present on council business and were therefore council employees.
Fourth, Mr Charman (called by Heatscape as its witness) gave the following evidence (T69:18-19): Q. During the course of you painting in the period of May to June, did you have a conversation with Mr Max Marnie of the council? A. Yes.
I therefore find that Mr Mahoney was authorised to issue the PIN and to commence the proceedings. That Mr Mahoney has since ceased to be an employee of the council (on 15 May 2015) is irrelevant for the purpose of this appeal. The prosecution, and in turn this appeal, continue uninterrupted (Corbyn v Walker Corporation at [2]-[11]).

[11]

The Defect in the PIN Did Not Affect the Validity of the CAN

The second preliminary issue raised by Heatscape was whether the CAN was invalid because: 1. first, it was infected with the duplicity tainting the PIN; 2. second, the court below erred in ordering the council to make an election; and 3. third, because the CAN gave the wrong date for the commission of the offence. Although Heatscape appeared to abandon this ground in its written submission, because of the itinerant manner in which the appeal was conducted and in case the manner in which Heatscape dealt with the issue both in the court below and on appeal becomes relevant to the question of costs, as a matter of prudence, I have proceeded to nevertheless address it.
Turning first to the asserted duplicity of the PIN infecting the CAN, as I understand it, the contention was to the effect that because the PIN was duplicitous, it was a nullity, and therefore, the CAN upon which it was premised was also a nullity.
Sections 20 and 23A of the Fines Act govern the issuing of PINs and the ability of a person to elect to have the matter the subject of the PIN dealt with by a court. They relevantly state: 20 What is a penalty notice? (1) A penalty notice is a notice referred to in subsection (2) to the effect that the person to whom it is directed has committed a specified offence and that, if the person does not wish to have the matter dealt with by a court, the person may pay the specified amount for the offence to a specified person within a specified time. (2) A penalty notice for the purposes of this Act is: (a) a notice issued under any of the statutory provisions set out in Schedule 1, or (b) any similar notice issued under any statutory provision specified by the regulations for the purposes of this section, or (c) a notice issued under a statutory provision that declares the notice to be a penalty notice for the purposes of this Act, or (d) a notice that, at the time it was issued, was issued under a statutory provision referred to in paragraph (a), (b) or (c). … 23A Person may elect to have matter dealt with by court (1) A person alleged to have committed or to be guilty of the offence to which a penalty notice relates: (a) has the right to elect to have the matter dealt with by a court instead of under the statutory provision providing for the issue of the penalty notice, and (b) may make that election: (i) in the manner specified in that statutory provision, or (ii) if no manner is specified in that statutory provision - in the manner specified in the penalty notice, or (iii) if no manner is specified in that statutory provision or in the penalty notice - in the manner specified by the regulations.
Importantly for present purposes, s 37 of the Fines Act provides that: 37 Matter to proceed If a person duly elects, in accordance with this Part, to have the matter dealt with by a court, proceedings against the person in respect of the offence may be taken as if a penalty notice or penalty reminder notice had not been issued.
In other words, once the election referred to in s 23A of the Fines Act has been made, the PIN is, in effect, expunged from existence. It is, in my opinion, a complete answer to the argument that the duplicity of the PIN somehow infected the CAN. This is because, by operation of s 37, upon election there never was a PIN. There is no warrant, contrary to the submissions of Heatscape, for construing s 37 of the Fines Act other than in accordance with the ordinary meaning of its text.
Mr Dupree, on behalf of Heatscape, appeared, if I understood him correctly, to submit that no election had in fact been made because only if the PIN was valid (and it was not, because it was duplicitous) could a recipient be in a position to make an election as to whether he or she elects to contest the matter in court.
A not dissimilar argument was raised by a defendant in the decision of Ryde City Council v Pedras [2009] NSWCCA 248. In that case Harrison J opined as follows (at [73]): …The effect of s 37 of the Fines Act is in my opinion such that the defendant's election to have the matter dealt with by the Local Court precludes him from raising the validity of the notice as a question of law for determination by this Court. It does not do so in a purely procedural way binding him as the result of his conduct in electing not to challenge the validity of the notice so that he is in effect estopped or prevented from doing so later. It precludes him from doing so because of what happened in the Local Court. The proceedings there were simply not related to or in any way dependent upon the form of the penalty infringement notice. The form or content or validity of the notice were not elements that made up any part of the proceedings or the issues called up for consideration or determination by the learned Magistrate. The defendant's appearance in response to the notice as a matter of practical reality is beyond dispute but was and now remains a matter of no consequence once the matter commenced to be heard and was dealt with by the Local Court. As the section makes clear, from that point on it was as if the notice had not been issued. …
While mere obiter dicta (the appeal was dismissed on other grounds), his Honour's remarks are, with great respect, entirely apposite here and ought to be applied to reject Heatscape's argument.
The views expressed by Harrison J are also consistent with various contextual indicators contained within the Fines Act that establish a mechanism by which a PIN may be challenged, especially having regard to the fact that the penalty notice provisions under the Fines Act constitute no more than an administrative procedure to deal with the commission of statutory offences as an alternative to the commencement of court proceedings (Environment Protection Authority v Djura [2012] NSWLEC 122 at [70]). A cursory examination of the two statutory regimes (the PIN and CAN) reveals that the procedures to issue a PIN and a CAN are wholly separate and independent of one another.
Section 22(1) of the Fines Act authorises the issuing of a PIN by an authorised officer. Upon receipt of a PIN, the Fines Act contemplates a defendant responding in a number of ways. These include seeking an internal review (see Div 2A), paying the full amount specified in the PIN (s 23), electing to contest the PIN (s 23A), or failing to respond to the PIN (see Divs 3 and 4). An internal review can result in the PIN being confirmed or withdrawn (s 24E of the Fines Act). Paying the full amount specified in the PIN will finalise the matter and "no further liability" will arise (s 23(2) of the Fines Act). Electing to contest a fine will preclude any further action being taken under the Fines Act until a court has determined the matter. This is apparent from s 23A(1)(a) which provides for the matter to be "dealt with by a court instead of under the statutory regime" established by the Fines Act. Further, ss 24I and 42(1)(e) reveal that the Fines Act ceases to operate following an election under s 23A. Finally, failing to respond in one of the ways specified above will trigger the enforcement mechanisms in the Fines Act contained in Divs 3 and 4, commencing with a Penalty Reminder Notice (Div 3 of the Fines Act) and concluding with a Penalty Notice Enforcement Order made by the Commissioner of Fines Administration (Div 4).
It is therefore apparent that where a PIN has been issued (and confirmed, if internal review was sought), the procedures contained in the Fines Act are capable of finalising the matter only where the matter is uncontested. The Fines Act provides a procedure for the expedited handling of uncontested prosecutions, ensuring that the finite resources of the prosecution are not needlessly expended (Djura at [70]).
By contrast, when a PIN is contested, the challenge proceeds in accordance with the procedure contained in the CPA, and not the Fines Act. Section 23A of the Fines Act only establishes the right to elect to have the matter dealt with by a court, it does not invest any curial jurisdiction.
The CPA prescribes the procedures to initiate proceedings. Chapter 4 of the CPA is headed "Summary Procedure". A prosecution is commenced by issuing and filing a CAN (s 172(1) of the CPA). It is worthwhile noting that the only condition precedent for issuing and filing a CAN is "if the person has committed or is suspected of having committed an offence" (s 172(2) of the CPA). Importantly, there is no requirement that a PIN must be issued prior to the issuing of a CAN.
Proceedings are commenced under s 173 of the CPA when a public officer, which includes an employee of a council, issues a CAN and files it in accordance with Div 1 of Pt 2 of Ch 4 of the CPA. Three aspects of the procedure under the CPA should be noted. First, the only way to commence court proceedings (and thereby have the matter dealt with by a court) is to follow the procedure set out in the CPA. Second, it is clear that a PIN is not required for a valid CAN to be issued. Indeed, it is open for a council officer to bypass the procedure contained in the Fines Act, and simply commence proceedings pursuant to the CPA. Third, the phrase "the officer may commence the proceedings" in s 173 indicates that the commencement of criminal proceedings is discretionary. It is not the case that, upon a defendant electing to have a matter dealt with by a court, that a council is bound to issue and file a CAN, rather, a failure to commence the proceedings within the time limit stipulated for summary proceedings contained in s 179 of the CPA will bar prosecution.
It would therefore appear that the procedure contained in the Fines Act dealing with uncontested PINs, and the procedure contained in the CPA dealing with contested PINs, are intended to be wholly separate notwithstanding that they arise from the same allegedly unlawful conduct.
Finally, the following observations may be made in respect of the election process. First, from the statutory regime prescribed by the Fines Act, it is apparent that the only method of contesting a PIN is by making an election under s 23A(1)(a). This is because the option is to elect that a matter is to be "dealt with by a court instead of under the statutory regime" (emphasis added). Second, and following on from the first observation, it is apparent that (absent a withdrawal or annulment identified in an internal review or application to the Commissioner of Fines Administration) any error which a defendant identifies in a PIN may only be challenged by electing to contest the PIN. Third, once the election is made, assuming a public officer has issued a CAN, s 37 of the Fines Act operates.
Accordingly, both the election and the issuing of the CAN are conditions precedent to the operation of s 37 of the Fines Act. It therefore follows that because a court deals only with the CAN, any errors identified with the PIN are of no consequence.
In the current proceedings, Heatscape has claimed that there are deficiencies with the PIN rendering it invalid. However, for the reasons given above, even assuming that there were deficiencies, these were, upon its election to contest the charges in court, rendered immaterial.
The only operative deficiencies were those affecting the CAN. On 5 July 2013, McCosker LCM held that the CAN was duplicitous. The application by Heatscape that the proceedings be dismissed as a consequence of the duplicity was refused, and pursuant to s 16(2) of the CPA, McCosker LCM ordered that the council elect which activity was to be the sole subject of the proceedings. The council subsequently made the election to prosecute the replacement of the window.
For these reasons, the CAN was not invalid by reason of any defect in the PIN.

[12]

The Challenge to the Order Requiring the Council to Elect Must Fail

There are three reasons why the challenge by Heatscape to the order made by McCosker LCM requiring, upon his finding of duplicity in the CAN, the council to elect must fail. First, because any challenge to the order required leave and none has been sought. Second, because any challenge to the order is now time barred. Third, because the order was, in my opinion, correct. Each is dealt with in turn.
The order by McCosker LCM concerning the election was the subject of a separate interlocutory application by Heatscape and a separate judgment by his Honour. The proceedings were specifically adjourned to deal with the challenge to the CAN on the grounds of duplicity.
The subject matter of this appeal is the conviction and sentence by the court below, and neither the finding by McCosker LCM that the CAN was duplicitous nor the order requiring that the council elect, were the subject of an appeal.
The appropriate jurisdiction of the Court to hear challenges to an order made by the Local Court in these circumstances is Class 7, conferred by s 21B of the Land and Environment Court Act 1979 ("LEC Act"), which provides that: 21B Class 7 - other appeals relating to environmental offences The Court has jurisdiction (referred to in this Act as "Class 7" of its jurisdiction) to hear and dispose of appeals under section 32 or 43 of the Crimes (Appeal and Review) Act 2001.
Relevantly Section 32(2)(b) of the Appeal and Review Act states: (2) Any person against whom: … (b) an interlocutory order has been made by the Local Court in relation to the person in summary proceedings with respect to an environmental offence, may appeal to the Land and Environment Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Land and Environment Court.
Further, s 32(4)(b) of the LEC Act stipulates that "an application for leave to appeal must be made…in the case of an order referred to in subsection (2), within 28 days after the relevant order is made."
An extension of time for late applications is provided for in s 33(1)(b), which relevantly states as follows: 33 Late applications for leave to appeal (1) An appeal to the Land and Environment Court may be made: … (b) by any person by whom an application for leave to appeal could be made under section 32, but for section 32(4), but only by leave of the Land and Environment Court. (2) An application for leave to appeal must be made within 3 months after the relevant conviction, sentence or order is made or imposed.
Because Heatscape is challenging an interlocutory order of the Local Court Heatscape required leave of the Court. None has been sought by it.
Further, any application to challenge the interlocutory order was required to be made within 28 days of the date upon which it was made on 5 July 2013. It was not. An extension of time is provided for, but any such application had to be made within three months after the relevant conviction. Again, none has been made by Heatscape.
Heatscape was convicted on 30 October 2014. Heatscape filed the summons commencing an appeal on 21 November 2014. The summons identifies the appeal as "an appeal within Class 6 of the jurisdiction of the Land and Environment Court of New South Wales", not Class 7.
No application for leave to extend the time within which to appeal against the interlocutory order has been properly made by Heatscape and it is now time barred from doing so.
True it is that appeal ground 8 in the summons filed on 21 November 2014 raised the issue, but this did not, by itself, constitute either an application for leave to challenge the order made by the Local Court or an extension of time within which to do so.
His Honour gave the following reasons for not dismissing the CAN (at [24]-[27]): 24 The issue of technical defects in a CAN is dealt with under Section 16(2) of the Criminal Procedure Act 1986. Harrison J in Altranesi at paragraph 31 commented that despite a CAN appearing to be duplicitous (Patently as it was in that case as opposed to latently in this case) "The Magistrate had an implied power to direct the furnishing of particulars and require the prosecution to elect to charge the appellant with a single false statement to the exclusion of any others or amend the information and lay one charge in respect of each alleged false statement". 25 I stress that I do not see the indictment set out in the CAN to be defective as to form as it conforms with Section 175 of the Criminal Procedure Act, 1986 and the construction of Section 76A of the Environmental Planning and Assessment Act, 1979 but I do find that it is defective due to its uncertainty for the reasons set out above. 26 Being mindful of the purpose and intent of Section 16(2) of the Criminal Procedure Act 1986 and I am satisfied that the uncertainty which I have identified in these proceedings can be cured by requiring the prosecution to elect the type of work that it seeks to rely upon as constituting the breach of Section 76A of the Environmental Planning and Assessment Act, 1979. I do not see this as posing any onerous or mischievous difficulty for the defendant as the basis of the proceedings has been the subject of ongoing discussions between the parties for in excess of 12 months and the particulars of the prosecutor's claims should be well known to the defendant as an order was made by this Court on 26 September, 2012 that the prosecution serve copies of the statements and other materials upon which it relied on the defence by 23 November, 2012. To my mind there is no disadvantage to the defendant. Indeed, the order dated 26 September, 2012 was by consent an could not otherwise have been made as this matter does not agitate the provisions of Section 183 of the Criminal Procedure Act, 1986. 27 For these reasons, the objection to the validity of the Court Attendance Notice is dismissed and the prosecutor is to elect which activity is to be the sole subject of these proceedings.
Sections 16(2) and 175 of the CPA state as follows: 16 Certain defects do not affect indictment (2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of: (a) any alleged defect in it in substance or in form, or (b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant. … 175 Form of court attendance notice (1) A court attendance notice must be in writing and be in the form prescribed by the rules. (2) The rules may prescribe one or more forms of court attendance notice. (3) A court attendance notice must do the following: (a) describe the offence, (b) briefly state the particulars of the alleged offence, (c) contain the name of the prosecutor, (d) require the accused person to appear before the court at a specified date, time and place, unless a warrant is issued for the arrest of the person or the person is refused bail, (e) state, unless a warrant is issued for the arrest of the person or the person is refused bail, that failure to appear may result in the arrest of the person or in the matter being dealt with in the absence of the person. (4) The rules may prescribe additional matters to be included in court attendance notices. (5) A court attendance notice may describe an offence, act or other thing in a way that is sufficient under this Act for the purposes of an indictment or an averment in an indictment.
Having regard to s 16(2) of the CPA and the circumstances of the case, in my opinion, McCosker LCM correctly refused to dismiss the CAN. Even in the absence of s 16(2) of the CPA, a finding of duplicity does not oblige a court to dismiss the initiating process in its entirety (see Environment Protection Authority v Riverina (Australia) Pty Ltd [2014] NSWLEC 190 at [75] and the authorities referred to thereat, albeit in the context of criminal proceedings commenced by summons). As the subsequent proceedings on 8 May 2014 demonstrated, Heatscape was not disadvantaged by the election made by the council.

[13]

The CAN Was Not Defective Because the Date of the Commission of the Offence Was Incorrect

The final attack on the validity of the CAN made by Heatscape was on the basis that it incorrectly stated the date upon which the offence was committed. The evidence in the court below established that the offence was committed sometime between 11 May and 1 June 2012, that is to say, before the particularised date of 20 June 2012. The issue was agitated before McCosker LCM, who held that time was not an essential factual ingredient of the offence, and therefore, dismissed the argument. With great respect, his Honour was correct to do so.
Section 16(1)(g) of the CPA provides: 16 Certain defects do not affect indictment (1) An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds: … (g) except where time is an essential ingredient, for omitting to state the time at which an offence was committed, for stating the time wrongly or for stating the time imperfectly,
It has been held that time is not an essential factual ingredient of offences against ss 125(1) and 76A(1)(a) of the EPAA (see Kari & Ghossayn Pty Ltd at [10] per Preston J and the cases cited thereat). Accordingly, the defect asserted did not cause the CAN to be bad, insufficient, void, erroneous or defective.
In any event, the Court has the power, even on appeal in Class 6 of its jurisdiction, to amend an indictment (which includes a CAN), even after its presentation, pursuant to ss 20 and 21(1) of the CPA. These sections apply to a CAN commencing criminal proceedings in the Local Court (s 15 of the CPA). The Court has power to make such an amendment under s 68(1) of the LEC Act and Pt 10 r 1 of the Land and Environment Court Rules 2007 ("the LEC Rules"). The Court may also exercise on appeal against conviction from the Local Court the power the Local Court itself had to amend the CAN (s 49(2) of the Appeal and Review Act).
Were the Court of the opinion that the CAN was defective by reason of the incorrect date stated as the date of the commission of the offence, and having regard to the merits of the case, that it could be amended without causing injustice, the Court could make an order amending the CAN to meet the circumstances of the case (s 21(1) of the CPA).
Were it necessary to do so, in my view, an amendment to the CAN could be effected without injustice to Heatscape. However, for the reasons given immediately above, it is not necessary to do so.
In summary, therefore, I find that the CAN is valid.

[14]

The Offence of Development Without Development Consent

The offence of development without development consent is provided for by the operation of s 125(1) together with s 76A(1) of the EPAA. Those provisions state: 125 Offences against this Act and the regulations (1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Secretary, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act. 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.
The relevant environmental planning instrument is the GLEP.
To establish the offence against Heatscape, the council is required to prove beyond reasonable doubt that: (a) Heatscape; (b) carried out development (the alteration of the exterior of the premises by the replacement of the external sash window with a new larger fixed window) within a heritage conservation area; (c) without development consent; (d) in circumstances where development consent was required.
It was unclear whether it was in dispute that Heatscape carried out the development as described on its premises. If it was, then the court readily draws this inference to the requisite standard given the contents of the letter dated 11 June 2012, the evidence of Mr Stimson and the admission that Heatscape was the registered proprietor of the premises.
Furthermore, on the basis of the unchallenged evidence of Mr Stimson, the council has demonstrated to the requisite standard that no development consent was granted by council for the removal and replacement of the window. I accept the evidence of Mr Stimson in this regard.
This leaves the highly contested element of whether or not development consent was required for the work constituting the development.

[15]

Was Development Consent Required for the Development?

In respect of this element it is convenient to note at this stage that Church Street runs in approximately a north-south direction, between Queen Street and Hume Street. This is apparent from, first, the uncontested evidence of Mr Stimson, who gave oral evidence concerning the names of the streets comprising the suburb of Gloucester. Second, within Heritage Map 009 which identifies the Gloucester Main Street Precinct, are located a number of heritage items. It is sufficient to identify two such items, namely, "I32" and "I33". Schedule 5 of the GLEP deals with environmental heritage and indicates that the address of "I32" is 73 Church Street, and that the address of "I33" is 78 Church Street.
It is therefore apparent that the premises (76 Church St, Gloucester) were located on the portion of Church St that fell within the area between Queen Street and Hume Street. Or in other words, that fell within an area designated as a heritage conservation area.
It was undoubtedly for this reason that the court below found that Heatscape had failed to comply with cl 5.10(2)(a)(iii) of the GLEP. That clause states that development consent is required for "a building, work, relic or tree within a heritage conservation area". Thus, the court below found that Heatscape was guilty of the offence as charged.
Unsurprisingly, on appeal the council continued to contend that because the premises fell within a heritage conservation area as defined in the GLEP, development consent was required.
In response, Heatscape submitted primarily that development consent was not necessary to replace the old window either because the premises did not, as asserted by the council, fall within a "heritage conservation area" for the purpose of the GLEP. In particular, the council had failed to discharge its onus of proving that the premises were of "heritage significance" as defined in the GLEP. In other words, Heatscape argued that the premises had to be of heritage significance in its own right, as a matter of statutory construction, to fall within the heritage conservation area.
In addition, Heatscape contended that, in any event, the activity of replacing the window constituted exempt development both under the GLEP and the Exempt and Complying Development SEPP.

[16]

Legislative Framework

The relevant legislative framework is as follows. Clause 1.2 of the GLEP articulates its aims. Relevantly, it provides that: (2) The particular aims of this Plan are as follows: … (b) to protect rural lands, natural resources and assets of heritage significance,
Clause 1.7 of the GLEP sets out the provisions relating to maps, stating that: 1.7 Maps (1) A reference in this Plan to a named map adopted by this Plan is a reference to a map by that name: (a) approved by the Minister when the map is adopted, and (b) as amended or replaced from time to time by maps declared by environmental planning instruments to amend or replace that map, and approved by the Minister when the instruments are made.
Clause 5.10 of the GLEP was central to the charge and to this appeal. It relevantly provides that: 5.10 Heritage conservation Note. Heritage items (if any) are listed and described in Schedule 5. Heritage conservation areas (if any) are shown on the Heritage Map as well as being described in Schedule 5. (1) Objectives The objectives of this clause are as follows: (a) to conserve the environmental heritage of Gloucester, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, (c) to conserve archaeological sites, (d) to conserve Aboriginal objects and Aboriginal places of heritage significance. (2) Requirement for consent Development consent is required for any of the following: (a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance): (i) a heritage item, (ii) an Aboriginal object, (iii) a building, work, relic or tree within a heritage conservation area, … (3) When consent not required However, development consent under this clause is not required if: (a) the applicant has notified the consent authority of the proposed development and the consent authority has advised the applicant in writing before any work is carried out that it is satisfied that the proposed development: (i) is of a minor nature or is for the maintenance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or archaeological site or a building, work, relic, tree or place within the heritage conservation area, and (ii) would not adversely affect the heritage significance of the heritage item, Aboriginal object, Aboriginal place, archaeological site or heritage conservation area, or … (d) the development is exempt development.
The term "work" in cl 5.10(2)(a)(iii) is not defined, but there is no reason not to find that the replacement of the window constituted "work" for the purposes of the provision. Heatscape did not assert the contrary.
The definition of "heritage conservation area" in the Dictionary of the GLEP is as follows: heritage conservation area means an area of land of heritage significance: (a) shown on the Heritage Map as a heritage conservation area, and (b) the location and nature of which is described in Schedule 5, and includes any heritage items situated on or within that area.
The term "heritage significance" is defined in the Dictionary of the GLEP to mean "historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value".
The "heritage map" means the "Heritage Map" in the GLEP.
Schedule 5 to the GLEP sets out in Pt 1 the Heritage Items and in Pt 2 the "Heritage conservation areas" is described as "Gloucester Main Street Precinct".
The term "heritage item" means "a building, work, place, relic, tree, object or archaeological site the location and nature of which is described in Schedule 5."
The premises are not listed as a heritage item for the purposes of the GLEP.
Finally, and critically, Pt 2 of Sch 5 provides that: Part 2 Heritage conservation areas Name of heritage conservation area Identification on Heritage Map Gloucester Main Street Precinct Shown as "Heritage Conservation Area"
The GLEP directly adopts many of the terms of the Standard Instrument - Principal Local Environmental Plan ("the Standard Instrument") prescribed in s 33A of the EPAA, including cl 5.10, which is a mandatory provision.
The definitions of "heritage conservation area" and "heritage significance" in the GLEP are in identical terms to those contained in the Standard Instrument.

[17]

Principles of Statutory Construction Applicable to the GLEP and the Exempt and Complying Development SEPP

The general principles relating to the interpretation of primary legislation (Acts of Parliament) are equally applicable to the interpretation of subordinate legislation, for example, the GLEP and the Exempt and Complying Development SEPP (Collector of Customs v Agfa - Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 398, Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; 66 NSWLR 379 at [36], Master Education Services Pty Ltd v Ketchell [2008] HCA 38; (2008) 236 CLR 101 at [19], Olsson v Goulburn Mulwaree Council [2010] NSWLEC 169; 176 LGERA 71 at [22]-[23], Environment Protection Authority v Schon G Condon as liquidator for Orchid Holdings (NSW) Pty Ltd (in liq) [2014] NSWCA 149; (2014) 86 NSWLR 499 at [43] and [44], Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v State of New South Wales [2014] NSWCA 116 at [44]-[47], Lloyd v Wollongong City Council [2015] NSWLEC 146 at [33], Sutherland Shire Council v Benedict (No 4) [2015] NSWLEC 101 at [41]-[45] and Mosman Municipal Council v IPM [2016] NSWLEC 26 at [117]. See also see s 3 Interpretation Act 1987).
Thus, the task of construction must begin with the consideration of the text itself with recourse to its context, which includes the general purpose and policy of the specific provision and of the enactment itself. The determination of the purpose of the particular provision or statute may be found not only in an express statement of the purpose in the statute itself, but also by reference to textual and structural indicators, and where appropriate, by reference to extrinsic material. The task is one of ascertaining the objective, and not the subjective, intention of those who promulgated the legislation (see generally the principles summarised in Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39], Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [23]-[26], Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 at [65]-[66] and Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 at [22] and [23]).
Having said this, it is legitimate to have regard to the fact that subordinate legislation is generally less carefully drafted than primary legislation and may therefore be construed having regard to more practical considerations, rather than by recourse to a rigorous examination of its language, as is more apt when interpreting an Act of Parliament (Shon at [44], Benedict (No 4) at [46]-[47] and IPM at [117]).
Moreover, it should be recalled that "any attempt to always find planning logic in planning instruments is generally a barren exercise" (Calleja v Botany Bay City Council [2005] NSWCCA 337; (2005) 142 LGERA 104 at [25] and Matic v Mid-Western Regional Council [2008] NSWLEC 113 at [9]).

[18]

Was Development Consent Required?

Turning again to the last element of the offence, Heatscape made the following submissions to the Court: 1. first, that properly construed, the term "heritage significance" operates as a precondition to the application of the term "heritage conservation area", such that in determining whether land falls within a "heritage conservation area", it is necessary to determine, as a preliminary matter, whether the building has one or more of the eight values that constitute "heritage significance"; 2. second, that as a consequence, the particular heritage value of a building, work, relic or tree is an element of the offence in respect of which the council bears the onus of proof, and the council has not discharged its evidential burden of proving that the premises had "heritage significance"; and 3. third, that in any event, the "location and nature" of the land claimed to be of heritage significance, viz, the "Gloucester Main Street Precinct" is not sufficiently described in Sch 5 of the GLEP.
In response, the council submitted that the definition of "heritage significance" is irrelevant. The "heritage conservation area" is an area that the council considered to be an area of heritage significance. If a building, work, relic or tree is located inside a heritage conservation area, this is sufficient for it to have "heritage significance".
Clause 5.10(2)(iii) mandates that development consent is required for "work…within a heritage conservation area" (as stated above, the premises were not listed as a "heritage item": see Pt 1 of Sch 5).
Central to whether or not Heatscape is guilty of the offence as charged, therefore, is the proper construction of the composite term "heritage conservation area". The definition is beset with unnecessary complexity. But as Meagher JA observed in Egan v Hawkesbury City Council (1993) 79 LGERA 321 this criticism "overlooks the fact that the instrument being construed is a local environmental plan, drafted in a specialised bureaucratic jargon to whose authors neither logic nor clarity has urgent attraction" (at 331).
As set out above, for present purposes the definition to the term relevantly comprises the following criteria: 1. first, an area of land of "heritage significance"; 2. second, that is shown on the Heritage Map 009 as a "heritage conservation area"; 3. third, the location and nature of the heritage conservation area is described in Sch 5 of the GLEP.
The term "Heritage Map" is defined in the Dictionary to Pt 2 of Sch 5 to mean Heritage Map 009 forming part of the GLEP. The Map shows a red hatched polygon marked as a "Heritage Conservation Area", within which the premises are, consistent with the evidence of Mr Stimson, located.
In my opinion, moreover, contrary to the submission of Heatscape the "location and nature" of the heritage conservation area are sufficiently described in Pt 2 of Sch 5 of the GLEP as "Gloucester Main Street Precinct" and "Shown as 'Heritage Conservation Area'". Although Heatscape sought to rely on copies of The Oxford English Dictionary (2nd ed) definitions of "nature", "location" and "precinct" to argue that the description contained in Pt 2 of Sch 5 was inadequate and did not meet the criterion in subparagraph (b), the dictionary definitions did not assist it.
For example, the Oxford English Dictionary (online ed) defines those terms as follows: 1. "nature" - "senses relating to physical or bodily power, strength or substance"; 2. "location" - "the action of situating something; (also) the fact or condition of being placed; settlement in a place"; and 3. "precinct" - "the area within the boundaries (real or imaginary) of a particular place or building".
The Macquarie Dictionary (online edition) defines those words to mean: 1. "nature" - "the particular combination of qualities belonging to a person or thing by birth or constitution; native or inherent character"; 2. "location" - "a place of settlement or residence"; and 3. "precinct" - "a place or space of definite or understood limits".
Applying these definitions to the description given in Pt 2 of Sch 5 of the GLEP plainly reveals that the description afforded to the land is adequate. The "location", in the sense of its place of settlement (the "Gloucester Main Street Precinct"), and the "nature", in the sense of its inherent qualities and characteristics (the heritage conservation area identified in that precinct, that is to say land of heritage significance within that precinct), of the land have been sufficiently described as required.
In addition, there is nothing impermissibly ambiguous, as Heatscape argued there was, about the description "Gloucester Main Street Precinct" when the recourse is had to Heritage Map 009. Given that there is no road named "Main Street", the description must mean the central street running through Gloucester where various shops and other amenities are located. "Main Street" is a term which is ordinarily understood to designate a focal point of retail premises, businesses and government buildings in a community where its members predominantly shop and socialise. The "Main Street" of a regional community, whose population is often dispersed across a wide area has historically, and often remains, its locus or meeting place. The "Precinct" is, as the definitions referred to indicate, the area surrounding the "Main Street" locus whose demarcation for the purposes of the heritage conservation area is the red hatched polygon.
In summary, when all of the constituent parts of the description are read together (or "the totality of the area" as the council correctly submitted: T230:38) the "location and nature" of the land "is described in Schedule 5" as required by the definition of "heritage conservation area".
Finally, the term "heritage significance" is defined in the Dictionary to mean "historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value".
But this does not, contrary to the submission of Heatscape, mean that the council is required to prove beyond reasonable doubt that the land is of "heritage significance" by reference to any of the values listed in the definition of that term, or at all. Rather, the term "heritage significance" is a descriptor of the type of land amenable to fall within an heritage conservation area. It is land with the values and attributes listed in the definition of "heritage significance". The definition of "heritage significance" therefore has work to do (Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 at [97] and the authorities cited thereat) inasmuch as it articulates the qualities land must have before it will comprise part of a heritage conservation area. Because the land is shown on Heritage Map 009 and its nature and location are described in Sch 5 Pt 2, the land is of "heritage significance". That is to say, it has one or more of the values adumbrated in the definition of that term.
This construction accords with the text, context and purpose of the definition of "heritage conservation area" as that term is located in cl 5.10(2)(iii) of the GLEP. First, had it been the objective intention of the drafters of the GLEP that a council be required to prove that the land was of "heritage significance", then this would have been a separately listed criterion such as the need to prove that the land was shown on the GLEP Heritage Map and its location and nature was described in Sch 5. That it is not, is a strong indicator that this was not the intention of those who drafted the GLEP.
Second, the term "heritage significance" is a term that is employed throughout cl 5.10 of the GLEP where it has considerably more work to do (see, for example, cls 5.10(3)(a), 5.10(4), 5.10(5) and 5.10(6), where an assessment of the heritage values of an item or area assume much greater significance). This may be contrasted with the language used in cl 5.10(2)(a)(iii) where its implicit presence within the definition of "heritage conservation area" does not signify any particular intention to include it as an element requiring proof by the council in any prosecution for a breach of that clause.
Third, the construction urged upon the Court by Heatscape would not promote the objects contained in cl 5.10(1) of the GLEP, specifically, to "(b) conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views".
Fourth, the logical corollary of Heatscape's submission is that a proponent would have to determine that land upon which the development was to take place was or was not "of heritage significance" in order to determine whether or not a development application was required. This would result in an almost impossible burden being imposed upon a proponent that is both antithetical to the aims of the GLEP (as contained in cl 1.2) and contrary to the objects of the EPAA (see s 5). It is for this reason that the Heritage Map and the description of the land in Sch 5 of the GLEP are decisive of the land being of "heritage significance" for the purpose of that environmental planning instrument.
Finally, that the land has been in effect deemed by the council to be "of heritage significance" by its inclusion and identification on Heritage Map 009 and Sch 5 of the GLEP does not work an injustice to Heatscape as it claims. It could have, but chose not to, challenge the designation of the land as "of heritage significance" by way of collateral judicial review proceedings (see, for example, Benedict (No 4)).

[20]

Was the Development Exempt Development?

Next Heatscape contended that development consent was not required because the impugned work was exempt development. The issues may be summarised as follows: 1. whether the development constituted exempt development under ss 76 or 76A of the EPAA by reason of either: 1. Sch 2 of the GLEP; or 2. cl 2.51(b) of the Exempt and Complying Development SEPP.
Section 76A of the EPAA has been set out above. Section 76 states: 76 Development that does not need consent (1) General If an environmental planning instrument provides that specified development may be carried out without the need for development consent, a person may carry the development out, in accordance with the instrument, on land to which the provision applies. Note. Environmental assessment of the development may nevertheless be required under Part 5. (2) Exempt development An environmental planning instrument may provide that development of a specified class or description that is of minimal environmental impact is exempt development. (3) If development is exempt development: (a) the development may be carried out, in accordance with the instrument, on land to which the provision applies without the need for development consent, unless that land: (i) is critical habitat, or (ii) is, or is part of, a wilderness area (within the meaning of the Wilderness Act 1987), and (b) Part 5 does not apply to the development. A provision made under subsection (2) has no effect at any time during which the land is land to which paragraph (a) (i) or (ii) applies.
Exempt development is dealt with in the GLEP. Clause 3.1 of that instrument relevantly provides that: 3.1 Exempt development (1) The objective of this clause is to identify development of minimal environmental impact as exempt development. (2) Development specified in Schedule 2 that meets the standards for the development contained in that Schedule and that complies with the requirements of this Part is exempt development. (3) To be exempt development, the development: (a) must meet the relevant deemed-to-satisfy provisions of the Building Code of Australia or, if there are no such relevant provisions, must be structurally adequate, and (b) must not, if it relates to an existing building, cause the building to contravene the Building Code of Australia, and (c) must not be designated development, and (d) must not be carried out on land that comprises, or on which there is, an item that is listed on the State Heritage Register under the Heritage Act 1977 or that is subject to an interim heritage order under the Heritage Act 1977. …
Schedule 2 of the GLEP 2010 provides that: Advertising structures … (11) Window sign (including a sign displayed on a shop window) must comply with the following: (a) may only be located in Zone B2 Local Centre, Zone B4 Mixed Use or an industrial zone, (b) must not cover more than 75% of shop window, (c) must not be illuminated, (d) must be located on ground level facade, (e) only 1 per shop window.
The Dictionary of the GLEP relevantly defines the following terms: advertising structure has the same meaning as in the Act. Note. The term is defined as a structure used or to be used principally for the display of an advertisement. Advertising structures are a type of signage - see the definition of that term in this Dictionary. … signage means any sign, notice, device, representation or advertisement that advertises or promotes any goods, services or events and any structure or vessel that is principally designed for, or that is used for, the display of signage, and includes any of the following: (a) an advertising structure, (b) a building identification sign, (c) a business identification sign, but does not include a traffic sign or traffic control facilities.
Under the Exempt and Complying Development SEPP cl 1.15 states: 1.15 What development is exempt development? (1) Development that is specified in an exempt development code that meets the standards specified for that development and that complies with the requirements of this Division for exempt development is exempt development for the purposes of this Policy. (2) For the purposes of subclause (1), development that is specified includes any specified limitations as to the land on which that development may be carried out.
Clause 1.16(1) is in the following terms: 1.16 General requirements for exempt development (1) To be exempt development for the purposes of this Policy, the development: (a) must meet the relevant deemed-to-satisfy provisions of the Building Code of Australia , or if there are no such relevant provisions, must be structurally adequate, and (b) must not, if it relates to an existing building, cause the building to contravene the Building Code of Australia , and (c) must not be carried out on land that is, or on which there is, an item that is listed on the State Heritage Register under the Heritage Act 1977 , or that is subject to an interim heritage order under that Act.
Clause 2.50A provides as follows: 2.50A Specified development The maintenance of a building in a draft heritage conservation area comprising only: (a) painting, plastering, cement rendering, or cladding, or (b) the repair or replacement of an external window, glazing areas or a door(other than those on bush fire prone land), or (c) the repair or replacement of a non-structural wall or roof cladding, or (d) the repair or replacement of a balustrade, is development specified for this code if it is not constructed or installed on or in, or in relation to, a heritage item or draft heritage item.
Clause 2.51 states that: 2.51 Specified development (1) A minor internal building alteration for the replacement or renovation of: (a) a doorway, wall, ceiling or floor lining, or (b) a deteriorated frame member, including stairs and stairwells, or (c) a bathroom or kitchen, or (d) a built in fixture such as a vanity, a cupboard or a wardrobe, or (e) an existing sanitary fixture, such as a grease trap or the like, or (f) shelving or racking that is not higher than 2.7m, or (g) a work station or counter, is development specified for this code if it is not constructed or installed on or in a heritage item or a draft heritage item. (2) The installation of new or replacement insulation material in the ceiling, floor or wall of a building is development specified for this code.
And cl 2.53 provides: 2.53 Specified development A minor external non-structural building alteration, such as the following: (a) painting, plastering, cement rendering, cladding, attaching fittings or decorative work, (b) the replacement of an external window, glazing areas or a door (other than those on bush fire prone land), (c) the repair to or replacement of a non-structural wall or roof cladding, (d) the installation of a security screen or grill to a door or window or a security door, (e) the repair to or replacement of a balustrade, (f) restumping or repairing structure foundations without increasing the height of the structure, is development specified for this code if it is not constructed or installed on or in a heritage item or a draft heritage item or in a heritage conservation area or a draft heritage conservation area.
The term "heritage conservation area" is defined in cl 1.5 of the Exempt and Complying Development SEPP to mean "an area of land identified as a heritage conservation area or a place of Aboriginal significance, including any heritage items situated on or within that area, in an environmental planning instrument".

[21]

Onus of Proof

A preliminary issue arose as to who bore the onus of proving that the development was, or more correctly, was not exempt development. Relying on the decision in Port Stephens Council v SS & LM Johnson Pty Limited [2007] NSWLEC 30; (2007) 152 LGERA 193, Heatscape submitted that the council, as prosecutor, bore the onus of proving beyond all reasonable doubt that a development was not exempt development. Conversely, the council argued that it was Heatscape that was required to demonstrate, on the balance of probabilities, that the replacement of the window was exempt development and that therefore no development consent was required.
In Port Stephens the defendants were charged with having committed an offence against s 125 of the EPAA by carrying out development (clearing of vegetation) absent consent contrary to s76A(1)(a) of that Act. The defendants pleaded not guilty on a number of bases, most relevantly for present purposes, on the basis that the development was exempt development within two categories of development identified as such by the council's development control plan, and in the alternative, because the council had not established beyond reasonable doubt that the carrying out of the clearing was not exempt development within the meaning of s 76(2) of the EPAA.
Justice Jagot opined the following concerning who bore the onus of proving that the development was not exempt development (at [70]): 70 The Council's submissions on the onus of proof risk masking the fact that the Council was required to prove beyond reasonable doubt each of the elements of the offence. The structure of the zoning table for the 2(a) zone made the development permissible only with consent the residual class, defined by the negative (that is, development not included in items (3) or (5) of the 2(a) zone). Accordingly, part of the Council's obligation was to prove beyond reasonable doubt that the development was not included in items (3) or (5) of the zoning table for the 2(a) zone, as this was the only means by which the development could fall within item (4) of the zoning table. The Council thus bore the burden of proving all facts founding the ultimate conclusion about the status of the development (relevantly, as development not being exempt development). In this context, I see little, if any, scope for the defendants being subject to any evidential burden (Youssef v R (1990) 50 A Crim R 1 at 3, Environment Protection Authority v Leaghur Holdings Pty Ltd (1995) 87 LGERA 282 and Director General Department of Land and Water Conservation v Bailey (2003) 136 LGERA 242 at [31]). Nevertheless, I address this submission further in my findings below.
In Director General, Department of Land and Water Conservation v Bailey [2003] NSWCCA 361; (2003) 136 LGERA 242 a similar conclusion was reached in respect of an offence of unlawful clearing of native vegetation without development consent contrary to s 21 of the Native Vegetation Conservation Act 1997 ("the NVC Act"). In that case the defendant relied on two exemptions, one of which was the clearing of native vegetation for the purposes of the construction, operation and maintenance of rural structures under the State Environmental Planning Policy 46, which operated to exempt the clearing from s 21 of the NVC Act.
Justice Shaw, with whom Mason P and Hidden J agreed, described the onus of demonstrating that the clearing was exempt as follows (at [31]): 31 Similarly, clearing described in SEPP 46 (which, for the defendant, is relevant due to the savings and transitional provisions, particularly cl 3(2) of Sch 4 of the NVC Act) is clearing to which s 21 does not apply. These provisions are, in my opinion, therefore a further qualification upon the essential element of 'clearing' that would need to be proved for the purposes of establishing a conviction for an offence pursuant to s 17 of the NVC Act. Accordingly, once the defendant established that the qualification applied, the onus would be on the prosecution to satisfy the trial judge beyond reasonable doubt that such clearing was not 'clearing to a minimum extent…if it is necessary for the construction, operation and maintenance of farm structures' (cf Director General Department of Land and Water Conservation v Pye [1998] NSWLEC 292).
Heatscape submitted that the decisions in Port Stephens and Bailey were authority for the proposition that the council bore the onus of proving beyond all reasonable doubt that a development was not exempt development and that development consent was therefore required for the removal and replacement of the window.
It is a trite statement of law that it is the duty of a prosecutor to establish the guilt of a defendant by proving beyond reasonable doubt all of the elements of the offence with which he or she is charged (Woolmington v Director of Public Prosecutions (UK) [1935] AC 462). Any defence relied upon by a defendant need only be proved on the balance of probabilities. This is a fundamental tenet of our criminal justice system.
What constitutes the elements of an offence which must be proved beyond reasonable doubt by the prosecutor, and what constitute a defence or an exception or exemption which may negate or diminish the culpability of a defendant, is a question of law which, in respect of statutory offences, is in turn a matter of legislative interpretation.
In Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512 Dixon CJ, McTiernan, Webb, Fullagar and Kitto JJ stated (at 519-520): There is a technical distinction between a proviso and an exception, which is well understood. All the cases say, that if there be an exception in the enacting clause, it must be negatived: but if there be a separate proviso, it need not" - per Abbott J. in Steel v. Smith (1817) 1 B & Ald 94, at p 99 (106 ER 35, at p 37). The distinction has perhaps come to be applied in a less technical manner, and now depends not so much upon form as upon substantial considerations. In the end, of course, it is a matter of the intention that ought, in the case of a particular enactment, to be ascribed to the legislature and therefore the manner in which the legislature has expressed its will must remain of importance. But whether the form is that of a proviso or of an exception, the intrinsic character of the provision that the proviso makes and its real effect cannot be put out of consideration in determining where the burden of proof lies. When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right. For such a purpose the use of a proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter: see Morgan v. Babcock & Wilcox Ltd. [1929] HCA 25; (1929) 43 CLR 163 ; Pye v. Metropolitan Coal Co. Ltd. [1934] HCA 9; (1934) 50 CLR 614; (1936) 55 CLR 138 ; Darling Island Stevedoring & Lighterage Co. Ltd. v. Jacobsen [1945] HCA 22; (1945) 70 CLR 635 ; Barritt v. Baker [1948] VicLawRp 85; (1948) VLR 491, at p 495 ; Dowling v. Bowie [1952] HCA 63; (1952) 86 CLR 136.
In Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5; (1990) 168 CLR 594, Brennan, Dawson and Gaudron JJ said (at 600-601): The rule laid down in Woolmington v. The Director of Public Prosecutions [1935] UKHL 1; (1935) AC 462 at pp 481-482, that the burden of proving every element of an offence charged rests at all times upon the prosecution, was expressed to be "subject to ... the defence of insanity and subject also to any statutory exception". It is made clear in Reg. v. Edwards (1975) QB 27 and Reg. v. Hunt (1987) AC 352 that the statutory exceptions referred to are not confined to those which expressly cast the burden of proof upon the accused (see, for example, Crimes Act 1900 (N.S.W.), s.417), but extend to cases in which an intention to do so is necessarily implied. Such cases will ordinarily occur where an offence created by statute is subjected to a proviso or exception which, by reason of the manner in which it is expressed or its subject matter, discloses a legislative intention to impose upon the accused the ultimate burden of bringing himself within it. That burden may, of course, be discharged upon the balance of probabilities. Whilst it is convenient to speak in terms of provisos or exceptions, the legislative intent cannot be ascertained as a mere matter of form. The Court of Appeal in Reg. v. Edwards at p 40, viewed the statutory exceptions as limited to: "offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities." In Reg. v. Hunt, at p 375, even this formulation was said by the House of Lords not to be exhaustive. Each case must turn upon the construction of the particular enactment.
To similar effect, Toohey and McHugh JJ stated (at 611): When a statute imposes an obligation which is the subject of a qualification, exception or proviso, the burden of proof concerning that qualification, exception or proviso turns on whether it is part of the total statement of the obligation. If it is, the onus in respect of the qualification, exception or proviso is on the party asserting a breach of the obligation. If it is not, the party relying on the qualification, exception or proviso must prove that he or she has complied with its terms. See Vines v. Djordjevitch [1955] HCA 19; (1955) 91 CLR 512; Roddy v. Perry (No. 2) (1957) 58 SR (NSW) 41.
In Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249, Dawson, Toohey and Gaudron JJ said (at 257): For the purpose of assigning the onus of proof, a distinction is made between a requirement which forms part of the statement of a general rule and a statement of some matter of answer, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an "exception"), which serves to take a person outside the operation of a general rule. See Vines v. Djordjevitch [1955] HCA 19; (1955) 91 CLR 512, at pp 519-520. The distinction does not depend on the rules of formal logic: Dowling v. Bowie [1952] HCA 63; (1952) 86 CLR 136, at p 147. Rather, the categorization of a provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction. Where some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention "to impose upon the accused the ultimate burden of bringing himself within it": Director of Public Prosecutions v. United Telecasters Sydney Ltd. [1990] HCA 5; (1990) 64 ALJR 181, at p 183; [1990] HCA 5; 91 ALR 1, at p 6. The intention may be discerned from express words or by implication. See Reg. v. Edwards (1975) QB 27 and Reg. v. Hunt (1987) AC 352.
These authorities have been considered by this Court on a number of occasions. In particular, in Wollongong City Council v Ensile; Wollongong City Council v Hogarth (No 4) [2008] NSWLEC 149; (2008) 71 NSWLR 563 Jagot J reviewed and applied them when determining whether, where a defendant was charged with an offence under s 125(1) of the EPAA for breaching either ss 76A or 76B of the EPAA, the prosecutor was required to negative beyond reasonable doubt the existence of any existing use rights created under ss 107 and 109 of the EPAA. Her Honour held that establishing whether an existing use right existed was an exception to the offence or general rule, and that therefore, the defendant bore the onus of proof of demonstrating this on the balance of probabilities.
In reaching this conclusion Jagot J gave consideration to the operation of the EPAA. Relevantly, her Honour opined (at [20]-[23]): 20 The overwhelming weight of authority supports the position of the prosecutor that existing or continuing use rights are an exception to a general statement of liability that development may only be carried out in accordance with an environmental planning instrument, with the consequence that the onus is on the defendants to bring themselves within that exception, albeit on the balance of probabilities. 21 In any event, the scheme of the EPA Act discloses that the substantive or real character of the provisions is consistent with the approach evident in the authorities. Pt 3 of the EPA Act provides for the making of environmental planning instruments. Those instruments take effect through Pt 4, in particular ss 76, 76A and 76B. There are numerous indicators that those sections contain a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision, namely, (i) the existence of the instrument, (ii) the instrument providing, relevantly, that specified development may not be carried out except with consent or is prohibited, (iii) the carrying out of the specified development, (iv) by the defendants, (v) in the case of development permissible only with consent, without that consent having been obtained. 22 There is no mention in those provisions of a requirement for a lack of existing or continuing use rights. Broader consideration discloses the operation of ss 107(1) and 109(1). However, in form and substance these are provisions that involve "some special grounds of excuse, justification or exculpation depending upon new or additional facts" (Vines v Djordjevitch at 519). The wording of those provisions ("…nothing in this Act or an environmental planning instrument prevents the continuance of an existing use" in s 107(1) and "Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose…" in s 109(1)) supports this conclusion. The fact that the provisions refer to, and in the words of the defendants, operate directly on environmental planning instruments, does not alter their fundamental character. In form and substance, the provisions carve something out of the general liability created by an environmental planning instrument. They create a special ground of excuse based on additional facts within a narrow class, namely, the continuance of an existing use (as defined in s 106) and the continuance of a continuing use (as provided for in s 109(1)); these are limited types of development dependent on facts peculiar to the history of the particular use (use generally being development as defined in s 4(1)). Accordingly, there remains a thing forbidden to be done (development in breach of the environmental planning instrument) but the thing, by reason of additional facts, is excused or (more accurately) defeated or excluded by the special provisions. 23 The defendants' approach to the provisions (including the terms of s 76C) places too little weight on the reference in Vines v Djordjevitch to the attraction of the principle to "exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts". Sections 107(1) and 109(1), in terms, assume the general or primary ground of liability (namely, an environmental planning instrument so providing) and then deny that liability by reason of additional or special facts relating to the particular history of a use that would otherwise be development subject to the instrument. The provisions thus disclose a legislative intention "to impose upon the accused the ultimate burden of bringing himself within it" (Chugg at 257 and the cases cited therein). This does not involve any reversal of the onus of proof. It involves an application of the common law principles discussed above about assigning the onus of proof (in accordance with s 417A of the Crimes Act).
Similarly, in Department of Environment and Climate Change v Olmwood Pty Ltd [2010] NSWLEC 15; (2010) 173 LGERA 366, Pain J reviewed the triumvirate of Vines, United Telecasters and Chugg in the context of determining whether, where a defendant was charged with an offence under 12(1) of the Native Vegetation Act 2003, the prosecutor was required to prove beyond reasonable doubt that the vegetation cleared was not regrowth. Her Honour held that establishing that the cleared vegetation constituted regrowth was an exception to the offence and that therefore the defendant bore the onus of proof. This decision was subsequently applied in Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 2) [2010] NSWLEC 73 (at [225]-[226]) and Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229 (at [134]-[140]).
During the course of reviewing the authorities in Olmwood, Pain J referred to Bailey and distinguished it on the basis that "the exception in s 12(f) of the repealed NVC Act was a qualification of the first element of the offence because the section states that 'the Act' did not apply to clearing of a kind described in the subsections… Accordingly, it was for the prosecutor to establish that the Act did apply in light of these provisions".
In Director-General, Department of Natural Resources v Gleeson [2007] NSWLEC 749, it was submitted to Jagot J that there was a conflict of authority between Bailey and the earlier High Court decisions referred to above. Ultimately, however, Gleeson was decided on other grounds and her Honour noted that the observations in Bailey at [30] and [31] were, in any event, of "only peripheral import" because there was an agreed statement of facts (at [24]).
As stated above, ultimately it is a matter of statutory construction whether a provision forms a part of the general rule or is an exception (United Telecasters at 601 and 611 and Chugg at 257). A provision in a statute will constitute an exception when the legislative expression or subject matter discloses a legislative intention to impose upon the defendant the ultimate burden of bringing themself within the exception (United Telecasters at 601). Statutory exceptions are not confined to instances where the statute expressly casts the burden of proof upon the defendant, but also extend to instances in which an intention to do so is necessarily implied (United Telecasters at 601).
A provision is likely to be interpreted as an exception to a general rule where a legislative instrument prohibits certain acts or omissions except in specified circumstances, or in circumstances where the act or omission is undertaken by people within a specified class or with specified qualifications or with a licence or permission of a specified authority (United Telecasters at 601).
Where a provision assumes the existence of a general rule or primary ground from which a liability, right or prohibition arises, but denies the operation of that liability, right or prohibition in a particular case by reason of additional or special facts, then this tends to support interpreting the provision as an exception and the burden of proof is cast upon the party seeking to rely upon the additional or special matter (Vines at 519 and United Telecasters at 611).
The council sought to distinguish Port Stephens on the basis of the different wording between the salient provisions of the Port Stephens Local Environmental Plan 2000 ("the PSLEP") versus the GLEP in the present case. Under the PSLEP development was permissible only with development consent specified as "any development not included in Item 3 or 5". Item 3 provided that exempt development was allowed without development consent, and Item 5 provided a list of prohibited development. Therefore, to establish a breach of s 76A(1) of the EPAA, the prosecutor was required to prove (to the requisite standard) that the development was "not included in Item 3 or 5".
Section 125(1) of the EPAA provides that where a "matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person…shall be guilty of an offence". Section 76A(1) of the Act provides that "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…unless…such a consent has been obtained".
In the present case, the relevant environmental planning instrument is the GLEP, pursuant to which cl 5.10(2) states that "development consent is required for…altering the exterior of…a building…within a heritage conservation area". But cl 5.10(3) of the GLEP provides "however, development consent under this clause is not required if…the development is exempt development".
Having regard to the text, context and purpose of both s 76A(1) of the EPAA and cl 5.10(3) of the GLEP, and to general legal principles summarised above, I am of the opinion that the onus is on the council to negative beyond all reasonable doubt the claim, once identified, by Heatscape that the development is exempt development.
The tiered structure of Div 1 of Pt 4 of the EPAA makes it clear that exempt development does not require development consent under any circumstances (s 76(2) and (3)). Section 76A(1)(a) must be read together with s 76(2) and (3). That is to say, the council must first demonstrate that the development is not of a class that does not require consent, which must, by necessity, require proving that it is not exempt development. Only if the development is not exempt development, does the next step of considering whether development consent is needed for the activity under s 76A arise. These sections form a complete factual regime which must be established before a person or entity obtains a right to, or incurs a liability for, the carrying out of development.
This analysis is consistent with the text of cls 3.1 and 5.10(3) of the GLEP. Both clauses plainly state that if the development is exempt development then no consent is required. This is so irrespective of the fact that the development is in a heritage conservation area (cl 5.10(2)).
That the development is exempt development must therefore be negatived by the council beyond reasonable doubt. It is not an exception in the sense referred to above in the authorities.

[24]

Under the Exempt and Complying Development SEPP

Under the Exempt and Complying Development SEPP, cl 1.15 provides that "development that is specified in an exempt development code that meets the standards specified…is exempt development".
Heatscape submitted orally that the following exempt development codes were relevant: 1. cl 2.50A(b) in Subdiv 25A concerning the "Maintenance of buildings in draft heritage conservation areas"; 2. cl 2.51 in Subdiv 26 concerning "Minor building alterations (internal)"; and 3. cl 2.53 in Subdiv 27 concerning "Minor building alterations (external)".
Clause 2.50A(b) cannot be relied upon by Heatscape because, first, the building was not in a draft heritage conservation area but was, for the reasons given above, located in a heritage conservation area. Second, the replacement window, as the photographs demonstrate beyond any doubt and as Heatscape itself admits, was a new window that did not "(a) reproduce the existing materials, finish and design of the building so as not to alter its appearance" and did "(c) not comprise the making of, or an alteration to the size of, any opening in a wall…such as a…window". This is because, as Mr Stimson stated in evidence, the replacement window was larger in size (T24:16-17) and did not resemble the "traditional style" (T24:05) of sash window that was removed, and the window was fixed (T151.46) (Mr Charman also gave evidence that the original window was a "sash window" T69:09).
Heatscape contended that the development constituted exempt development pursuant to cl 2.51(b), by reason of the deteriorated window frame (T264:20-21). Notwithstanding that the window that was removed and replaced was clearly on the outside wall of the premises, Heatscape made the following oral submission (T119:4-23): DUPREE: …now, immediately the attractive argument is that it's on the outside of the wall therefore it must be external. That is attractive and beguiling. Because it has a component as to its internality. It has a component - that's the inside component … HER HONOUR: What do you mean by that specifically, please? DUPREE: There are two sides of the window. Which side of the window do they prosecute? There's the internal side and there's the external side if they be said as-- HER HONOUR: Let's assume they're prosecuting the external side for present purposes. DUPREE: And your Honour has hit the real nail on the head. It's not open to the Court to make that assumption. It's open to the council to make that case.
Leaving aside the absurdity of the exchange quoted above, and irrespective of the fact that there was general agreement that the window frame had deteriorated (T271:43-48; Mr Charman had also given evidence to this effect: T69:10), the development cannot be classified as an internal alteration. It was always an external window. Thus, on the fourth day of the appeal, the following statement was made by Heatscape (T266:24-34): HER HONOUR: What more do they raise that is in addition to, above and beyond, supplementary to the photos before the magistrate? DUPREE: I don't think it raises anything in the context of what your Honour has just asked me. HER HONOUR: Because again, going back to the test DUPREE: It's quite clearly a window, an external - and it's a glazing.
This latter statement was plainly correct. The window was not, as the evidence of Mr Stimson and the photographs demonstrate, an internal window and neither was the deteriorated frame an internal window frame.
Finally, Heatscape cannot rely upon cl 2.53(b) of Pt 2 of the Exempt and Complying Development SEPP because the replacement of an external window was, for the reasons given above, "constructed or installed on or…in a heritage conservation area" (see the definition of "heritage conservation area" in cl 1.5 of the Exempt and Complying Development SEPP, which in turn picks up the definition of that term in the GLEP).
Accordingly, I find beyond reasonable doubt that the development was not exempt development under s 76 of the EPAA either pursuant to the GLEP or the Exempt and Complying Development SEPP.

[26]

Sentencing Principles

A basic principle of sentencing law is that the sentence imposed for an offence must reflect, and be proportionate to, the objective circumstances of the offence and the personal or subjective circumstances of the offender (Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 490 and Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 472).
The instinctive synthesis method is the correct method of sentencing. The Court identifies all the factors relevant to the sentence and weighs their significance to arrive at an appropriate sentence (Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [26] and [29] and Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [35]-[39], [50]-[84] and [136]-[139]).
Section 3A of the Crimes (Sentencing Procedure) Act 1999 ("the CSPA") sets out the purposes of sentencing an offender: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
In addition, s 21A of the CSPA identifies the matters that the Court must take into account when determining the appropriate sentence, including factors in aggravation under s 21A(2), and factors in mitigation under s 21A(3).
The prosecutor carries the onus of proving beyond reasonable doubt any aggravating factors for the purpose of sentencing (Gore v The Queen [2010] NSWCCA 330 at [27] and [105] and R v Wickham [2004] NSWCCA 193 at [26]). For mitigating factors, the onus of proof lies upon Heatscape on the balance of probabilities (Wickham at [26] and R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]).
In determining an appropriate sentence, the Court considers the objective and subjective circumstances of the offence in the context of the relevant legislative framework (Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 and Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 at [42]). In this regard the Court has had regard to the objects of the EPAA as set out in s 5 of that Act.
The legislative scheme enshrined in the EPAA requires that the integrity of the system of planning is not subverted, irrespective of any actual environmental harm occasioned by a given offence (Pittwater Council v Scahill [2009] NSWLEC 12; (2009) 165 LGERA 289 at [46] and Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189 at [104]-[105].

[31]

Heatscape's State of Mind in Committing the Offence

The offence is one of strict liability which means that mens rea is not an element of the offence. However, the state of mind of an offender at the time of committing an offence is a relevant consideration when imposing a sentence.
A strict liability offence that is committed intentionally, negligently or recklessly will be objectively more serious than one committed accidentally (Director-General, Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [42]-[43] and Gittany at [123]).
Heatscape made two submissions as to its state of mind. First, that the council officers had made representations to Heatscape that all the council was concerned about was the street facing façade of the building and that Heatscape was free to undertake works on the side of the premises facing the lane without development consent. Heatscape sought to establish this fact based on the oral evidence given by Mr Charman, and the letter dated 11 June 2012, where the representation made by Mr Mahoney to Mr Charman was repeated. Second, Heatscape submitted that it had carried out the work in reliance on legal advice given to it that no consent was required.
As the evidence establishes, Mr Charman was employed by Heatscape to paint the premises. However, there was no evidence that Mr Charman had any involvement with the work the subject of the charge. The oral evidence of Mr Charman was that Mr Mahoney had said that he was not concerned about the side of the building. But the overwhelming inference to be drawn from the evidence is that the representation amounted to no more than permission to continue painting (T68:35-69:22), and not that Heatscape was permitted to undertake any unidentified future work, such as replacing the sash window. It was not a "nod and a wink", as suggested by Heatscape (T150:125), to carry out any works in the laneway absent development consent. On Heatscape's logic, the entire external side wall could have been demolished by it without the need for development consent.
Although the letter dated 11 June 2012 was relied upon in support of Heatscape's understanding of the conversation between Mr Mahoney and Mr Charman, I place almost no weight on it for this purpose because, although admitted into evidence without objection, it is based on a second-hand hearsay representation, it is unsigned, and none of the "many witnesses" (other than Mr Charman) have been named or gave evidence corroborating the interpretation ascribed by Heatscape to the representation referred to therein.
The letter of 11 June 2012 is also not cogent evidence that Heatscape was provided with legal advice prior to the commission of the offence which it relied upon to its detriment. The letter does no more than express a post facto opinion that consent was not required. The provider of the so-called legal advice was not, for instance, identified.
Nonetheless, the council's assertion that the commission of the offence was deliberate has not been demonstrated to the requisite standard on the evidence before the Court. Rather, the preponderance of the evidence suggests that Heatscape either did not turn its mind to whether the replacement of the window required development consent or believed that none was required. Importantly, it does not reveal that Heatscape knew that development consent was required but proceeded anyway without it in replacing the window.
Nor is the evidence sufficient to demonstrate either recklessness or negligence on the part of Heatscape.
In other words, the state of mind of Heatscape at the time of the commission of the offence is unknown and cannot act to augment the objective seriousness of the offence.

[40]

Evenhandedness

A relevant consideration in sentencing is the ascertainment of the existence of a general pattern of sentencing by the Court for offences such as the offence in question (Gittany at [179]-[182] and Rae at [69]). The proper approach is for the Court to look at whether the sentence is within the range appropriate to the gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence that merely forms part of that range (Gittany at [182]). Of course, care must be taken because each case is different and a sentence in one case does not demonstrate the limits of a sentencing judge's discretion, given the wide divergence of facts and circumstances leading to the imposition of specific penalties (Axer at 365; Cabonne Shire Council at 312 and Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [54]).
In determining the appropriate sentence, I have considered a number of cases where a building or structure, being either a heritage item or located within a heritage conservation area, has been altered or demolished without, or contrary to, development consent (see Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132, City of Sydney v Schwartz [2003] NSWLEC 261, Carlino v Leichhardt Municipal Council [2005] NSWLEC 198; (2005) 144 LGERA 235, Ku-Ring-Gai Council v Vinci [2007] NSWLEC 283, Woollahra Municipal Council v JPS Development & Construction Pty Limited [2007] NSWLEC 595, Willoughby City Council v BCPD Pty Ltd [2010] NSWLEC 163, Liverpool City Council v Leppington Pastoral Co Pty Ltd [2010] NSWLEC 170, Willoughby City Council v Finlay (No 2) [2010] NSWLEC 233, Council of the City of Sydney v Trico Constructions Pty Ltd [2015] NSWLEC 56, Cowra Shire Council v Fuller [2015] NSWLEC 13, Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79, and Council of the City of Sydney v Adams [2015] NSWLEC 206).
In almost all of these cases, however, the harm to the environment was much greater than that caused by the commission of the offence in the present case.
Heatscape submitted that the more apt comparison was to the fines levied in respect of PINs. I disagree. Upon the election by Heatscape to challenge the proceedings in court, the PIN, and its stipulated fine, cease to be of relevance.

[42]

Whether an Order Under ss 10 or 10A of the CSPA Ought to be Made

Heatscape submitted that an order under either ss 10 or 10A of the CSPA should be made.
Sections 10 and 10A of the CSPA state: 10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. … (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. 10A Conviction with no other penalty (1) A court that convicts an offender may dispose of the proceedings without imposing any other penalty…
The mandatory factors to which the Court must have regard, set out in s 10(3), are not exhaustive (R v Paris [2001] NSWCCA 83 at [42]) and are disjunctive in their operation (Paris at [42]).
An order under s 10 can apply to offences that are not considered trivial in nature (R v Piccin (No 2) [2001] NSWCCA 323 at [25]; Chin v Ryde City Council [2004] NSWCCA 167; (2004) 133 LGERA 312 at [38] and Terrey at [114]). An order under s 10 (or its former statutory incarnation, s 556A of the Crimes Act 1900) is usually "rare" in the case of environmental offences, including offences concerning a breach of planning laws (Hunter Water Board v State Rail Authority of New South Wales (No 2) (1992) 75 LGRA 22 at 23; Environment Protection Authority v Attard [2000] NSWCCA 242 at [5]; Thorneloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60 at [165]-[167]; Menai Excavations at [35]; Newcastle City Council v Pace Farm Egg Products Pty Ltd (No 3) [2005] NSWLEC 423 at [24]; Holroyd City Council v El-Khouri [2008] NSWLEC 83 at [34] and Terrey at [109]).
Having said this, the environmental and planning nature of the offence is no bar to the application of s 10 of the CSPA (El-Khouri at [34]; Gerondal at [47]-[51] and Parramatta City Council v Cheng [2010] NSWLEC 94 at [41]-[45]).
Nevertheless, the circumstances in which a s 10 order is appropriate are considered to be limited where the environmental offence is one of strict liability (Blue Mountains City Council v Carlon [2008] NSWLEC 296 at [70]-[71] and Terrey at [110]).
But again, the fact that the offence in question is an offence of strict liability similarly does not preclude an order being made under the provision (Filipowski v Fratelli D'Amato Srl [2000] NSWLEC 50; (2000) 108 LGERA 88 at [139]; Thorneloe at [171]; Filipowski v Hemina Holdings SA; Filipowski v Rajagopalan (No 2) [2009] NSWLEC 104 at [149]-[153] and Lavorato v The Queen [2012] NSWCCA 61; (2012) 82 NSWLR 568 at [126]).
I am of the opinion that it would not be appropriate to exercise my discretion under ss 10 or 10A of the CSPA in favour of Heatscape.
Militating against the minor nature of the offence are the following factors: 1. it was wholly within Heatscape's control to prevent the offence from occurring. This is not a case where there was nothing further that Heatscape could have done to avoid the occurrence of the offence. Had Heatscape obtained development consent, or at the very least enquired as to whether consent was needed, the commission of the offence could easily have been avoided; 2. although Heatscape submitted that it committed the offence due to a mistake as to the law based on the representation by Mr Mahoney to Mr Charman (in Environment Protection Authority v Fletcher [2001] NSWLEC 104; (2001) 114 LGERA 187, Sheahan J raised the possibility that, where the mistaken view of the law was induced by an official this may be a mitigating factor in determining an appropriate penalty), for the reasons disclosed above, I do not consider that the representation by Mr Mahoney to Mr Charman was to the effect that the window could be replaced without the need for development consent; and 3. Heatscape has made no expression of remorse or contrition for the commitment of the offence.

[44]

Costs in the Local Court

Section 215 of the CPA empowered the court below to order, upon its conviction, Heatscape to pay the council's just and reasonable professional costs. That provision states as follows: 215 When professional costs may be awarded to prosecutor (1) A court may at the end of summary proceedings order that the accused person pay the following costs to the registrar of the court, for payment to the prosecutor, if the accused person is convicted or an order is made against the accused person: (a) such professional costs as the court considers just and reasonable (b) (Repealed) (1A) The court may not order the accused person to pay professional costs referred to in subsection (1) (a) if the conviction or order concerned relates to an offence: (a) for which a penalty notice, within the meaning of section 20 of the Fines Act 1996, has been issued, and (b) in respect of which the person has elected to have the matter dealt with by a court, and (c) in respect of which the person has lodged a written plea of guilty, in accordance with section 182, not later than 7 days before the date on which the person is required to first attend before the court. (1B) Subsection (1A) does not apply in relation to proceedings for an offence against the Work Health and Safety Act 2011 or the regulations under that Act. (2) (Repealed) (3) The order must specify the amount of costs payable. (4) For the purposes of this section, an accused person is taken to have been convicted if an order is made under Division 4 of Part 3 of theChildren (Criminal Proceedings) Act 1987 or under section 10 of the Crimes (Sentencing Procedure) Act 1999. The order for costs may be in the order under the relevant section. (5) This section applies to all summary proceedings, including orders made in proceedings conducted in the absence of the accused person.
In the court below, by agreement between the parties, no evidence was tendered on the issue of costs, rather the matter proceeded with the parties handing up written submissions. Heatscape's principal submission appeared to be directed to the question of apportionment, given that it had enjoyed success on the issue of the duplicity of the CAN.
Heatscape also asked the court below to take into consideration the absence of any fee agreement between counsel for the council and the firm of solicitors representing it. Similarly, Heatscape complained about a lack of a fee note from the solicitors for the council justifying a claim of $11,000 for legal fees. Ultimately, however, Heatscape went on to state that (T16:12-14): So to summarise what I've been saying is that I don't argue and argue against the quantum because there just doesn't seem to be material available to me to do so.
In other words, Heatscape appeared to accept, subject to the specific matters it had brought to the lower court's attention, the quantum of the costs sought by the council.
There is nothing to indicate that McCosker LCM did not take these matters into account. The court below heard competing submissions as to costs and determined that Heatscape should pay the council's costs in the sum of $24,000 on a party-party basis. This was approximately $7,000 less than the amount of costs sought by the council.
This Court may, pursuant to s 49(2) of the Appeal and Review Act exercise any function that the Local Court could have exercised in the original proceedings below, including ordering costs. Accordingly, before this Court, Heatscape argued that even if it lost its appeal, the Court ought nevertheless revisit the costs order made below. This was on the basis that, first, there was no (or at the very least insufficient) evidence to warrant the conclusion that an award of costs was just and reasonable. And second, because Mr Mahoney was a "third party payer" pursuant to s 302A of the Legal Profession Act 2004 ("the LPA"), and therefore, Heatscape had, in any event, a right to have the costs awarded against it assessed rather than payable in a fixed sum.
Heatscape's submissions in respect of the award of costs made against it in the Local Court appears to misconceive the nature of the discretion to be exercised. A determination that an award of costs is just and reasonable is not dependant upon the sufficiency of any evidence as to the quantum of costs sought. The court can examine the conduct of the parties during the proceedings, the relative success of the parties and any other relevant circumstances. McCosker LCM considered Heatscape's submissions as to the strength of the evidence on the quantum of costs, the manner in which the proceedings were conducted, and the successes or otherwise of various interlocutory applications by the parties, in making his order.
Having regard to the submissions of the parties in this Court, the transcript in the court below, and the statement by Heatscape that it did not seek to "argue against quantum", I have arrived at the same conclusion that McCosker LCM did. In other words, it is just and reasonable that Heatscape pay the council's costs of the proceedings in the Local Court in the sum of $24,000.
Further, I do not understand how s 302A of the LPA assists Heatscape. The definition of a "third party payer" appears neither apposite nor applicable to Mr Mahoney. But even if I am wrong in reaching this conclusion, Heatscape's submission ignores the edict contained in s 215(3) of the CPA that any order for costs "must specify the amount of costs payable". The argument by Heatscape that the LGA overrides the CPA to this extent is not supported by any reasonable construction of either Act.